DICTA May 2023

LASTING

POLICE REFORM: THE ABA LEGAL EDUCATION POLICE PRACTICES CONSORTIUM MODEL

Ursula Bailey

Meagan Collver

Daniel Ellis

Spencer Fair

Officers of the Knoxville Bar Association

KBA Board of Governors

Luke Ihnen

Hon. E. Jerome Melson

William A. Mynatt, Jr.

T. Mitchell Panter

Samantha Parris

Courtney Epps Read Vanessa Samano

Charles S.J. Sharrett

Hon. Zachary Walden

Volume 51, Issue 5

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).

Publications Committee

Executive Editor Cathy Shuck

Executive Editor Sarah Booher

Executive Editor Melissa B. Carrasco

Brandon Allen

Anita D’Souza

Elizabeth B. Ford

Jennifer Franklyn

Joseph G. Jarret

F. Regina Koho

Matthew R. Lyon

Angelia Morie Nystrom

Katheryn Murray Ogle

Laura Reagan

Ann C. Short

Eddy Smith

Grant Williamson

Managing Editor Marsha Watson KBA Executive Director

The Knoxville Bar Association Staff

Marsha S. Watson Executive Director

Tracy Chain LRIS Administrator

Jason Galvas LRIS Assistant

President Loretta G. Cravens President Elect Carlos A. Yunsan Treasurer Jonathan Cooper Secretary Rachel Park Hurt

Immediate Past President Jason H. Long

Tammy Sharpe Director of CLE & Section Programming

Jonathan Guess Database Administrator Bridgette Fly Programs & Communications Coordinator

SECTION NOTICES & EVENT CALENDAR

Section Notices

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

Alternative Dispute Resolution Section

The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE program “Mediator’s Guide to Rule 31 Documents” on May 4. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarrett (566-5393) or Betsy Meadows (540-8777).

Bankruptcy Law Section

The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on May 13, and volunteer registration is available at www.knoxbar.org. If you have a CLE 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. Save the date for the “Annual Corporate Counsel Update” extended CLE on August 23. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).

Criminal Justice

The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Join the Criminal Justice Section for the upcoming CLE program “The Heavy Load of Criminal Justice” on June 13. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (931-260-5866).

Employment Law

The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000) or Tim Roberto (6912777).

Environmental Law

The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section

The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you are interested in getting involved or have suggestions for CLE topics, 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 are interested in getting involved or have suggestions for CLE topics, contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section

The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).

New Lawyers Section

The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2021 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Kathryn Haaquist (525-0880) or Nicole Turbinton (221-7542).

Senior Section

The KBA Senior Section generally meets quarterly for lunch. If you have suggestions for luncheon speakers, please contact Chair Wayne Kline at (292-2307) or Sam Rutherford (659-3833).

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 Tim Grandchamp (392-5936) or Brittany Dykes (214-7869).

PRESIDENT’S MESSAGE

By: Loretta G. Cravens Cravens Legal

PLANS, TRAINS, AND AUTOMOBILES

Recently, my husband and I learned that his oldest nephew would be running one of his final track meets of his collegiate career just over an hour from Knoxville in Williamsburg, Kentucky. It was the closest he had competed while in college, and we were so excited to finally be able to see him run and support him in person! Every time we had wanted to attend one of his prior track meets, something had interfered. I was in trial, facing a deadline, or dealing with some other client emergency. Something was going on with another relative, one of us were sick, or maybe we just could not find a dog sitter. You get the idea. There was always something coming up, always some reason we didn’t travel to see his other meets. This time, we knew we were running out of opportunities, and we were hellbent on making it to this competition. We made plans.

My husband already had the day off and I scheduled a half day. Now, a half day in lawyer life, means that hopefully, only one major unanticipated client need arises, and of course it did, but I was able to handle it quickly and arrive home a full thirty minutes before our scheduled departure time. We fueled up the car, grabbed some caffeine, and off we went. We left Knoxville more than two hours before starting time to make the approximately one-hour drive from our home to The University of the Cumberlands. We had an arial photo of the campus with a map from his track coach showing us EXACTLY where on campus we would find our destination. We let the whole family know that we were on our way. Once we headed up I-75, with my spouse behind the wheel, I engaged one of my superpowers, the ability to nap almost anywhere, and took a little afternoon nap. All was well in hand, or so I thought.

Perhaps it was the complete lack of movement or road noise that roused me from my slumber, but when I awoke, we were at a dead stop, along with hundreds of other vehicles as far as I could see ahead of us and behind us. This stoppage wasn’t the kind where you creep along at a speed so slow it doesn’t register on the speedometer or start and stop intermittently. We were stopped. Cars were in park. No worries, right? This is Tennessee where there is a backroad to everywhere and the navigation app would certainly find it! We were only a couple of miles south of Jellico. We could find a way around the stoppage and still make it to the track. Once we finally made it to the Jellico exit we followed the new route as instructed by the app.

We drove through town and countryside, across not one but two one lane bridges. (By one lane, I mean one lane. The other lane was not just closed – it was missing.) We followed the directions when the app told us to take a right turn to another side street. We followed it even though that side street was a barely paved one lane road tucked within thick stands of trees. We followed right until we reached its dead end at someone’s home and had to turn around and go back to join traffic on the original alternate route. We drove across more railroad tracks than I could count, and at one point sat in traffic on this alternate route parallel to a train passing on my right, and cars zipping happily by us on I-75. We knew we were not going to make the track meet and would have loved to have just been able to turn the car around and go home. Video of our nephew’s race landed in my text messages. (He placed second!) We called my sister-in-law. They were visiting with their son and the rest of the family who had made it to the meet, before heading to a family dinner while our athlete returned to his teammates for a mandatory work out. They urged us to meet them at the restaurant. We were only a few

miles away, after all. We agreed but were at a standstill again. To say we were displeased would be an understatement. We were angry and the car was quiet. We sat there in silence for what seemed like forever.

The navigation app was telling us to take the next right, to yet another side road, that we just knew would lead us nowhere. Not going to fool us twice in one day! However, when we had finally creeped close enough to see the next recommended right, and despite the fact that it looked like it was an industrial park, we decided to risk it, and made the turn. After all, at least we would be moving. We drove over yet more railroad tracks, through an old tunnel, into the woods, on a one and a half lane road. Up ahead around the curve, we thought we saw someone on the roadside, a group actually, jogging. Right around the bend we found our nephew, in the middle of his post-meet mandatory work out, on this one lane road to nowhere, a road we hadn’t even wanted to travel. We found him, and technically saw him run.

Why have I shared our misadventure to the vicinity of a track meet in Kentucky? Because it was a great reminder. To just stop, take the less travelled path, take a journey without any confirmed destination. Take the leap, take considered risk. Trust that the road you do not want to take might lead you exactly where you want to go, just the way that last turn led us to our nephew.

By: Hon. Charles A. Cerny, Jr. Knox County General Sessions Court, Division I

ALLOW ME TO RETORT, A BLACK GUY’S GUIDE TO THE CONSTITUTION

A Black Guy’s perspective matters.

If we are talking about Constitutional law, and the black guy is Elie Mystal, his perspective matters a lot. He has written a book, Allow Me to Retort, A Black Guy’s Guide to the Constitution. It is brilliant but accessible, at times angry but funny, and I wish it was available when I was taking Con Law.

Elie Mystal is a graduate of Harvard College and Harvard Law School. He left a huge firm to become The Nation magazine’s justice correspondent, editor of the website Above the Law, and the legal editor for the “More Perfect” podcast.

(If you get nothing else from this review, please listen to the “More Perfect” podcast about the Korematsu decision. Fred Korematsu reminds me of my father. Bring your Kleenex.)

From the beginning, Mystal lets us know where he is coming from: “Our Constitution … is a document designed to create a society of enduring white male dominance, hastily edited in the margins to allow for what basic political rights white men could be convinced to share. The Constitution … needs to … make good on its unrealized promises of justice and equality for all.”1

Mystal is not disinterested emotionally. “A 5-4 ruling on the Supreme Court directly affects the likelihood of me getting shot to death by the police while driving to the store … I refuse to pretend to be intellectually dispassionate about such things.”2 But he knows that he (and all of us) have to remain hopeful: “… I’ll admit that the Constitution is not without its charms. That stuff about banning cruel and unusual punishment, for instance? Fantastic … That’s the thing about the Constitution: many of the rules, rights, prohibitions, and concepts are actually pretty decent.”3

Who is Mystal’s audience? Is he writing to help historically disadvantaged people “spot the bad conservative legal arguments, because they’re so often covered in jargon and discussed as if only an expensively educated lawyer could truly understand the nuance”?4 Is he writing to conservative white males to throw down a gauntlet and challenge them to intellectual jousting? Or is he writing to his sons, eight and five years old, to help them (when they’re able to read his book) to understand the society and legal environment in which they live? I respectfully suggest that it’s all of the above.

It’s pleasant and endearing to read an occasional digression about Mystal’s interactions with his sons. Although Mystal is never lacking in confidence when it comes to legal and historical arguments, his selfdoubt and introspection when giving examples from his forays into parenting only makes him even more accessible and human. “My kids are going to be shocked when they read the Constitution: They’re going to realize their lawyer parents knew about all this stuff yet consistently denied them basic human rights. But one constitutional right I try and give them, all the time, is their right to ‘substantive due process.’ Rules are indeed supposed to be ‘fair,’ and I’ve decided that my children are entitled to a reliable, consistent, repeatable answer every time I deprive them of life, liberty, or the Nintendo Switch.”5 Mystal then explains “substantive due process” using an easily understood example (also used by C.S. Lewis6) to support the notion that we all understand basic morals: waiting in line to be served food.7

Mystal takes on the Second Amendment, the NRA, and the “ammosexual”… a person who fetishizes firearms and can’t win at

Scrabble.”8 He explains Burwell v. Hobby Lobby, 573 US 682 (2014): “Those beliefs included making it difficult for their women employees to access a basic health service, while doing nothing to stop their male employees from getting ‘a pill’ to help them sustain enough of an erection to use their penises as knitting needles.”9

Mystal applies his razor-sharp logic to Terry stops and Miranda admonitions in Chapter 4.10 Masterpiece Cakeshop and Anthony Kennedy get the Mystal treatment as well.11 (Did you know that the owner of the Cakeshop, Jack Phillips, subsequently refused to make a cake for a woman to celebrate her birthday and gender transition?) And don’t forget that Ronald Reagan was happy to sign a law as governor of California (the Mulford Act) to limit open carrying of guns when those carrying were African Americans.12

Mystal saves special consideration of the Breonna Taylor case for Chapter 6: “Why You Can’t Punch a Cop.”13 After conceding that governments must have a “monopoly of violence” over its subjects (he relies on Thomas Hobbes’ “Leviathan” for support), Mystal decries qualified immunity for police officers. His arguments are difficult to refute.

I stumbled on Allow Me to Retort after finishing George Will’s book The Conservative Sensibility. (It took months, and I needed a dictionary by my side every moment.) At that point, I needed to read something different, for “balance”. Siri, Goddess of Algorithms, heard my subconscious thoughts and suggested that I listen to Allow Me to Retort on Audible. These books (and their authors) are similar but different.

The reason I see similarity between “Retort” and “Sensibility” is that they are both intellectually brilliant and logically well-executed. I can see Elie Mystal and George Will debating with civility and honesty, even though they are worlds apart ideologically.

Elie Mystal is funny, well-read, and an accomplished student of law. He has written a wonderful book which is passionate and, at times, angry. But Mystal never fails to be well-reasoned and intellectually honest in his arguments. He occasionally pokes fun at “ammosexuals” and “stupid people,” but I get the sense that he would not disrespect another person in a debate context.

It is my hope that we can talk about Constitutional and other issues as civilly and intellectually as Mystal and Will do in my imagination. After all, the most important first step toward a just and fair society is to listen to each other. But if that imaginary debate never happens, maybe I can at least persuade you to read Mystal’s book.

Because a Black Guy’s perspective matters.

1 Elie Mystal, “Allow Me to Retort, A Black Guy’s Guide to the Constitution” (The New Press 2022) p. 1.

2 Id. p. 5.

3 Id. p. 3.

4 Id. p. 7.

5 Id. p. 168.

6 See, “Mere Christianity” C. S. Lewis.

7 Elie Mystal, “Allow Me to Retort, A Black Guy’s Guide to the Constitution” (The New Press 2022) p. 169.

8 Id. p. 32.

9 Id. p. 22.

10 Id. Chapter 4.

11 Id. p. 23-30.

12 Id. p. 34.

13 Id. Chapter 6.

PRACTICE TIPS

By: Catherine Anglin Paine | Tarwater | Bickers, LLP

EVALUATING POTENTIAL HAZARDS

It has been said that we fear what we don’t understand. Unfamiliar chemicals in soil, water, and air raise concerns about whether they are harmful to us or the environment. Science and law have developed methods to evaluate whether potential hazards pose a risk. These methods help bring understanding to overcome fear and distinguish actual versus perceived hazards.

This article focuses on sampling, reviewing laboratory results, and performing an initial comparison of agents in soil, groundwater, or surface water to evaluate potential hazards from suspected contamination.

To explore a potential hazard in soil or water, the initial step is to have an environmental consultant prepare a sampling plan and collect samples. The sampling plan will focus sample locations and analyses to be representative of suspected contamination. Collecting samples is not as simple as grabbing some dirt or water and putting it in a jar. The type of container, the chemical preservative, and the collection method depend on the media being sampled (e.g. soil or water) and the desired analyses (e.g. metals, volatile organic compounds, semi-volatile organic compounds). The samples will be placed on ice in a cooler and shipped to the lab under a chain of custody. Sampling methods and analyses follow strict procedures set forth by the American Society for Testing and Materials (ASTM). Quality control samples are also often collected to boost the defensibility of the data.

The lab will provide a data report with the results after it performs the requested analyses. The report will include numerical values and often also letters that correspond to various “flags.” The flags provide information about any discrepancies before or during analysis, like whether the lab had to dilute the sample or if the sample did not arrive at the lab within the recommended temperature range. Some results will show a low numerical value with a flag that denotes “non detect” (e.g. “0.02 U”). Laboratory equipment have lower limits of detection. That is, they can reliably detect concentrations down to a certain level but not below that level and, therefore, cannot confirm the absence of an agent. Thus, values on a lab report do not always mean an agent is present. The flags must be evaluated as well as the numbers.

