Legal Update : Prioritizing Religious Freedom: An Ideologically Reconstituted Supreme Court Reverses Itself on Religious Freedom the Midst of a Pandemic . . . Page 15 Schooled in Ethics : Helping a Colleague who is Struggling with Substance Abuse and Mental Health Issues . . . Page 19
A Monthly Publication of the Knoxville Bar Association | May 2021
EDICTA PRAETORIS: EXECUTIVE ORDERS AND THE FORCE OF LAW
KNOXVILLE BAR ASSOCIATION
Memorial Service Friday, May 14, 2021 at 12 noon
We gather, not for the purpose of grieving, but rather to celebrate the careers of, and to honor, applaud, and express our gratitude to, those members of the Knoxville Bar who passed away in the last 15 months. The Memorial Service will be presented on Zoom, and joining KBA President Cheryl Rice in the reflection and celebration of the lives of these individuals will be Justice Sharon G. Lee and Rev. Charles Fels.
William "Bill" Crabtree
Darryl G. Lowe
Robert Louis Crossley, Jr.
David Vance Martin
John Harley Fowler
Daniel Fisher McGehee
Claude Leon Franks
W. Clark Meredith
Hon. Herschel Franks
James E. O'Connor III
Emily Arline Winchester Guyton
Mark Robert Orr
Philip J. Lawson
Hon. Pamela Reeves
Harold M. Wimberly, Jr.
Matthew B. Long T o r e g iRs St eVrP, cBlYi cCk LoI C n KMI N a yG 1M4A iYn 1t4h e e v e n t c a l e n d a r a t wAwTwW . kWn W o x. K b aNrO. oX rBgA. RY. oOuR Gw.i l l r e c e i v e a n email with a Zoom link on the morning of the Memorial Service.
In This Issue
Officers of the Knoxville Bar Association
COVER STORY 16
Edicta Praetoris: Executive Orders and the Force of Law
CRITICAL FOCUS 5 President Cheryl G. Rice
President Elect Jason H. Long
Treasurer Loretta G. Cravens
Secretary Catherine E. Shuck
Immediate Past President Hanson R. Tipton
KBA Board of Governors Sherri DeCosta Alley Mark A. Castleberry Meagan Collver Jonathan D. Cooper
Daniel L. Ellis Elizabeth B. Ford Rachel P. Hurt Allison Jackson Eric M. Lutton
Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Carlos A. Yunsan
The Knoxville Bar Association Staff
Time to Celebrate
Federal Removal and One Underutilized Method for Disputing Jurisdiction
Worker Classification- Is your worker a bona fide independent contractor?
Prioritizing Religious Freedom: An Ideologically Reconstituted Supreme Court Reverses Itself on Religious Freedom the Midst of a Pandemic
Helping a Colleague Who Is Struggling with Substance Abuse and Mental Health Issues
Planning for the Day Your Practice Ends
The Court, COVID, and the New Judicial Frontier
7 11 15
19 23 26
Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Elisabeth Martin Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
Rebecca Eshbaugh LRIS Assistant
Dicta DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho
Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Eddy Smith Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. May 2021
Management Counsel Legal Update
Schooled in Ethics
Building for the Future: Advice on Succession Planning Around the Bar
Hello My Name Is
Creating Inclusive Environments
Profile: Hon. Jerome Melson
A Dedication to Public Defense During the Pandemic
Justice Denied: The Forgotten Tennessee Trials that Changed America
Deciding Which Toys To Keep
The Silver Lining--Literally
Microsoft Office App for the iPad: The Missing Link?
WHERE’S THE (GROUND) BEEF? Hint: Not at Wendy’s
Passing on COVID Passports
8 9 10 12 18
Volume 49, Issue 5
21 24 25 27 29 31
What I Learned About Inclusion and Why It Matters Judicial News
Stories of COVID-19 & Beyond Well Read
Legal Mythbreakers Boat Builders
Bill & Phil Gadget of the Month Barrister Bites
Your Monthly Constitutional Long Winded
Tell Me A Story
COMMON GROUND 4 20 22 22 28 30
Section Notices/Event Calendar Barrister Bullets Change of Addresses Welcome New Members Bench & Bar in the News Pro Bono Project
SECTION NOTICES & EVENT CALENDAR
Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. Join the Bankruptcy Law Section for the upcoming CLE program “What you need to know about the CFPB’s new final rules implementing the FDCPA” on May 20. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) or David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics and provides the opportunity to discuss issues relevant to family law practice. Join the Family Law Section for the upcoming CLE program “Supervised Visitation Options in Knox County” on May 11. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2019 will automatically be opted-in to the section. KBA New Lawyers Section members are invited to a social hour at Bearden Beer Market (4524 Old Kingston Pike, Knoxville, TN) on April 29 from 5-7 p.m. Don’t miss this opportunity to get to know each other, build networks, and create a support system with other new lawyers in East Tennessee. Attendees will be offered drink tickets courtesy of the event sponsor, Brown Professional Insurers! If you would like to get involved in planning Section activities, please contact Section Chairs Campbell Cox (330-2577) or Mary Newton (224-6591). Senior Section The KBA Senior Section generally meets quarterly for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).
event calendar May
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Law Office Tech Committee Circuit Court Bench Bar CLE Family Law Section CLE Professionalism Committee Access to Justice Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Judicial Committee Memorial Service CLE Committee Board of Governors Bankruptcy Section CLE Barristers Social
June 1 8 9 9 9 10 16
Law Office Tech Committee Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Judicial Committee Board of Governors
Don’t Miss the Circuit Court Bench Bar CLE on May 7
Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. May 2021
PRESIDENT’S MESSAGE By: Cheryl G. Rice Egerton, McAfee, Armistead & Davis, P.C.
TIME TO CELEBRATE In May the beauty of spring is fully upon us as the days lengthen and the temperatures rise. When I think of May, my first thought is of Mother’s Day, which has always been a special time to recognize my mom and other women in my family with cards, flowers, and gettogethers. As a young child, I enjoyed celebrating May Day in school and could hardly wait for Field Day, always held in May, with its contests, games, and carnival-like atmosphere. As I grew older, May marked the peak of spring fever as my friends and I anticipated the end of another school year and the start of summer vacation. Graduation ceremonies are typically held in May, and with them all the parties and other surrounding events celebrating individual accomplishments and goals achieved and anticipating next steps in the journey of life. While we often think of a celebration as a party, Merriam Webster tells us that to celebrate is to perform a sacrament or solemn ceremony publicly and with appropriate rites, festivities, or other deviations from routine. Implicit in this definition is the idea that celebration is an active state, an act of expressing reverence or appreciation. Within the bar, May brings Law Day, a national day set aside to celebrate the rule of law, held annually on May 1. We in the KBA have historically celebrated Law Day by joining together as a community over lunch, celebrating the efforts and accomplishments of the KBA Barristers, recognizing the winning team members of the local high school mock trial competition, and hearing from a special speaker on a relevant topic. On Law Day, the KBA also honors one member of the local community with the prestigious Law and Liberty Award, given yearly by the Barristers to recognize a community leader who strives to maintain good relationships between the legal profession and the community, works to advance the understanding of the law and legal processes in the non-legal community, sets an example of good citizenship and volunteerism, and expresses concern for the safeguard of American liberties. Law Day is always a celebratory time of fellowship with colleagues and friends in the profession outside of our daily professional routines. This year the KBA will celebrate Law Day on Friday, April 30th, with a virtual CLE program centered on this year’s national theme, “Advancing the Rule of Law, Now.” University of Tennessee College of Law Professor Penny White will facilitate an impressive panel featuring Hon. Alberto Gonzales, America’s 80th Attorney General and current May 2021
Dean of Belmont Law; Hon. Steven Sword, Judge in Knox County Criminal Court Div. I; Andre Johnson, Esq. of the Knox Co. Public Defender’s Community Law Office; and Phyllis Y. Nichols, President and CEO of the Knoxville Area Urban League. This group will consider the rule of law, its history and its future in our society, and how to promote the advancement of this important concept. While we lawyers “celebrate” Law Day, it serves to remind us of the special role we have in society as lawyers and our responsibility to help others understand how law and the legal process protect our liberty, achieve justice, and contribute to the freedoms that all Americans share. The time is certainly right to celebrate Law Day. May also brings Memorial Day, which for many is first and foremost a chance to enjoy a long weekend grilling out and spending time at the pool or the lake and celebrating the unofficial beginning of summer. But for all of us, Memorial Day also presents an opportunity to honor those men and women who have died while serving in the U.S. military. The KBA holds its spring Memorial Service in May. As you may know, the KBA holds a memorial service each year to honor those members of the legal community who have recently passed away. Traditionally, we join together for this event in the Tennessee Supreme Court Courtroom, but the KBA’s Memorial Service is not your typical gathering of individuals in mourning. Rather than focusing on the loss of our colleagues and the professional accolades and accomplishments of those lawyers who have recently crossed over, the KBA’s Memorial Service celebrates each of the lawyers being remembered as individuals by sharing their personalities, their interests, and their stories through the eyes of colleagues who knew them as people, not just as lawyers. This year, as we continue to work through the coronavirus pandemic, our Memorial Service will be broadcast over Zoom during the noon hour on May 14, 2021. I invite you to join us on May 14th as we celebrate the lives of some truly remarkable individuals who have helped make up the unique tapestry that is Knoxville’s legal community. May brings all of the above and more to each of us in 2021, but this May I’m most looking forward to Law Day and the KBA Memorial Service. The importance of the rule of law to society and lawyers’ lives well lived--what better things could any group of lawyers hope to honor? I hope you’ll make time to celebrate this May with the KBA.
HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan
CHUCK SHARRETT Chuck Sharrett is this month’s featured attorney in “Hello, My Name Is…” As one of the most active young lawyers in the KBA, Chuck may be a familiar face to you. Although he graduated from the University of Tennessee College of Law just three years ago, he is currently the District 3 Representative for the TBA Young Lawyers Division, the Co-Chair of the Knoxville Barristers Hunger and Poverty Relief Committee, and the Member-at-Large for the Knoxville Barristers. Chuck is an Associate Attorney at London Amburn, P.C., where he specializes in healthcare litigation defense and regulatory healthcare law. I hope you enjoy getting to know Chuck. Where are you from? I grew up in Wadsworth, Illinois, about 45 minutes northwest of Chicago. Why did you decide to go to law school? I wanted a better life for myself and my future children than what I had growing up. I also wanted to be able to help my family when situations came up that they would not normally know how to handle. I’m proud
to say I’ve already been able to give back to them a multitude of times. What do you enjoy most about your job? Getting to help people when they are going through a stressful time in their lives is the most enjoyable aspect of my work. No one calls a lawyer (in litigation) when they are having a good day, so I try to take some of that stress off of their shoulders. Tell me about your spouse. My wife is a labor and delivery nurse at a hospital here in Knoxville. She loves her job and gets to help people when they are experiencing one of the best moments of their lives. What is most significant piece of advice you have ever received? Teamwork makes the dream work, and teamwork only succeeds with honest communication. What is the best concert you have ever attended? Whitechapel at the old Valarium before it closed. On a typical Saturday afternoon, where are you and what are you doing? Likely fly fishing for trout, either in the Smokies or in one of the Tennessee tailwaters. If it’s too hot for trout, I’ll be at the lake on the beach. If you could go back in time, what would you tell your younger self ? Don’t stress so much. Life tends to work itself out if you just keep a positive mindset and keep working towards your goals.
PRACTICE TIPS By: Hayden Short Lewis Thomason, P.C.
FEDERAL REMOVAL AND ONE UNDERUTILIZED METHOD FOR DISPUTING JURISDICTION I. Federal Removal Generally Most practicing lawyers have likely encountered removal to federal court—and any lawyer that passed the bar learned all about it in civil procedure and in a bar prep course. The basis for federal removal is found in 28 U.S.C. § 1441, and it provides that when an action that is brought in state court and a federal court would have original subject matter jurisdiction over it, a defendant may remove the action to the appropriate federal district court where the action was filed.1 Basically, if a federal court would have jurisdiction over a suit filed or pending in State court, then it may be removed to federal court. Of course, there are situations where federal removal is not allowed even where there may be federal jurisdiction.2 But where a Federal District Court would have jurisdiction over a matter, it will generally be removeable. To remove a case to Federal court, a party must first file a proper notice of removal with the district court for the district and division that the action is pending in, along with a copy of all process, pleadings, and orders served upon the defendant or defendants removing the action.3 This must happen within 30 days after the defendant received, through service or otherwise, a copy of the initial pleading and summons.4 Then, promptly after filing the notice of removal in the District Court, a party must serve a copy of the notice on all adverse parties and must file a copy of the notice with the clerk of the State court where the action was pending.5 Within 30 days of the filing of the notice of removal, any party opposing the removal may move the District Court to remand the case for lack of subject matter jurisdiction.6 Post-removal stipulation is a lesser known method for challenging removal jurisdiction that can be useful if a complaint is not clear as to the amount of damages. II. Post-Removal Stipulation Post-removal stipulation essentially involves a party stipulating to the District Court where a matter is removed to that all the damages the party is seeking will not exceed the jurisdictional minimum for damages ($75,000.00, as of the date of this article). This is not a postremoval amendment of the complaint; rather, “various jurisdictions have found that post-removal stipulation that damages will not exceed the jurisdictional minimum can be considered as a clarification of an ambiguous complaint, rather than a post-removal amendment of the plaintiff ’s complaint.”7 So, as one can see, this cannot be used to amend a complaint to seek less damages—it can just be used to clarify the damages sought where a complaint is not clear. Multiple courts have held that post-removal stipulations may be used in this way,8 even the Federal District Court for the Eastern District of Tennessee and the Sixth Circuit Court of Appeals.9 In Roberts v. A&S Bldg. Sys., L.P., the plaintiff originally filed suit in State court in Campbell County, Tennessee, and the defendant removed May 2021
the action based on federal question jurisdiction and diversity jurisdiction to the Federal District Court for the Eastern District of Tennessee.10 The plaintiff, then, moved to remand the case on the grounds that there was no federal question and that the amount in controversy was not met to satisfy diversity jurisdiction—but the motion was initially denied.11 However, the plaintiff renewed the motion and stipulated that damages would not exceed $75,000.00 in her supporting memorandum, resulting in the Court remanding the case.12 Only the stipulation and remand for lack of diversity jurisdiction will be discussed here. According to the Eastern District of Tennessee, “[b]ecause the amount in controversy must exceed $75,000.00 for th[e] court to have diversity jurisdiction, it therefore follows that a stipulation post-removal requires th[e] court to remand under § 1447(c).”13 “This is so even where . . . defendants initially met their burden of demonstrating removal was proper because the amount in controversy exceeded $75,000.00.”14 And “[t]his is true even if plaintiff potentially could recover in excess of $75,000, because plaintiff has effectively stated that she will not seek in excess of $75,000 for any damages alleged.”15 Thus, because the plaintiff “stipulated that she will not seek above $75,000 for the totality of her damages, not simply compensatory damages as originally pled,” the Court found that the amount in controversy was not met and the case had to be remanded to State court.16 Ultimately, post-removal stipulation is a useful, and likely underutilized, method for disputing subject matter jurisdiction when a case is removed to federal court. And it is evident that the Federal District Court in our region has allowed it. Although it cannot be used to reduce the damages sought, post-removal stipulation can clarify damages where they are unclear and show that the amount in controversy requirement has not been met for diversity jurisdiction. 3 4 5 6 7 1 2
12 13 14 10 11
14 U.S.C. § 1441(a). See 28 U.S.C. §§ 1441(b)(2) & 1445. 28 U.S.C. § 1446(a). 28 U.S.C. § 1446(b)(1). 28 U.S.C. § 1446(d). 28 U.S.C. § 1447(c). Thrift v. Ford Motor Credit Co., 2006 U.S. Dist. LEXIS 20838, at *2–3 (D.S.C. 2008) (collecting cases). Id.; Gwyn v. Wal-Mart Stores, 955 F. Supp. 44, 46–47 (M.D.N.C. 1996); Cole v. Great Atlantic & Pacific Tea Co., 728 F. Supp. 1305, 1309–1310 (E.D.Ky. 1990). Shupe v. Asplundh Tree Expert Co., 566 Fed. App’x. 476 (6th Cir. 2014); Roberts v. A & S Bldg. Sys., 2008 U.S. Dist. LEXIS 6309, at *7–8 (E.D. Tenn. 2008). Roberts, 2008 U.S. Dist. LEXIS 6309, at *2–3. Id. Id. at *2–3, *12–13. Id. at *7. Id. at *7–8 (citing Powerex Corp. v. Reliant Energy Servs., 127 S.Ct. 2411, 2417 (2007). Id. at *7. Id. at *8.
