DICTA.November 2017

Legal Update: Does the Age Discrimination in Employment Act Protect Older Job Applicants from Disparate Treatment Discrimination? . . . Page 11 Management Counsel: Law Practice 101 Whatever Happened to the Overtime Rule? . . . Page 13

A Monthly Publication of the Knoxville Bar Association | November 2017

DISTILLING THE LIQUOR-BYTHE-DRINK TAX LITIGATION

Photo Ops

SEPTEMBERFEST

Members of the KBA Solo Practitioner & Small Firm, Criminal and Family Law Sections gathered for Septemberfest at ShulzBrau Brewing for an informal social gathering on September 21, 2017. UT Football tickets donated by Heather Anderson and Tripp White, Chairs of the Solo Practitioner & Small Firm Section were won by Mark Castleberry. Michael Bradford won the giftcard to Landing House restaurant donated by KBA member Garry Ferraris.

FALL HIKE The Professionalism Committee hosted its annual fall hike on Saturday, October 7 at Frozen Head State Park in Wartburg.

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DICTA

November 2017

In This Issue

Officers of the Knoxville Bar Association

November 2017

Cover Story 16 Distilling the Liquor by-the-Drink Tax Litigation President President Elect Amanda M. Busby Keith H. Burroughs

Treasurer Wynne du Mariau Caffey-Knight

Immediate Past President Wayne R. Kramer

Secretary Hanson Tipton

KBA Board of Governors Dwight Aarons E. Michael Brezina III Kathryn Ellis Stephen Ross Johnson Lisa J. Hall

Dana C. Holloway Rachel P. Hurt Mary D. Miller Carrie S. O’Rear Mitchell Panter

M. Samantha Parris Cheryl G. Rice John E. Winters

The Knoxville Bar Association Staff

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Critical Focus

President’s Message

Lawyer Well-Being—Good for Business, Good for Clients, It’s the Right Thing to Do

Practice Tips

Charm School Part II

Legal Update

Does the Age Discrimination in Employment Act Protect Older Job Applicants from Disparate Treatment Discrimination?

Whatever Happened to the Overtime Rule?

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Management Counsel: Law Practice 101

Solo & Small Firm Practice Tips

Communicating While Working Remotely

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Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

Lacey Dillon Programs Administrator

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

Tracy Chain LRIS Administrator

Adelyn Bryson LRIS & Membership Assistant

Volume 44, Issue 10

Dicta

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

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

Exceptions to this policy must be cleared

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

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

November 2017

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Editor Heidi A. Barcus Casey S. Carrigan Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long

Cathy Shuck Chris W. McCarty Melissa B. Carrasco Lee Nutini Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Melissa C. Reinders Ann C. Short

Managing Editor Marsha Watson

KBA Executive Director

DICTA

Schooled in Ethics

Why Don’t My Students Believe

Me When I Tell Them About an

Attorney’s Confidentiality Obligation?

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4 19 29 30 31

Tech Tips

Apple versus Microsoft: Who Won? Answer: The Cloud

Conventional Wisdom Lawyers Almanac

Giving Belated Thanks

Judicial News

Welcoming Knox County Juvenile Court’s New Magistrate, Robin Phillips Gunn

Hello, My Name is

Rachel Donsbach

Thankworthy

Lead by Going

Well Read

The Federalist Papers & Hamilton: An American Musical

Lawyer Hobbies

Thanksgiving Traditions

Your Monthly Constitutional

The Constitution at War

Life and Law in Harmony

Write Your Own Success Story

Long Winded

True Character

Bill & Phil’s Gadget of the Month

Echo Show

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

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EVENT CALENDAR & SECTION NOTICES

Section Notices

calendar

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current.

Alternative Dispute Resolution Section The ADR Section has monthly CLE programs planned through the end of the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720).

November

Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). The next clinic is scheduled for Saturday, November 4, 2017 from 9:30 a.m. to 12:00 p.m. at the Knox County Public Defender’s Community Law Office. If you would like to volunteer for the next clinic, please sign up by clicking on November 4th on the event calendar at www.knoxbar.org.

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Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148).

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Barristers Mixer with TSCPA and YPK

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Debt Relief Clinic

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Ain’t Behavin’ Judges CLE

Swearing In for New Lawyers Solo & Small Firm CLE

New Admittees Welcome Reception

Law Office Tech Committee Meeting Veterans Legal Advice Clinic Barristers Meeting

Lunch & Learn CLE

Judicial Committee Meeting

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515).

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Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123).

n 17 Juvenile Court GAL CLE

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. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440).

Senior Section The KBA Senior Section will meet next on Wednesday, December 13, 2017 at Calhouns on the River. The program title is “Who woke the bear: the rise of Vladimir Putin and the new Russian empire” and will feature Natalie Manaeva Rice, PhD, a research consultant for the Institute for Nuclear Security at the University of Tennessee. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, vegetable, salad and beverage. Please indicate your choice of Crab Cakes or Lemon Chicken. Register online by clicking December 13 in the Event Calendar at www.knoxbar.org. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307.

Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (546-8030) or Tripp White (712-0963).