Units and measurements seem straight forward but make a difference. At my house, this was brought to light the time my daughter was determined to make brownies “all by herself.” She included all the right ingredients but was oblivious to the numbers in front of the listed ingredients. She put one cup of every ingredient in the mix. It turns out, the quantities do make a difference. When looking at sampling results, note the units. Solids, like soil, are measured in milligrams or micrograms per kilogram (mg/kg or µg/kg) and liquids are measured in milligrams or micrograms per liter of water (mg/L or µg/L). Keep an eye out for units and orders of magnitude. Which way do you move the decimal place to convert 10E-6 to 10E-2 or to convert mg/kg to µg/kg? Surely there is a conversion tool for that on our fancy phones.

One initial step in evaluating lab results is to compare them to recognized screening levels. Some screening levels, or comparison levels, are legal threshold limits while others are provided by scientific organizations for guidance. Here, concentrations in drinking water are compared to Maximum Contaminant Levels (MCLs) which are found in Tennessee department of Environment and Conservation (TDEC) Rules and Regulations 0400-45-01-.06. The U.S. Environmental Protection Agency (EPA) Regions 4 publishes Regional Screening Levels (RSLs) for our area, including residential soil RSLs, industrial soil RSLs, and others. Many constituents are naturally present in the environment. The

levels at which they are present naturally are referred to as “background levels.” Where available, background levels provide another comparison tool.

If a result exceeds a comparison level, that does not necessarily mean that the agent is a hazard. An exceedence can cause protection measures to kick in or indicate further evaluation is warranted. Tennessee Department of Environment and Conservation (TDEC) and EPA often use screening levels to guide soil and groundwater remediation at hazardous waste sites. These agencies may require the responsible party to remediate or remove contaminated soil and groundwater that exceeds screening levels. Alternatively, they may require the responsible party to implement land use controls or monitored natural attenuation in lieu of or in combination with remediation to reduce risk. As an example, land use controls may prohibit digging below a certain depth or contact with groundwater to avoid exposure to a contaminant. These prohibitions will effectively contain risks of hazardous exposure where it is unfeasible or too costly to clean up below the screening levels. The natural environment can naturally process many agents to lower levels and to safer degradation or daughter products. Monitored natural attenuation means that regular sampling will be performed to evaluate whether, and to what extent, the natural environment is reducing the levels of contamination.

Moreover, the amount of an agent detected in soil or water is not directly indicative of the exposure level or dose an individual may have to the agent. The route of exposure, distance from the source, and frequency and length of exposure all impact dose. A foundational tenant of industrial hygiene is the dose-response relationship. It is the dose, not the mere presence of an agent, that informs whether an agent may be a risk to human health. Low dose exposures, even occurring for multiple years, often have no consequence because the body is often able to completely detoxify low doses by metabolizing or eliminating chemicals before they do any damage. Some agents are even beneficial at low doses.

Industrial hygiene and toxicology experts can establish the exposure level or dose that an individual may have to a particular agent. A toxicologist can then compare the exposure levels or doses to established benchmarks for human health effects. This will inform whether the constituent could potentially cause health effects. I will provide more information about this part of the process in an upcoming KBA CLE of the same title as this article on July 20th

HELLO MY NAME IS

By: Jennifer Franklyn Realty Trust Group, LLC

ELIZABETH PETERSON

This Month’s “Hello My Name Is…” q-and-a column highlights Elizabeth (Liz) A. Peterson. Liz is an Associate Attorney at Kennerly, Montgomery, and Finley, P.C., where she practices in civil litigation and appellate law. Liz holds several degrees: a bachelor’s degree from the University of the South (also known as Sewanee) in cultural anthropology, a Master of Music in Opera Performance from Washington University in St. Louis, a Master of Divinity from Columbia Theological Seminary in Atlanta, a Doctor of Divinity from Louisville Presbyterian Theological Seminary, and a J.D. from the University of Tennessee College of Law. Liz notes that she was one of the members of UT Law’s “pandemic graduating class” in 2020. She is a member of the KBA, the Hamilton Burnett American Inn of Court, Order of the Coif, and Order of Barristers. In addition to being a lawyer, Liz is also an ordained minister in the Presbyterian Church (U.S.A.).

Describe your perfect day off in Knoxville.

Perfect day off would be enjoying coffee on the back porch with my husband, George. Then we would drive somewhere nearby to hike for a few hours (we love the Norris area). Then we would come home and have some friends and neighbors over for a cookout, and we would get our guitars out and sit and sing songs until late in the night. Meanwhile, I’d be throwing sticks for my dog, Misty, and enjoying our view of the Holston River.

What is your favorite travel destination?

We took our honeymoon in the Faroe Islands, which is a protectorate of Denmark. We liked it so much we went back the next year. It is

spectacular geography, and the people are friendly, kind, and adventurous.

If you gave a TED Talk, what topic would you choose and why?

I would talk about how we should not teach our children to be so afraid of everything. How setting up our children to fear strangers, fear being on their own, and fear failure sets them up later to be leaders who bend to the slightest pressure from oppressors.

What’s your binge-watching guilty pleasure?

RuPaul’s Drag Race.

If you could give a new law student one piece of advice, what would it be?

I would say (1) there are often several different ways to accomplish the same goal; (2) if you make a mistake there is usually a way to fix it; and (3) don’t be a jerk. That’s three pieces!

If you could not be a lawyer, what would you be?

I am a practicing pastor, and I sing opera. And I also work as a mascot part time (but I can’t say who the mascot is!). So I’d do those.

PRIVILEGED TO BE A LAWYER

By: Nathaniel R. Ogle Justice, Noel, Burks & Ogle

LOOKING BACK THROUGH THE FIRST TEN YEARS

During my first year of practice in 2013, an older, wiser attorney told me most of us have no real clue what we’re doing until we’ve been practicing for ten years. As the calendar flipped over to 2023, I thought of this earlier advice and began to earnestly consider what I’ve learned in my first ten years of the practice of law.

In pursuit of this introspection, I started by asking myself what it means to engage in a professional practice. The dictionary defines “practice” as “to perform an activity or exercise a skill repeatedly or regularly in order to improve or maintain one’s proficiency.”1 With this simple definition in mind, I’d like to share with you a few lessons I’ve discovered in my first ten years that have come to shape my own ideas about the practice of law.

The first, and probably the most important, lesson I’ve learned in these first ten years is to operate under the healthy assumption that I don’t know everything and to always prepare for the unexpected. For eight of my ten years in practice, I had the pleasure of serving as a prosecuting attorney in Knox County. Despite my best efforts, jury trials would often hold a surprise or unexpected moment. Very early in my career, I was certain I would prevail in a trial where the accused vandalizer of a county bar was on video, right in the moment he threw a rock through the bar front window, clearly displaying on camera a highly distinctive gang-affiliated tattoo on his arm. The police quickly caught a guy matching the description with the distinctive tattoo not far down the street at another establishment. You can imagine my surprise when, during his case, defense counsel threw a curveball the shallow police investigation failed to reveal – the accused had been at this bar earlier in the evening with a whole group of men with the same highly noticeable tattoo. These men had been kicked out of the bar after an argument with the manager. During examination, the manager could not actually distinguish any of these men, including the accused, from the individual captured on the bar video. As defense counsel developed this troubling hole in my case, that fuzzy bar room video I felt so confident about at the outset of the trial faded to nothing more than a mirage. I had been incorrectly operating under the belief the investigation was complete the day the file came to rest on my desk. That trial I learned an important lesson – there are no layups in the real world of trial practice. After this important experience, I have made it my habit to never rest on the factual universe developed before a trial or hearing and to continually re-examine my cases for potentially false assumptions.

The second lesson that has shaped my first ten years: The law is a people business. Sure, as lawyers we all spend time looking at statutes and studying precedent to develop the highly sought after strategic edge over opposing counsel. However, I’ve learned to always be cognizant of the reality that behind every factual situation are real people struggling with problems and stresses that may be the worst and most serious of their lives. As a violent crime prosecutor, I would often meet families struggling to cope with the sudden and unexpected loss of a loved one or with an individual learning to live with a life-altering violation of their personal safety. Now that I’m back in private practice, I often find myself discussing equally difficult and highly sensitive scenarios with my clients. As lawyers, our clients look to us to help them rationalize what has happened in their lives and to show them a path forward where things don’t seem quite so uncertain. To do the work of counselor effectively, an attorney must practice empathy, patience, and discernment under the stormiest of conditions.

The last lesson: It doesn’t matter how polished the presentation or

presenter may seem; imposter syndrome isn’t just for younger lawyers. I can’t tell you how many times I’ve been in the middle of questioning a witness or making an argument and simultaneously, in my own mind, I’ve actively struggled to understand how that question could have escaped my lips in such a clumsy fashion or why I failed to make my point more succinctly. After commiserating with colleagues on this point for nearly ten years I’ve realized we all experience this exact feeling on occasion. For younger practitioners reading this article, there’s no secret to dealing with this feeling. When these thoughts bubble to the surface of my mind, I have made it my habit to plow forward and to trust in my preparation, to stay in the moment, and to remember that my client is relying on me to put forth my best effort.

I feel deeply privileged to have the ability to wake up in the morning and work in a personally and professionally gratifying career. For those of you that share this feeling, we shouldn’t ever take it for granted. Although the future is always uncertain, I think back on these first ten years and I feel assured by these lessons that form the foundation of my repeated processes, my professional routines, my practice of law.

1 https://www.merriam-webster.com/dictionary/practice

TOP TEN LIST

By: Jason Long Lewis Thomason, P.C.

MOST FAMOUS (INFAMOUS) TRIALS

This month’s Top Ten List is the Top Ten Most Famous (Infamous) Trials in American History. Please remember these rankings are entirely subjective (if you want to disagree, write and submit your own column). Admittedly, important trials such as that of Claus von Bulow, the Nuremburg trials, and the court martial of William Calley, to name a few, did not make this subjective cut. Nonetheless, I think there is a pretty good argument that the following are the most famous trials in our nation’s history.

10. Impeachment of Bill Clinton – I struggled with including this one on the list. Certainly, an argument can be made that the impeachment of Donald Trump, the various legal proceedings involving Richard Nixon, or any legal proceeding involving a sitting President belongs on this list. I picked Bill Clinton because of the salacious nature of the allegations, which seemed to captivate the country, and the fact that it was the first actual impeachment trial in over 130 years.

9. Commonwealth v. Preston, et al. – I’m a John Adams fan. Always have been. He was a consummate lawyer and statesman and, as much as anyone, was a primary architect of our independence. In 1770, he showed what being a lawyer was all about. He accepted the defense of the eight British soldiers charged with murdering five colonists during the Boston Massacre. Despite his distaste for Mother England, his desire for an ordered system of justice in which the accused could receive a fair and effective defense guided his actions. His reputation and practice took a hit among his revolutionary comrades as a result of the highly publicized trial, but he did his duty and remained steadfast to the ideals upon which our country was founded.

8. The Scottsboro Trials – We know these trials primarily for the appellate proceedings that followed. However, the trials themselves generated substantial publicity and controversy. Nine black teenage boys (the youngest was just thirteen years old) were charged with raping two white women on the Southern Railway line between Chattanooga and Memphis. The alleged rapes (there was no evidence substantiating the claims other than the testimony of the victims themselves) occurred on March 25, 1931, in the heart of a racially-divided deep south. The Defendants were quickly arrested and indicted, and counsel appointed. The trials occurred over a span of three and a half days with large mobs outside the courthouse demanding a lynching. By April 9, 1931, fifteen days after the incident occurred, the Defendants had been convicted.

7. Trial of the Chicago Seven – The individuals named in the indictment read as a Who’s Who of 1960s counterculture (Davis, Dellinger, Froines, Hayden, Hoffman, Rubin, and Weiner – note that the trial should have been called the Chicago Eight but the case against Bobby Seale was declared a mistrial). The trial over the Defendants’ involvement in the demonstrations at the 1968 Democratic National

Convention exposed a generational and philosophical divide in our country during the turbulent decade.

6. State v. Leopold & Loeb – In September of 1924, an Illinois state judge sentenced Nathanial Leopold (then 19) and Richard Loeb (then 18) to life imprisonment plus 99 years for the kidnapping and murder of Bobby Franks (age 14). The educated and privileged young men had set out to commit the perfect crime. They narrowly avoided the electric chair thanks, in part, to the twelve-hour closing argument of Clarence Darrow who argued passionately against the propriety of the death penalty as a form of punishment.

5. State v. Borden – A personal favorite, this may be the first “Trial of the Century.” In June 1893, prominent socialite Lizzie Borden was acquitted of the double axe murder of her father and stepmother in Fall River, Massachusetts. This trial had a little bit of everything for the public: class envy, brutal slayings, and a scandalous theory that Lizzie committed the murders while naked to avoid contaminating her clothes with blood splatter, and a catchy nursery rhyme repeated to this day.

4. United States v. Rosenbergs – Julius and Ethel Rosenberg were the first civilians to be convicted and executed for espionage (they were also the first people executed for that crime during peacetime). The trial took place in New York in March of 1951 at the height of the Red Scare and garnered international attention.

3. State v. Scopes – Charged with violating Tennessee’s Butler Act, which made it illegal to teach evolution in state schools, John Scopes was put on trial in Dayton, Tennessee. He found himself at the center of a media storm as intellectual heavyweight Clarence Darrow and threetime presidential candidate William Jennings Bryan descended upon the sleepy town to draw the attention of the nation.

2. State v. Hauptmann – On October 8, 1934, German immigrant Bruno Richard Hauptmann was indicted for the murder of Charles Lindbergh, Jr., infant son of the world-famous aviator, who was killed during a botched kidnapping attempt. Lindbergh, Sr. was, at the time, a national hero and the country mourned his loss and wanted revenge. Though he maintained his innocence throughout, Hauptmann was convicted on the strength of circumstantial evidence and was subsequently executed.

1. State v. O.J. Simspson – Was there ever any doubt? After thirty years, this one still sets the standard for what constitutes a media circus. For eleven months, from November 1994 to October 1995, our country was obsessed by this double murder trial which made instant celebrities out of the likes of Cochran, Kardashian, Ito, and Kato Kaelin . . . Kato Kaelin, for god’s sake.