W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Johnelle Simpson II J.D. Candidate, University of Tennessee College of Law ’21
CREATING INCLUSIVE ENVIRONMENTS My personal experiences have fueled my passion and commitment to diversity and inclusion. Being the only or one of the only black people in a classroom, boardroom, or office has afforded me many opportunities to think about diversity and inclusion. Diversity is important because it gives us an opportunity to be challenged and to experience different perspectives. A demonstrated commitment to diversity and inclusion in law school prepares law students for practice. As Student Bar Association President, I have collaborated with faculty, staff, and students to create an inclusive environment that is welcoming to individuals from all walks of life. One of the simplest ways this has been accomplished is by creating spaces for conversation and storytelling. Often, we have faulty assumptions of others because we haven’t had the opportunity to engage in conversation with those who are different from us. We do a good job of this in the legal profession when we take the time to get to know our clients and make them feel valued. It is important that we also create environments where everyone in our organization feels empowered to share their story, experiences, and ideas. Following the death of George Floyd, we partnered with our Black Law Student Association chapter on a movie series that allowed our law school community to have critical conversations on race and the law. This movie series brought together students, faculty, and staff from all backgrounds to discuss important issues within our law school community and the legal profession. This programming sparked a
conversation on how the law school can be more supportive of diverse students and the roles everyone can play in making our environment welcoming. Opportunities for thoughtful and engaging dialogue challenges our thinking, broadens our perspectives, and invites differing point of views. Representation matters. The more diversity we have within the profession the more diverse people we will have considering the profession as a possibility. Representation has been important to me as an aspiring attorney. Having attorneys with my shared experiences whether it be race, education, or geography has been influential. We can create inclusive environments by welcoming diverse individuals and creating spaces where everyone can thrive and be their true authentic selves. The onus is not just on diverse individuals to do the work and have the critical conversations. It is a collaborative effort that requires everyone from the managing partner to the administrative assistant. Failing to focus on the inclusion aspect can prevent our organizations from benefitting from the value diversity has to offer. Working to make your organization more diverse and inclusive can be a daunting task. Conversations around these topics can be challenging but they are important if we want to move this profession forward. I have been most successful in environments where my differences were valued and appreciated. We will never agree on everything, and quite frankly we shouldn’t. However, we can all agree that we do our best where we feel like we belong and matter.
JUDICIAL NEWS By: Don Bosch The Bosch Law Firm, P.C.
JUDICIAL PROFILE: HON. JEROME MELSON Congressman, he was lucky to complete high school.
Judge E. Jerome Melson was sworn in by Governor Bill Lee as a Circuit Court Judge for Knox County, Tennessee on January 14, 2021. He replaced the Honorable Kristi Davis, who was elevated to the Tennessee Court of Appeals last year. I had the privilege of sitting down with Judge Melson recently, having known Jerome all of my legal career (we were barely 20 somethings as we entered the UT College of Law together in August 1985). He has had quite the colorful journey, and this next chapter will likely add to that. The path to his appointment as a Circuit Court Judge was met with many other career temptations.
A historian. Judge Melson sailed through his undergraduate education at the University of Tennessee, with highest honors, in the College Scholars Program. His focus was largely in history, with a special interest in 20th century politics and World War II. His interest in history has carried on to this day, as he is currently the outgoing president of the East Tennessee Historical Society.
A dentist. Judge Melson was born in Madisonville, Tennessee, the third child in his family, the little brother to two older sisters. Both his mother and father were hard-working blue-collar folks from the hills of Monroe County, a fact of which Judge Melson is very proud and which has had great influence on his life. His mother, aspiring for greatness for her only son, urged young Jerome to pursue a career as a dentist. Fortunately, his self-proclaimed lack of dexterity with a pocket knife ended this career path. An actor. While attending elementary school, Judge Melson was presented with a stereotypical “what should I be when I grow up“ test. With its rigorous scientific and psychological methodology, the test yielded the result of. . . an actor. This career suggestion nearly took root. Aside from his love of old Western films, Judge Melson has acted in a production of To Kill A Mockingbird at the Clarence Brown Theater and even earned several hours towards his Actor’s Equity card.
A lawyer. Upon graduation from the UT College of Law, and before bar results had even been released, Judge Melson had already lined up his first job. His hometown reached out and immediately offered him the position of City Attorney for Madisonville, Tennessee. Despite the natural trepidation that comes with fear of failing the bar exam, he accepted. To no one’s surprise, he passed (he did graduate with high honors) and his legal career was off to a great start. He went on to achieve certification as a Civil Trial Advocate by the National Board of Trial Advocacy. He also currently a Master of the Bench in the Hamilton S. Burnett Chapter of The American Inns of Court and has been an adjunct professor at the University of Tennessee College of Law. The last 18 years of his private practice were with Gentry, Tipton & McLemore, P.C. where he focused on various litigation matters involving government, personal injury, and civil rights. Over the last several years, I have had the pleasure of working with Judge Melson, representing law-enforcement officers in administrative and civil proceedings. The expertise, calmness, and sometimes necessary sense of humor that Judge Melson has demonstrated throughout his practice will serve as the foundation for great success as a jurist.
A politician. While Judge Melson has not been known to be as politically active as some other area lawyers, that was not always the case. After catching the eye of Congressman John Duncan, Sr. at a town hall event, he may have been the youngest employee of a Congressman in America, having been offered the job at age 14 and accepting it by his 16th birthday. He worked for the Congressman in a Constituent Services role from high school through his graduation from law school. Judge Melson says, with as much school as he missed to spend days in Washington, DC with the May 2021
STORIES OF COVID-19 AND BEYOND By: Eric Lutton Knox County Public Defender’s Community Law Office
THE ART OF PROGRESS IN THE AGE OF COVID Being a Public Defender has always been challenging and stressful. Even in good times, Assistant Public Defenders deal with oppressive caseloads. Being understaffed and overworked unfortunately seems to come with the job. Further, the nature of the work means that we are often representing people in some of the worst moments of their lives. Many of our clients at the Knox County Public Defender’s Community Law Office (CLO) have lived lives filled with poverty, trauma, and turmoil. At the CLO we practice what we call Holistic Representation. This means that we don’t just deal with the underlying charge, but instead seek to connect and understand our client as a whole person in order to put them in a better position than they were before. This could mean assistance with housing, mental health issues, addiction issues, employment, etc. Practicing this way means that Assistant Public Defenders at the CLO dig deeply into a client’s background in order to try to address their needs so that the client is less likely to be arrested in the future and more likely to make positive changes in their lives. I feel strongly that this is the way that Public Defender Offices should operate, but it does mean that CLO attorneys experience significant levels of secondary trauma from learning and helping to address some of the horrible things that our clients have experienced and continue to experience. Of course, an already difficult profession became much more so in March of last year. When COVID hit, I had to make several modifications to the way that the CLO operates. We transitioned to remote work for both attorneys and support staff on a rotating schedule to keep the office open and operating, but sparsely populated. We conducted what meetings we could remotely and structured scheduling for attorney/client meetings that had to occur in-person so that our lobby would allow for appropriate social distancing. However, the safety measures that we were able to take had to be offset by the fact that the Sessions and Criminal Courts remained open and operating throughout the pandemic. Due to the fact that all of the clients at the CLO are, by definition, indigent, many do not have cell phones, computers, or an internet connection. This meant that CLO attorneys were still meeting clients in the office, in Court, and at the Jail. From March of 2020 to March of 2021, CLO attorneys and social workers conducted roughly 4,500 inperson jail visits with clients in order to keep the Criminal Justice System operating as required by Supreme Court Orders and to protect the Constitutional rights of our clients. Even though the Court as a whole has seen a backlog of cases, CLO attorneys successfully closed more cases between March of 2020 and March of 2021 than we had been appointed. This is a testament to the hard work, selflessness, and dedication of the staff at the CLO to represent the interests of our clients in incredibly challenging circumstances. In short, CLO attorneys and staff have been on the front lines in order to protect the rights and interests of our
clients. Knox County has long been known for having a congenial and professional bar. This has been evident and critical during COVID. Over the last year we have been subject to several different iterations of Orders from the Knox County judiciary as well as the Tennessee Supreme Court. This meant that we have had to redesign how the Courts operate on a sometimes monthly basis. In order to facilitate these changes, the stakeholders ( Judges, D.A., Sheriff, Clerk, myself, and a representative from the private bar) have conducted regular meetings where we worked through the logistical challenges to keep the Courts operating. As part of this, we were able to begin to address some of the issues surrounding mass incarceration and jail overcrowding. When the pandemic began, the three jails in Knox County regularly had an inmate population of nearly 1,500 individuals. By releasing significantly more non-dangerous pretrial individuals, we have successfully reduced our jail population to fewer than 850 people. While we at the CLO have been committed to representing our clients in less than ideal circumstances, I fear that some negative changes implemented during the pandemic may continue to be implemented post-pandemic. In order to increase the video capabilities of the Court system during the pandemic, $1.5 million has been approved to build a video-conferencing facility at the jail. There are also discussions being had regarding amending Rule 43 of the Tennessee Rules of Criminal Procedure to allow greater use of video Court, potentially over a defendant’s objection. We at the CLO, and other members of the defense bar, are vehemently opposed to continued use of video Court post-pandemic. The reality is that an attorney simply cannot be as effective of an advocate for their incarcerated client when the attorney cannot meaningfully communicate with them in real time. Further, the use of video for the sake of convenience will serve to further dehumanize incarcerated individuals. A good relationship with a client is critical for effective representation. Public Defenders often start at a disadvantage with their clients due to the fact that the client did not have a choice in who their attorney is, as well as the stigma surrounding Public Defenders. For CLO attorneys, building this relationship often begins at an arraignment. It is not unusual for significant communication to occur between the client, attorney, and the client’s friends and family even during this relatively simple hearing. While the Court proceeding may be short, the communication that occurs prior to and after the hearing is essential to building that relationship. While most of us have grown accustomed to video meetings and remote Court, most everyone recognizes that it is not the same as meeting in-person. When the pandemic is over, we should not allow one set of access to the Courts for those with money and a different set of access for those who are too poor to post a bond.
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Marshall Stair Lewis Thomason, P.C.
WORKER CLASSIFICATION– IS YOUR WORKER A BONA FIDE INDEPENDENT CONTRACTOR? WHICH TEST AGAIN? I am convinced if COVID hadn’t dominated our lives for the past year plus, the biggest issue in employment law in 2020 and 2021 would be worker classification. Like most things interesting and controversial, it started in California, which passed a law that took effect in January of 2020. The law, known as Assembly Bill 5, codified the ABC Test in California Supreme Court’s Dynamex.
opportunity for profit or loss based on initiative and/or investment. Skills, degree of permanence, and whether work is part of integrated unit of production are factors that may serve as “additional guideposts” in determining classification. BUT, I don’t want to dwell on this test, because the Biden Administration STOPPED it on March 11, 2021, stating “case law does not support the test”.3
Under the ABC test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions: • The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; • The worker performs work that is outside the usual course of the hiring entity’s business; and • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.1
Tennessee has jumped into the worker classification revision mix too. Effective January 1, 2020, Tennessee adopted a 20-factor test.4 We may have a conservative legislature, but it is not conservative with its factors! To be fair to our friends in Nashville, they did not create the factors but simply adopted the IRS -20 factor test, which arguably makes it easier to classify a worker as an independent contractor. And if a 20-factor test is not confusing enough, the test does not apply to all Tennessee employment laws! For example, the test does not apply to workers’ compensation, which still uses the seven-factor test found in Tenn. Code Ann. § 50-6-102 (12)(D)(i). So just applying Tennessee employment laws, a worker could be an employee under one test, but an independent contractor in another.