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DICTA

n 14 CLE Committee Meeting

n 14 Professionalism Committee Meeting

n 14 Access to Justice Committee Meeting n 15 Board of Governors Meeting n 17 Memorial Service

n 18 Diversity in the Profession Committee n 23 Volunteer Breakfast

December n5 n 6

Law Office Tech Committee Meeting

Barristers Elections & Annual Holiday

Party n 7 n 8

Bankruptcy Section CLE

KBA Annual Meeting & Elections

n 11 ADR Section CLE

n 12 Professionalism Committee Meeting n 13 Veterans Legal Advice Clinic n 13 Senior Section Luncheon

n 14 Judicial Committee Meeting

n 18 Diversity in the Profession Committee n 11-22 Video Replay CLE programs n 27-29 Video Replay CLE programs

Mark Your Calendar KBA Annual Meeting & Elections Friday, December 8, 2017

November 2017

PRESIDENT’S MESSAGE By: Amanda M. Busby Anderson Busby PLLC

LAWYER WELL-BEING – GOOD FOR BUSINESS, GOOD FOR CLIENTS, IT’S THE RIGHT THING TO DO

I attended the TBA Health Law Forum in October and one of the enrichment in work. seminar topics sprinkled amid the health law regulatory topics of the Stark Law and Fraud and Abuse was an excellent ethics program on Social – developing a sense of belonging, including a wellAttorney Well-Being co-presented by Sandy Garrett, Chief Disciplinary developed support network.

Counsel for the Board of Professional Responsibility of the Supreme Court of Tennessee, and Laura McClendon, Executive Director of the Intellectual – engaging in continuous learning and challenging Tennessee Lawyers Assistance Program (TLAP). Having worked on the activities that lead to ongoing intellectual development.

KBA CLE Committee for many years, I know it historically has been difficult to get lawyers excited about attending programs on attorney Physical – striving for regular physical activity, proper diet and well-being. It is dubbed a “soft” topic. But, the health of members of our nutrition, sufficient sleep and recovery. profession may be one of the most important topics that we all need to be talking about and more importantly, doing something about.

Spiritual – developing a sense of meaningfulness and purpose in

Last year, the ABA Commission on Lawyer Assistance Programs life. and Hazelden Betty Ford Foundation published a study of nearly 13,000 licensed, employed attorneys.1 That means active, practicing attorneys.

Among the strategies for positive change, the ABA Report This study found that of such attorneys approximately 21% were problem recommends that all stakeholders: drinkers. And, when the attorneys were segmented by age group for • Acknowledge the problems and take responsibility those under 30 years old, almost 32% were problem drinkers. This • Use the ABA Report as a launch pad for a profession-wide action statistic is in stark contrast to a finding that only 6.8% of the general plan population are considered problem drinkers. The study also found that • Leaders should demonstrate a personal commitment to well-being 19% of attorneys reported having anxiety, 23% reported stress, and 28% • Facilitate, destigmatize, and encourage help-seeking behaviors reported that he or she suffered from depression. The study found that • Foster collegiality and respectful engagement throughout the the highest rates of depression and problem drinking were among young profession lawyers in the first ten years of practice and attorneys working in private • Provide high-quality educational programs about lawyer distress and law firms. Lawyer well-being can no longer be ignored. As a profession, well-being we need to take action, and this means all of us, working together.

• Guide and support the transition of older lawyers

You may be thinking, “why should this be my problem?” In August, • Begin a dialogue about suicide prevention the ABA published a Report from the National Task Force on Lawyer Well-Being, giving three reasons attorneys must take action, namely:

If you, personally, are not currently or have not previously suffered organizational effectiveness; ethical integrity; and humanitarian concerns. from stress, depression, substance abuse, or other issues of lawyer wellFirst, lawyer well-being is important to organizational being, surely you have encountered members of success in law firms, corporations, and governmental your firm or other colleagues who have faced one of us got where entities. It is good for business. Lawyers cannot do hardship in these areas. It has been all too often we are solely by their best work if they are impaired. Second, lawyer that I have heard about attorneys dealing with pulling ourselves well-being impacts professionalism and ethics—it is many of these issues, including accounts of up by our bootstraps. We important for healthy attorney/client relationships. attorneys who have committed suicide even in The ABA report cites one author who suggests that our own Knoxville legal community. We owe got there because somebody 40-70% of disciplinary complaints and malpractice it to ourselves and to our fellow practitioners bent down and helped claims against lawyers involve substance use, depression, to destigmatize these topics and to commit to us pick up our boots.” or both. Finally, encouraging attorney well-being is work hard within our own spheres of influence Justice Thurgood Marshall the right thing to do. When the legal community as a to move from a passive denial of the problems to whole is affected, it is our combined responsibility to proactive support for change. search for solutions.

Tennessee lawyers have resources

The ABA Report defines “lawyer well-being” as “a continuous available to them through the Tennessee Lawyers Assistance Program process in which lawyers strive for thriving in each dimension of their (TLAP). TLAP helps attorneys with problems big or small. TLAP can lives.” These dimensions include: help address issues of stress and burnout, depression, substance abuse, co-dependency/relationship issues, work and family conflicts, grief, and Emotional – recognizing the importance of emotions, developing more. Among other things, TLAP offers consultations, assessments, the ability to identify and manage our emotions, and seeking help interventions, support groups, and education. TLAP does not charge a from mental health professionals when needed. fee for its services. It is fully funded through your attorney annual dues Occupational – cultivating personal satisfaction, growth and assessments. TLAP is confidential under Tennessee Supreme Court Rule

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November 2017

DICTA

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LAWYERS ALMANAC By: Chris McCarty Chris McCarty, Lewis Thomason

GIVING BELATED THANKS

Pilgrims. Pumpkins. Turkeys. That’s what I think of in November.

Let me be clear: I love Thanksgiving. Mainly because I love food, and partially because I am thankful.

But how much of that Thanksgiving picture from my 3rd grade textbook is rooted in reality? Truth be told, we know very little about the first Thanksgiving celebration. We know there was no cranberry sauce or pumpkin pie. We also know “it’s possible that they did eat turkey, though it’s just as likely that venison and fish were on the menu as well.”1 (I suddenly imagine Charlie Tuna starring in Thanksgiving-themed cartoons, and it’s a chilling thought.)

Though the menu might be off, it seems we have largely gotten the harmonious nature of that first Thanksgiving right. In fact, “the majority of its participants were Natives – not Pilgrims.” Imagine it, dozens of Native Americans and Pilgrims celebrating the harvest and their shared prosperity.