WHAT I LEARNED ABOUT INCLUSION AND WHY IT MATTERS

By: Hon. Hector I. Sanchez Criminal Court Judge Division II, Sixth Judicial District

INCLUSION, WHETHER YOU LIKE IT OR NOT: A MARINE’S PERSPECTIVE

Inclusion is a simple word that suggests an easily apparent definition: to be included. However, I know how layered the true meaning of this word is, how there is so much more than a simple answer, because of the many very real ways it has applied to my own life. Some say my personal backstory is inspiring and moving, while others express doubt about its veracity, given my position. In either case, my only interest is in setting the record straight on the topic, focusing especially on what I learned about inclusion and why it matters.

Growing up impoverished — living on food stamps, dependent on public transit, and sheltering in public housing — is a situation that makes most people think of disadvantage, with a limit on one’s potential, but that doesn’t have to be the case. In a word, inclusion is what shaped the path I took, how I found my way in the world, and I hope that sharing my story will help others develop the determination and drive to go after what they want out of life, regardless of their circumstances. While poverty was the norm for most of my younger years, in 2005, my experience shifted, becoming defined instead by community and belonging: my inclusion.

I was 21 years old when I departed the Military Entry Processing Station in West Knoxville, enroute to the Marine Corps Recruit Training Depot - Parris Island, in Beaufort, South Carolina. To say I was scared would be a gross understatement. I was uneducated, naive, and barely prepared for what I would eventually appreciate as a defining moment in my life, but the next three and a half months of hard training would mold an undisciplined kid into a Marine.

I vividly recall my first impressions there, arriving at the outer perimeter after a seven-hour haul from Knoxville. At that point, myself and five others being transported in from the Knoxville area were instructed to put our heads into our laps and not look up until we arrived at the recruit processing station. I have since learned that this measure was taken so recruits that desired to go AWOL (absent without leave) would not know their way out, and the military police would have the upper hand in apprehending them for a stay in the brig. When the van came to a screeching halt, and we were instructed to lift our heads again, the headlights shone out on a 100-yard expanse of lines and columns of yellow footprints, all arranged in perfect forty-five-degree angles. All too soon, and for what often felt like too long, I was quickly and forcefully manning a set of those footprints; I still find myself unconsciously standing in that position today. Both of these fleeting experiences, while off-putting and frightening, unified us as recruits.

During my first two minutes on Parris Island, I had an unforgettable experience with the concept of inclusion. Drill Instructor Gunnery Sergeant Sheldon Goumelle, a mountain of a man with maybe onepercent body fat, made us as recruits aware that he was present—and, if

you knew what was good for you, you’d better pay attention. He told us that his job description was to make us into basically-trained Marines, and that roughly forty percent of us would not make it through the grueling three and a half months aboard Parris Island. Speaking now from the other side of that statement, he was correct. We might have been unified in common purpose as recruits, but opportunity only provides for success when you put in the effort to allow it to.

He was trying to scare and motivate us at the same time, but what else he told us that day has always stayed with me. The idea he put out there is something that has given me purpose and confidence, in my pursuit of obtaining a law degree and upon taking the bench, despite being demographically and socioeconomically different than the typical candidates. Goumelle didn’t care if we were African American, Caucasian, Hispanic, Asian, or whatever; he instead informed us that once we signed onto “Uncle Sam’s Gun Club,” as he phrased it, we were Green. All Marines were Green, and we all bled the same color. For the first time in my life, I felt part of something larger and greater than myself; I felt accepted and valued. This made me proud; it motivated me. But it also underlined the importance of putting aside anything at all that might separate any of us from our fellow. Bringing everyone together, especially united by common purpose, makes us stronger, smarter, and more able to achieve our goals, far more than the lack of inclusion that divides us would ever allow for.

This is why inclusion matters: its innate ability to offer unique perspectives, shared experiences, and most of all, unity. When we help one another, we are all represented, and when we are all represented, that’s when we are of the most help to one another.

AROUND THE BAR

By: Mariel Bough VeraSafe

Grant T. Williamson

Bradley Arant Boult Cummings LLP

AN OPPORTUNITY TO VISIT LEADS TO A WILLINGNESS TO STAY

When the Knoxville Bar Association (KBA) Barristers Diversity Committee began to think about its goals for 2022, the committee first considered how it could continue to promote an environment that was welcoming to diverse students at both of Knoxville’s law schools so that more students would consider remaining in Knoxville to practice after graduating. The thinking was that by fostering a welcoming environment that encouraged law students to get involved and connected with the KBA while still in law school, the Barristers Diversity Committee could foster a larger community of diverse attorneys that would further encourage more diverse, young attorneys to remain in Knoxville after graduation – effectively creating a more diverse and inclusive bar overall. Especially in the last few years, the KBA has seen fewer diverse attorneys join its ranks as graduates from Lincoln Memorial University’s Duncan School of Law and the University of Tennessee College of Law (collectively, the Law Schools) have increasingly moved to Nashville, Charlotte, Atlanta, and other cities after finishing law school. In the past, diverse students have relayed to the Barristers Diversity Committee that it was difficult to make connections with members of the KBA, which made diverse students more likely to seek out other cities when deciding where to begin their careers as attorneys.

In order to start identifying ways to better serve as a liaison between the KBA and the Law Schools, the Barristers Diversity Committee reached out to diverse students at the Law Schools. Through conversations with the leaders of diverse student organizations at the Law Schools on how to foster relationships and further diversity and inclusion efforts between the KBA and law students, the committee learned of a different side of the same issue. While the KBA is experiencing a decrease in diverse attorneys becoming members of the bar, the student leaders have also noted a decrease in diverse student enrollment and lower student participation in diverse student organizations at the Law Schools. Students were offering up their own homes and apartments to law school applicants who wanted to visit the Law Schools in an effort to try to make the financial burden of visiting just a little bit lighter. In this way, the student leaders hoped they could allow a greater number of diverse students to be able to visit and experience all that Knoxville and the Law Schools have to offer.

In order to target the issue of the lack of diversity in the KBA at its root, the Barristers Diversity Committee determined that it was imperative to get involved with diversity efforts at the Law Schools –without a diverse group of law students in town, a diverse and inclusive KBA is not possible. By creating a scholarship fund for students of diverse backgrounds who are interested in attending one of the Law Schools, the Barristers Diversity Committee hoped to remove a hindrance to its goal of creating a more diverse and inclusive bar by making it at least a little bit easier for future attorneys to experience Knoxville, the Law Schools, and Knoxville’s local bar.

Because of the generosity of the KBA’s members, and their commitment to fostering a more diverse and inclusive bar, the Barristers Diversity Committee was been able to, during the first year of the scholarship fund’s existence, raise a total of nearly $7,400, including being awarded the American Bar Association’s Young Lawyer’s Division’s Diversity Scholarship Grant, exceeding its initial goal of $5,000, for the scholarship fund for students interested in visiting and possibly attending one of Knoxville’s law schools. As of the date of publishing, the Barristers Diversity Committee has raised an additional $2,550 in scholarship funds, bringing the two-year total to $9,950 – YOU could be the one to officially bring us over the $10,000 mark, so please consider donating today! None of this would have been possible without the support of Knoxville’s attorneys. The Barristers Diversity Committee would like to extend our deepest gratitude to the firms and individuals who have donated thus far in 2023:

Catherine E. Shuck of East Tennessee Children’s Hospital; Charles W. Swanson of the City of Knoxville Law Department; Jerry M. Martin;

Grant T. Williamson of Bradley Arant Boult Cummings LLP; Penny J. White of the University of Tennessee College of Law; Amy Hess of the University of Tennessee College of Law; Brock Shipe Klenk;

Bradley Arant Boult Cummings LLP;

Courtney Read of Watson, Roach, Batson & Lauderback, P.L.C.; and

Mary D. Miller of Mary D. Miller PLLC.

The Barristers Diversity Committee’s hope is that this scholarship will continue to grow and that it can be used to help alleviate the cost barrier that prevents many diverse students from visiting and ultimately deciding to attend one of the Law Schools. A donation of only $250 (which can be made on the KBA’s website) helps to ensure that one student, who may not otherwise be able to afford to visit one of the Law Schools prior to their enrollment, is able to visit.

Additionally, there are many other ways to support diversity and inclusion efforts by the KBA and by diverse student organizations at the Law Schools. Please feel free reach out to either Mariel Bough (mariel. bough@verasafe.com) or Grant Williamson (gwilliamson@bradley. com), the Co-Chairs of the Barristers Diversity Committee, for more information on how your donation will be used, or for more ways to get involved with the Barristers Diversity Committee’s efforts to make the Knoxville Bar Association a more inclusive and diverse organization.

LEGAL UPDATE

By: Hannah Lowe

DEVELOPING LAW: TRO GRANTED BLOCKING ENFORCEMENT OF TENNESSEE LAW CRIMINALIZING PUBLIC DRAG PERFORMANCES

In March 2023, the Tennessee Legislature passed, and Governor Bill Lee signed, Public Chapter No. 2, 113th General Assembly 2023.1 The law makes it “an offense for a person to engage in an adult cabaret performance” either “(A) On public property; or (B) In a location where the adult cabaret performance could be viewed by a person who is not an adult.”2 The law provides that a first offense is a Class A misdemeanor, and a second or subsequent such offense is a Class E felony.3

“Adult cabaret entertainment” is defined as “adult-oriented performances that are harmful to minors, as such term is defined in § 3917-901,4 and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.”5 Rather than have this bill go into effect on July 1, as is typical, this bill was made effective April 1, 2023, which opponents noted meant it would be in effect in time for Pride month in June, when LGBTQ groups typically hold festivals and other events celebrating the LGBTQ community.6 In the legislative hearings, House Rep. Justin Jones (D. Nashville) called the law “a solution looking for a problem.”7 House Rep. John Ray Clemmons (D. Nashville) raised concerns about the impact on small businesses such as restaurants that host drag brunches, and that the broad, vague language arguably could subject performers like Beyonce, Harry Styles, Lizzo, or Madonna to arrest when performing in Tennessee.8 Other commentators have questioned the impact on high school theatre productions.9 In our own community, when the bill passed the Tennessee Senate, the organizers of Knoxville Pride announced they would cancel pride events if the bill became law.10

On March 27, 2023, Memphis-based LGBTQ+ theater company, Friends of George’s, Inc. (Plaintiff), a nonprofit group hosting drag performances, comedy sketches, and plays, filed suit in federal court in Memphis to enjoin enforcement of the statute, alleging it is an unconstitutional restriction on speech under the First Amendment as incorporated by the Fourteenth Amendment of the United States Constitution.11 Judge Thomas L. Parker held a hearing on March 30, 2023, and on March 31, 2023, issued an Order granting a temporary restraining order enjoining enforcement of the statute.12

Plaintiff alleged Defendants seek to “explicitly restrict or chill speech and expression protected by the First Amendment based on its content, its message, and its messenger,” and asked for an injunction to prevent “this unconstitutional statute from taking effect.”13 Neither party disputed “the Statute restricts expressive conduct—defined as ‘adult cabaret entertainment’—that could be protected speech under the First Amendment, but the parties disputed “whether Plaintiff has standing to bring this suit, and whether the Statute is constitutional.”14 Plaintiff contended the Statute is unconstitutional because it is content-based restriction on speech that is also void for vagueness and overbreadth.15 Defendants contended the Statute is narrowly tailored content-neutral restriction on speech that passes intermediate scrutiny.16

In granting the TRO, the Court found the Plaintiff had met the burden of establishing the four factors for preliminary injunctions: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the absence of an injunction; (3) whether granting a TRO would cause substantial harm to others; (4): whether the public interest is served by issuance of a TRO.17

On the first factor, the Court found Plaintiff had standing, as it

“has a reasonable fear of prosecution for conducting shows similar to those it has performed in the past, which may be punishable by the Statute with criminal effect[,]” including one scheduled April 14, 2023.18 The Court reasoned that having to decide whether to “add a previously unnecessary age restriction, cancel the show, or risk criminal prosecution or investigation … are not trifling issues for a theatre company—certainly not in the free, civil society we hold our country to be.”19 The Court further found Plaintiff likely to succeed on the merits as it had “made a likely case for analyzing the Statute under strict scrutiny, which would make the Statute presumptively unconstitutional unless Tennessee can present a compelling government interest[,]” as either content-based or facially content-neutral but considered content-based regulation.20 The Court considered the legislative history, including statements made by the law’s sponsor, Rep. Chris Todd (R. Madison), about his efforts the previous summer to force a local family-friendly Pride LGBTQ festival in Jackson, TN, to be held indoors with an age-restriction, making it clear that he proposed the bill to target such events.21 The Court also found the law likely both vague and overly-broad, as it targets not just adultoriented businesses but “performers virtually anywhere,” and while the Defendants argued the Statute is a “time, place, and manner restriction that complements the state’s obscenity laws,” it in fact “provides no time and manner restrictions[, and i]ts place restriction fares little better as it can be reasonably read to mean just about anywhere, including private homes.”22

The Court concluded Plaintiff met its burden of proving the second, third, and fourth factors as well, because “issuing a TRO here will preserve the status quo and benefit the public interest by clarifying the scope of a law that could impact the First Amendment rights of Tennessee residents.”23

The Court concluded “[i]f Tennessee wishes to exercise its police power in restricting speech it considers obscene, it must do so within the constraints and framework of the United States Constitution.”24 The Court’s order was made effective for 14 days from the date of entry, and the Court stated that it would hold a status conference “in the coming days” to schedule future hearings.25 On April 5, 2023, Judge Parker extended the TRO through May 26, 2023.26 A hearing is expected in May before the TRO expires.27

1 The legislation was passed in the Senate as SB 0003 and in the House as HB 0009. See legislative history at: https://wapp.capitol.tn.gov/apps/BillInfo/default. aspx?BillNumber=SB0003

2 T.C.A. § 7-51-1407 (c)(1)(A) and (B) (2023).

3 T.C.A. § 7-51-1407(c)(3) (2023).

4 T.C.A. § 39-17-901 defines “Harmful to minors” as “that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance: A. Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors; B. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and C. Taken as whole lacks serious literary, artistic, political or scientific values for minors[.]”

5 T.C.A. § 7-51-1401(12).

6 2023 Pub. Acts, c 2, § 1, eff. April 1, 2023. See https://wpln.org/post/gov-bill-leesigns-into-law-a-ban-on-drag-shows-performers-say-the-law-is-too-subjective/

continued on page 26

LASTING POLICE REFORM: THE ABA LEGAL EDUCATION POLICE PRACTICES CONSORTIUM MODEL

Law enforcement officers have incredibly difficult, dangerous, and often thankless jobs. They also have an enormous responsibility to the public that they serve, not only to protect them from the harms of criminals, but also to protect citizens by not taking improper actions against those they serve. This responsibility requires law enforcement officers and their administration to constantly strive to improve upon their recruitment practices, training, and oversight.