The ABC test makes it significantly more difficult to classify many workers as independent contractors. The second requirement, sometimes called the “Killer B”, that the worker perform work outside the usual course of the hiring entity’s business, has caused many companies difficulty as they regularly hire independent contractors to perform essential aspects of the business, think television content development, gig economy workers, drivers of all sorts, etc. To keep the story short, there has been LOTS of pushback from business leaders and exceptions carved out for different industries. On January 6, 2021, the Trump Administration’s US Department of Labor announced a final rule reaffirming the “economic reality” test in classifying workers for the FLSA, perhaps as an attempt to preempt the adoption of the ABC Test.2 The proposed change identified two “core factors” that are most probative as to a worker’s classification: (1) the nature and degree of control over the work and (2) the worker’s
Rather than really provide detailed analysis on any of these tests, the point of this article is that there are several worker classification tests for different state and federal employment laws, and they are evolving rapidly. Because the modern trend in our country is to use employment laws to shape our society (think employer healthcare mandate, livable wage push, paid family leave proposals, etc.), classifying workers as independent contractors will continue to be financially advantageous, forcing courts, agencies, and legislatures to adopt and change worker classification tests to make it harder (or easier) to avoid the additional costs of employees. Whether you are running a business or advising another employer, it will be challenging to guarantee 100% accurate classification, at least until the perfect multi-factor test is created.
3 4 1 2
https://www.dir.ca.gov/dlse/FAQ_IndependentContractor.htm https://www.dol.gov/agencies/whd/flsa/2021-independent-contractor https://www.dol.gov/newsroom/releases/whd/whd20210311 Tenn. Code Ann. § 50-2-111
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646. May 2021
WELL READ By: Sarah M. Booher OEB Law PLLC
JUSTICE DENIED: THE FORGOTTEN TENNESSEE TRIALS THAT CHANGED AMERICA Let’s go ahead and get it out there: This book painful to read. Written in 1999 by legal affairs newspaper writer Mark Curriden and prominent Chattanooga trial attorney Leroy Phillips, Jr., Contempt of Court: The Turn-of-the Century Lynching that Launched a Hundred Years of Federalism is a devastating book that needed to be written. Curriden and Phillips, most likely without exaggeration, saved State of Tennessee v. Ed Johnson and U.S. v. Shipp from legal and historical obscurity. Whether you are interested from a local, social justice, or jurist perspective, this book should be required reading for every law student in America. 1 But don’t expect it to be pleasant. The book begins on March 17, 1906, with Noah Walter Parden climbing the 95 marble steps up to the U.S. Capitol to do something that no Black man had never been done before – argue a case before a United States Supreme Court Justice. It is as beautiful and poignant as it is agonizing. You sweat along with Parden. You sit with him in the lobby. You wait for his name to be called. You are there when he walks into the Supreme Court Conference Room. And you are there when he finds himself standing before Justice John Marshall Harlan, “the Great Dissenter.” There was no better Justice to hear the arguments meant to spare the life of a Chattanooga man by the name of Ed Johnson. According to the authors, he was a “friend to the poor, the underprivileged, and the people of color in our society.” But he also wasn’t around to retry cases from lower courts. “Was the defendant denied some constitutional right?” he demanded. Parden was ready. He had one chance to “shoot his shot,” as the kids say these days, and he seized it. He left nothing on the table. Accused of raping a white woman named Nevada Taylor at the trolley station at the base of Lookout Mountain, Ed Johnson was convicted in a farce of a trial. There were obvious violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments. Specifically, two of his three courtappointed lawyers had never done criminal work before. They had less than a week to properly research and prepare their case. Johnson was denied the right to be tried by a jury of his peers, since not a single person in the jury pool was Black. The trial should have been moved to another jurisdiction because a lynch mob had already tried to get Johnson once. The Judge had to lie to calm the masses, saying he was being kept in Knoxville until his trial ( Johnson was, in fact, in a jail in Nashville). 2 Yes, Parden’s primary goal was to free an obviously innocent man from unjustified execution, but he knew his argument had greater ramifications. He was asking Harlan and his fellow justices to “directly intervene in a state-court criminal trial for the first time in the nation’s history.” He also was asking the Supreme Court to make the Sixth Amendment right to a fair trial binding on state courts. His miraculous path to Justice Harlan was by way of Knoxville, literally and figuratively. The original trial judge bamboozled Parden and his law partner, denying their motion to appeal. The Tennessee Supreme
Court denied the request for a new trial, stating they had been unable to find any serious errors in the record. So Parden took a train to Knoxville where he filed a writ of habeas corpus in federal court. Federal Judge Clark agreed there were probably serious flaws in the case but ruled there was no incorporation of the Bill of Rights. All hope was not lost, however. He postponed the hanging by seven days to allow for an appeal to the Supreme Court. Justice Harlan read the Knoxville transcript. He became convinced that Johnson’s case raised serious constitutional issues and managed to convince his peers of the same. By the time Parden arrived back in Chattanooga, a telegram from Harlan was waiting for him: “Have allowed appeal to accused in habeas corpus case of Ed Johnson.” The people of Chattanooga were incensed. For sixteen pages, we are with Ed Johnson as he sees the lynch mob approaching the jail. We are with him as he cries and recites Psalm 23. We are with him for the three hours it takes the mob to get to him inside the jail. We are with him as they bind him, drag him to the Walnut Street Bridge, and hang him. And we are with him when they pull him back up, riddle him with bullets, and pin a note to body. “To Justice Harlan. Come and get your n***** now.” Harlan came for the people of Chattanooga instead, in the form of United States v. Shipp, the criminal contempt of court trial of Chattanooga’s sheriff and eight of his deputies. It was the first and only case of its kind in the Court’s history. The Justice Department tried the matter over the next three years between Chattanooga and D.C. It made an impact; it saved lives. The number of lynchings dropped over the next ten years. The number of attempted lynchings prevented by local law enforcement increased significantly. Further, legal experts believe this case is why we have respect for the law today. “It is the clearest example of the Supreme Court preserving its place in history and the integrity of the law.” Perhaps the most pervasive reason we do not fully appreciate or know more about the Johnson and Shipp cases is that, while justice was ultimate served, it was not satisfying. It was too little, too late. Legal experts believe Johnson’s case was prime fodder for the Supreme Court to re-evaluate their entire concept of due process under the U.S. Constitution. Instead, the federal issues of ineffective assistance of counsel, a defendant’s right to a fair and impartial trial, the right to appeal a conviction, and community jury pools would not be resolved for another fifty years. Locally, nothing was going to bring Johnson back from the dead and Nevada Taylor would be dead by twenty-three, having never recovered from the traumatic events. The convicted sheriff and deputies (two were acquitted) served only 60-90 days in penal luxury, and received a heroes’ welcome upon their return to Chattanooga. Parden and Hutchins never returned to Chattanooga, since the threat of lynching was too great.
Indeed, arguably the greatest justice for Ed Johnson came in the writing of this book. It is obvious that this book is act of love for its authors. Curriden and Phillips clearly respected the story. Carefully researched, they painstakingly placed the cases within their proper social and legal context. Most significantly, it’s clear they have high regard and awe for the multiple heroes of the story and they want to ensure they are given the true credit they deserve. From Parden and his law partner, Styles Hutchins, to Harlan and Lewis Shepherd - the white Chattanooga attorney who was in the case from the initial trial, to local ministers Reverend Thomas McCallie and Dr. Howard Jones who preached for peace from the pulpit and on the street, one cannot fully appreciate how each of these men put their lives and their careers on the line to do what they felt in their hearts to be right, even when their fight seemed impossible. If you’re ever struggling with remembering why you became a lawyer, this book will surely remind you. On February 25, 2000, the authors and District Attorney Bill Cox went before Hamilton County Criminal Court Judge Doug Meyer to clear Johnson’s name. Judge Meyer set aside the conviction and the charges against Ed Johnson were dismissed. Cox said, “I have no doubt that the criminal justice system in place at that time failed Mr. Johnson and failed us all. This is the right thing to do.”
For other fantastic social justice reads, I would enthusiastically recommend Hellhound on His Trail: The Stalking of Martin Luther King, Jr. and the International Hunt for His Assassin by Hampton Sides and Race Against Time: A Reporter Reopens the Unsolved Murder Cases of the Civil Rights Era by Jerry Mitchell. Both are two of my all-time favorite books. He would actually be held in Knoxville during his appeals process. He experienced a religious conversion while in the Knoxville jail, and his last wish was to attend a church service before his execution. Terry Sanford, lead prosecutor in the Shipp case, is buried in Knoxville.
In the Bench and Bar:
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L E G A L U P DAT E By: Mohamed Akram Faizer Professor of Law Lincoln Memorial University Law School
PRIORITIZING RELIGIOUS FREEDOM: AN IDEOLOGICALLY RECONSTITUTED SUPREME COURT REVERSES ITSELF ON RELIGIOUS FREEDOM THE MIDST OF A PANDEMIC In Roman Catholic Diocese of Brooklyn v. Cuomo,1 the Supreme Court issued injunctive relief to applicant-appellants, Roman Catholic Diocese of Brooklyn and Agudath Israel of America (“applicants”), who challenged New York Governor Cuomo’s Executive Order imposing attendance limitations on public gathering places, including houses of worship, due to COVID-19. The decision, which effectively reverses two previous denials of injunctive relief stemming from similar, if less severe, gubernatorial executive orders from California and Nevada, in South Bay United Pentecostal Church v. Newsom2 and Calvary Chapel Dayton Valley v. Sisolak,3 respectively, points to an expansion of First Amendment Free Exercise rights due to Justice Barrett’s replacement of Justice Ginsburg. The differing perspectives in Cuomo stem from disagreement as to whether a subsequent gubernatorial amendment had mooted the Executive Order and whether the measure discriminated against or favored houses of worship. In Cuomo, applicants sought an injunction, pending appellate review, against New York’s occupancy limits at religious services in areas designated “red” (10 seats) and “orange” (25 seats). The per curiam4 majority, consisting of Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett, reversed the lower court and granted the injunction. According to the majority, applicants satisfied the high threshold for injunctive relief because they were able to show their First Amendment claims are likely to succeed, that denying them relief would lead to irreparable injury, and that granting them relief would not harm the public interest.5 The majority concluded applicants were likely to succeed on the merits because the order violated the minimum requirement of neutrality toward religion due to allegedly discriminatory statements made by Cuomo about high rates of COVID-19 among ultra-Orthodox Jews, as well as attendance restrictions that ostensibly singled out houses of worship.6 The discrimination, according to the majority, was evidenced by limits placed on synagogues and churches in red zones, while businesses categorized as “essential,” including acupuncture facilities, campgrounds, garages, chemical manufacturing plants and transport facilities, could admit as many customers as they wish.7 This discrimination was even more pronounced in zone orange, where attendance at houses of worship were limited to 25, while exempting non-essential businesses.8 Because the Court concluded New York discriminated against religion, New York had to show the restrictions satisfied jurisprudential strict scrutiny, i.e. that the restrictions were narrowly tailored to serve a compelling state interest.9 Conceding that minimizing COVID-19 transmission is a compelling interest, the Court concluded the restrictions were not narrowly tailored because they were more restrictive than those imposed by other states and more restrictive than necessary because New York could have safely tied attendance restrictions to seating capacity, which would have been far less restrictive of religion, e.g. Agudath Israel of Kew Gardens can seat up to 400, while 26 Diocese affected churches can seat
more than 500 people and 14 can seat over 1,000.10 With respect to the claimed irreparable harm, the Court concluded that denial of First Amendment freedoms, even if imposed for a limited time frame, constitutes irreparable injury.11 Here, because personal attendance is required for Orthodox Jews and Catholic communion, applicants demonstrated irreparable harm.12 Finally, the Court concluded that issuance of injunctive relief was not mooted by New York’s reclassification of the areas in question from orange to yellow.13 This is because applicants remain under constant threat that the area in question will be unilaterally reclassified by Cuomo to preclude religious service attendance before judicial relief can be obtained.14 Writing “[e]ven if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” Gorsuch filed a separate concurring opinion.15 Cautioning against the sacrifice of fundamental rights in the name of judicial modesty, Gorsuch writes that “there is no world in which the Constitution tolerates color-coded edicts that reopen liquor stores and bike shops but shutters churches, synagogues and mosques.”16 Kavanaugh, in turn, emphasized that the restrictions imposed by New York were more severe than those in other states, including California and Nevada, and noted that the Court’s orders are temporary and not final adjudications.17 The dissenters included Chief Justice Roberts, as well as the three liberals, Breyer, Kagan and Sotomayor. Roberts’ dissent argued the adversity between the parties had been mooted by the Governor’s decision to amend the attendance zone limitations and allow for religious services at up to 50% seating capacity.18 He thought it ill-advised to override determinations made by public health officials, but conceded that the red and orange attendance zone limitations were highly restrictive and, if left in place, most likely unconstitutional.19 Breyer and Sotomayor’s separate dissents focused on the “extraordinary remedy” that is an injunction and disputed the majority’s contention that the New York law discriminated against religion as compared to non-religion.20 They felt the Court should not have secondguessed New York’s public health measures and denied injunctive relief as it did in South Bay and Calvary Chapel.21 The liberal justices felt the Court should have deferred to the lower court finding that New York’s attendance zone restrictions were actually more lenient towards houses of worship compared with secular venues including movie theaters, spectator sports, public lectures, concerts or theatrical performances.22 These gathering places, unlike exempted essential businesses such as grocery stores, banks and laundromats, involve people congregating in large groups, and remaining in close proximity for extended periods.23 Finally, Sotomayor disputed the majority’s claim that Cuomo’s comments about combatting higher rates of COVID-19 among New York’s Orthodox Jews, evidenced hostility toward religion meriting application of strict continued on page 20
EDICTA PRAETORIS: EXECUTIVE ORDERS AND THE FORCE OF LAW Who is the most powerful person in the world? Since 2009, Forbes has released nine rankings showing the most powerful people in the world.1 The President of the United States always falls within the top three and has been ranked the most powerful person in the world three times.2 But what exactly does that mean? What power does the President have, and how does he exercise that power? For that matter, what power does any executive have, whether state or federal, and when is it exceeded? In light of recent presidential administrations and the COVID-19 pandemic, the executive order has again taken center stage and has brought along with it old and new questions concerning an executive’s power and authority.3 It all comes back to the trite and tricolonic expression we learned in grade school: the legislative branch of government makes the law, the executive branch enforces the law, and the judicial branch interprets the law. But if the executive branch does not make laws, then what are executive orders, which purport to have the force of law, and what is the legal basis to issue an executive order? What is an Executive Order? An executive order is “a written directive issued by a president, governor, or mayor to the employees of the executive and administrative branches or to the public, declaring an interpretation or an application of the law.”4 In other words, an executive order is a direction outlining how the law should be carried out by the executive branch of a government. Take, for example, the following language: “. . . all persons held as slaves … are, and henceforward shall be free; and that the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons . . . .”5 Though rarely recognized as such, the Emancipation Proclamation is actually one of the most famous presidential executive orders. By its terms, it outlines how the executive branch was to act when applying the law in the United States. Other famous and infamous executive orders throughout American history include the New Deal, the desegregation of the Armed Forces, and the Internment of Japanese Americans during World War II.6 So, knowing what an executive order is, what is the legal basis for such orders and when are they best used? Federal Executive Orders When you are one of the most powerful people in the world, there is no telling what problems will cross your desk in search of a solution. During his presidency, Woodrow Wilson was faced with the challenge of managing hunting in Panama. Superficially, hunting does not sound like a presidential problem, except that it had become exceedingly popular to do so. At night. With torches. President Wilson addressed this problem with an executive order making it a misdemeanor to hunt in Panama with a lantern, torch, bonfire, or other artificial light.7 Though this particular problem seems a bit remote to most of us, executive orders have become a regular resource for presidents solving all kinds of problems.8 According to Article II, Section I of the United States Constitution, the president must “take care that the laws are faithfully executed.”9 While this mandate is somewhat vague, the United States Supreme Court opinion in J.W. Hampton Jr. & Co. v. United States offers insight into the push-and-pull interplay between the president and Congress with respect to legislative power.10 In that case, President Coolidge issued a Proclamation raising the customs duty for imports two cents per pound above the statutory amount.11 His order was based upon a federal statute whereby Congress
granted power to the president to raise customs duties in certain cases.12 When an importer challenged the increase, the Supreme Court held that Congress had the implied constitutional power to delegate legislative power to the president, as long as “Congress shall lay down by legislative act an intelligible principle to which” the president can conform.13 This rule was later tested and confirmed in the famous and dramatized case of Youngstown Sheet & Tube Co. v. Sawyer, in which the Supreme Court held that President Truman’s executive order seizing the country’s steel mills was unconstitutional.14 The Court’s ruling understandably frustrated both Truman’s purpose and his person.15 (Rumor has it, however, that he patched up the slight with Justice Hugo Black over dinner and good bourbon.16) Justice Robert Jackson’s concurrence in Youngstown provides the opinion’s substantial analysis of executive orders by describing a threetiered taxonomy of executive power.17 Jackson’s first and third tiers are straightforward: the president’s authority is at a maximum when he acts with the express or implied authorization of Congress, and at its “lowest ebb” when he acts in direct conflict with congressional authority.18 The second tier, however, where there is neither “a congressional grant or denial of authority,” creates an uncertain “zone of twilight,” wherein the president’s acts may or may not be constitutional.19 Thus, to modify our grade school aphorism a bit, the president enforces the law enacted by Congress, but also mandates his own policies that have the force of law, so long as they conform to some principal implied within the laws passed by Congress, or at least do not run directly afoul of them. State Executive Orders The authority for executive orders in Tennessee similarly begins with the state constitution. In Tennessee, the courts and the Attorney General have stated that “the Office of Governor has no prerogative powers,” but “only those powers that are conferred upon it by the State Constitution.”20 The Tennessee Constitution provides for an “executive department,” which “shall be vested in a Governor,” who possesses the “Supreme Executive power” in Tennessee.21 In 1988, the attorney general stated that, while “Supreme Executive power” is not defined, it implies the power to “issue executive orders regarding, among other things, state administrative policies and the actions of executive branch officials, employees and agencies in carrying out their duties.”22 As of 1997, the Tennessee Supreme Court had not articulated its own “intelligible principle test” to determine when the General Assembly could constitutionally delegate its legislative authority to the governor and his administrative agencies.23 This changed in Bean v. McWherter, wherein the court held that “the test for determining whether a statute is an unlawful delegation is whether the statute contains sufficient standards or guidelines to enable both the agency and the courts to determine if the agency is carrying out the legislature’s intent.”24 The court also held that “[g]overning standards need not be expressed [by the General Assembly] provided such standards can be reasonably ascertained from the statutory scheme as a whole.”25 Using this test, the court held that, where the General Assembly had enacted Tenn. Code Ann. § 70–4–403(1), allowing the wildlife commission to change animal classifications, the delegation was constitutional because the statutory scheme was “clearly adequate” to allow both the courts and the Commission “to determine whether the legislature’s intent is being furthered.”26 Not every situation is quite so clear, however.