That was 1621. So, why is it that we did not pass the Indian Citizenship Act (a/k/a the Snyder Act) until 1924? It took us over 300 years to grant Native Americans full citizenship rights. Over 300 years to consider them legal equals.

I imagine those people sharing a meal in 1621 would find that timeline hard to believe. They could not have foreseen the Trail of Tears or Little Bighorn. They could not have imagined us moving … backward.

It does happen though. When we don’t pay attention. When we forget. So, this Thanksgiving, please join me in being thankful for this great country, for its many types of citizens, for its rich (yet imperfect) history, and for all that amazing food.

1 Channel.nationalgeographic.com/saints-and-strangers/articles/the-true-storyof-thanksgiving/.

PRESIDENT’S MESSAGE (Continued from page 5)

33 and Tenn. Code Ann. § 23-4-101, and it never initiates complaints or reports a self-referral to any disciplinary agency. You should call TLAP to refer members of the legal profession (attorneys, judges, law students) who you believe may be experiencing substance abuse or mental health issues. You can contact TLAP representatives to talk about your own problems, confidentially. If there is a friend, co-worker, family member, etc. who is impacting your life due to his or her own issues, you can consult with TLAP and get advice on how to handle such a situation.

During regular business hours, TLAP may be reached at (615)741-3238 or toll free at (877)424-TLAP. If you need to reach TLAP outside of business hours, call (877)424-TLAP and press “1”, leave a detailed message, and someone will return your call as soon as possible.

One of the most alarming statistics is the rate of suicide in the legal profession. TLAP reports that lawyers are six times more likely to commit suicide than the average population. If someone is considering suicide, it is important to get help immediately. The National Suicide Prevention Lifeline is a service available 24 hours a day, 7 days a week, toll-free at 1-800-273-TALK (8255).

The KBA also has a wonderful local resource that works very closely with TLAP to assist those in our local bar struggling with many of these issues. The KBA’s Lawyers Concerned for Lawyers Program (LCFL) is a confidential program to assist lawyers, law firms and families of lawyers suffering from alcoholism, addiction or other mental or emotional problems that impair the lawyers’ ability to practice law.

All communication with the LCFL committee is confidential. Get assistance in identifying, treating and recovering from these illnesses. It’s a free, confidential membership service of the Knoxville Bar Association.

For more information, please contact Committee Chairs Jim Cornelius at 292-2515 or John Butler at 244-3925.

Together, we have the ability to make a difference in our legal community. We must continue dialogue about these important issues and take positive steps towards making that difference.

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DICTA

November 2017

JUDICIAL NEWS By: Patti Jane Lay Lay Baugh Law

WELCOMING KNOX COUNTY JUVENILE COURT’S NEW MAGISTRATE, ROBIN PHILLIPS GUNN

On August 18, 2017, Knox County Juvenile Court Judge Tim Irwin swore in Robin Phillips Gunn as the new magistrate for juvenile court. With the retirement of Magistrate Kay Kasserman this past summer, Judge Irwin interviewed seventeen candidates who applied for the vacated position and selected Robin Gunn to be juvenile court’s newest magistrate.

Robin grew up in Frankie Holt and Magistrate Gunn Chattanooga, Tennessee as the daughter of Dr. William Phillips, a dentist, and Lucile Phillips a retired school administrator for Hamilton County. Robin has one older sister who is a healthcare attorney in Nashville. After graduating from Tyner High School, Robin attended the University of Tennessee where she majored in Logistics and Transportation. Following graduation in 1999, Robin worked as a logistics associate for the Quaker Oats Company in Atlanta, Georgia for three years before she decided to return to Knoxville to attend law school at the University of Tennessee. As a law student, she studied international law at Cambridge in England during the summer of 2004. According to Robin, “Traveling throughout Europe was the most educational experience of my entire life.” Also while in law school, Robin met her husband, Keith Gunn, who was also a student at the University of Tennessee. They married in 2007.

Robin’s logistics and transportation degree has proved quite useful in figuring out how to get four children to three different schools in the morning in addition to getting the older boys to all their sporting events and extra-curricular activities. The oldest son, Killian, (age 16) is a junior at the L&N STEM Academy in Knoxville. He plays Ultimate Frisbee and runs track for STEM. Kelton, (age 15) is a sophomore at Hardin Valley Academy. He plays football and runs track for Hardin Valley. The girls, Sydney (age 4) and Sasha (16 months) attend Second Presbyterian Preschool. This past spring the entire family traveled to Manhattan to see Kelton compete in the New Balance Nationals Track and Field Competition.

After Robin graduated from law school in 2006, she began a general litigation practice with Brandy Slaybaugh. Robin did family law, probate work, criminal law and juvenile court work. In her juvenile practice she served as guardian ad litem in many dependency and neglect cases as well as representing parents in those cases. Her most interesting case as a litigator was a post-conviction relief case in Philadelphia, Pennsylvania where she travelled to Cumberland County, Tennessee to compel an eye witness to a murder to testify in a hearing in Philadelphia. That client, who was serving a life sentence without the possibility of parole, was just released from prison last month. Given her litigation experience and her dedication to helping Knox County families, she was the right fit to become magistrate.

November 2017

As magistrate, Robin hears dependency and neglect cases and cases involving unwed parents. She has to decide how to protect children that are at risk of harm by working with parents and others to provide a safe and stable home for the children including removing the children from the parent’s care if other solutions are not viable to protect the children. Robin views these cases as extremely challenging and hears on the average of 160-170 cases per month. In her own words, “the hardest case to decide is the close case, the one where the child has not suffered any actual harm but the potential is there.” She explains “it’s important to protect the parent child relationship but the child must be safe in that relationship.”