The work of policing has, in recent years, positioned the profession at the heart of protests and calls for policy reform, with many feeling as though protecting the rule of law has been prioritized over the needs and safety of the community. While police are often called upon to ensure the protests remain peaceful, rarely is there an opportunity for them to meaningfully engage in the content of what is being contested, learn the ways in which the laws that govern policing have progressed over time in response to evolving and maturing needs of the community, or determine the impact that proposed reforms would have on their daily responsibilities.

From a lawyer’s perspective, there has been a growing need for increased education and discussion surrounding police law, policy, and practices to bridge a very important gap in the police and legal communities. Understandably, many police officers may not interact with lawyers in their community and if they do, it involves legal proceedings that inhibit trust. In the legal field, many lawyers come from different backgrounds, often without law enforcement experience. Without a thorough understanding of the challenges and pressures that police officers face day-today, lawyers and law students may lack the information necessary to make meaningful changes to the law. Moreover, there is a growing need for lawyers evaluating incidents involving excessive use of force, racial profiling, and civil rights violations to understand police misconduct and how to hold bad actors accountable.

In the summer of 2020, as the world watched events leading to the injury and death of many at the hands of law enforcement, a group of law school administrators joined with the American Bar Association (ABA) to brainstorm a way to address the injustices and train a new generation of legal thinkers to approach the issue in a way that learned from the experiences of the past. Born from this group was a new initiative of the ABA, housed within the Criminal Justice Section. The ABA Legal Education Police Practices Consortium1 seeks to contribute to the national effort examining and addressing legal issues in policing and public safety, including conduct, oversight, and the evolving nature of police work. The Consortium combines the ABA’s expertise along with that of the participating law schools to create projects that develop and implement better police practices across the United States. Approximately sixty member law schools, including LMU Law and Memphis Law, pledged five years to the pilot program.

The Consortium’s overall goal is to collaborate with law schools “to advance the practice of policing, promote racial equity in the criminal legal system, and eliminate policing tactics that are racially motivated or have a disparate impact based on race.”2 The Consortium chooses law students from each participating law school to become ABA fellows for one or two semesters. The fellows advance the Consortium’s goals by forming connections in their local community, researching local police practices, and assisting in research efforts of the Consortium. In addition, students meet weekly to learn from experts on a variety of topics relevant to current policing and reform issues. The overall goal for each semester is to identify a community problem and research how to best assist both the community and the police to bring about great lasting change. The Consortium also supports the development of law school curriculum that might create a forum to discuss controversial policing issues, policies, and practices. To that end, LMU Law created a course to address

fundamental issues in policing. The course covers topics such as police culture, training, recruitment, the community policing philosophy, predictive policing, use of force, racial profiling, police oversight, the efficacy of policing reform efforts, and potential career paths in policing and police reform.

The Police Law Practices and Policy course at LMU Law brings together students with a diverse group of law enforcement officials to discuss a variety of issues related to policing and the law in an interactive manner, which also emphasizes respectful dialogue and bilateral information sharing. Offered via Zoom, the virtual platform ensures officers from across the country can be involved with limited cost implication for the school or department (apart from the officers’ time). It also allows the deployment of breakout rooms for students and the officers to respond to discussion prompts, ensuring more direct engagement between the two. The course was initially offered in Spring 2022 and brought back this year following rave reviews from the students and officers involved.

Conversations that take place between police officers and law students interested in practicing criminal law have the potential to create significant impact in the legal and policing communities alike. Providing students with an insight into police law, policy, and practices can equip future lawyers with the tools they need to navigate policerelated cases and can build stronger relationships between law students and law enforcement along the way. By inviting law enforcement officials, both locally and nationally, to join class discussion involving controversial topics, police officers get a chance to voice concerns on how suggested policies might not work in practice, while learning about civilian viewpoints and frustrations. Additionally, students are given an open forum to inquire about the challenges and pressures faced by police officers to gain a better understanding of their day-to-day. They are also required to participate in a ride-along with a local police officer or sheriff’s deputy. Finally, such an environment may affect law enforcement’s relationships with their own community by covering subjects such as excessive force, qualified immunity, and civilian review boards.

By developing a deeper understanding of these issues, future lawyers will have the ability to hold police departments responsible for any violations of misconduct. In communities where police are held accountable, confidence in the police can be rebuilt, and these communities may become more likely to respect the police. Similarly, when police officers see lawyers working to ensure that they operate within the bounds of the law, they may be more likely to trust and respect the legal community. By promoting education and collaboration between police officers and lawyers, we can foster an environment of trust and understanding.

Overall, the impact of conversations and courses such as this will extend beyond the walls of the law school and impact community relations between police officers and future lawyers simply by increasing understanding and empathy between the two groups. This can lead to greater empathy and perspective on issues related to policing. It will help break down barriers between police officers and the legal community, leading to more productive and collaborative relationships moving

COVER STORY

By: Melanie Reid LMU Duncan School of Law Elizabeth Luminoso 3L, LMU Duncan School of Law

forward. These discussions are a critical component in addressing the complex relationship between the state and the individual, as well as the role and function of police agencies in society. They will help to equip law students with the tools and knowledge necessary to contribute to the ongoing conversation about how we can create a more just and equitable society for all.

It is critical that we foster communication and begin to develop a network between law schools and law enforcement agencies. This relationship building can provide new opportunities for policing agencies to engage with their local communities, offer additional training spaces on campus at participating law schools, and foster a greater sense of information sharing and access to promising academic practices related to policing and public safety. Additionally, more comprehensive and evidence-based curriculum, grounded in a legal scholarship, would further support the ability of officers to work with and better protect their community, promoting a culture of respect and greater understanding of the rule of law as well as the community it aims to protect.

1 https://abalegaledpoliceconsortium.org/

2 Id.

IN LIMINE: PROFILING FUTURE JDS

By: Allison J. Starnes-Anglea Director of Career Services

Lincoln Memorial University Duncan School of Law

SONSIREZ ROBLES LMU DUNCAN SCHOOL OF LAW, CLASS OF 2023

Meet Sonsirez “Sonny” Robles of Lincoln Memorial University Duncan School of Law, Class of 2023. Sonny hails from St. Croix, United States Virgin Islands. Part of the three main islands making up the United States Virgin Islands, St. Croix has flown the flags of Spain, The Netherlands, England, France, the Knights of Malta and Denmark. On the island’s northern shore, Christiansted— once capital of the Danish West Indies—features 18thcentury butter-colored, redroofed buildings and quaint stone streets. Frederiksted, its twin city to the west, boasts a fort that once protected the island from pirates and rival nations.  In addition to its rich history, St. Croix features the Caribbean Museum Center for The Arts, gorgeous beaches, world-class recreational activities, fine dining, resorts, casinos and golf courses. The local population of the entire U.S. Virgin Islands was just above 85,000 people in 2020, according to the U.S. Census Bureau. Notably, the largest population group in the U.S. Virgin Islands in 2020 was Black or African American alone or in combination with another race group, such as White, with the total group accounting for about 75% of the islands’ population. Sonny identifies as Hispanic/Latina.

Like many non-traditional students, Sonny’s path to law school involved a break between high school and college. Sonny spent six years working minimum wage jobs until life reached a tipping point and she moved back home with her mother. “I decided right then and there that I was going to do it right this time,” she recalls. With the support of her mom, Sonny enrolled in the University of the Virgin Islands. After college, it was on to law school. “I always wanted to be a lawyer,” she says. However, living on a small island presented obstacles for Sonny’s path to law school. For example, taking the LSAT posed an unusual challenge. In 2020, Sonny ordered a prep book online and searched for the closest place to take the LSAT. She explains, “In the Virgin Islands, we have no law schools.” This meant the LSAT was not offered on St. Croix. Sonny learned the LSAT was offered on St. Thomas. She paid her exam fee, booked a flight to a different island, and took the exam without the benefit of a home court advantage.

After the LSAT, Sonny began to apply to law schools. Then, the pandemic stopped every ounce of momentum she had generated. “Law schools weren’t giving tours, and I was lucky to get someone on the phone,” she recalls. Would this be where Sonny’s dream would end? Did she work so hard to finish college and find a way to take the LSAT, only to be shut out of admissions due to shelter-in-place orders? Of course not. Sonny persisted. “I decided on LMU Law partly because of their amazing attentiveness during that time. Emails were promptly

answered,” she explains. She also liked the small class sizes, the “open door” policy among the faculty, and the sense of community. Adjusting to the climate of Tennessee was a challenge. In St. Croix, she says, “any temperature under seventy degrees is what I consider to be cold.” Over time, she learned what kind of coats to purchase, and she was pleasantly surprised to find Southern hospitality is a real concept, and all the while focused on her studies. So far from home, Sonny constantly reminded herself why she came all this way. “The sacrifices my mother made to get me to this point is my constant motivator,” she says. “It is the fuel that pushes me to be a better student and ultimately a better future lawyer,” she explains.

Now as she settles into the reality that law school will end and she is one last test away from becoming a lawyer, Sonny reflects on the positive experiences she has had in our community. She reflects on the impact her Immigration Law course had on her as the daughter of an immigrant. “It was incredible to realize the intricacies and history behind it all,” taught by “an amazing professor,” Sonny says. She is also a leader among our newest professional affiliation group, Knoxville Latino Bar Association, where she serves as the Special Events Coordinator. Sonny rates her overall experience with the Knoxville legal community as a positive one, though she hopes to see more diversity on the bench and in the Knoxville Bar Association. “More diversity may lead to new perspectives and positive changes,” she explains. Sonny hopes to be on the bench one day. “I completed two externships under our family court judge in the Virgin Islands. I admire our current judge’s commitment to upholding the law and protecting the integrity of the proceedings,” she says. Locally, Sonny recalls a time where one of our family court judges took the time to explain the court process to her and the handful of observing law students. The judge took the time to explain his ruling on each objection. “After the trial, he asked us to stay behind and took a few minutes to chat with us. I was blown away,” she says. Knowing Sonny, if she sets a goal to become a family court judge, then that is exactly what she will do. I also know that Sonny will be the kind of judge who notices who is in her courtroom, what they are there to learn, and why giving them her time will have a lasting impact.

INCLUSIVE HIRING TIP:

“When I apply for a job, I wish I could tell you how to properly pronounce my name,” Sonny says. Though it may not seem like a big thing to some, names are a reflection of identity. Having a name that others pronounce correctly on the first try is, simply stated, a privilege. Sonny’s experience with having her name mispronounced in job interviews is common among law students with names that are scarce in our predominately white profession. For candidates with names new to you, always invite them to say their names to you at the start of the interview. Listen to them and verify you have said it correctly before proceeding. This will garner a sense of belonging and inclusion in your hiring process.

SCHOOLED IN ETHICS

By: Alex B. Long

Williford Gragg Distinguished Professor of Law University of Tennessee College of Law

TOM GIRARDI AND THE FAILURE OF CALIFORNIA’S BAR DISCIPLINARY SYSTEM

A March 22, 2023, news item from Bloomberg Law reported that the State Bar of California said that it had recorded “a potentially unprecedented and still unexplained boost in bar complaints, or grievances against attorneys, in recent months.” The bar chief trial counsel refused to speculate as to the causes of the increase. But I will. It’s because of Tom Girardi.

On February 1, 2023, California personal injury lawyer Tom Girardi was charged with five federal counts of wire fraud for allegedly stealing more than $15 million from clients between 2010 and 2020. Girardi was a giant in California legal circles, so his fall has been stunning. But almost as stunning has been the realization about how completely and totally the California bar disciplinary process failed to protect members of the public from Girardi’s graft.

Over the course of 40 years, there were over 200 disciplinary complaints filed against Girardi. The majority of the complaints involved allegations of mishandling client trust accounts. (The other complaints ranged from the failure to communicate with clients to failure to perform to misrepresentations to courts and clients.) Three of these complaints ultimately led to Girardi’s disbarment in 2022. But the majority were closed at intake or after initial investigation, with several others resulting in only private reprimand.1

Reports commissioned by the bar found that while some of the case closures were appropriate, disciplinary authorities failed to recognize patterns of misbehavior stemming from the number of complaints. One report found that “[e]ight investigations into Girardi were closed by bar employees who had conflicts of interest that influenced their decisions, and in some other cases, conflicted employees were improperly involved in cases that had been sent to outside prosecutors to avoid just such a conflict.”2 In other instances, bar employees failed to investigate complaints against Girardi altogether. Several bar employees had close personal and financial ties with Girardi, including one instance in which Girardi gave over $1 million in cash and gifts to a bar investigator who apparently assisted Girardi in disciplinary matters. In another instance, a bar prosecutor assigned to some of Girardi’s cases that did not result in discipline attended Girardi’s parties and received concert tickets from Girardi. Yet, the prosecutor never disclosed these conflicts.

So, what are some of the big takeaways concerning the Girardi fiasco?

(1) A system of professional ethics rules is only as good as the system that enforces them. When people talk about legal ethics, they usually focus on the rules of professional conduct themselves. But when the system that enforces those rules is as deeply flawed as California’s apparently was, rules do little to protect the public. State disciplinary authorities around the country should be taking a hard look at their own systems to address the ethical infrastructures in place to address prosecutor bias and other potential conflicts of interest. For its part, California is implementing a new Client Trust Account Protection Program, which, among other things, provides for compliance reviews of selected lawyers by certified public accountants to ensure compliance with client trust fund requirements.

(2) The reporting obligation of Rule 8.3(a) remains important. The Girardi case was huge news in California among lawyers and nonlawyers alike. The publicity has most likely contributed to the increase in disciplinary complaints the state is currently experiencing. Many of the complaints are undoubtedly from clients. But in prior high-profile

lawyer discipline cases, reporting by lawyers has also gone up. Highprofile discipline cases have a way of reminding lawyers of their ethical obligation to protect the public from the misconduct of other lawyers. TRPC Rule 8.3(a) requires lawyers to report the misconduct of another lawyer where that misconduct raises a substantial question about the other lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Comment 1 contains an observation that is particularly relevant in the after of Girardi’s case: “An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.”