COVER STORY By: Stephanie D. Coleman Owings, Wilson & Coleman
3L, University of Tennessee College of Law
As it stands, very little case law in Tennessee deals with the constitutionality of executive orders.37 But, as President Truman stated to the American people in the events leading up to Youngstown: “These are not normal times. These are times of crisis.”38 The past year of crisis may again present courts with this generational question of executive power.
12 13 14 15 10 11
COVID-19 As COVID-19 reached Tennessee in March 2020, Governor Bill Lee began issuing a series of executive orders to deal with the pandemic.27 In the four months between March 12, 2020, and July 31, 2020, Governor Lee issued more executive orders (thirty-two) than the total number he had previously issued in his governorship, mostly to combat COVID-19.28 These executive orders cited Tenn. Code Ann. § 58–2–107 as their legal basis.29 Section 107 is a broad delegation of power to the governor, granting the “authority to assume control over all aspects of the State’s response to an emergency . . . .”30 And this is exactly what Governor Lee did, issuing orders to suspend certain statutes, close certain businesses, and limit the gathering of individuals.31 But in the ensuing months it became clear that the pandemic was here to stay, at least for a while. As Governor Lee issued further executive orders to either rescind or prolong his initial orders, some began to question Governor Lee’s authority to issue these orders at all. This discussion will likely continue for years to come.32 Due to the nature and extent of Governor Lee’s COVID-19 orders, it is possible that, in the future, courts will be forced to consider the constitutionality of these orders. For example, Executive Order No. 26 relaxed requirements for execution of wills.33 It is easy to anticipate a disinherited child challenging the validity of a will executed over Zoom. Courts may well be asked whether a statute as broadly drafted and applied as Tenn. Code Ann. § 58–2–107 could possibly provide a specific intelligible principal or reasonably ascertained governing standards by which to judge the constitutionality of the ensuing executive orders. Consider again, though, the Emancipation Proclamation. The constitutionality of that executive order remains in debate even today, however, the debate is merely academic thanks to the Thirteenth Amendment.34 The United States Congress exercised its own constitutional power to ratify the Proclamation and cut off the debate.35 Though the Tennessee General Assembly took no action regarding the Governor’s executive orders during their two special sessions in 2020, they now seems eager to weigh in on the executive orders issued during the last year.36 Perhaps the courts will turn to the actions and inactions of the legislature for perspective as they analyze COVID-19 executive orders. May 2021
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23 21 22
26 27 24 25
The World’s Most Powerful People, https://www.forbes.com/powerful-people/ list/#tab:overall (last visited Apr. 8, 2021). See Id. Tamara Keith, With 28 Executive Orders Signed, President Biden is Off to a Record Start, NPR (Feb. 3, 2021), https://www.npr.org/2021/02/03/963380189/with-28executive-orders-signed-president-biden-is-off-to-a-record-start. Executive Order, Bouvier Law Dictionary (2012). The Emancipation Proclamation, Nat’l Archives, https://www.archives.gov/exhibits/ featured-documents/emancipation-proclamation. Chris Desbarres, Executive Orders: The Famous, The Infamous & The Ridiculous, Mental Floss (Jan. 5, 2009), https://www.mentalfloss.com/article/20519/executiveorders-famous-infamous-ridiculous. Id. The American Presidency Project, https://www.presidency.ucsb.edu/statistics/data/ executive-orders (last visited Apr. 8, 2021). U.S. Const. art. II, § 3, cl. 4. See J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). See id. at 349. See id. at 402. Id. at 409. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Chris Desbarres, Executive Orders: The Famous, The Infamous & The Ridiculous, Mental Floss (Jan. 5, 2009), https://www.mentalfloss.com/article/20519/executiveorders-famous-infamous-ridiculous. Id. Joshua Waimberg, Youngstown Steel: The Supreme Court stands up to the President, Constitution Daily Blog (Nov. 16, 2015), https://constitutioncenter.org/ blog/youngstown-steel-the-supreme-court-stands-up-to-the-president. See Youngstown Sheet & Tube Co., 343 U.S. at 635–37. Id. at 637. Tenn. Op. Atty. Gen. No. 90-72 (July 18, 1990) (quoting Richardson v. Young, 122 Tenn. 471, 496, 125 S.W. 664, 669 (1910)). Tenn. Const. art. III, § 1. Tenn. Op. Atty. Gen. No. 88-69 (Mar. 25, 1988). See Bean v. McWherter, 953 S.W.2d 197, 199 (Tenn. 1997) (stating that the court “has not enunciated criteria for analyzing whether the legislature’s guidelines or standards are adequate to prevent arbitrary action”). Id. Id. Id. at 200. See Governor’s Executive Orders Nos. 14–29, https://sos.tn.gov/products/divisionpublications/executive-orders-governor-bill-lee (last visited Apr. 9, 2021). Id. See generally Governor’s Executive Order No. 14, https://publications.tnsosfiles. com/pub/execorders/exec-orders-lee14.pdf (last visited Apr. 9, 2021) (stating that “Section 58-2-107(e)(1), provides that during a state of emergency, the Governor is authorized to ‘[s]upend any law, order, rule or regulation . . . .”). See Tenn. Code Ann. § 58–2–107. See generally Governor’s Executive Orders Nos. 14, 17, 21, https://sos.tn.gov/ products/division-publications/executive-orders-governor-bill-lee (last visited Apr. 9, 2021). See Tenn. Op. Atty. Gen. No. 20-07 (Apr. 27, 2020). Governor’s Executive Order No. 26, https://publications.tnsosfiles.com/pub/ execorders/exec-orders-lee26.pdf (last visited Apr. 8, 2021). Henry L. Chambers, Lincoln, the Emancipation Proclamation and Executive Power, 73 Md. L. Rev. 100 (2013). Id. at 100. Senate Bill 474, 112th Tennessee General Assembly (2021). Senate Bill 1335, 112th Tennessee General Assembly (2021). Senate Bill 850, 112th Tennessee General Assembly (2021). See generally Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1997); Boyce v. Tenn. Peace Offier Stds. & Training Comm’n, 354 S.W.3d 737 (Tenn. Ct. App. 2011); Nunn v. Tenn. Dep’t of Corr., 547 S.W.3d 163 (Tenn. Ct. App. 2017). Steve Hendrix, Truman declared an emergency when he felt thwarted. Trump should know: It didn’t end well, Wash. Post, Jan. 11, 2019.
LEGAL MYTHBREAKERS By: David E. Long MGC Member
DECIDING WHICH TOYS TO KEEP Brad Fraser and I were recently discussing our spouses’ spring cleaning rituals and our secret plans to avoid the whole thing, which never works, but gives us some measure of hope and comfort. Spring cleaning is a cultural, even religious, tradition pretty much across any country of people who actually experience more than two seasons in any given year. The phenomenon of the usually “parent-driven” bursting out of doors with paint cans, rug beaters, and great intentions is a familiar experience for most of us “seasonally- well-rounded “ people. I certainly remember (with increasing fondness the older and further removed I am from it), my parents nominating every Saturday for a few spring weeks each year as “spring cleaning days.” Being the eldest, and depending on the general deplorability of the task at hand, I was the one who had to listen to the parental platitudes and “GeneralPatton-speech-to-the-troops” meant to arouse affection and devotion to the task at hand. Such arousing pronouncements were followed up with the obligatory “be an example to your younger brothers,” who by the way, made it a point of sibling honor to never listen to a thing I said anyway…. And so, with doors and windows flung open to welcome Spring breezes and sunshine in old one-story North Knoxville Victorian rental homes, with sheets on the line and parentally-enforced songs in our hearts, we sallied forth each year, cleaning the world, identifying the toys we kept or threw away, and generally making our stand to preserve freedom, clean living and avoiding the wrath of Mom.
Paying Court Costs in Settlements Sorry defendants, but to be blunt, if you settle, you are probably on board for paying the costs of the Clerk and Master or the Circuit Court Clerk. Look, I get it. After a healthy mediation battle, someone is going to say, “I’m not paying the whole mediator’s fee or court costs.” A litigator’s way of retorting “tis but a scratch” in true Monty Python style, no doubt. Well, I have nothing to say about the mediator’s fee, but the court costs? Well….
“The successful party in all civil actions is entitled to full costs unless otherwise directed by law or by a court of record, for which judgment shall be rendered.”
So now, and back to the theme, which legal “toys” should we keep or throw away? A couple of small “keepers” to consider keeping in the toy box:
Venue in Chancery Courts for unliquidated damage claims. Tenn. Code Ann. sec. 16-11-102 (“Jurisdiction of civil cases. Transfer to circuit court”) states: (a) The chancery court has concurrent jurisdiction, with the circuit court, of all civil causes of action, triable in circuit court, except for unliquidated damages to person or character, and except for unliquidated damages to property not resulting from a breach of oral or written contract, and no demurrer for want of jurisdiction of the cause of action, shall be sustained in the
Chancery court has concurrent jurisdiction with circuit court. Chancery can hear the same issues, including unliquidated damage claims, if no one objects. An older Tennessee Supreme Court case defines unliquidated damages quite adequately: “[s]trictly speaking, ‘unliquidated damages’ are such damages as have not been ascertained or fixed by contract.’” The problem with unliquidated damages, or general noneconomic damages, is it invites jury demands. Some Chancellors may love a good jury trial in their courts. My experience suggests most do not. So, keep this one in mind.
Tenn. Code Ann, sec. 20-12-101 (“recovery by successful party”) states:
But, I digress, along with writing long Faulknerian sentences, like the last one. Which, by the way, I will not change, simply because I like way it sounds. So, put your legal “red” pens away, poised ready to strike down those who defy the active voice. Some things sound better nuanced…or “sunshiny-breezy” shall we say?
chancery court, except in the cases excepted. (b) Any suit in the nature of the cases excepted in subsection (a) brought in the chancery court, where objection has not been taken by a plea to the jurisdiction, may be transferred to the circuit court of the county, or heard and determined by the chancery court upon the principles of a court of law.
The statute preserves the discretion of courts to rule otherwise, which is important in cases involving discretionary costs, etc. The “successful party” in settlements is the party that receives the settlement. Having identified the successful party in a settlement situation, the case law interpreting the statute is varied and there are exceptions, as well as discretion on the part of the court. Moreover, the parties can decide otherwise as part of the settlement agreement. There may be other arguments to make, depending on your particular case. My observation, however, is “good luck” in arguing your defendant does not owe “court costs” absent another agreement, when the defendant settles the case. Well, I’ve cleaned my toy box. Now, on to the next task. Happy Spring cleaning. Go out now with purpose and joy. Be an example to your legal siblings. Why do I suddenly feel like singing a “Mary Poppins” song?