For lawyers practicing in her court, she has these words of advice: “Be on time because the court can’t start without you, and there is a lot of work to do in this court.” Additionally, she encourages guardian ad litems to be proactive early when they are appointed to a case. She says, “go see the child right away, and let the child and the school know how to reach you when issues arise that need to be addressed by the court to protect the safety of the child.” According to Magistrate Gunn, it’s important for a guardian ad litem to develop a good relationship with the child that they represent so that the child feels comfortable talking to the guardian about what concerns and fears the child may have.

Another passion that Robin has is technology. She is attuned to using technology in the courtroom and has taught CLE seminars for lawyers on how to maximize the use of technology in preparing and presenting your case to the court. Robin can always be seen with her iPad in the courtroom or in her office, working on orders and memorandums from hearings.

Finally, Robin wants to thank her court clerk, Frankie Holt, who according to Robin, “has been incredibly helpful in helping me get acclimated in my new position.” Frankie had worked for several years for Kay Kasserman after working at the Court of Appeals. Ironically, Frankie swore Robin in to the practice of law back in 2007 when she was working at the Court of Appeals. Now, she works with Robin as her clerk.

DICTA

The Gunn Family

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HELLO MY NAME IS

. . .

RACHEL DONSBACH

By: Katheryn M. Ogle McDonald, Levy & Taylor

Attorney Rachel Donsbach had several reasons for entering the legal profession, and one of those was to follow in the footsteps of her father, James “Jim” Owen. “My father has been such an influence for me. He left private practice after many years of success and took a position with the public defender’s office because he wanted to help people and always rooted for the underdog.

My dad taught me that the law can be a vehicle through which to bring the causes of the people to the doorsteps of the powerful.”

As an attorney, Rachel has had the opportunity to pursue exactly those causes. During her time at Duncan School of Law, she had the opportunity to clerk at Banks & Jones, where she is now an associate.

She focuses her practice on family, juvenile, and personal injury cases.

Working in this field, many clients come to an attorney’s office on some of their darkest days, and give what little money they have to someone they barely know, with the hope that this attorney can effectuate a positive change for them.

As Rachel notes, “advising someone as to what is in their best interest, especially when it isn’t necessarily the course of action they want to take, can sometimes be a difficult conversation to have.” While there are definite hurdles to being an attorney, there are also days that have great outcomes. “I’ve handled some cases where the client knows that your work has made a positive difference for them, and for that, they’re truly grateful,” says Rachel. “Those days make it all worth it. I also want to note that working with T. Scott Jones has been a great experience.

He’s truly been a role model for me and the firm has become like a second family.”

A native of Dandridge, Tennessee, Rachel graduated from Jefferson County High School and then attended Maryville College. The youngest of four children, she majored in English and minored in music.

Rachel’s interest in music was sparked at the age of four when she began taking piano lessons. She still plays the piano as a way to relax, but hasn’t formally taken lessons or played for an audience in many years. “It’s almost as though your fingers just remember what to do,” she explains.

“I’ll sit down to play and think ‘I’m not sure if I remember this song,’ and then I’m able to play it just from memory.”

In addition to her roles as an attorney and pianist, Rachel is also a mother to Evie, who is almost four, and Max, who is one and a half.

Recently, she also embarked on an adventure as a coach to her daughter’s “under four” soccer team. “There are only five players on the team, but sometimes it feels like there are fifteen of them,” laughs Rachel. “So far, it’s been a great experience. I’m thankful to spend this time with my daughter and get lots of enjoyment from being her coach.” On that note, Rachel’s favorite way to relax after a long week lawyering is

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simply spending time with her family on the weekends. “Being a mom is the most rewarding thing for me. My husband works in the mortgage industry, so family time on the weekends has become a priority for us.”

Rachel also spends her weekends cheering for the Vols and the Tennessee Titans. Many thanks to Rachel for providing this interview. DICTA appreciates this attorney, wife, mother, pianist, and soccer coach carving some time out of her schedule to allow us a glimpse into her busy, yet wonderful life.

DICTA

November 2017

PRACTICE TIPS By: Beth Ford Community Defender

CHARM SCHOOL PART II

My Dear Friends,

Several months ago, I was so honored to be able to tell you about my experiences as a graduate of the Sears and Roebuck School for Young Charmers (also known simply as Charm School) and how that certification has changed my life. Specifically, I told you how relevant it is to the practice of law.

Since we last had our last tête à tête, I have found my well worn copy of the Sears and Roebuck School for Young Charmers handbook, and it is just uncanny how the topics covered in the course can make you a more ethical and effective lawyer. We can learn much from the chapters on friendship and popularity, manners, physical grace, posture and exercise, fashions and foundations.

Today I would like to draw your attention to the issue of foundations. “Every girl needs the gentle shaping of foundations that fit,” according to page 97 of the handbook. Now you might ask what in the world does that have to do with the practice of law, and I would have to admit that perhaps, at first blush, very little. However, just as the proper foundations can help a young woman look her best, properly maintained files can help the charming lawyer do his or her best work.

Files are the foundations of our work.

Three questions arise immediately when discussing files. What is a file? To whom does the file belong? How long do we have to keep files?

The Board of Professional Responsibility’s Formal Ethics Opinion 2015-F-160 provides the best guidance in deciding how to answer all of these questions. We can, also, find additional help in the opinions of other states.

At one time, it was easy to define “file,” but technology has made it much more difficult to say what a file is. Do you remember when a file was a thin manila folder with a few paper stuffed in it? Ah, for the good old days! The Tennessee Rules of Professional Conduct are not particularly helpful, because they do not define the “papers and property to which the client is entitled.” See Rule 1.16(d) of the Tennessee Rules of Professional Conduct. Today a client’s file may not be maintained in one place. Parts of the file may even be in a cloud, a topic for another day. (Keep in mind that Rules 1.15 and 1.16 of the Rules of Professional Responsibility require confidential materials always be appropriately safeguarded, even if floating in a cloud.)