(3) Funding client protections funds is important. California, like Tennessee, has a client security fund that helps compensate victims of attorney fraud. The State Bar authorized payment from the fund on an accelerated basis to victims of Girardi’s fraud. The Tennessee Lawyers’ Fund for Client Protection is funded by annual payments by lawyers in an amount set by the Tennessee Supreme Court in Rule 9, Section 10.2(c). Until recently, Tennessee had an aggregate cap per claimant of $100,000 and an aggregate cap of $250,000 per attorney. In other words, the Fund would not pay out more than $250,000 for losses caused by an individual attorney, no matter how many claims there may have been against that attorney or how much those claims amount to (subject to approval by the Court). This $250,000 cap was less than the national average.3 (In contrast, California has no cap.) According to the Court, claims paid by the Fund consistently exceed revenue. The cap has now been raised to $400,000. However, the maximum amount in any one claimant can receive remains $100,000 (which is about the national average).4

(4) The failure to self-regulate invites external regulation. The Preamble to the Tennessee Rules of Professional Conduct notes the self-regulating nature of the legal profession. Comment 12 makes an important point: “To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession’s independence from government domination.” The converse is also true: the more lawyers fail to meet the obligations of their professional calling, the greater the occasion for governmental regulation. The California State Bar may soon be experiencing some of that regulation. As a result of the Girardi debacle, California’s Senate Judiciary Committee will hold oversight hearings on the State Bar and is threatening the Bar’s ability to collect licensing fees “until the state bar demonstrates they’ve taken adequate steps to address transparency and conflicts of interest.”5

1 State Bar of California, Open Letter Regarding the State Bar’s Thomas V. Girardi Disclosure, Nov. 3, 2022.

2 Brandon Lowery, Girardi’s Influence Kept Calif. Bar At Bay, Probe Finds, Law 360, March 10, 2023.

3 In re: Petition to Amend Tenn. Sup. Ct. R. 9 and R. 25, https://s3.amazonaws.com/ membercentralcdn/sitedocuments/kba/kba/0281/2010281.pdf?AWSAccessKeyId =AKIAIHKD6NT2OL2HNPMQ&Expires=1680004277&Signature=YO930Nx% 2BBUZ%2Bh6M%2Fj57GLUhCQkU%3D&response-content-disposition=inline%3B% 20filename%3D%22ADM2022%2D00281%20%2D%20Public%20Comment%20 Order%2Epdf%22%3B%20filename%2A%3DUTF%2D8%27%27ADM2022%252D 00281%2520%252D%2520Public%2520Comment%2520Order%252Epdf&respon se-content-type=application%2Fpdf

4 American Bar Association, Survey of Lawyers’ Funds for Client Protection 2017-19 https://www.americanbar.org/content/dam/aba/administrative/professional_ responsibility/2017-2019-cp-survey.pdf

5 Key Lawmaker Threatens to Eliminate State Bar Licensing Fees for 2024, Law.com, March 10, 2023.

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

MONTHLY MEETING

Plan now to attend the Barristers monthly meeting on Wednesday, May 10, starting at 5:15 pm at the Firefly, the outdoor patio at the Hilton located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm. Register by clicking May 10 on the calendar at www.knoxbar.org.

VETERANS LEGAL ADVICE CLINIC

The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on May 10, 2023. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS

The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact either Matt Knable at (865) 3605044 or Darrius Dixon at (865) 546-4646 with any questions and/or about volunteering.

DIVERSITY COMMITTEE COLLECTS DONATIONS FOR SCHOLARSHIP FUND

The Knoxville Bar Association is committed to becoming a more diverse and inclusive organization. To help further this important goal, the Barristers Diversity Committee Chairs, Mariel Bough and Grant Williamson, spoke with student leaders of several student organizations at the law schools in Knoxville to gain a better understanding of what barriers diverse students were facing in attending law school in Knoxville. In an effort to target this issue, the Barristers Diversity Committee has created a scholarship fund to help with travel and lodging costs for diverse students who are invited to attend preview days hosted by the law schools. Members are asked to make a donation to help ensure that one student, who may not otherwise be able to afford to visit a law school in Knoxville prior to their enrollment, is able to attend a preview day. A more diverse and inclusive Knoxville Bar Association is only possible with a more diverse student population at local law schools. Your donation would help alleviate one of the barriers preventing diverse students from being able to visit campuses in Knoxville and see all that its law schools and the Knoxville Bar have to offer. If you have questions, please reach out to Mariel Bough (mariel.bough@verasafe.com) or Grant Williamson (gwilliamson@bradley.com) for more information on how your donation will be used, or for more ways to get involved with the Barristers Diversity Committee’s efforts to make the Knoxville Bar Association a more inclusive and diverse organization. Information on how to donate online can be found on the KBA website on the Barristers Diversity Committee page.

WELCOME NEW MEMBERS

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

NEW ATTORNEYS

Lance K. Baker

The Baker Law Firm

Rachel Anne Boehm

Blaine Boles

London Amburn, P.C.

Rebecca J. Spicer-Keller

Smith, Lehberger & Kennedy

NEW LAW STUDENT MEMBERS

Patrick Alford

Benjamin L. Barker

Ashley Barnett

Grace K. Campbell

Dylan Gahagan

Andrew E. Huff

Kassadi B. Lavrinovich

Joseph E. Meadows

Adam David Musgrove

Ashton Prosser

Amanda Reyes

Kalyn E. Sisco

Alexis D. Stevens

Joshua Trawick

Mark H. Warren

SIMPLE THINGS

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

DISAPPEARED BUT DEVOTED

“As you all know, Father Kapaul disappeared on the Korean War Front on November 2, 1950. No word has reached us about his safety except that we know that he was captured alive . . . Almost worse than certain death is the unspeakable sorrow and the every-lengthening anxiety and worry of his beloved parents. Such waiting, such sorrowing is untouchable – for no human ministration can assuage that sorrow; no mere words, however elegant, can comfort; no rewards, even those as noble and precious as received this morning, can compensate parents even for the temporary loss of their son.”1

When the Most Reverend Mark K. Carroll, Bishop of the Diocese of Wichita Kansas, preached his sermon on Oct. 18, 1952, he was talking about his friend and mentee, Chaplain (Captain) Emil Kapaun, of the Army’s 1st Cavalry Division, whose parents were sitting in the congregation. Mr. and Mrs. Kapaun were receiving two (2) awards on behalf of their missing son.

They had raised him to live a simple life—working on their small, Kansas farm. Plant the fields; take the livestock out to the pasture; repair the fences; clean and sharpen the tools. Hard work and quiet service were the norm.2 It was no surprise when Kapaun enrolled in seminary and later was ordained as a priest at the age of twenty-four. It was also no surprise that he volunteered for the U.S. Army Chaplain Corps. in 1944 and spent the last year of World War II trudging through the jungles and mountains of Burma and India bringing spiritual aid and Mass to thousands of soldiers on the front lines.3

It was also no surprise that Father Kapaun could not stay away from his true congregation. Although he had been honorably discharged at the end of WWII, and although he earned his Master’s Degree from Catholic University and had been assigned to a quiet parish in central Kansas, Father Kapaun’s heart wasn’t in it. By then, Bishop Carroll had assumed leadership of the Diocese, and Father Kapaun repeatedly wrote to him, requesting to be released from his duties so that he could re-enlist in the Army. Eventually, Bishop Carroll relented, and in 1948, Father Kapuan resumed the role of Chaplain Kapaun with the Anti-Aircraft Artillery Corps at Fort Bliss, Texas.4

In January 1950, he was reassigned to the 1st Cavalry Division, and they were deployed to Yokohama, Japan to assist with post-World War II activities.5 Six months later, North Korea invaded South Korea, and Chaplain Kapaun’s unit was deployed. Within four months, Chaplain Kapaun and what remained of his unit were taken prisoner and “disappeared” into the horrific unknown of the missing in action and prisoners of war.6 Then, the reports started coming.

Summer 1950 ~ “A G.I. could come almost any day and find a simplified, home-made altar on the hood of a jeep . . . He also climbed many a hill and mountain just so he could make some lonely G.I. feel a little better after talking to him.”7

August 1950 ~ “Chaplain Kapaun received information that there was a wounded man in an exposed position on the left flank of the first battalion who could not be removed as there were no litter bearers available. Chaplain Kapaun . . . immediately proceeded to the front lines where he contacted the Battalion Commander in order to obtain the approximate location of the wounded man. . . . Chaplain Kapaun went after the wounded man, under intense, enemy machinegun and small arms fire. However, Chaplain Kapaun successfully evacuated the solder, thereby saving his life.”8

November 1950 ~ For “36 hours, the regiment was subject to a relentless, fanatical attack by hostile troops. . . . In the early morning

hours, the enemy succeeded in breaking through the defense, and handto-hand combat ensued in the immediate vicinity of the command post where the aid station had been set up.”9 “By 11:00 p.m. that night we were surrounded three times, and had broken through each time . . . . About a mile or two down the road, Father and I were helping out the Medics with the wounded. All of a sudden machine-guns, burp guns, and what not, opened up on us . . . That night, there were 995 dead, missing and wounded in our 8th Cavalry Regiment alone. . . .Lt. Curry, a medical officer, and a good friend of Father Kapaun was last seen giving first aid to some wounded men. By his side was Father. One G.I. told them to run, practically screaming at them, but they wouldn’t leave the wounded for anything in the world.”10

“Deep in the day on November 2, the group was captured by the Communists. Seeing a wounded soldier about to be shot by a North Korean, Father Kapuan rushed over, pushed the gun aside, and picked up the wounded G.I., Sergeant Herbert Miller. In disbelief at the Chaplain’s bravery, the North Korean let the two live.”11

March 25, 1951 ~ Father Kapaun celebrated his last Easter Sunday. He had a “black patch on one eye due to infection after a chip of wood had damaged it, and used a homemade cane when he walked because of the blood clot in his leg, which no one knew about.”12 He made a small crucifix from scraps of wood; they said the Lord’s Prayer; and he spoke of suffering and faith. He wept because he could not serve them Communion.13

After seven months in captivity, Chaplain Kapaun died of malnutrition and pneumonia as a prisoner of war on May 23, 1951. It would be many months before his family would learn of his fate. If you were to ask him, he probably would say he did not do anything extraordinary. He likely would say he was simply a priest, serving his congregation wherever they found themselves. On this Memorial Day, may we take some time to remember Chaplain Kapaun and the many other service men and women who may have disappeared, but remained devoted.

1 Sermon by the Most Reverend Mark K. Carroll, Bishop of the Diocese of Wichita Kansas, Oct. 18, 1952, in Arthur Tonne, The Story of Chaplain Kapaun, Ch. 15 (Didde Publishers Emporia, KS 1954), available at http://penelope.uchicago.edu/ Thayer/E/Gazetteer/People/Emil_Kapaun/TONKAP/16*.html.

2 Father Kapuan, Catholic Diocese of Wichita, https://frkapaun.org/about, last visited Apr. 9, 2023.

3 Id.

4 Id.

5 Id.

6 U.S. Army, Biography for Chaplain (Cpt.) Emil Kapaun, available at https://www. army.mil/article/98061/biography_for_chaplain_capt_emil_kapaun, last visited Apr. 9, 2023.

7 Ltr. from Pfc. Ernest J. Ritter (Feb. 28, 1951), available at https://penelope. uchicago.edu/Thayer/E/Gazetteer/People/Emil_Kapaun/TONKAP/11*.html#Ritter_ letter.

8 Citation, Bronze Star Medal, by command of Major General Gay (Sept. 2. 1950), available at http://penelope.uchicago.edu/Thayer/E/Gazetteer/People/Emil_Kapaun/ TONKAP/16*.html.

9 Citation, Distinguished Service Cross, by command General Van Fleet (Aug. 18, 1951), available at http://penelope.uchicago.edu/Thayer/E/Gazetteer/People/ Emil_Kapaun/TONKAP/16*.html.

10 Pfc. Ernest J. Ritter, supra n. 7.

11 Father Kapuan, supra n. 2.

12 Therese Park, Korean War POW Fr/ Emil Kapaun’s last East Mass Speaks to this Good Friday, NPR (Apr. 2, 2021), https://www.ncronline.org/opinion/guest-voices/ korean-war-pow-fr-emil-kapauns-last-easter-mass-speaks-good-friday.

13 Id.

LEGAL MYTH BREAKERS

By: Brad Fraser

Leitner Williams Dooley Napolitan, PLLC Stefanie Bowen

Leitner Williams Dooley Napolitan, PLLC

WHY DID THE LAWYER CROSS THE ROAD? SERVICE BY MAIL? ONLINE? O BROTHER!

If you have seen O Brother, Where Art Thou, you probably know the scene where Ulysses Everett McGill and his crew are stranded, and McGill (played by George Clooney) is trying to order a car part and some hair pomade.

Store Clerk: I can get the part from Bristol. It’ll take two weeks, here’s your pomade.

Ulysses Everett McGill: Two weeks? That don’t do me no good.

Clerk: Nearest Ford auto man’s Bristol.

McGill: Hold on, I don’t want this pomade. I want Dapper Dan.

Clerk: I don’t carry Dapper Dan, I carry Fop.

McGill: Well, I don’t want Fop, god**** it! I’m a Dapper Dan man!

Clerk: Watch your language, young feller, this is a public market. Now if you want Dapper Dan, I can order it for you, have it in a couple of weeks. McGill: Well, ain’t this place a geographical oddity. Two weeks from everywhere!

-- O Brother, Where Art Thou?1

Service of process is a step so essential that if it not performed properly, a suit can be dismissed entirely.2 Service of process is usually accomplished with a process server. Despite its essential nature, little thought is often given after arrangement of the task. But what happens when, for strategic or economic reasons, you wish to serve process in another manner? May process be served by registered or certified mail— even if it takes two weeks from everywhere? Whether service of process on an individual by certified mail is proper depends on where the suit is filed and, sometimes, where service is effectuated.

A plaintiff filing a lawsuit in a Tennessee state court can serve an individual defendant in Tennessee by certified mail. Service by certified mail is explicitly contemplated within the Tennessee Rules of Civil Procedure.3 Rule 4.04(10) states that once filed, a summons and complaint may be served, postage prepaid, by a registered return receipt or certified return receipt mail to the defendant. And service by mail is complete upon mailing.4 If the addressee or the addressee’s agent refuses to accept delivery of the registered or serviced mail—and the refusal is stated on the return receipt, the receipt, if filed in the action, is an actual and valid service of the summons, process, or notice.5

What about a complaint and summons filed in federal district court? Surprisingly, the Federal Rules of Civil Procedure do not explicitly provide for service of process by certified (or regular) mail for an individual. Rule 4(e) of the Federal Rules of Civil Procedure permits service of an individual in four ways. You may deliver a copy of the summons and of the complaint to an individual personally, or leave a copy of each at the person’s “dwelling or usual place of abode” with a person of “suitable age and discretion who resides there.”6 And you can deliver a copy of each to an agent authorized by appointment or law to receive service of process.7 But you can also follow state law for serving a summons in an action “brought in courts of general jurisdiction in the state where the district court is located or where service is made.”8 So at least in Tennessee, if you’ve filed a matter in a federal district court in the state, or look to serve process in the state, service by registered or certified mail is permitted, precisely because it is permitted by state law.