SCHOOLED IN ETHICS By: Paula Schaefer Associate Dean for Academic Affairs & Professor of Law University of Tennessee College of Law
HELPING A COLLEAGUE WHO IS STRUGGLING WITH SUBSTANCE ABUSE AND MENTAL HEALTH ISSUES Ohio attorney Patrick Cusma was concerned even before he called Paul Kelley’s office. No one answered, but the following message—recorded by Kelley’s girlfriend—greeted all callers. This is on behalf of Attorney Paul Kelley. He is no longer able to take on any new cases or continue with any cases that he currently has due to health reasons. He is immediately out of commission and any cases that are currently active will need to be reassigned to a new lawyer. If you have a current active case, please contact the county bar association in which your case resides. If it is Stark County, the phone number is 330-453-0685, and if not, then please contact the prosecutor’s office to get new counsel.1 Cusma had called because he was worried about Kelley. Cusma had recently confronted Kelley, suspecting he had a substance abuse problem. And then he heard rumors that Kelley was in trouble, so he decided to check on him again. It had been Kelley’s idea to have his girlfriend leave the message on his office voicemail. Emergency medical personnel had taken Kelley to a local hospital for a psychiatric evaluation. From there, Kelley was transferred to an in-patient treatment facility after acknowledging suicidal thoughts and abuse of cocaine and Adderall.2 Asking his girlfriend to leave the outgoing message on his office voicemail was all Kelley managed to do for the fifteen clients he was representing. He did not contact any of the clients or make any arrangements for them. He missed at least one hearing. After hearing the outgoing message, Cusma left a message offering to help. Kelley’s girlfriend provided Cusma with Kelley’s clients’ files. Cusma and other members of the local bar divided the clients and handled the matters at no charge to the clients.3 *** The Kelley case provides a powerful example of how a lawyer can help when he or she sees another lawyer struggling. The part of the story that is most striking, of course, is that Cusma helped Kelley’s clients. When Kelley couldn’t do anything himself, Cusma stepped in, organized a group of attorneys, and represented Kelley’s clients. But the other actions Cusma took were just as important—and are steps we can all take when we see another lawyer struggling with drugs, alcohol, or mental health issues. First, Cusma talked to Kelley about his concerns. He was worried that Kelley was abusing drugs, and he said something about it. He took the time to show Kelley that he cared about his wellbeing. Second, he was persistent. When he heard rumors that Kelley was in trouble, Cusma reached out to him again. Cusma’s persistence is the reason he was there in the moment that Kelley was admitted for treatment and unable to serve his own clients. While the help Cusma provided was extraordinary, there are other forms of aid lawyers can provide when we see a fellow attorney in trouble. The Tennessee Lawyers Assistance Program (TLAP) provides resources for attorneys who want to help another attorney address substance abuse
and mental health concerns. The home page of the TLAP website includes a link titled “make a referral.” By clicking on that link, an attorney can provide information about a colleague who needs help and may even remain anonymous. A referring attorney can also request someone from TLAP to call to discuss the referred attorney.4 The “for attorneys” link on the TLAP homepage explains the various confidential services that TLAP can provide for attorneys dealing with substance abuse and other issues.5 Another avenue to help can be a disciplinary referral. Tennessee RPC 8.3 requires attorneys to inform the Board of Professional Responsibility if they are aware that another attorney has violated a professional conduct rule that raises a substantial question about the lawyer’s fitness as a lawyer. A duty to report would be triggered, for example, by knowledge that another attorney—including opposing counsel—is providing less than competent and diligent representation to clients. While lawyers are sometimes hesitant to report another attorney to the bar, such a report can be a lifeline for a lawyer in trouble. Even when disciplinary charges arise from such a report, lawyers are often helped in the process. That was the case for Paul Kelley. Though he faced discipline for violating professional conduct rules requiring diligence (1.3), communication with a client (1.4), compliance with standards for withdrawing from a representation (1.16), confidentiality (1.6), and protecting client property (1.15), he also got help in the process. Recovery for Kelley was a multi-year endeavor, with some bumps along the way. He participated in both inpatient and outpatient treatment. And he entered a three-year contract with the Ohio Lawyers’ Assistance Program (OLAP), which required Kelley to attend outpatient treatment, twelve-step meetings, and submit to random drug screenings. Kelley was suspended for two years, but that suspension was stayed in its entirety as long as he complied with conditions designed to preserve his sobriety—including compliance with this OLAP contract.6 Similarly, in Tennessee, a TLAP monitoring agreement may be voluntary or it may be required as part of the disposition of a disciplinary matter.7 The Ohio Supreme Court concluded its opinion by noting the changes Kelley has made in his life. Kelley has shown that he is committed to his sobriety and mental health by entering the OLAP contract. He has hired two paralegals to help in his practice. And he has started paying back Cusma and the other attorneys who helped him while he was in treatment. Cusma testified that Kelley started making payments months before the disciplinary proceeding. The court also noted that Kelley’s abandonment of his clients was short-lived, “thanks to the quick action of Cusma and his colleagues in the Stark County Bar Association.”8
Stark Cty. Bar Ass’n v. Kelley, --- N.E.3d ----, 2021 WL 966941, *1 (Ohio March 16, 2021). 2 Id. 3 Id. 4 www.tlap.org/forms/referral 5 www.tlap.org/attorneys 6 Kelley, 2021 WL 966941, *2-3. 7 www.tlap.org/attorneys 8 Kelley, 2021 WL 966941, *3. 1
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. May 2021
L E G A L U P D A T E , continued scrutiny.24 She noted that the Court declined to apply heightened scrutiny to President Trump’s Proclamation limiting entry to the U.S. from mostly majority-Muslim countries, “even though [Trump] had described the Proclamation as a Muslim Ban, originally conceived of as a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”25 The key factor explaining Cuomo was Barrett replacing Ginsburg on the Court. Ginsburg voted with the majority in denying injunctive relief in South Bay and Calvary Chapel because her jurisprudence tended to subordinate the Free Exercise Clause claims to concerns about maintaining religious neutrality under the Establishment Clause. Barrett, by contrast, is far more solicitous of religion. Cuomo, in short, foretells a Court that looks more favorably upon Free Exercise Claims. The challenge going forward will be to accommodate religious freedom without either undermining the Establishment Clause or debilitating government. 141 S. Ct. 63 (2020). 590 U.S. ___ , 140 S. Ct. 1613 (2020) 3 591 U.S. __, 140 S. Ct. 2603 (2020) 4 A per curiam opinion is an unsigned opinion by the Justices who agree to join it. 5 Id. at 66. 6 Id. 7 Id. 8 Id. at 67. 9 Id. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. at 70 16 Id. at pp. 70, 72. 17 Id.. at pp. 72-73. 18 Id. at 75. 19 Id. at 75. 20 Id. at 76-77. 21 Id. at pp. 78-79. 22 Id. at pp. 76, 79. 23 Id. 24 Id. at 80. 25 Id. at 80 quoting from Trump v. Hawaii, 585 U.S. ___ (2018) (internal quotations omitted). 1 2
barrister bullets SPRING BARRISTERS GATHERING AT BARRELHOUSE BY GYPSY CIRCUS The KBA Barristers Membership Committee will host a spring gathering at Barrelhouse by Gypsy Circus (621 Lamar Street) on Thursday, May 20th, from 5:30 p.m. to 7:30 p.m. Keep an eye out for KBA promotions with more details. BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. Networking will begin at 5:00 p.m., and committee reports will begin at 5:15 p.m. To attend, register for the meeting at www.knoxbar.org and a link will be sent to you on the day of the meeting. VOLUNTEER BREAKFAST COMMITTEE SEEKS 2021 SPONSORS The Volunteer Breakfast Committee will continue to prepare and deliver breakfast to the Volunteer Ministry Center on the fourth Thursday of the month. The Barristers Volunteer Breakfast Committee continues to accept sponsors for breakfasts in 2021. Sponsorship is $150 and it provides a hearty meal to the most vulnerable members of our community. We offer our heartfelt thanks to all our sponsors and volunteers. Please contact Matt Knable (firstname.lastname@example.org) or Mitchell Panter (mpanter@ lewisthomason.com) with questions or to sign up. VOLUNTEER FOR THE VIRTUAL VETERANS LEGAL ADVICE CLINIC The Veterans Legal Advice Clinic is a general advice and referral clinic which will serve between 20 and 30 veterans in the community each month with a wide variety of legal issues. Volunteers are needed between 12:00pm and 2:00pm on the 2nd Wednesday of every month. The next VIRTUAL clinic is expected to occur on May 12. Watch for updates as to the format of this clinic on the KBA website. Sign up to help at www.knoxbar.org/ volunteer, and contact Access to Justice Committee Co-Chairs Spencer Fair (email@example.com) or Luke Ihnen ( ihnen@londonamburn. com) with questions.
B O AT B U I L D E R S By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
THE SILVER LINING--LITERALLY In 1932, $100 bills were hard to come by. The United States was four years into the Great Depression. Unemployment was at 24%, and within a year, unemployment would reach its peak at 25.6%.1 The average annual income in the 1930’s was $1,368.00.2 It was also a transition year. Much of the middle part of the United States was in the middle of the Dust Bowl, displacing 2.5 million people from Texas, New Mexico, Colorado, Nebraska, Kansas, and Oklahoma and sending Black Blizzards as far as New York City and Washington D.C.3 Democrat Franklin D. Roosevelt defeated Republican incumbent Herbert Hoover, upsetting seventy-two years of almost constant Republican presidencies (Democrats Grover Cleveland and Woodrow Wilson did manage to squeak in there for a bit).4 Nevertheless, 1932 was the year 23-year-old Herman borrowed $100 to acquire a warehouse in Nashville, Tennessee.5 Herman had been making about $23 a month selling bagged potato chips manufactured by Barrett Food Products in Atlanta.6 He travelled around Tennessee and Kentucky selling potato chips from the back of his Model A Ford, but he thought he could expand…in the middle of a Depression and a Dust Bowl.7 That is precisely what he did. He used that $100 to purchase Barrett’s warehouse and distributorship in Nashville, and by 1933, he was able to hire his first salesperson.8 Within three years, he had 25 employees, and he was able to move into a larger location.9 It was a smart move—right across the street from the Belmont Boulevard Esso gas station.10 That gas station was owned by Ed and Bernice Johnson.11 Ed and Bernice did not have much. They owned a gas station at the southwest corner of Belmont Boulevard and Portland Avenue, across the street from Belmont University.12 But, they had big hearts. During the Depression, cash was scarce. But, when the U.S. entered World War II, gas became even more scarce due to government-mandated rations. That was a problem for Herman because he needed gas to deliver the potato chips as sales were starting to climb. Ed and Bernice came to the rescue. They did what few would, letting him buy gas for the delivery trucks on credit.13 He paid when he could. It was their generosity that kept Herman and his small company from going under. In 1947, after fifteen years in business, Herman and his company had survived the Great Depression, the Dust Bowl, and World War II. He had the opportunity to buy Barrett Food Products in Atlanta for $40,000.00.14 Herman didn’t have $40,000.00. So, Ed and Bernice invested their entire life savings, $8,000.00, to buy stock.15 Bernice “cried for more than a day . . . . this was their life savings, and she was not a risk-taker.”16 But, the risk paid off. In less than a decade, the company went public with more than $11,000,000.00 in annual sales.17 According to the handy-dandy Internet inflation calculator, that is the equivalent of $106,365,955.85 today.18 When the company went public, Herman’s potato chips were selling for between 5 and 9 cents a bag.19 That is a lot of potato chips. Five years later, in 1961, the H.W. Lay Distribution Co. merged with Frito Co. in Dallas, Texas, and five years after that, Pepsi-Cola Co. bought Frito Lay.20 When Bernice Johnson died in 1998, she was able to leave more than eighteen million dollars to Belmont University.21 In 1634, John Milton wrote a poem called Comus.22 It tells the story of three young people, lost in the woods, who come upon a god named Comus. I won’t ruin it for you, but after some musings the Lady asks, “Was I deceived, or did a sable cloud turn forth her silver lining on the night?” And, since it is poetry, the Lady answers her own question, “I did not err: there does a sable cloud turn forth her silver lining on the night, and casts a gleam over this tufted grove.”23 This couplet is generally considered the origin of the idiom, “Every cloud has a silver lining.”24 You might say that the story of Herman Lay and Ed and Bernice Johnson is a silver lining story—borrowing $100 in the middle of a depression to start a company selling potato chips for pennies a bag and taking a risk on a young entrepreneur to help him expand that company May 2021
during a gas shortage. You would be correct—more correct that you know. The reason Lay’s potato chips became so successful was not because of the potato chip, although I dare you to find another snack as simple, light, and delicious. No, Lay’s potato chips became so popular because of the silver lining in the bag. When Herman first got into the business, the chips were fried and placed in paper bags. They didn’t stay crisp for long, and although my research hasn’t been able to confirm this, I have to believe the grease spots on the bags weren’t that appetizing. But, after some progress with wax paper linings, Lay found out that glassine bags kept the chips crisp, could be vacuum packed, and (most important), could be printed with that iconic Lay’s logo.25 That means we can thank Herman for inventing branding as well. And so, a silver lining in a potato chip bag turned a $100 loan into a multi-billion dollar company. It enabled a kind-hearted couple to turn an $8,000 investment into an $18,000,000.00 bequest. But, it isn’t that simple. There were lots of people who did not start businesses during the Great Depression. There were lots of people whose businesses did not survive the Great Depression or the World War II gas shortages. But, Herman’s did. He saw the silver lining in the situation before he put the silver lining in the bag. Boat builders build boats. Writers write. Engineers design. Pilots fly. Lawyers represent client, and visionaries see silver linings even in a 5-cent bag of potato chips. “Betcha can’t eat just one.”®
Tevan Pettinger, Unemployment During the Great Depression (Apr. 1, 2020), https:// www.economicshelp.org/blog/162985/economics/unemployment-during-thegreat-depression, last visited Apr. 10, 2021. 2 Diane Petro, Brother, Can you Spare a Dime?, National Archives (Spring 2012, Vol. 44, No. 1), available at https://www.archives.gov/publications/prologue/2012/ spring/1940.html#:~:text=The%20average%20income%20was%20 %241%2C368,5.2%20percent%20in%20the%201920s. 3 History.com, Dust Bowl (Aug. 5, 2020), https://www.history.com/topics/greatdepression/dust-bowl, last visited Apr. 10, 2021. 4 Encyclopedia Britannica, United States Presidential Election of 1932, https://www. britannica.com/event/United-States-presidential-election-of-1932, last visited Apr. 10, 2021. 5 Funding Universe, Frito-Lay Company History, http://www.fundinguniverse.com/ company-histories/frito-lay-company-history, last visited Apr. 10, 2021. 6 Id. 7 Id. 8 Id. 9 Id. 10 Herman Lay & America’s Appetite for Junk Food, The Nashville Post, https://www. nashvillepost.com/home/article/20446310/herman-lay-and-americas-appetite-forjunk-food#:~:text=In%201932%2C%20a%20South%20Carolina,all%20over%20 Tennessee%20and%20Kentucky, last visited Apr. 10, 2021. 11 Id. 12 Paul Chenoweth, Belmont Receives $10 Million Donation from Johnson Estate, Belmont University (Jan. 28, 2008), available at https://news.belmont.edu/belmontreceives-10-million-donation-from-johnson-estate. 13 Id. 14 Nashville Post, supra n. 10. 15 Id.; see also Chenoweth, supra n. 12. 16 Nashville Post, supra n. 10. 17 Id. 18 CPI Inflation Calculator, https://www.in2013dollars.com/us/ inflation/1956?amount=11000000, last visited Apr. 10, 2021. 19 Nashville Post, supra n. 10. 20 Id. 21 Chenoweth, supra n. 12. 22 J. Milton, Comus, available at https://www.gutenberg.org/files/19819/19819h/19819-h.htm#Page_7. 23 Id. 24 The Phrase Finder, Every Cloud has a Silver Lining, https://www.phrases.org.uk/ meanings/every-cloud-has-a-silver-lining.html, last visited Apr. 10, 2021. 25 Smithsonian, National Museum of American History, Fritos Twist Record, https:// americanhistory.si.edu/collections/search/object/nmah_1417999, last visited Apr. 10, 2021. 1
Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records:
WELCOME NEW MEMBERS
THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Emily F. Abbott District Attorney General - 7th District
Sam C. Doak BPR #: 013213 Lewis Thomason, P.C. P.O. Box 2425 Knoxville, TN 37901-2425 Ph: (865) 546-4646 firstname.lastname@example.org
Catalina L. Caldwell Ritchie, Dillard, Davies & Johnson, P.C. Alexis Garten Andrew P. Harrison Young, Williams & Ward, P.C.