A file obviously includes briefs, pleadings, discovery requests and responses, transcripts, memoranda of law, case evaluations or strategy memoranda, all substantive correspondence including email, all documents with legal significance, and all documents or other things delivered to the lawyer by or on behalf of the client. (See Formal Opinion 1007-100 of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility.) One should probably assume that if a document or thing is useful to the protection of the client’s interest or is significant in any way to the client’s representation, it is a part of the file, and in Tennessee, files belong to the client.

Because the file belongs to the client, we have an ethical obligation to preserve client files and to return them or permit access to them by the client if requested, although, of course, the attorney may keep a copy of the file for convenience. (When the file is copied, the expense should be borne by the attorney. Formal Ethics Opinion 2015-F-160.) As one November 2017

who passes time in jail with my dear clients, some of whom spend years in the care of the Bureau of Prisons, there are other sticky wickets with which to deal. How many times does one need to provide the file to one’s detained client? Technically, providing it once comports with the rules, but we know that files do not always travel with our clients from jail to jail. My practice has been to provide it at least twice, once when the client resides in a local facility and then again when they make it to their final destination. That is just the polite thing to do. If the client can identify a relative who is in the free world to keep the file for them, that is often the best solution.

How long then is one required to keep a file? Both the American Bar Association and the Tennessee Board of Professional Responsibility take a pragmatic approach and have long recognized that files do not need to be kept forever. ABA Informal Opinion 1384 (1977). There are no rules that require a file to be kept for more than 5 years after the representation ends, but one must look at the type of representation and the file contents in making the decision about how long to hold on to the files. I will begin by saying that the best practice is to reach an agreement with your client for the disposal of the file when the relationship begins or when it ends.

If an agreement is not in place, review the directions of Rule 1.15 which require safekeeping of client property and of Rule 1.16(d) of the Rules of Professional Conduct which provide for promptly turning over papers, property, and other work product to a client. One must, also, read the guidance of the Board of Professional Responsibility found in Formal Opinion 2015-F-160. The guidance considers the type of case, and the case type determines the length of time that a case should be kept. Is child custody or a settlement for a minor involved? Then keep the file until the child attains majority. Is it a criminal case? Hold on to the file until the government no long has control over the client. Has the statute of limitations expired? If not, you must wait until it has. There are other examples given for your consideration in the opinion.

As you can see, some files might need to be maintained for a long stretch, and you should never destroy documents that cannot be replaced such as a will. If you decide that it is necessary to maintain a file for a long period of time, an alternative might be to digitize the file. However, that is a topic for another time as I now grow weary and must rest.

DICTA

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

NEW ATTORNEYS Cynthia M. Deitle Matthew Shepard Foundation

Rachel C. Jones

Paul E. Drozdowski Law Office of Paul E. Drozdowski

David A. Montgomery Family Law Practice of David A. Montgomery

Soojin Kim

NEW LAW STUDENT MEMBERS Sarah Abel Kristen D. Anderson Ruth Aramburu Matthew J. Armstrong Raven Austin Clayton Barnes Kristine A. Bridges Oscar A. Butler Colleen Conboy Cole Corder Peter R. Culpepper Monica Davis Alexander D. Edlin Lindsey E. English

Erika Ivey Trent Kinkaid Jambah Kollie Sophia Kostas Elijah Lovingfoss Marie E. Macias Sarah A. Martin Brittany McAfee Katie McCullough Rebecca H. McNabb Nicholas E. Nester Jordan T. Newport Sallie Papajohn Tippany D. Patrick

Jonathan A. Estes Taylor D. Flake Colleen Foley Checovoia L. Foster Brooklyn M. Girdley Jamie E. Glass Dave Hall Mark T. Hamilton Rebekah Harbin Goffrey A. Hardaway, II Brook Heavener Mary Beth Hendershott Alexander S. Hoppestad Charlotte A. Houser

Jeff L. Preptit Janaya Robinson Lynn Ryan Thomas B. Shank, II Erin Elizabeth Steelman M. Kelso Stevens Jennifer Svilar Connor R. Villas Samantha Warchol Tyler S. Williams Macey Woldt Emma Grace Wolfenbarger Bei Yang Dillon Zinser

POP UP PURE BARRE & SOCIAL HOUR The KBA Functions Committee hosted a Pop Up Pure Barre & Social Hour on September 14. Pure Barre Knoxville conducted the class at Sutree’s Landing and a Social Hour followed at Alliance Brewing Company.

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DICTA

November 2017

L E G A L U P DAT E By: Tricia Roelofs Managing Attorney, Tennessee Valley Authority, Office of the General Counsel1

DOES THE AGE DISCRIMINATION IN EMPLOYMENT ACT PROTECT OLDER JOB APPLICANTS FROM DISPARATE TREATMENT DISCRIMINATION? Introduction

The Age Discrimination in Employment Act (ADEA) contains protections against both disparate treatment discrimination2 and disparate impact discrimination.3 The ADEA’s disparate impact provision does not mention “applicants,” but rather, makes it “unlawful for an employer . . . to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.”4 That the text of ADEA’s disparate impact provision does not reference “applicants” is notable for two reasons. First, Title VII’s disparate impact provision was amended in 1972 – five years after the ADEA was first passed – to include “applicants for employment,” while the ADEA was not similarly amended.5 And, second, the ADEA’s disparate treatment provision, which appears directly before its disparate impact clause, expressly makes it unlawful for an employer to “fail or refuse to hire” someone.6 Recent Cases Addressing the Applicability of the ADEA’s Disparate Impact Provision to Job Applicants