This may not be so in every state. In Florida, for example, service in a state court of general jurisdiction is governed by Florida Statutes

section 48.031 allows for personal or residence service, but not individual service by certified mail. Therefore, if an out of state plaintiff files a lawsuit in a Florida district court and attempts to serve a defendant that resides in Florida, certified mail won’t be an option—even if certified mail would traditionally be an option here in Tennessee.

Two weeks from anywhere may not be enough for some. In a world where some expect instantaneous response, perhaps conditioned by the constant connection via cell phone, text, email, and social media, mail moves too slowly.

George Clooney’s character also foresaw changes coming:

McGill: We’re gonna see a brave new world where they run everyone a wire and hook us all up to the grid.

Technology might change the way service of process is accomplished. Just think, the next time you log on to social media, might there be a summons waiting? With the evolution of technology, might some seek to move from certified mail to service by Facebook messenger or a tweet?

While no Tennessee courts, state or federal, have granted a motion for service in the Metaverse, some courts in other jurisdictions have. In Baidoo v Blood-Dzraku, a wife had difficulty finding an estranged husband to achieve proper service.9 The Court acknowledged traditional substituted service methods—including “nail and mail” service and service by publication—would require either knowledge of an actual place of usual abode or the hope that a person would see the publication.10 As newspapers and journals become more rare, the possibility of a defendant seeing published service also becomes more rare.11 While the Court permitted service by Facebook messenger, the opinion also acknowledged what other cases have pointed out as fundamental limitations of service by Facebook or other forms of social media. First, the purported Facebook account may not, in fact, belong to a defendant.12 And second, service by Facebook may be difficult when a defendant is not “diligent in logging in to his Facebook account.”13 The limitations, however, did not prevent the Baidoo Court from permitting service by social media.14 And other courts have cautiously done the same.15

Service in the Metaverse may soon be addressed in our state as well. We would expect that some kind of signature or other acknowledgment would be required. Of course, Murt and Aloysius will have to sign with an “X”.

1 O BrOther, Where Art thOu? (Touchstone Pictures 2000).

2 Fed. R. Civ. P. 12(b)(5); see also Tenn. R. Civ. P. 12.02(5).

3 Tenn. R. Civ. P. 4.04(10).

4 Id.

5 Id.

6 Fed. R. Civ. P. 4(e)(2)(A)-(B).

7 Fed. R. Civ. P. 4(e)(2)(C).

8 Fed. R. Civ. P. 4(e)(1).

9 Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709 (N.Y. Sup. Ct. 2015).

10 Id. at 712.

11 Id.

12 Id. at 714.

13 Id.

14 Id. at 715.

15 See Commn. v. PCCare247 Inc., 2013 WL 841037 [S.D.N.Y., Mar. 7, 2013, No. 12 Civ. 7189(PAE)] (allowing service of process in part by social media); WhosHere, Inc. v. Orun, 2014 WL 670817 (E.D.Va., Feb. 20, 2014, Civ. No. 1:13–cv–00526–AJT–TRJ) (same); Noel B. v. Anna Maria A., 2014 2014 N.Y. Misc. LEXIS 4708 (Fam.Ct., Richmond County 2014).

By: Angelia Morie Nystrom, JD, LLM UT Foundation – Institute of Agriculture

SALAD DRESSING... SERIOUSLY?

Recently, my mom has had some major health challenges, which has necessitated my sister and me eating a number of meals in cafeterias at a couple of different hospitals – one in Florida and one in Tennessee. While I did not expect five-star cuisine at either one, I can count on one hand the number of meals that I actually enjoyed. Most of the food was either bland, overcooked or just plain awful. And for food prepared in a hospital cafeteria (which you would think would be somewhat healthful), it was not the least bit low-calorie. After my mom was finally released, I have been staying with her in Dandridge, but my ability to cook has been limited. I haven’t had time – and she hasn’t liked to smell food cooking. My diet has consisted of fast food and boxed dinners. I am thankful that I have had food, but my taste buds have been shrinking (as my waistline has expanded).

I was lamenting this fact to my dear friend and fellow swim mom, Kelley Perkins. Kelley is one of the best cooks I know, and I was overjoyed when she offered to cook a meal for me to take to my mom’s house. Kelley is known for her amazing lasagna, homemade breads, and her bourbon chocolate pecan pies. I didn’t know what she had in mind, but I knew it would be good.

The following weekend, Kelley brought over homemade chicken noodle soup, homemade yeast rolls, blueberry oatmeal bars (because she knows what I like), and a salad with spinach, blueberries, strawberries, and feta cheese. Hugh was at our house when she arrived, and promptly told me that, while I could take the soup to my mom’s and eat the blueberry oatmeal bars myself (they are made with oats, blueberries, almond milk, cinnamon, apple sauce, baking powder and maple syrup… all of my favorite things), the salad and the dressing were staying behind.

I tried all of the food – some with my mom and then the salad at home. It was all amazing (and I am not even a soup eater), but the star of the meal was the homemade salad dressing. It was a tangy balsamic vinaigrette that had the best flavor I have ever tasted.

I’m not one to really think about salad dressing, and I certainly did not think I would ever write about it. It is usually an afterthought and has always been store-bought at my house. But this salad dressing was so good that I have changed my mind. Trace actually said he could drink it from the jar. (I thought it but wasn’t quite brave enough to say it out loud out of fear that I might actually do it.)

I told Kelley how much we loved it, and she told me it was one of the easiest things that she makes. She said that it only takes a few simple ingredients and takes less than 5 minutes to prepare. I asked for the recipe and immediately headed for the grocery store.

To make the dressing, you need the following: ¼ cup aged balsamic vinegar (or substitute ⅛ cup aged balsamic and ⅛ cup balsamic glaze), ¼ cup extra virgin olive oil, 4 tablespoons maple syrup (or honey), 2 teaspoons Dijon mustard, ½ teaspoon dried thyme (Kelley says this is optional), 2 cloves garlic, minced (Kelley suggested 3), ½ teaspoon salt and ½ teaspoon pepper. NOTE: When purchasing the balsamic vinegar,

find the one that has been aged the longest. The longer the vinegar has been aged, the sweeter, milder and richer it becomes. Kelley suggested that I mix balsamic vinegar and balsamic glaze, which is thicker and sweeter than balsamic vinegar alone. This will give the dressing a sweeter flavor and will make it smoother.

To prepare the dressing, pour the balsamic vinegar, balsamic glaze, olive oil, maple syrup (or honey), Dijon mustard, dried thyme, and garlic cloves in a jar. Season with ½ teaspoon salt and ½ teaspoon ground black pepper. Place the lid on a jar and shake vigorously to combine. Once smooth, taste. Add more maple syrup or salt if needed.

The spinach salad that Kelley prepared was perfection in a bowl with the addition of the dressing. The dressing enhanced the flavors of the strawberries and blueberries, and the feta made it that much better. We actually ate it as a main course for two different meals: once with grilled salmon and once with sliced filet mignon. The balsamic vinaigrette salad dressing was so good that I wanted to eat salad every day.

Hugh suggested that I try other uses for the dressing. Since that time, I have used it as a steak marinade, as a glaze for salmon, with grilled vegetables, and as a dressing for watermelon cubes. It is perfect for so many things.

I have actually started making the dressing in bulk. Stored in an airtight container in the refrigerator, this dressing will keep well for 2-3 weeks. Just give it a good shake before using.

If you have ever read this column, you know that I love convenience. And that usually includes purchasing store-bought in lieu of homemade sometimes. In all my years, I had never made salad dressing. After trying Kelley’s famous balsamic vinaigrette, though, I’ve ditched the storebought for good.

BILL & PHIL’S GADGET OF THE MONTH

By: Bill Ramsey

Neal & Harwell

By: Phil Hampton

OUR FAVORITE ULTRALIGHT COMPUTING COMBO (AT LEAST BILL’S FAVORITE)

As Bill keeps getting “long in the tooth,” he longs for lightweight tech to carry to the court or when traveling to many exotic places (such as Viola, Tennessee). Phil is also tired of the “sagging shoulder syndrome” caused by a heavy gear-laden shoulder strap. Bill says he has found a solution to this problem, an LG Gram computer, and a Dell 14-inch portable monitor.

We know that two devices are heavier than one, but these two companions are lighter than most “ultrabook” computers. And we cannot give up the the decadence of using two monitors for our computer work.

The LG Gram Ultraportable Computers

First, let’s look at the LG Gram line of ultraportable notebooks. Bill fell in love when he saw this year’s models at CES (Consumer Electronics Show). He could not wait to get one when this year’s models were released. He snarfed one up as soon as he could.

The notebooks come in various sizes and are the lightest on the market in their respective sizes. The smallest size (a 13-inch model) comes in at 2.1 pounds, but that size is just too small for our aging eyes, and the 14-inch LG Gram Style weighs only 2.2 pounds. These models are unbelievably light, so you cannot believe a computer is in your briefcase. Bill went for a slightly larger (and therefore heavier) model, the 16-inch LG Gram style (weighing 2.7 pounds but still amazingly light). Phillip covets the 17-inch model (so he can have a keyboard with a built-in keypad).  It weighs 2.9 pounds (or 3.2 pounds with an extra high-powered graphics card).

And all models are amazingly thin (.6 inches for the 16-inch and .7 for the 17). Both are so thin, they feel flimsy, so if you are rough on your laptops, you may want to pick another brand. However, independent testing has shown the LG Gram models to be quite durable.

They are also loaded with the new paradigm in computer ports –two USB4 Thunderbolt ports (USB C compatible), two USB A ports, a microSD slot, an audio jack, and an HDMI monitor port. They have facial recognition for logins. It has a 1080p camera, an excellent microphone and two brightness levels for the backlit keyboard. The speakers in the computer aren’t so great, but we always carry amazing Bluetooth speakers, and Bluetooth is included on these models.

The screen is vivid and bright and easy to see from all angles. In addition, the battery life is in a class all its own. The 17-inch model will last 18 hours unplugged, which is what sold Phillip. His pet peeve is the short battery life of a laptop computer. The LG Gram 17 is a marathon runner. It last and lasts.

The Dell C1422H Portable Monitor

The LG Gram ultraportables are great, but we still want our second monitors. But we still want to travel light. The Dell C1422H fixes that problem. It weighs about half a pound, is sturdy, and comes with a case.

This portable comes with its own frame and sturdy kickstand that allows you to adjust the tilt angle of the screen. It connects to the LG Gram via a USB-C port. There is a second USB-C for pass-through

power if needed. (Remember, the computer for the input source must have a USB-C or Thunderbolt port. Otherwise, you will not get an image.)

You can use the C1422H as a second monitor for your laptop or as a screen to share with others. It makes the perfect lightweight companion for an LG Gram ultraportable, and Dell presently has it on sale for $270.00.

MANAGEMENT COUNSEL: LAW PRACTICE 101

By: John E. Winters Kramer Rayson LLP

James T. Snodgrass Kramer Rayson LLP

EMPLOYERS LEFT TO WAIT AND SEE AFTER PROPOSED FTC NONCOMPETE BAN

Non-compete provisions, as well as other restrictive covenants (including non-solicitation and confidentiality provisions), are longstanding staples in employment and severance agreements between employers and employees. The FTC recently published that one in five American workers, or approximately 30 million people, are bound by a non-compete clause.1 However, there is a growing national trend that non-compete agreements are generally disfavored.2

Most recently, on January 5, 2023, the Federal Trade Commission (FTC) released a Notice of Proposed Rulemaking (NPRM), addressing its Non-Compete Clause Rule, to prohibit employers from imposing noncompete clauses on workers.3 Specifically, the proposed rule would find it “is an unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker” pursuant to Sections 5 and 6(g) of the Federal Trade Commission Act, 15 U.S.C. §§ 45, 46.

A. Growing Challenges to Non-Competes Nationwide

On July 9, 2021, President Biden signed an “Executive Order on Promoting Competition in the American Economy,” encouraging the FTC to create rules “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”4

Subsequently, on July 19, 2022, the FTC and National Labor Relations Board (NLRB) entered into a Memorandum of Understanding regarding what they called their shared “interest in protecting American workers and promoting fair competition in labor markets.” In line with this Memorandum, the NLRB recently issued a decision in McLaren Macomb, 372 NLRB No. 58 (2023), holding that severance agreements containing overly broad non-disparagement or confidentiality/nondisclosure clauses violate the rights of employees under Section 7 of the National Labor Relations Act (NLRA). Lastly, a bipartisan group of U.S. Senators have reintroduced the “Workforce Mobility Act of 2023,” which would largely ban the use of employer non-compete agreements nationwide.5

To put it lightly, non-compete agreements have been at the center of recent legislation and federal agency regulation, most significantly through the FTC’s Proposed Non-Compete Clause Rule.

B. Language of Proposed FTC Rule

The FTC’s Proposed Non-Compete Clause Rule was published in the Federal Register on January 19, 2023, after a 3-1 vote of the Commission, and is subject to public comment before it is implemented. However, on March 6, 2023, the FTC extended the public comment period on its proposed rule until April 19, 2023.6

The proposed rule, if it became final, would ban all non-compete agreements with limited exceptions and be applied retroactively. While a non-compete clause is not defined, the prohibition “would not depend on what the term is called, but how the term functions.”7 The “proposed rule would clarify that the term ‘worker’ includes an employee, individual classified as an independent contractor, extern, intern, volunteer, apprentice, or sole proprietor who provides a service to a client or

customer.”8 The term “employer” is also broadly defined.

If effective, the proposed rule would go into effect in 60 days, although employers would be required to rescind current non-compete agreements with employees within 180 days, as well as notify current and former workers that any noncompete-agreement is not in effect.9 Of note, the proposed rule includes a narrow exception for non-competes entered into in connection with the sale of a business.10

Additionally, after announcing the NPRM, on March 8, 2023, the FTC finalized consent orders after filing complaints against several companies, including one alleging that two affiliated Michigan-based security companies and their owners illegally imposed noncompete restrictions on low-wage security guard employees.11

C. Impact of Proposed Non-Compete Clause Rule

The FTC has received a significant number of public comments and challenges, leading to the recent extension. Most analysts have predicted that the proposed rule will face several legal challenges, including that the FTC lacks authority to issue this rule, or that it is an impermissible delegation of legislative authority.