Taylor A. Drinnen BPR #: 038664 Tarpy, Cox, Fleishman & Leveille, PLLC 1111 N. Northshore Drive, Suite N-290 Landmark Center North Tower Knoxville, TN 37919-2804 Ph: (865) 588-1096 email@example.com
Katelyn E. Marshall Butler Snow LLP Maura A. Smith Maura A. Smith Law Offices LLC David W. Williams
NEW LAW STUDENT MEMBERS Benjamin L. Barker
Luke D. Durham BPR #: 031106 Brock Shipe Klenk PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 LDurham@BSKplc.com
Cameron W. Buckner Julia de Camargo Jocelyn Mercado Taylor L. Overton Christiana S. Paissios
Kayla Brantley BPR #: 038220 9225 Westland Drive, Ste. 102 Knoxville, TN 37922-5205 Ph: (865) 387-7793 Kayla.Brantley@outlook.com
J. Douglas Overbey BPR #: 006711 Owings, Wilson & Coleman 800 Riverview Tower, 900 South Gay Street Knoxville, TN 37902-1800 Ph: (865) 522-2717 JDOverbey@owclaw.com Victoria Raulerson BPR #: 038161 Banks & Jones 2125 Middlebrook Pike Knoxville, TN 37921-5855 Ph: (865) 546-2141 firstname.lastname@example.org Andrew B. Tucker BPR #: 036230 Jewelry Television 9600 Parkside Drive Knoxville, TN 37922-2201 Ph: (865) 692-6000 email@example.com Laura E. Wyrick BPR #: 037408 West Knox Law 408 N. Cedar Bluff Rd., Suite 254 Knoxville, TN 37923-3641 Ph: (865) 297-5511 firstname.lastname@example.org
BUILDING FOR THE FUTURE: ADVICE ON SUCCESSION PLANNING By: Eddy R. Smith Attorney and Certified Exit Planning Advisor Kennerly, Montgomery & Finley, P.C.
PLANNING FOR THE DAY YOUR PRACTICE ENDS “Turn out the lights, the party’s over.” – Willie Nelson One day you will no longer practice law. It doesn’t matter how good a lawyer you are, whether your name is on the door, your record on appeal, or how much your clients love you. The outcome will be the same regardless of your genes, how much you exercise, or how well you eat. Most of us hope our practices end because we retire or transition to another profession or business or service opportunity, but, for some of us, the end will come because we die or suffer a physical, mental or emotional setback that renders us incapable of practicing. Planned or unplanned, voluntarily or involuntarily, your practice will end because, as the saying goes, “time is undefeated.” Demographics. Almost half of KBA members are aged 55 years and older. The average 60-year-old has a remaining life expectancy of under 25 years, meaning she’s entering the “fourth quarter,” and most lawyers don’t practice until death. In addition, many younger lawyers will leave law practice for other opportunities. Accordingly, a significant percentage of local lawyers will cease practicing law over the next 15 years. Shuttering a practice is difficult in the best of situations. I’ve had the experience of shutting down my practice and a law firm at the same time, telling all my clients that they needed to find another attorney. (Almost three years later I returned to private practice and was disappointed to learn some had followed my advice!) Even though the transition was planned and the other three lawyers in my firm were moving their practices to other firms and thus available to help my clients, it still required a significant expenditure of financial and human resources. It is significantly more difficult when the transition is unplanned or involves one of the more than 1,000 solo lawyers in Knox County. Many a KBA member has volunteered vast hours to close the practice of a sole practitioner who died with no succession plan. You have help (and no excuse). The good news is you’re not on your own and you don’t have to leave a mess for others to clean up. The KBA has prepared a handbook on practice succession entitled, “Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of May 2021
Your Disability or Death.” 1 Adapted from similar handbooks by the Oregon and Idaho state bars, it provides a how-to on creating and implementing a comprehensive plan to leave law practice well. The handbook starts with the truth that “a lawyer’s duty of competent and diligent representation includes arranging to safeguard the clients’ interests in the event of the lawyer’s death, disability, impairment, or incapacity.”2 For those of us blessed with clients who think highly of us, we tend to want to return the favor by looking out for them, and that care should apply not only during our practice but also in looking ahead to make sure they’re served well beyond our practice. The handbook lays out the process by which attorneys can satisfy this duty. The handbook addresses access to client trust accounts, notifying clients of the lawyer’s imminent or recent departure from practice, “other steps that pay off,” file retention and destruction, and special considerations related to the death of a sole practitioner. For those without colleagues in a law firm, the handbook suggests an agreement with a Receiver/Assisting Attorney to wrap up the attorney’s practice and even provides form agreements. The guide also includes answers to frequently asked questions, helpful checklists, numerous other forms, resource and contact info, relevant legal authorities, and an article entitled, “Why Did We Ever Want to Keep Original Wills?” Above all, the guide encourages lawyers to “start now.” In future installments on this topic, I’ll dig into some of the details of lawyer succession and share helpful stories of what leaving practice looks like when done well and done poorly. In the meantime, you and I (especially if we practice alone) need to start planning now. Use the handbook, talk to practicing colleagues about what their plan is, and learn from those who’ve left the practice of law and those left to pick up the pieces.
Available at https://www.knoxbar.org/?pg=SuccessionPlanning. The handbook notes the “tireless efforts” of KBA Member Denise Moretz to bring the handbook to fruition. Citing Tenn. Sup. Ct. Rule 9, Section 29.1, and ABA Formal Op 92-369 (emphasis in original).
B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell
By: Phil Hampton Founder and CEO, LogicForce Consulting
MICROSOFT OFFICE APP FOR THE IPAD: THE MISSING LINK? “Here we go again,” said Phil. “Bill wants us to write another iPad article.” “Haven’t we all had enough already.” Bill says “No, this is a game changer.” As all of you must know by now, Bill keeps arguing that he can use his iPad Pro to handle all his work. Phil views the device with disdain, and calls it a “toy.” But Bill may be on to something now, with Microsoft’s recent release of a single, unified Office app. Previously, the best Office experience on an iPad was using the on-line versions of Word, Excel, and PowerPoint via a browser. Now, however, Microsoft has released a single, unified app, designed specially for the iPad. And, the single, unified app gives you access to a fullblown version of Outlook, OneDrive, Word, Excel, OneNote, PowerPoint, Teams, Visio, and more. Bill is excited, and is telling Phil, “I told you so.” The app is free to download; but in order to use all of the features, you need to have an Office 365 license or get a subscription (starting at $6.99 per month). All the programs have been optimized for use on an iPad, especially those models that are compatible with a mouse or trackpad. It also allows you to easily create PDFs from images or from Office documents, sign documents or mark them up with your Apple Pencil, convert images to text, translate documents into another language and collaborate by editing an Office document simultaneously with others.
The “Home” page of the app features documents you have recently opened or edited in one tab, and documents shared with you by others in another. On that same Home page, you can click on the “folder” icon and get access to all your OneDrive files, as well as the files on the iPad and the documents accessed via the iPad “Files” app. You can easily start a new document and choose to begin, using several pre-existing templates, or templates you have created. From that same Home page, you can access a complete list of all the Office apps you have installed – “one stop shopping.” Another useful feature added to the app is the “Actions” screen. From that interface you can transfer files between your phone and computer (if you have an iPhone); you can convert an image to text or to a table, you can sign a pdf, scan a picture to a pdf, convert a document to pdf, or convert a pdf to a Word document. All of these “actions” have been pre-programmed. You can also scan a QR Code, create forms for several uses and even rehearse a PowerPoint presentation with a “Presenter Coach.” The unified app was only released in February, so Bill is still experimenting with all the features. He is determined to convince Phil that his iPad is truly a device for work (as well as play). Bill claims that Phil’s beloved Microsoft has acknowledged the usefulness of an iPad as a business work device and not just way to play Solitaire without shuffling cards. Phil remains skeptical but intrigued.
BARRISTER BITES By: Angelia Morie Nystrom The University of Tennessee
WHERE’S THE (GROUND) BEEF? HINT: NOT AT WENDY’S I am married to a “prepper.” My first glimpse into Hugh’s obsession with prepping was the duffle bag in his car when we first met. I think he saw the fear on my face and quickly explained that he was not a serial killer… he was a serial worrier. In sales for Disney, he spent most of his life in his car, and he needed to be prepared in case of accident, bad weather, and other unfortunate events. His “bug-out bag” (as he described it) contained items like water, non-perishable food, first aid items, extra clothing, flashlights and other “disaster planning” items. In the days before Mapquest and cell phones with internet, he also had books of maps and atlases for everywhere in the U.S. He also carried a Swiss Army knife or Leatherman tool wherever he went. Like all good Boy Scouts, Hugh was completely prepared for most any situation he could encounter. When we were hearing reports out of Europe about the coming pandemic and shutdowns last February, I really didn’t worry. My own personal prepper did enough of that for both of us. He stocked up on non-perishable food items, water, toiletries and cleaning supplies that we might need. When things shut down in March, we did not leave our house; nor did we have anything delivered. We didn’t need to… Hugh had everything we could ever need. When we started hearing about the coming “meat shortage,” Hugh took his prepping to a new level. In a house of carnivores, Hugh couldn’t fathom the thought of being without meat. He was determined that we would buy a cow. And we did. We bought a cow. Literally. We bought a cow. If you wonder how much meat a single cow will provide, it is a lot. When the very large truck arrived from Simpson’s Meats (great local producer, by the way), I was a little concerned about what it contained. I was excited as they brought out beef brisket, various cuts of steak, roasts, ribs and other meats. But then I saw the ground beef. When Mr. Simpson began unloading the ground beef, it was like a clown car. It just kept coming. And coming. And coming. I actually started wondering if we were going to have to buy another freezer to hold it all. I am not a burger eater; however, the single-cow burgers from Simpson’s (and from our cow) are phenomenal. The burgers are lean, and the flavor is probably the best I have ever had. But you can only eat so many burgers. Hugh says that I have become much like Bubba from Forrest Gump, who had about a hundred different ways to prepare shrimp. I think I have at least that many recipes that use ground beef. May 2021
My go-to is an easy meat sauce, which I use for spaghetti, baked ziti, lasagna and other Italian dishes. Pre-COVID, I would spent hours making a meat sauce, using home-canned tomatoes and other fresh ingredients. Once I started cooking so much with the “stay-at-home” and “shelter-in-place” directives, I became all about convenience. To make an easy meat sauce, finely chop two onions and two cloves of garlic and heat in a couple TBS olive oil. Add 2 lbs ground beef and cook until browned. Add 4 TBS Italian seasoning, 1 TBS cayenne pepper, and two jars of Newman’s Own Sockarooni sauce. Cover and heat on low for 30 minutes. We most frequently use this sauce with spaghetti; however, I have also used it with baked ziti and lasagna. (If you are making traditional lasagna, I cannot recommend Barilla Ovenready Lasagna noodles enough. They are hard like normal noodles that you cook, but you place them in your dish and bake…no boiling required.) We have also become fans of Ground Beef Stroganoff. My mom made this for us when I was a child, and I found the recipe when I was rummaging through my cookbooks from law school. It’s easy, and it is great when you don’t have a lot of time to spend cooking. To prepare, cook a package of egg noodles according to package directions. In a large skillet over medium heat, brown 1 lb ground beef along with a diced yellow onion and 2 cloves minced garlic until thoroughly cooked. Then, drain the ground beef to remove excess beef from the pan. Put the pan back on the stove over medium heat (but don’t add the ground beef back in yet). Add 3 TBS butter to the pan and allow it to melt. Then, add 3 TBS flour to pan, whisk it and let it absorb butter. Add 1 ½ cups beef broth and whisk vigorously to remove any lumps, turning the heat up to high, bringing it to a boil for 2-3 minutes until you see it thicken slightly. Bring the temperature down to medium and whisk in 1 cup sour cream and 1 can cream of mushroom soup. Stir until mixed well. Add ground beef back to mixture until reheated. Serve over egg noodles. It has been a hit with the entire family and takes about 30 minutes from start to finish. We have also enjoyed Beef Taco Bake. To make it, brown 1 lb ground beef. Drain off fat. Add 1 can tomato soup, 1 cup salsa, ½ cup milk, 6 flour (or 8 corn) tortillas (cut in 1” pieces), and 1 cup shredded cheddar cheese. Spoon into a baking dish. Bake at 400 for 30 minutes or until hot. Sprinkle with cheese and serve. It is quick and easy, and there is not a lot of clean-up. If you grew up in the 80’s and ever wondered “Where’s the (Ground) Beef ?”, now you know.