These textual differences in the ADEA have recently prompted several courts of appeals to consider whether employers can legally target job candidates who have recently graduated from college, or those who have limited years of job experience. For instance, in Villarreal v. R.J. Reynolds Tobacco Company,7 a 49-year old job applicant challenged an employer’s hiring guidelines, which described the “targeted candidate” as someone “2-3 years out of college.”8 Despite applying for numerous positions, Villarreal was not hired to work at Reynolds because he did not have Reynolds’ preferred experience level. The Eleventh Circuit, sitting en banc, rejected Villarreal’s assertion that he could challenge his non-selection as having a disparate impact on older applicants under the ADEA. Relying on the ADEA’s plain language, the appeals court held that “[t]he plain text of section 4(a)(2) covers discrimination against employees. It does not cover applicants for employment.”9 Villarreal petitioned the Supreme Court to review the Eleventh Circuit’s denial of his claim; his petition for review was denied.

The plaintiff in Kleber v. Carefusion Corp.10 challenged an employer’s similar hiring practice. There, Carefusion sought applicants for two attorney positions, one open to those with “3 to 7 years (no more than 7 years) of relevant legal experience,” and the other open to applicants with between “3 to 5 years (no more than 5 years) of legal experience.”11 Kleber, a 59-year-old attorney with several decades of legal experience, applied for the position, but was not interviewed for his failure to meet the minimum qualifications.12 Kleber brought suit, and the United States District Court for the Northern District of Illinois dismissed his complaint. Relying on its prior precedent in E.E.O.C. v. Francis W. Parker School,13 the district court found that, as a matter of law, the ADEA’s disparate impact provision does not extend to applicants for employment.14 Kleber’s case is now awaiting decision on appeal before the Seventh Circuit.15

In yet another similar challenge, the United States District Court for the Northern District of California took an opposite view. In Rabin v. PricewaterhouseCoopers LLP,16 a group of job applicants filed a putative

class action, alleging that PricewaterhouseCoopers “engages in systemic and pervasive discrimination against older job applicants” insomuch as it “maintains hiring policies and practices for giving preference to younger employees that result in the disproportionate employment of younger applicants.”17 More specifically, the Rabin plaintiffs claimed that PricewaterhouseCoopers’ reliance on college recruiting programs disparately impacts older workers’ ability to seek employment.

PricewaterhouseCoopers moved to dismiss the plaintiffs’ claims, asserting that the plain language of the ADEA precludes disparate treatment claims by applicants. The district court denied PricewaterhouseCoopers’ motion. Expressly rejecting the Eleventh Circuit’s Villarreal holding, the Rabin court cited to the ADEA’s text, Supreme Court precedent, the EEOC’s interpretation of the ADEA’s disparate impact provision, and legislative history to support its conclusion that the ADEA extends to disparate impact claims brought by job applicants.18

For its textual argument, the Rabin court focused on the portion of the ADEA’s disparate impact provision that employers must not “deprive any individual of employment opportunities . . . .”19 Drawing upon that language, the court found that the ADEA’s disparate impact protections extend to “any individual”; not just job applicants.20 The Rabin court also relied on Griggs v. Duke Power Co.,21 in which the Supreme Court considered Title VII’s then identical disparate impact provision and held that employers could not subject employees to intelligence tests that disparately impacted African American employees’ job transfer opportunities.22 Although Griggs did not address disparate impact vis-à-vis applicants, the Rabin court found persuasive that other courts had – albeit without analysis – subsequently characterized Griggs as applicable to job applicants.23

Agency deference to the Equal Employment Opportunity Commission (EEOC)’s interpretation of the ADEA also informed the Rabin court’s analysis. The court pointed out that the applicable regulation states that “[a]ny employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a ‘reasonable factor other than age.’”24 The court found that the EEOC’s interpretation was consistent with the ADEA’s “any individual” language, and also explained that agencies responsible for interpreting the ADEA had long been concerned with hiring practices that act as barriers to employment of older workers.25

Legislative history was the final factor persuading the Rabin court to allow the plaintiffs’ claims to proceed. On that topic, the court noted that the “ADEA’s enactment reveals that Congress was concerned not just with age discrimination in the workplace, but also with the barriers to older workers finding employment in the first place.”26 The court found this legislative history probative, particularly in light of its reading of the ADEA’s text. Thus, the court denied PricewaterhouseCoopers’ motion to dismiss and allowed plaintiffs’ claim to proceed. PricewaterhouseCoopers has sought interlocutory appeal to the Ninth Circuit, and its application remains pending.

Practical Pointers

As these types of claims continue to increase, the issue of the applicability of the ADEA’s disparate impact provision to applicants may (Continued on Page 12)

November 2017

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LEGAL UPDATE

(Continued from page 11)

eventually wind its way up to the Supreme Court, particularly if a circuit court split develops. Although the issue is not clear-cut, Rabin appears to be the outlier, and there is a good chance that other courts will follow the ADEA’s plain language to hold that its disparate impact provision does not apply to job applicants.

But that does not mean that employers need not be wary of targeting job applicants with less experience, for a few reasons. For one, the Supreme Court has made clear that existing employees can bring disparate impact claims under the ADEA.27 Thus, to the extent that an employer favors inexperienced outside hires over more experienced internal applicants, it could be subject to a viable disparate impact claim.

In addition, an employer’s cap on the amount of experience could be construed as a proxy for age and, therefore, serve as the factual basis for a disparate treatment ADEA claim.28 To protect against such claims, employers would be prudent to examine their business motivations for seeking less experienced applicants to ensure that they can state a persuasive, legitimate, and non-discriminatory reason for their recruiting preferences.

1 Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority.

2 29 U.S.C. § 623(a)(1).