Commissioner Christine S. Wilson, the lone dissenting vote on the Commission, noted that the rule is “vulnerable to meritorious challenges” on several grounds and will likely “lead to protracted litigation in which the Commission is unlikely to prevail.”12 The U.S. Chamber of Commerce has already issued a statement that it will challenge the proposed rule, if implemented, claiming “[t]he FTC’s Noncompete Rulemaking is Blatantly Unlawful.”13

Therefore, if any Non-Compete Clause Rule is issued by the FTC, it will potentially be a revised version of the proposed rule and will be immediately challenged. Accordingly, while there is no reason for employers to panic at this time, it is a good reminder to evaluate whether existing and future non-compete agreements are reasonable in both scope and duration.

Moreover, employers should be aware of the growing trend of challenges to non-compete agreements, particularly in light of the increasing popularity of remote work. Numerous states have severely restricted non-compete agreements or have imposed a wage threshold. For example, California law prohibits employers, including those who operate out of state but employ California residents, from enforcing noncompete agreements.14 Ultimately, while the FTC’s proposed NonCompete Clause Rule may not be implemented, challenges to noncompete agreements will continue.

1 Fact Sheet: FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition, https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete_ nprm_fact_sheet.pdf. It is unclear whether the FTC’s proposed rule will apply to non-profits.

2 “[C]ovenants not to compete are disfavored in Tennessee” because they are a restraint of trade. Murfreesboro Med. Clinic, P.A. v. Udom, 166 S.W.3d 674, 678 (Tenn. 2005) (citing Hasty v. Rent–A–Driver, Inc., 671 S.W.2d 471, 472 (Tenn. 1984)).

continued on page 29

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.

LEGAL UPDATE,

continued from page 15

7 Legislative history videos available at https://wapp.capitol.tn.gov/apps/BillInfo/ default.aspx?BillNumber=SB0003

8 Id.

9 https://www.npr.org/2023/03/03/1161051121/how-bills-restricting-drag-couldimpact-high-school-theatre-productions

10 https://www.wate.com/news/tennessee/knoxville-pride-festival-to-be-cancelledin-drag-show-bill-becomes-law/

11 Friends of George’s Inc. v. State of Tennessee, Bill Lee, in his official and individual capacity as governor of Tennessee, and Jonathan Skrmetti, in his official and individual capacity as the Attorney General of Tennessee, Case No. 2:23-cv-02163TLP, and Friends of George’s Inc. v. Steven J. Mulroy, in his official and individual capacity as District Attorney General of Shelby County, Tennessee, Case No. 2:23-cv-02176-TLP. See Order Granting Temporary Restraining Order, Doc. 14. The Court noted in the Order that Defendant Shelby County District Attorney consented to the TRO, given the “great uncertainty and concern among the people of Shelby County” about the scope of the law. The State of Tennessee was dismissed by agreement under sovereign immunity. The remaining defendants opposed the TRO. See also https://www.friendsofgeorges.org

12 Case No. 2:33-cv-02176-TLP, Order Granting Temporary Restraining Order, Doc. 14.

13 Order, Doc. 14, pp. 2-3.

14 Id. p. 3.

15 Id.

16 Id.

17 Id. p. 2.

18 Id. pp. 4-7.

19 Id. p. 5.

20 Id. at 9-10.

21 Id. at 11. Legislative history videos available at https://wapp.capitol.tn.gov/apps/ BillInfo/default.aspx?BillNumber=SB0003

22 Id. at 12-13.

23 Id. at 13-14.

24 Id. at 15.

25 Id.

26 https://www.friendsofgeorges.org/wp-content/uploads/2023/04/FOG-PressRelease-April-5-2023.pdf

27 Id.

HOW TO THRIVE IN LAW & LIFE

By: Emily Heird Vantage View Consulting

HOW TO DRINK LESS ALCOHOL –PART II

In the March edition of DICTA, I explained how alcohol works as a drug in our bodies and why it is easy for a drinking habit to form. Key points to recap: 1. Alcohol immediately shuts off your nervous system, providing a sense of relaxation. 2. Multiple neurotransmitters associated with calmness, sedation, pleasure, and an overall boost in well-being flood your brain when you drink.

Many people don’t start drinking intending to form a bad habit or abuse alcohol. They do so because it is effective at relieving stress. The legal culture encourages drinking as a way to deal with the stressors of the profession. However, I encourage you to take inventory of your relationship with alcohol. Is it providing all the so-called benefits the marketing gurus tell you it does? Is it a good return on your investment – time, money, and health? Is it honestly helping you manage the stress, or is it now causing more stress in life?

Maybe alcohol was something you used to enjoy occasionally, but now it has become the first thing you reach for daily after work. If your relationship with alcohol could benefit from a reset, here are seven strategies to help you do so. You can use these strategies individually to get started or in conjunction with one another.

Strategy One: Get clear on why you want to change this habit. People often underestimate how difficult it is to make long-lasting behavior change. When the going gets tough, you must channel your motivation with your why. Maybe you want to sleep better. Maybe you’re tired of waking up with a hangover. Maybe you don’t like how irritable you get with your kids after a few drinks. Or maybe alcohol is starting to impact relationships and affect your work product. Get clear on your reasons. Write them down for easy reference.

Strategy Two: Add stress management and brain optimization habits that will replicate the immediate benefits of alcohol. Making change is usually more manageable by adding something rather than starting with subtracting (e.g., telling yourself to drink less). This step helps to disrupt the established habits cycle, too.

Commit to 5-10 minutes of a stress-relieving activity before having your first drink. Ideally, these activities activate the rest and digest nervous system (calming you down) and flood your brain with feel-good neurotransmitters. A few ideas:

a) Take a walk.

b) Do physical movement that’s easy to implement at home or in the office before you leave: stretching, pushups, jumping jacks, Pilates, or reps with a dumbbell.

c) Sit in silence and do deep breathing. Give your brain a break from incoming stimuli and activate the parasympathetic nervous system with breathwork.

d) Do Non-Sleep Deep Rest (NSDR) protocol – search for Dr. Huberman’s version on YouTube.

Strategy Three: Have a snack with natural sugar (e.g., fruit) or carbs and a glass of water before the glass of wine. Alcoholic drinks contain high amounts of sugar, which helps lower cortisol and boost serotonin. Your body may be craving food (energy and to raise blood sugar) and

hydration - especially if you haven’t eaten much or drank a lot of water throughout the day.

Strategy Four: Add a glass of water between each drink to slow your pace and stay hydrated.

Strategy Five: Set your environment up for success.

a) If you decide not to drink alcohol during the week, don’t keep alcohol at home – especially at the beginning stages when resetting your relationship with alcohol.

b) Don’t keep alcohol in your office.

c) Take different routes home if you are used to stopping at the same store daily and grabbing a beer.

d) Tell your spouse or partner your goals so they can be supportive and not unknowingly sabotage your progress.

Strategy Six: Increase your awareness around how you physically and mentally feel in the morning and throughout the day after not drinking or drinking less. Did you sleep better? Is it easier to focus on your work? Is the negative mental chatter quieter? Is your level of anxiety lower? Are the evenings smoother with your family? If you’re noticing positive shifts, add this to your motivation to change the habit.

Strategy Seven: Work with a professional or find a support system to help you make these changes. Success is easier to achieve when you have support and accountability. A professional can also help you learn the emotional agility skills necessary to navigate life’s stressors and ups and downs. Drinking numbs the emotions temporarily, but they will be there the next day when the alcohol wears off.

Ideas for Law Firms and Law Schools to support a healthier culture around drinking:

1. Keep the social events and networking opportunities. Relationships are a vital component of our overall well-being.

2. Provide fun mocktails and non-alcoholic drinks at the office and events to normalize the choice of a non-alcoholic drink.

3. Instead of providing an open bar at events, include two drinks per person. Or decide not to provide alcohol and have guests purchase it themselves. Use the monies that would have funded the open bar for other well-being initiatives or prizes for the event.

Many people are worried about what others will think if they drink less. Sober October and Dry January are popular because people feel they have permission not to drink. In my professional experience working on this issue with many clients, and in my own life, no one cares as much as you think they will. In reality, people receive support and encouragement from others. If someone else has an opinion, it’s just that - an opinion that usually reflects their relationship with alcohol. Only you can decide if other people’s opinions will dictate your choices.

It takes courage to go against the culture and do it your way, but ultimately, your health and quality of life are on the line. Here’s to making choices that work to help you thrive in law and life.

BENCH AND BAR IN THE NEWS

How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org.

KBA MEMBER SHOUT OUTS

As part of this year’s focus on celebrating our bar association’s diverse membership and exploring creative ways for members to connect, network, and experience fulfillment in the practice of law, we would like to highlight the accomplishments and contributions of KBA members who are making a difference in the legal arena and beyond. Send links to news to posts or articles, pictures, or just a blurb about what’s going on to membership@knoxbar.org.

FREE CLASSIFIEDS AVAILABLE

Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

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 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. Interviews of Howard Vogel, Judge Curtis Collier, David Black and Hon. Mary Beth Leibowitz have been recently added. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

OFFICE SPACE AVAILABLE:

• North Knoxville, right off I-640/275. Part of a larger office with an established attorney. Free Parking and Internet, access to Kitchen and Conference room. Separate entrance. Excellent set-up for a new attorney. $650 per month. Contact Daniel Kidd, dan@ danielkiddlawoffice.com.

• First class furnished individual offices for rent on the 19th floor right off the elevator in First Horizon Plaza, 800 S. Gay Street. Please contact Lance Baker at 865-310-0997 for further details if you are interested.

• Downtown Office Space for Rent - Large corner office with a view of downtown. Located in the First Horizon Building. $900 monthly. Inquiries can be sent to jfanduzz@gmail.com.

Address Changes

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

Jared S. Garceau

BPR #: 031449 Relyant Global, LLC

Ph: (865) 719-6942 garceaujared@gmail.com

Matthew R. Knable

BPR #: 037513

Wettermark Keith, LLC

1225 E Weisgarber Rd., Suite 160 Knoxville, TN 37909-2680

Ph: (865) 381-9084 mknable@wkfirm.com

Lyndsey L. Lee

BPR #: 034319

P.O. Box 27584 Knoxville, TN 37927-7584

Ph: (865) 219-3793 l3taxlaw@gmail.com

A. Scott McCulley

BPR #: 015579

535 W. Lamar Alexander Pkwy. Maryville, TN 37801-4760

Ph: (865) 243-3363 asmatty@yahoo.com

Mary J. Newton

BPR #: 037605 Newton Law 625 Market Street, Suite 900 Knoxville, TN 37902-2219

Ph: (865) 224-6591 Mary@MJNewtonLaw.com

Erin A. White

BPR #: 034486

West Knox Law

408 N. Cedar Bluff Rd., Suite 160 Knoxville, TN 37923-3607

Ph: (865) 297-5511 erin@westknoxlaw.com

Laura E. Wyrick

BPR #: 037408

West Knox Law 408 N. Cedar Bluff Rd., Suite 160 Knoxville, TN 37923-3607

Ph: (865) 297-5511 laura@westknoxlaw.com

MITCHELL’S MALARKEY

By: T. Mitchell Panter Lewis Thomason, P.C.

OKAY, CALM DOWN

Parenthood is the single most rewarding experience of my life. It’s truly remarkable and humbling. It strips you of your pride, removes you from yourself and the pettiness of life, and exposes the magic that is the human experience.

Don’t get me wrong. It isn’t all rainbows and sunshine. Rather, it’s often hard and thankless work. For example, my child, Maxine, is almost two, and in her lifetime, I have changed nothing short of 8,000,000 diapers. In all those experiences, some which mirrored a crime scene, I can count on one hand the number of times she has thanked me for a job well done. It’s not because she doesn’t know how to say to thank you. It’s just that to her, changing diapers is part of my job. This is yet another way in which children and clients are remarkably similar. How often do your clients thank you for cleaning up the legal equivalent of a dirty diaper?

The lack of praise and appreciation notwithstanding, parenthood’s challenges are easily outweighed by its many blessings. Each day, when I get home from work, Maxine greets me with a squeal, a running hug, and the words “Daddy came back!”1 Even though it’s become routine, I quietly say to myself each time that it happens, “If I die today, at least I’ll go happy.”

Once the cheerful dust settles from our opening embrace, we quickly move into our evening routine. Indeed, long gone are the days of vegging comfortably on the couch after a long day of work. No, sir. Now, we delicately navigate the emotional minefield created by a toddler whose nap was cut short by at least thirty minutes. This includes feverishly working to prepare dinner while also playing “grocery store,” “pretend potty,” or some other imaginative game until we—i.e., she—gets bored and moves on to something else. Once dinner is ready, we vacillate between admonishing Maxine not to feed the dog and fielding the same questions she asks no less than 80 times: “Daddy all done?” “Momma all done?” And “Watch Elsa!?” From there, our T.V. is held hostage for about an hour until its time for bath or bed.

Bath time, which is either the highest or lowest point of her day depending on the mood, almost always includes a meltdown while we rinse the soap from her hair but steadies out as we let her play with her obscene number of bath toys.

After bath is finished, we move from the tub to the bathroom counter for waterboarding, which is also known more commonly as “brushing her teeth.” If you’ve ever taken down a lion with your bare hands, you are mostly prepared to brush a two-year old’s teeth. Her aversion to brushing her teeth is a shame considering that her lineage could best be described as 85% hillbilly and she’s had a mouthful of teeth since birth. Having participated in countless brushings, I now understand and respect the need for sedation dentistry.

MANAGEMENT COUNSEL, continued from page 25

3 Non-Compete Clause Rule (NPRM), 88 Fed. Reg. 3482 (Jan. 19, 2023), to be codified at 16 C.F.R. pt. 910, available at 2023 WL 255956.

4 See https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/ executive-order-on-promoting-competition-in-the-american-economy/

5 Workforce Mobility Act of 2023, S. 220, 118th Congress (2023-24).

6 https://www.ftc.gov/news-events/news/press-releases/2023/03/ftc-extendspublic-comment-period-its-proposed-rule-ban-noncompete-clauses-until-april-19

7 88 Fed. Reg. 3482, 3509.