AROUND THE BAR By: Caleb A. Smothers University of Tennessee College of Law J.D. Candidate, 2022
THE COURT, COVID, AND THE NEW JUDICIAL FRONTIER
Due to the ongoing COVID-19 pandemic, the Tennessee Supreme Court extended an order suspending jury trials and in-court proceedings on January 15, 2021.1 Local courts have grappled with the appropriate ways to carry out their proceedings while also complying with this order. Members of the Knoxville Bar Association (KBA) Judicial Committee recently called thirty-three of our local judiciary to better understand the procedures and issues of the courts in light of the most recent order. The judges were asked for an update on their COVID-19 protocols and court operations and how things were operating in their court after the Tennessee Supreme Court order.
The Current Forum In the Chancery Court, Chancellor John Weaver and Chancellor Clarence Pridemore offered insight into their operation. Chancellor Pridemore emphasized that operations were moving slower, but that the court was utilizing Zoom and telephone proceedings as much as possible. All in-person hearings were conducted with masks and social distancing required. Chancellor Weaver is only holding those cases excluded from the Tennessee Supreme Court order in person. He is holding uncontested divorce proceedings over the telephone and all other cases over Zoom. There have been no in-chambers hearings and no jury trials. Judge Jerome Melson, Judge William Ailor, Judge Deborah Stevens, and Judge Gregory McMillan of the Circuit Court Divisions all emphasized that in-court proceedings have been limited. Judge McMillan said that all hearings were conducted by Zoom except for temporary restraining orders (usually for emergency custody) and orders of protection. With these in-person proceedings, the courtroom is limited to fifteen people at one time with masks and social distancing required. Judge Stevens emphasized that, where jury trials were required, the courtroom had been reconfigured to ensure the safety of the jurors. She also expressed the possibility of legislative help for a technology allocation for the courtrooms. Magistrate Brenda Lindsay-McDaniel of the Fourth Circuit and Chancery Child Support Division has not been holding in-court proceedings. Cases are being held over the phone or over Zoom. With the Tennessee Court of Appeals, Judge Kristi Davis and Judge Michael Swiney have said that court has been operating well with Zoom. For both judges, oral arguments are conducted over Zoom. Judge Davis said that a Zoom oral argument tutorial is offered by the court and seems to have been very helpful. The only malfunction occurred when an attorney had not taken the Zoom tutorial. Judge Robert Montgomery, Judge Norma Ogle, Judge Kelly Thomas, and Judge Curwood Witt of the Tennessee Court of Criminal Appeals have all moved to Zoom for oral arguments. The judges all seemed eager for a return to in-person proceedings for oral arguments. Judge Witt emphasized that there is no adequate substitute for in-person oral arguments, but he stated that Zoom has worked well with the help of tech support. Judge Montgomery mentioned the usage of virtual backgrounds during oral arguments, so participants look like they are in the courtroom. He said arguments are recorded and saved on YouTube for reference. Judge Steven Sword, Judge Kyle Hixson, and Judge Scott Green of the Criminal Court divisions all stated that things are going as well as could be expected during these trying times. Judge Tony Stansberry of General Sessions Court said that his court has only been handling jail cases with everything else shut down. The only in-person proceedings have been for cases in which the defendant is in custody. Judge Stansberry is optimistic about the continued advancement of technology and resources to expand virtual proceedings. Magistrate Robin Gresham of the Juvenile Court Child Support Division is not having in-person hearings for anything other than bonds in which only attorneys can be present. Zoom has presented difficulties of access and investments necessary to have staff set up the Zoom proceedings before hand. Judge Timothy Irwin of the Juvenile Court is not having in-person hearings and emphasized the difficulties present with Zoom. Parties have hard time getting connected and when connected, it is often hard to catch mannerisms
of witnesses. Further, there are difficulties with cases involving interpreters, reporters, and multiple parties due to the online format. The City of Knoxville Municipal Court Judge, Judge John Rosson had not utilized the online format and was awaiting proceedings to return in-person. Judge Pamela Johnson of the Tennessee Court of Workers Compensation Claims has continued to perform mediations and hearings allowing parties to appear in-person, by telephone, or by video. The court has followed the Supreme Court orders with in-court proceedings. The Tennessee Claims Commission with Commissioner William Young has not conducted any proceedings in-person for quite some time and has not utilized Zoom, but he has taken advantage of telephonic proceedings. Judge Chuck Atchley, Judge Thomas Varlan, and Judge Travis McDonough of the District Courts for the Eastern District of Tennessee have had very limited trials and have been utilizing video conferencing and teleconferencing where possible. Magistrate Judge Chris Steger, Magistrate Judge Clifton Corker, Magistrate Judge Bruce Guyton, Magistrate Judge Cynthis Wyrick, and Chief Magistrate Judge Susan Lee of the U.S. District Courts for the Eastern District of Tennessee are mostly utilizing video conferencing and teleconferencing. Magistrate Judge Steger said that all civil hearings were by video or teleconference, but criminal trials were by video conference if the defendant consented. He prefers in-person hearings due to the importance of facial expressions and determining credibility. Judge Suzanne Bauknight of the U.S. Bankruptcy Court had not had an in-person trial since March 2020, and all hearings are default by Microsoft Teams. Judge Timothy Conner of the Workers’ Compensation Appeals Board has mostly been hearing cases over WEBEX. Of the four cases in 2020, Judge Conner heard one case telephonically and three cases over WEBEX. Workers’ compensation cases are bench trials, so spacing is not a large issue. If there is a concern or worry, the judge will hold the hearing virtually. The New Issues One of the most important aspects of the courts is the respect and formality that brings about fairness and uniformity. Among the smaller informalities experienced by judges in video conferencing were the use of first names, interruptions, improper backgrounds, eating/drinking during the proceedings, and informal attire. These issues are likely tied to the comfortability and informality of the environment they are video or telephone conferencing from. More structural issues affecting respect and formality include client behavior, lack of preparation, and delays. Multiple judges expressed that clients seem less connected to their attorneys and some expressed worsened client behavior during telephonic/video proceedings. Preparation and delays serve to harm all parties involve and scramble an already hectic judicial schedule. There are also issues with access and administration of justice. Some individuals do not have the resources to acquire adequate equipment. Some individuals are just unfamiliar with the chosen video conference method and have trouble figuring out how to perform some of the necessary functions. Lastly, there are certain aspects of telephonic/video proceedings that simply cannot match the in-person proceedings. One aspect addressed by several judges was the ability to read mannerisms and determine the credibility of witnesses. When in-person, these individuals are under the pressure and gravity of the courtroom that may lead to fidgeting or other nonverbal signs. When a witness is in the comfort of their home and only showing their face, a factfinder and attorneys have a harder time determining the credibility of that witness. While this is a tough time for all involved, the judges have widely acknowledged and expressed their gratitude to attorneys and clients who have worked so hard during this time. What can be drawn from these conversations is that the pandemic has brought many challenges, but our courts have responded to those challenges to ensure justice. 1
In re COVID-19 Pandemic, No. ADM2020-00428 (Tenn. 2021).
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
PASSING ON COVID PASSPORTS Can the government require us to carry a document that proves we’ve been vaccinated against COVID-19? Conversely, can it prohibit such a requirement? Well, yes and yes—broadly speaking. But, as with so much in the law, the devil is in the details.1 And those details depend upon—you guessed it—our Constitution. In 1787, James Madison and Co. created the very first federal system of government, a system in which multiple entities govern a given geographical area. That means that no matter where you are in the United States, you’re likely governed by at least three distinct entities: the national government, your state’s government, and your local government. I say, “at least,” because you may also be regulated or taxed by a local school or conservation district or some similar quasi-governmental entity. Whew. While this federal system promotes local control and helps to prevent tyranny, it can also get confusing. That’s certainly the case with the latest issue in the culture wars, so-called “COVID Passports,” documents that certify your COVID vaccination status. So let’s consider the issues one by one, and government by government. First issue: Can the government, national, state, or local, require COVID Passports? Answer: Yes. All three levels of government have broad powers to protect public health, although the sources of that power differ. At the national level, most health regulations are based upon the Commerce Power, which enables the Feds to regulate interstate commerce. Since deadly viruses don’t respect state lines, and since they certainly affect commerce,2 the national government can promulgate laws and regulations, such as masking and documentation requirements.3 At the state level, the authority for COVID Passports is even simpler: It’s part of the police power, the power of every sovereign state to protect the health and welfare of its people. The seminal case in this area is Jacobson v. Massachusetts,4 which is now 116 years old, but still good law. Since local governments are part of state governments, they also have the police power. That’s why a city, or county, or school district can require masks or COVID Passports. Such authority has been routinely exercised long before the current pandemic constricted our social circles and expanded our waistlines. Think about it: For decades, school districts have required vaccinations against childhood diseases. It’s really nothing new. But what about the flip side? Can governments forbid COVID Passport requirements? This is where it starts to get a bit tricky, both because of federalism and because of those pesky things we call individual rights. Let’s start at the top. The Supremacy Clause5 provides that national law trumps state law, every time, no matter what your neo-Confederate Uncle Bob taught you when you were little. So if the national government were to prohibit COVID Passports, any state or local laws to the contrary would be void. Similarly, if a given state—say, I dunno, Tennessee?—were to prohibit COVID Passport requirements, any local law to the contrary
would almost certainly fall, as a matter of state constitutional law. This is especially true in the majority of states (including Tennessee) that follow the Dillon Rule, which makes local governments subordinate to state governments, and which explicitly resolves all conflicts in favor of state authority. So if, by the time you’re reading this, the State of Tennessee has prohibited COVID Passports, well, then, left-leaning cities like Knoxville, or Nashville, or Memphis, cannot require them. But one major issue remains: What about private businesses? Can private business owners require COVID Passports of their employees or customers? In general, and with lots of caveats about employment contracts and labor statutes, the answer is yes. Private business owners have property rights, and they can generally hire, fire, and serve the public as they will. Think about it: “No shoes, no shirt, no service.” Similarly, employers can fire employees who show up without shoes or shirts.6 Restaurants can kick out teenagers that are getting rowdy or taking up space without ordering food. The big exception is, of course, invidious discrimination based upon race or gender, or, in some states, sexual orientation or other protected categories. But those exceptions exist against a background of great employer discretion. So, yeah, private businesses can require COVID Passports. But hold on: What if a government— national, state, or local—prohibits private businesses from requiring COVID Passports? Hmm. Now the answer is a bit less clear. On the one hand, all levels of government have the power to regulate commerce. As noted above, the Feds have the Commerce Clause. State and local governments have broad sovereign powers to regulate commerce within their borders. On the other hand, as also noted above, private business owners have private property rights, as well as the right (indeed, the duty) to maintain safe workplaces. So, at the very least, the government cannot arbitrarily deny a private business the ability to keep its employees and customers safe. I see litigation ahead. Finally, I should note something that our health professionals have been emphasizing in recent weeks: We’re not out of the woods yet. Despite great success with vaccinations (I’m halfway there—thanks, KBA!) infection rates have lately started rising across the nation, especially in places that have “opened up” prematurely. Even more troubling, most new infections are caused by more contagious, more deadly variants of COVID-19. People are still dying every day. So perhaps we should follow the advice of the experts. The Constitution does not require governments to act wisely. But it’s still a good idea. 3 4 5 6 1 2
Or in the running shoes, according to Lil Nas X. But that’s a whole ‘nother controversy. See 2020. 42 USC § 264. 197 U.S. 11 (1905). U.S. Const. art. VI. I’ve always thought they should add a pants requirement, but perhaps that’s just me.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. May 2021
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 email@example.com. SAM DOAK JOINS LEWIS THOMASON LAW FIRM Sam Doak has joined Lewis Thomason as special counsel. Doak has been a trial attorney for over 30 years and focuses his practice primarily on civil trial litigation, arbitration, and mediation in practice areas ranging from complex construction matters, complex product liability, marine product liability, commercial business disputes, employment litigation, transportation litigation, workers compensation, and general insurance defense. PETERSON APPOINTED TENNESSEE STATE CHAIR FOR ACTEC Knoxville lawyer Marshall H. Peterson, in practice with Kennerly, Montgomery & Finley, PC, was recently appointed Tennessee State Chair for the American College of Trust & Estate Counsel (ACTEC). ACTEC is a nonprofit association of more than 2500 lawyers and law professors (“Fellows”) who focus on estate planning and related areas. Fellows are elected based on their reputations, experience, and substantial contributions to the field. $900,000+ AWARD TO LAW-RELATED ORGANIZATIONS The Tennessee Bar Foundation has awarded $963,200 as the second round of “Implementation” grants, from the Tennessee Legal Initiatives Fund – or “TLIF.” These awards follow the 2019 awards of $1,100,000, to what were then pilot projects. The grant funds come from a consumer relief settlement negotiated by the Department of Justice. TLIF funds are awarded to broaden the capacity of organizations to break the cycle of poverty and the barriers to justice by using civil legal aid and education to increase productivity and success for vulnerable populations. The pilot grant recipients completed one year of start-up activity in June 2020. At that point, the Foundation’s Board of Trustees awarded funds for an additional six months, to support the projects during the pandemic. That extension allowed the organizations to adjust their services to the new environment. In February 2021, the pilot project results were evaluated. Ten projects were awarded an additional year of funding, from March 2021-February 2022. The varied purposes range from investing in human capital, to revising century old pleadings, to dispute mediation via the Zoom platform, to software and apps that direct those with legal needs to the correct provider or that ease re-entry to society for those with criminal records. KBA CLASSIFIEDS EXPANDED TO INCLUDE LAW STUDENT INTERNS Reliable help when you need it! Have you ever been short on time and in need of help to reach a deadline? Do you ever wish you could delegate tasks like research and writing so that you could better focus on practicing law? In short, do you need an intern? We want to help! The KBA has updated our Classifieds and added the option to post listings specifically seeking law student interns. We have been working closely with the law schools who have expressed that students are desperate for internships and opportunities to gain experience while in law school. Law students will benefit from this invaluable exposure to the local legal community. Students may post their resumes and signify that they are seeking internships. Attorneys and law firms will have the ability to post intern listings and browse resumes of eager candidates. Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource at www.knoxbar.org.