3 29 U.S.C. § 623(a)(2).

4 Id. (emphasis added).

5 42 U.S.C. § 2000e-2(a)(2).

29 U.S.C. § 623(a)(1) (emphasis added).

839 F.3d 958 (11th Cir. 2016).

8 Id. at 961.

9 Id. at 963.

10 No. 15-cv-1994, 2015 WL 7423778 (N.D. Ill. Nov. 23, 2015).

11 Id. at *1.

12 Id. 13 41 F.3d 1073, 1077 (7th Cir. 1994).

14 2015 WL 7423778 at *2.

15 Kleber v. CareFusion Corporation, Docket No. 17-01206 (7th Cir. Feb 01, 2017).

16 236 F. Supp. 3d 1126 (N.D. Cal. 2017).

17 Id. at 1127.

18 Id. at 1128-1133.

19 Id. at 1128-1129 (citing 29 U.S.C. § 623(a)(2)).

20 Id. 21 401 U.S. 424 (1971).

22 236 F. Supp. 3d at 1130.

23 Id. at 1131. The Rabin court recognized that, following Griggs, Title VII’s disparate impact provision was amended in 1972 to include “applicants for employment.” The court did not find this dispositive, reasoning that the amendment was intended to be “declaratory of present law;” not a pronouncement of a new rule. Id. (citing S. Rep. No. 92-415 (1971)).

24 Id. at 1132-33 (citing 29 C.F.R. § 1625.7(c)).

25 Id. at 1133.

26 Id. 27 Smith v. City of Jackson, 544 U.S. 228 (2005).

28 See Kleber, 2015 WL 7423778 at *2-3 (refusing to dismiss disparate treatment claim because an experience cap could be “a way to intentionally weeding out older applicants” based on a belief that “these workers were not desirable, qualified candidates because of stereotypes and unfounded assumptions regarding older workers’ commitment and their willingness to be managed by younger, less-experienced supervisors”).

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

Who woke the bear: the rise of Vladimir Putin and the new Russian empire Featuring

Natalie Manaeva Rice, PhD

Research Consultant for the Institute for Nuclear Security at the University of Tennessee Wednesday, December 13, 2017 11:30 a.m. - 1:00 p.m.

Calhoun’s on the River - 400 Neyland Drive The price includes an entree, vegetable, salad and beverage. Please indicate your choice of Crab Cakes or Lemon Chicken. Register online by clicking December 13 in the Event Calendar at www.knoxbar.org 12

DICTA

November 2017

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Cathy Shuck East Tennessee Children’s Hospital

WHATEVER HAPPENED TO THE OVERTIME RULE?

At this time last year, employers were scrambling to comply with the Obama Administration’s new overtime rule. That rule would have taken effect December 1, 2016 and would have required that employees who are exempt from the FLSA’s wage and overtime provisions earn a salary of at least $44,476 to maintain their exempt status.1

What a difference a year makes. On August 31, 2017 a federal court permanently enjoined the rule.2 The Trump Administration will not appeal that order, but it is considering its own revisions to the rule.3 Any revision is certain to be much less drastic than the Obama Administration’s rule, however, and will not be issued any time soon. In the meantime, the old rule remains in effect. This means that employers only need to meet the “old” salary threshold of $23,660 per year to classify an employee as exempt.

Background

The FLSA exempts from its minimum wage and overtime requirements, among other workers, “any employee employed in a bona fide executive, administrative or professional capacity.”4 The law does not define the terms “executive, administrative or professional.” Instead the Secretary of Labor has the authority to interpret the exemption through regulation.5

In 1938, the Department of Labor issued the first regulations under the law, defining “executive,” “administrative,” and “professional” based on duties alone. Two years later, the Department amended the regulation to include a requirement that such employees be salaried. The salary requirement has been in place ever since, and the minimum salary level has been set at $23,660 ($455 per week) since 2004.6

In 2015, the Obama Administration announced that it would revisit the rule, and on May 23, 2016 it announced the new rule more than doubling the salary threshold.7 The Administration had based the new salary level on the 40th percentile of weekly earnings of full-time salaried workers in the lowest wage region of the country (the South). The rule would also have provided for automatic adjustments to the minimum salary level every three years.8

The Obama Administration estimated that 4.2 million workers would be entitled to either a raise or to overtime once the new rule took effect.9 A common category of affected employees were office managers and other mid-level professionals. These workers may have satisfied the duties test but – particularly in lower-wage markets like East Tennessee – may not have been paid enough to meet the new salary threshold. As a result, employers had to go through a sometimes painful analysis of whether to give such employees raises or convert them to non-exempt status, i.e., paying the workers overtime.

A number of states and business groups challenged the rule, and on November 22, 2016, just eight days before the rule would have taken effect, the United States District Court for the Eastern District of Texas issued a preliminary injunction against enforcement of the order. On August 31, 2017, the court made its order permanent.11

The Permanent Injunction and New Administrative Action

In its analysis, the court reasoned that because the FLSA by its terms contemplates a duties test, the Department of Labor “does not have the authority to use a salary-level test that will effectively eliminate the duties test as prescribed by” the statute.12 Put another way, the court reasoned that the Department does not “have the authority to categorically exclude those who perform ‘bona fide executive, administrative, or professional capacity’ duties based on salary level alone.”13 The court did not find that the salary level test is entirely inappropriate; the court endorsed the Department’s past usage of salary level as a “floor to screen out the obviously nonexempt employees, making an analysis of duties in such cases unnecessary.”14

Current Secretary of Labor Alexander Acosta has previously signaled that he is open to increasing the salary level to account for inflation.15 On July 26, 2017, the Department issued a Request for Information, soliciting a new round of comments on the FLSA’s exemptions for administrative, professional and executive employees as well as outside sales and computer employees.16 The comment period closed on September 25, but it will likely be months or even years before the Administration proposes new rules.