8 88 Fed. Reg. 3482, 3482-83.

9 88 Fed. Reg. 3482, 3535, to be codified at 16 C.F.R. § 910.2(b).

Once teeth brushing is over, we move quickly to her bedroom where the torture continues and the sound of tears is quickly overtaken by the forceful chant, “No diaper change!” Despite her persistence, we have never followed those instructions.

After moving swiftly through a diaper change, we approach the final stage of torture: body lotion. With the first pump, she begins: “No lotion! No lotion!” That chant continues for the duration, and after covering her with an ungodly amount of body lotion, we try to balance the scales of justice by giving her the option of choosing what pajamas she wants to wear.

Freedom of choice is, as best I can tell, paralyzing for a two-year old. After several initial decisions, we usually settle on something Frozen themed or more recently, one of her many Disney-themed nightgowns. After a fairly detailed explanation of who’s depicted on her dress—“Ariel, it’s you!” or “Elsa: Look! It’s you.”—we move to my favorite part of the evening: “rock with daddy,” as Maxine calls it.

We have a glider in Maxine’s room, which sits next to her crib. In the first six months of Maxine’s life, I probably spent equal amounts of time sleeping in that chair as I did in my own bed. Over time, it’s become less of a make-shift cot and more of a brief resting place. As our last stop on the nightly wind-down tour, Courtney and I alternate each night as to whom leads the rocking. Maxine already knows that it’s easy to get a rise out of me, so on my nights, she often says first, “Rock with daddy.” Then, with a sheepish grin, she moves on to chanting, “No, rock with Momma!”

I, too, am a child, so I’ve found myself senselessly arguing with her: “No, rock with Daddy!” After an embarrassingly long back and forth, she resigns herself to rocking with the lesser parent.

From there, we pick out three books to read before going to bed. Our most recent favorites are Olivia Saves the Circus (a/k/a “Circus Livia”), Frozen 5 Minute Stories, and Daniel Tiger’s 5 Minute Stories, which includes the lyrics to bangers like Grownups Come Back and When You Have to Go Potty, Stop . . . and Go Right Away!

After stories are done and her negotiations for more books fail, we rock quietly for a few minutes until she looks at me with those sweet little eyes and forcefully says: “I go to bed!” After a bedtime kiss and a hug, I force myself to put her down--frequently weeping from joy as I walk away.

On days when law practice beats me down, I just remind myself that I work so I can go home.

1 As the kids say, “IYKYK.” For those of you who don’t, this is a loose reference to Daniel Tiger’s chart topper: Grownups Come Back.

10 88 Fed. Reg. 3482, 3536, to be codified at 16 C.F.R. § 910.3.

11 https://www.ftc.gov/news-events/news/press-releases/2023/03/ftc-approvesfinal-order-requiring-michigan-based-security-companies-drop-noncompeterestrictions

12 88 Fed. Reg. 3482, 3540.

13 https://www.uschamber.com/regulations/the-chamber-of-commerce-will-fight-theftc

14 See Cal. Bus. & Prof. Code § 16600.

PRO BONO SPOTLIGHT

By: Caitlin Torney Pro Bono Project Attorney Legal Aid of East Tennessee

REPORTING YOUR TIME – IT’S ABOUT MORE THAN CLE!

Twice a year, we send all our volunteer attorneys who directly assist clients through full case representation Status Report and Closure Forms. I want to thank all of you who took the time to fill out and return those forms this past December and explain why these records are so important to our mission at Legal Aid of East Tennessee. First, I want to make sure you get the CLE credit you deserve! For every 5 hours of pro bono work you complete, you are entitled to 1 hour of dual CLE credit. These forms are the primary documentation we use to report your time to the Tennessee Commission on Continuing Legal Education.

Even if you do not need or want CLE credit for your time, reporting your time is still incredibly important. Our grantors and funders ask us specifically to track a variety of metrics including the number of area pro bono attorney volunteers, the number of hours of donated time, and the monetary value for those hours. Having hard numbers helps us provide objective data when we are seeking potential grants and comply with reporting requirements for our current funders. In 2022, our reports indicated a total of 713.8 hours of service by attorneys in our service area, valued at $173,850.35! Although this is an impressive number, I know that the actual total number of hours is much greater, and I encourage you all to send us your time reports so we can accurately report how much time and effort our area bar generously donates to the Pro Bono Project.

Finally, by filling out the Status and Closure Reports you help us to maintain accurate records. Legal Services Corporation, our primary source of funding, requires us to conduct regular updates for our files and close files in the year that they are completed. By turning in your Closure and Status Reports, you help us to comply with these requirements. We are piloting a new program this year to make this process easier by employing online fillable forms and will be sending our biannual status reviews in June.

New Contract Attorney Program Opportunity

The Pro Bono Project is always enthusiastically looking for volunteers willing to help us meet the increasing demand for assistance with conservatorships. As the population ages, more and more adult children need help obtaining a conservatorship to care for a parent with Alzheimer’s Disease or Dementia. There are also many parents of children with disabilities approaching their 18th birthday seeking a conservatorship to enable them to continue to provide legal, financial, and medical care for their children as they reach their majority. We offer a robust packet of sample documents and filings, training materials, and are always available to provide support and guidance as attorneys expand their practice area or take a conservatorship case for the first time. We also carefully vet our cases and only place uncontested conservatorships through the Pro Bono Project so please consider checking Pro Bono Matters or contacting me to take a conservatorship case!

Legal Aid of East Tennessee is excited to partner with the Pat Summit Foundation to provide legal services to the families of adults with dementia and Alzheimer’s in part through a Contract Attorney Program. This program will allow the Pro Bono Project to place cases with attorneys in the private bar for a reduced fee of $75.00/hr to meet the legal needs of area residents providing care for adults with dementia and Alzheimer’s. These cases will primarily be conservatorship cases but will also provide other legal support including estate planning across our service area and up into the Tri-Cities. If you are interested in this program, please contact me directly at ctorney@laet.org for more information.

Pro Bono Matters: Featured Cases

Don’t forget to visit our website Pro Bono Matters section to peruse current case opportunities and look for cases that speak to your interests and area of expertise and we post new cases on a regular basis! Current cases available include:

• A Blount County man would like to adopt his four young step-children, all biological fathers are in agreement and this family is eager to officially establish their relationship.

• A woman in Nashville in hospice for terminal cancer would like help with a muniment of title to put her late father’s house in her name to sell and use the proceeds to alleviate end of life costs.

• A former Blount County woman has moved to Kentucky for a fresh start but needs help cleaning up her record to enable her to get a better paying job. She is super motivated and extremely responsive by phone and email.

If any of these cases appeal to you, please contact me directly at CTorney@laet.org or you can call me at # (865) 251-4951. We also have a solid supply of clients seeking help with estate planning documents.

Your Work Makes a Difference!

Pro Bono volunteer attorneys make a real difference in the lives of area residents struggling to deal with civil legal issues. I want to close by sharing various comments clients returned with their surveys after their cases were closed or after attending a clinic.

• “The services that we received will help our family and our disabled daughter make our lives much better. And she will be more comfortable from now on. The attorney was very professional and kind. He took his time to listen to our needs and to answer all our questions. We are grateful for his help!”

• “I got a lot of worry taken care of for all my family!”

• “[The Will Clinic] allowed us to execute a will, something we’ve been needing for a long time. I no longer have to stress having it done. Keep doing what you are doing. Thanks!”

2023 Clinic Opportunities

Legal Advice Clinic for Veterans: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available.

• Wednesday May 10th, June 14th, July 12th Noon – 2:00 PM. • To sign up, please use the form on the KBA Website or email ctorney@laet.org.

Debt Relief Clinic: Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville.

• Saturday May 13th, August 26th, November 4th 9:00 AM – Noon • To sign up, please use the form on the KBA Website or email ctorney@laet.org.

Virtual Pro-Se Name Change Clinic: Via zoom. Will serve clients across East Tennessee in partnership with law students from Belmont School of Law and other Tennessee Legal Aid groups. Saturday July 15th 10:00 AM – 1:00 PM. Sign up via LAET website or email ctorney@laet.org.

Expungement Clinic: Keep an eye out for next month’s DICTA for exciting new opportunities to do expungement work in our area!

TELL ME A STORY

By: Ryan Brown General Counsel Lincoln Memorial University

A JOURNEY FROM THE LOUISIANA BAYOU TO THE APPALACHIAN MOUNTAINS OF EAST TENNESSEE

How did you end up where you are today?

I was born and raised in Baton Rouge, Louisiana. I obtained my Juris Doctor in Civil and Common Law from Louisiana State University (LSU), Paul M. Hebert Law Center (2007), and my Bachelor’s of Science Degree in Information Systems and Decision Sciences from LSU’s E. J. Ourso College of Business (2003). I am licensed to practice law in Louisiana and Tennessee. After graduating and briefly practicing State and Local Tax Law in Houston, Texas, I moved back to Louisiana and joined a private firm. Our firm represented various clients in private practice, including public agencies, universities, commercial developers, and individuals. As a younger attorney, I worked alongside senior partners who specialized in various areas of law, including Personal Injury and Insurance Defense, Business Formations and Transactions, Contracts, Employment, Domestic Relations, Probate, Property, Administrative, Public Records, and Open Meetings Law.

I moved to Knoxville, Tennessee, after my now-wife became the Dean of Students at the University of Tennessee, Knoxville (UTK), in 2018. I moved shortly after her in 2019 and joined the Office of Student Conduct and Community Standards at UTK. In my role at UTK, I worked closely with students and learned more about campus student and academic affairs matters. Although I had the privilege of working on employment and other cases involving a university in private practice, this opportunity gave me a different perspective and additional knowledge on how student and academic affairs operate within university operations.

In 2020, I became General Counsel for Lincoln Memorial University (LMU). LMU is a values-based learning community that provides quality educational experiences. In addition to traditional undergraduate and graduate programs, LMU has professional degree programs, including the DeBusk College of Osteopathic Medicine, the Duncan School of Law, and the Richard A. Gillespie College of Veterinary Medicine. LMU also offers Nursing, Physical Therapy, Occupational Therapy, and Engineering Programs. LMU has campuses in Harrogate and Knoxville, Tennessee; Corbin, Kentucky; and Tampa, Florida. LMU’s main campus is located in Harrogate, Tennessee, approximately 55 miles north of Knoxville, along the borders of Tennessee, Kentucky, and Virginia and the foothills of the Cumberland Mountains and the Cumberland Gap National Historical Park.

In my role, my sole client is LMU. I am responsible for handling all legal matters on behalf of the university. Various federal, state, and local laws, rules, and regulations come into play in university matters. Internal policies and procedures may also apply when assessing and advising a university matter. LMU’s Office of General Counsel also consists of an Assistant General Counsel, Senior Legal Assistant and Office Manager, and Legal Assistant. This team helps draft, review, edit, and process all contracts on behalf of the university and handles other crucial office functions.

In addition to my role as general counsel, I am also an adjunct law professor at LMU’s Duncan School of Law, where I teach an upper-level Education Law seminar course. Students in this course study the law relating to public, private, and home education. Emphasis is placed on the legal framework for public and private education, the First Amendment

and other Constitutional issues related to public and private schools, and the nature of parental rights in education.

Who helped you along the way?

Although they were not college graduates, my mother and grandparents showed the hard work, discipline, and grit needed to survive and accomplish goals. My mom has supported me in all of my decisions, and that autonomy helped me gain the confidence needed to reach my goals.

My family has always been my safety net. Growing up, we did not have much, but my family provided me with the emotional support, encouragement, and necessities to graduate college. Their compassion and home cooking helped me through my journey. South Louisianians are serious about their food, and it is a fundamental part of our culture. I recall going to my grandparents’ home every Sunday afternoon during college for a warm meal, regardless of my workload and need to study. It was a time to pause, talk about life, and laugh together. I always left their home feeling refreshed and ready for the next week. Food continues to be an integral part of my life. In my home, we are intentional about cooking a good meal and spending time at the dinner table.

My wife helped me tremendously in my career in higher education. She is also a higher education administrator who works closely with students daily. Her compassion towards her students and university reminds me how fortunate we are to work in higher education. She continuously shows me that working in higher education takes hard and “heart” work, especially when navigating difficult and sensitive situations involving students. I am fortunate and grateful to have her and our son in my life.

What were the choices you made that, intentionally or not, led you to this place in your career?

I believe my background and my choices in college led me to have the desire to work in higher education. As a first-generation college graduate, I understand how a college education and degree can advance a student’s social mobility and opportunities in life. One of the intentional choices that led me to this place in my career was that I never gave up. We all encounter hard times but must pick ourselves up, stay positive, and face adversity to succeed. During hard times, I also try to think about the brighter days to follow the adversity and hard work.

What would you tell someone who would like a similar position?

I would tell someone seeking a general counsel position to be eager to learn continuously and not fear a challenge. As a young attorney, I learned many different areas of law from my mentor attorneys. I also learned on my own by volunteering to learn and research unknown areas of law for my private firm. These opportunities helped me gain my generalist role’s characteristics and skill set. A university general counsel needs to stay current on the federal, state, and local laws, rules, regulations, and notices of proposed rulemaking that can affect their university. Finally, a university general counsel needs to think quickly on their feet and swiftly transition from topics and issues throughout the day.

Law Practice Today Expo

On March 30 and 31, 260+ lawyers, law students, and law firm staff participated in the Law Practice Today Expo. The focus this year was on quality education and connecting members to the resources they need. It was the perfect forum for discussing and exchanging many experiences, suggestions, and opinions with other law office professionals, industry providers, and practitioners throughout East Tennessee.

The speakers discussed hands-on, practical training on how to use technology and the cyber security challenges facing law practices today and considered solutions and affordable options for any law firm’s budget. We were fortunate to have many industry experts and ABA Techshow alums participate in the Expo this year. They skillfully guided attendees through complex law office management, software, technology, and security issues. While not entirely back to pre-COVID numbers, registrations were up, and our sold-out Exhibit Hall had lots of energy. This year’s Expo included local and national speakers, panel discussions, and idea exchanges that provided education and networking to lawyers and law firm staff from large, midsize, and small firms. There were 23 CLE sessions, 40 sponsors, and 30 judges. It was an excellent opportunity for our bench and bar to gather together, and UT Chancellor Donde Plowman proved to be a dynamic speaker who made us proud to be all VOL. See the complete list of sponsors on page 2.