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: • 1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!)and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545. •
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Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Office Space includes a reception area, conference room and work area for additional employees. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
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LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by
LONG WINDED By: Jason H. Long London Amburn
COUNSELOR EXTRAORDINAIRE? The problem with writing ten or eleven or of these columns for the past twenty-two years is that I run out of things to write and, because of some spotty record keeping, I can’t recall all the of the topics I have written about. I vaguely recall writing a column about Tom Hagan, consigliere in the Godfather movies and what his hourly timesheets must have looked like. I love the Godfather movies (parts I and II as I don’t acknowledge the third one exists), and I often reference them in my writing and conversations. As a result, it is likely that I have shared some, or all of the following thoughts at one time or another. However, there is a Godfather marathon running this weekend and I have been sucked in again. As I sit here watching it, I still can’t decide whether or not I think Tom Hagan is a good lawyer. In any event, even if I do sound repetitive, I’m going to try to break it down. Warning – Spoilers ahead. Let’s start with defining Tom’s role. Tom is the consigliere of the powerful Corleone Crime Family. The consigliere is a counselor. While one does not have to hold a law license to be a consigliere (Genco Abbandando, the consigliere before Tom, was a grocer and olive oil merchant), in a modern society, a consigliere is often called upon to render opinions which may constitute the practice of law, and it is generally wise to have a licensed attorney in the role. (I am assuming Tom is licensed in New York, but we never see him taking a CLE course, paying his professional privilege tax, or even applying for reciprocity when he moves with the family to Nevada). After Genco dies (at the beginning of the first film – director’s cut, deleted scenes) Tom is elevated to the role of consigliere. He advises Vito Corleone, and his sons Santino and Michael as each takes their turn as head of the family. (Note that he never served middle son Fredo who was passed over because he was “weak and stupid”). I’ll start with Tom’s strengths. He is an outstanding negotiator, demonstrated by two scenes which bookend the movies. At the beginning of the first movie, Vito entrusts Tom with contractual negotiations on behalf of his godson, Johnny Fontaine, who is trying to get a role in a new Hollywood movie. Vito gives Tom simple instructions, saying simply “Make him an offer he can’t refuse.” Tom interprets this a little differently than most lawyers as he proceeds to cut off the head off a horse and stick it in the producer’s bed while he is sleeping. Unconventional? Sure. But it gets the job done, and Johnny gets the part. A side note here, it does not appear that Tom brings any assistants to help him on his Hollywood trip. Does that mean Tom cut the horse’s head off himself ? If he did, how long does something like that take and how do you bill that to the client? (“Cut head off horse to facilitate contract negotiations 2.3”). He probably doesn’t bill hourly. I’m betting he is salaried. Right? Must be. In my opinion, Tom’s best service as a negotiator occurs at the end of the second movie. He convinces family turncoat Frankie Pentangeli (“Frankie Five Angels”) to commit suicide without ever directly asking him to or even mentioning the word. Instead, he simply tells Frankie the story of ancient Rome and what happened to traitors when a plot against May 2021
the emperor failed. With a simple nod and a handshake, Frankie gets the point and, two scenes later, takes his own life. This is the best execution in the whole series, and Tom does it with style. Say what you want, but it takes a master negotiator to convince a man to take his own life while you are visiting him in a federal prison. I recently completed my Rule 31 mediator training, and they never taught us anything like that. It would’ve been a lot cooler if they did. So, Tom is an effective negotiator. How is he as a counselor? It is hard to evaluate as his bosses, time and again, reject his advice, sometimes to their benefit, and sometimes not. Tom advises Vito to go into business with Virgil Sollozzo on the drug trade to solidify the family’s power. Vito rejects the advice because he believes drugs are a “dirty business” (a mobster with morals), and he ends up getting shot, sparking a war amongst the five families. Once the war begins, Tom counsels making peace because the war is bad for business, but Santino rejects his advice, complaining that Tom is not a “war-time consigliere.” It is worth noting that Santino dies shortly thereafter. Finally, in the second movie, Tom tells Michael that he has defeated his enemies, and they are on the run. He advises Michael that he does not need to wipe them all out. Again, Michael rejects his counsel, resulting in a dramatic ending to the Godfather II in which everyone pretty much dies, and Michael has his own weak and stupid brother killed. I think the takeaway is that Tom provides pretty good counsel but clearly does not have the confidence of his employers (one wonders why they continue to use him). Like any good lawyer, he counsels a moderate course. Tom’s counsel is good for business, but would have made for very boring movies. As an advocate, this, in my opinion, is where Tom really shines. We only see him in this position once, during the Senate hearings on organized crime. Under oath, Michael has denied any involvement in the mafia. Pentangeli is called to testify against Michael and set him up on several counts of perjury. The day of the Senate hearing, Michael and Tom show up with Frankie’s brother, Vincenzo, from the old country. Frankie is spooked by Vincenzo’s presence (either because he knows Vincenzo will disapprove of Frankie testifying against his family or because he fears what Michael and Tom will do to Vincenzo if he does not recant his testimony). Frankie gets the message and refuses to testify against Michael. Now, having counseled his client to lie and having engaged in witness tampering, one would think Tom would quietly accept the victory and try to get out of Washington, D.C. as quickly as possible. Not our boy Tom. As the Senate committee adjourns in chaos, Tom’s voice can be heard bellowing above the din of the crowd: “This committee owes my client and apology, Senator! An apology!” Tom brazenly continues to advocate for his client despite the fact that he should probably be disbarred and arrested. Tom provides the movies with an important voice of reason. While he is often dismissed or ignored, I believe him to have provided good service. In my opinion, he is an exceptional lawyer. You know, if you can look past those pesky ethical considerations.
Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Caitlin Torney Pro Bono Project Attorney Legal Aid of East Tennessee
THE CASES WE PLACE The last DICTA column provided a primer for attorneys taking pro bono cases through the Pro Bono Project; in this column I will focus on the types of cases we staff and provide examples of cases we are actively trying to match. All our cases at the Pro Bono Project must conform to the requirements of our primary funder, the Legal Services Corporation (LSC). Clients must meet income eligibility guidelines, be citizens or legal residents of the United States, and reside in one of the four counties our service area covers: Sevier, Loudon, Blount, or Knox. However, victims of domestic violence qualify for services regardless of citizenship status and all are welcome at our general clinics to receive advice. We are always excited to welcome new attorneys willing to volunteer their time and expertise. Below, I will outline the types of cases we match in the Pro Bono Project and provide some examples of available cases that we need help with right now. If you are interested in any of these cases or would like to volunteer to be contacted for certain types of cases, please email me at email@example.com or call me at (865) 251-4951. You can also go to our website https://www.laet.org/pro-bono-matters/ to browse an updated list of available cases! 1.
Conservatorships: We only take uncontested conservatorships, and to participate in our program, we require clients provide a doctor’s note that certifies the party requires a conservatorship. If needed, we can recruit a pro bono Guardian Ad Litem to assist. Most of our clients are seeking conservatorship over an elderly person no longer able to care for themselves as they age or a child who is about to turn 18 but is unable to manage their own affairs. Currently we are trying to match a Blount county woman who needs help getting a conservatorship over her husband, a veteran living in a VA facility with advanced dementia.
Adoption: We only place uncontested adoptions. Prior to placement, we require proof to ensure that the parties involved have agreed to an adoption.
Name Changes: We will place uncontested name changes through our program. Our cases include a broad range of clients from individuals seeking to change their names to affirm their current gender, to women who would like to change their name after domestic violence, to mothers and fathers who would like to change their children’s names to reflect their new family circumstances.
Bankruptcy: A fair number of our clients are able to get assistance through the quarterly Debt Relief Clinic, but others require more immediate assistance. For example, a current client is a Sevier county man who urgently seeks to file for bankruptcy to regain his license to drive to work.
a special needs trust. To streamline the process, we require clients complete a wills packet prior to placement to indicate their preferences, identify their assets, and designate their beneficiaries. Probate: Our program matches only uncontested probate cases. Many of these cases are advice only where a client would like the opportunity to discuss a case with an attorney but does not require representation. A current probate client is a Knox County man who needs assistance probating his sister’s estate to allow him to continue to live in the house he has lived in for decades.
Expungements: Clients who have served their time and would like to move forward in life look to our program to help them expunge their record. A relatively simple procedure can make a huge difference for a person as they seek to move forward.
Driver’s license reinstatement: So many clients are looking to reinstate their driving privileges. We have a large list of clients currently waiting to match with local attorneys. These cases are usually straightforward, and a small amount of time can make a huge difference in an individual’s life.
Divorces: We are always looking for attorneys willing to take uncontested divorces. There is an extremely high demand for help with divorces and we are eager for more volunteers willing to help with agreed divorces.
10. Miscellaneous: We do get cases that do not fit in any of the categories listed above from time to time like landlord/tenant cases, contract disputes, and help with wage issues. A great way to learn about these cases is to check our website! I want to thank everyone who volunteered their time and talent to make the March Virtual Debt Relief Clinic a success: Judge Suzanne Bauknight, Attorney Kevin Newton, Attorney Alix Rogers, the staff at the Knoxville Bar Association and Legal Aid of East Tennessee, and all the volunteer attorneys across East Tennessee. The clinic operated entirely virtually via phone and zoom allowing volunteer attorneys and law students to safely serve 11 clients from across East Tennessee.
Upcoming Clinic Opportunities:
Estate planning: We always have clients we are unable to help in-house who need professional help with estate planning and help drafting powers of attorney, advance directives, and simple wills. Occasionally we will also place clients seeking help establishing
Veteran’s Phone Clinic:
Wed. May 12 (12:00noon – 2:00pm) Wed. June 9 (12:00noon – 2:00pm)
Virtual Debt Relief Clinic:
Sat. June 12 (9:00am – 12:00noon) Sign-up to volunteer through the KBA website
TELL ME A STORY By: Matthew R. Lyon LMU Duncan School of Law
TURNING POINTS Life (at least, adult life) is a series of decisions. One decision begets another, and then another. Some of these decisions are pretty minor: what to wear today, what to have for lunch, whether to watch Netflix or Disney+ tonight. Others are kind of important: whether and whom to marry, whether to have children and how many. But the real turning-point decisions in our lives may not appear that significant at the time. It is only with the benefit of hindsight that we can see how those seemingly benign decisions intertwined with providence and fate to make us who we are today. If you had told me when I graduated from college in 1997 that, nearly twenty-five years later, I would be in a leadership position I couldn’t possibly anticipate, at a law school that didn’t exist, in a city where I didn’t know anyone, with a wife and two children I wouldn’t deserve, I certainly would have wondered how I got there. Looking back now, it was those turning-point decisions. When I was nine years old, after my parents divorced, my mom moved my sisters and me from the Atlanta suburbs to Newport News, Virginia. Newport News is a blue-collar, diverse city; the military and shipbuilding industry are the primary employers. I was blessed to attend strong public schools with classmates of all races and socioeconomic backgrounds and dedicated teachers who taught me how to think critically and how to write, two of the lawyer’s most important skills. The friendships I still hold closest to my heart today are those I made growing up in “the Bad Newz.” In the spring of my senior year at William and Mary, I was deciding between attending graduate school at Syracuse University or joining Teach for America in rural south Louisiana. The grad school scholarship offer came a couple days before the TFA offer letter containing Mardi Gras beads, so I went to Syracuse. That was a turning point, for sure, because after grad school I moved to Washington, D.C. to work for the federal government, coordinating research projects in the wake of welfare reform. I only worked there for four years, but Washington is where I became an adult, learned the professional skills that were later essential to my legal career, and, most importantly, met my wife, Angie. Angie is an LSU Tiger, so maybe that one would have worked out anyway! I chose to go to law school at Northwestern University in Chicago in great part because Angie, an architect, could find work there. (Also, have you been to Chicago? If so, I don’t need to explain our choice to move there.) That decision, which led to an associate position with a large Chicago firm, was another turning point. It was in Chicago that I learned how to be a lawyer and what working hard for a living really meant. It gave me confidence that would serve me well in the future. After several years in the Midwest, Angie and I decided to move closer to her family in North Alabama and mine in Virginia and Atlanta. Tennessee seemed to be a good geographic fit, but we knew no one in May 2021
the state. I applied for clerkships because I thought it would be a good transition while I studied for the Tennessee bar. I sent out dozens of applications across the state and got one interview, with one judge, which turned into one job offer. Angie and I were charmed by the resurgent downtown and sense of community in Knoxville, and we moved here. Talk about a turning point. Unbeknownst to me, the judge for whom I moved here to clerk was actually one of the most beloved jurists, lawyers, and people in all of East Tennessee, Gary Wade. While I may have learned how to be a lawyer in Chicago, Justice Wade taught me how to be a Tennessee lawyer (there’s a difference). His dedication to the basic principles of our justice system – the wisdom of the jury trial, the right of every person to have his or her day in court – have greatly impacted me, as has his lifelong dedication to serving his community. After a year or so of working for Justice Wade, I began to feel restless, and he suggested that I speak to the dean of a new law school that was opening in downtown Knoxville. I did, and before I really knew what had happened, I was teaching Civil Procedure to half of the inaugural class at the LMU Duncan School of Law. That too was a turning point. I soon realized that I had found my passion in teaching and mentoring law students, particularly those here at LMU Law who had made so many sacrifices to follow their dreams. That adjunct position led to a full-time faculty job, and later an administrative role. When Justice Wade announced his retirement from LMU Law about 18 months ago, it presented another turning-point decision for me: whether to apply to succeed him as our dean. What if I didn’t get the job? Or what if I did get it? Did I have the skills it would require? Would it overwhelm me or take too much time away from my family? How could I follow a dean of Justice Wade’s stature? These questions ran through my mind for months. Ultimately, I applied because I believe no single position can have as broad an impact on the future of our beloved profession than that of a law school dean. I feel so fortunate to serve in this role at LMU Law School, which prioritizes academic success and a practical approach to legal education that trains young lawyers to serve their clients and communities in underserved areas in Southern Appalachia and beyond. The future has never been brighter for us at LMU Law. This fall, we will have over 300 students enrolled and over 400 alumni, and we have an amazing team of committed educators who always put our students first. But we would not be where we are today without the lawyers in the Knoxville bar, who supported us and embraced our mission through some difficult times. So on behalf of our faculty, staff, students, and alumni: thank you. And if you are interested in our mission or in getting involved with LMU Law, please call me. Who knows? Maybe that phone call will be one of your turning points.
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P.O. Box 2027 Knoxville, TN 37901
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Volume 49, Issue 5