Moving Forward

At this juncture, what should employers do? If you were an employer who was waiting to change an employee’s pay rate or exempt status until the rule actually took effect, you don’t need to do anything.

If you did increase an employee’s pay rate to preserve exempt status, or if you reclassified the employee as non-exempt and entitled to overtime, you could go back to your old pay practice, albeit at the risk of upsetting the employee. As you hire new employees who satisfy the duties test for the professional, executive and administrative exemption, bear in mind that—for now—you only need to pay a salary of at least $23,660.

See 81 Fed Reg 32,391 (May 23, 2016).

See Nevada v. U.S. Dept. of Labor, No. 4:16-CV-731 (E.D. Tex. Aug. 31, 2017) (Doc. 99).

3 See “Request for Information; Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees,” 82 Fed. Reg. 34616 (July 26, 2017).

4 29 U.S.C. § 213(a)(1).

5 See id. (referring to the exemptions “…as such terms are defined and delimited from time to time by regulations of the Secretary.”).

6 Nevada v. U.S. Dept. of Labor, Doc. 99 at 2.

7 See “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees,” 81 Fed. Reg. 32391 (May 23, 2016).

8 See Nevada v. U.S. Dept. of Labor, Doc. 99 at 3.

9 See 81 Fed. Reg at 32393.

10 Nevada v. U.S. Dept. of Labor, Doc. 60 (Nov. 22, 2016).

11 See id., Doc. 99.

12 Id. at 14.

13 Id. 14 Id. at 15 (quotation and citation omitted).

15 See Jonelle Marte, Labor nominee Alexander Acosta questioned on his work record, plans for defending workers, The Washington Post, Mar. 22, 2017, available at https:// www.washingtonpost.com/news/get-there/wp/2017/03/22/labor-nominee-alexanderacosta-to-face-questions-on-his-work-record-plans-for-defending-workers/?utm_ term=.778667d2a2a5 (visited Oct. 6, 2017).

16 See 82 Fed. Reg. 34616.

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

November 2017

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SOLO & SMALL FIRM PRACTICE TIPS By: Patrick Slaughter LaFevor & Slaughter

COMMUNICATING WHILE WORKING REMOTELY

Last time we discussed migrating your cases to the cloud. If you’ve done this, you’re well on the way to working remotely – preferably from an exotic beach location or a theme park.

The next issue to address is how you will be able to stay in touch with everyone. The goal is for our clients, opposing counsel, and court personnel to believe that we are slaving away in our offices when we are somewhere much more fun.

The first hurdle is phone calls. Let’s face it, we are on the telephone a lot. We have to talk to people to do our job. Cell phones make communicating easy, but most of us would prefer that our clients not have our personal cell numbers. We are using the app that comes with our Comcast telephone system. Using the app we are able to place and receive calls from our mobile phones using our office telephone number.

So, when I make a call, it is like I am calling from my office. We can also forward our calls from the office to our personal phones the same way.

My staff can even transfer a call that comes into the office line to my cell phone just like they transfer calls to my desk. Fielding calls remotely turned out to be easy and inexpensive. You might not have Comcast though; call your phone provider and see what they can do. They might have something that will surprise you (and it is usually free). If you need to find another service provider consider RingCentral, Vonage, 8X8, or Ooma.

Dealing with emails is another substantial part of our day. Most folks know how to get email remotely. The key is making sure those emails are available across devices. If you use a laptop, a desktop, a smart phone, and a tablet it can be pretty easy to have emails spread out over a bunch of devices. The easiest solution is to use an IMAP account with an email folder set up for each client file on your IMAP server. This way each device you use will share the same client matter email folder.

Whenever you receive an email, you just drop it into that client’s folder.

The IMAP server will make that same email available across each device.

Also, most of the practice management software programs can index emails from everyone in your firm regarding a matter based on each user’s folder. That way you can look at every single email that has been exchanged between everyone in the office and a client when the need arises. This ability makes it easy to find documents and to verify or deny what has and has not been said or agreed to in emails with clients and other attorneys.

Now, let’s talk about snail mail. You might think that you have to be at your office to receive the mail, open it, and scan it now that you have gone paperless, then forward it to your client. Believe it or not, you don’t.

There are services out there like Earth Class Mail, Traveling Mailbox, and Post Scan Mail that will receive all your snail mail, scan the envelope, and email the scan to you so you can decide whether to open the mail or not. After that, they open your mail, scan it into a searchable PDF document, and email you the PDF. These services make dealing with physical mail easy and are very affordable. Imagine the time you and your staff will save dealing with all the mail that comes to your office. These kinds of services save time and make it easier to go completely paperless.

Now that you have processed all your incoming mail, you must get it to your clients. We use the client portal feature in Rocket Matter (our practice management software), but there are tons of programs out there

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to choose from and most provide some kind of client portal feature at no additional charge.

The portal has been very popular with our clients. When a client engages our firm, they immediately receive an invitation to join the portal. Once they sign up, we can drag and drop documents into the portal. The client then receives an email telling them that a document is in their portal. They can read, save or print the document. Clients like it because they get the information much faster and in a more private fashion. We like it because it is easy for us to get the clients the documents they need, and it saves us a bunch of money on postage.

Another important practice management software feature is “cloud based” software. We are able to access Rocket Matter from anywhere in the world as long as we have an internet connection. We can work from anywhere. Wherever we are, we just log into Rocket Matter. We can bill as we work, keep track of calendar events, update our clients’ portals with new documents as necessary, and run bills with very little effort.

Whichever practice management program you choose, spend a weekend watching as many of the tutorial videos that you can. Get to know what the software can do. Then get to know the folks that operate the support line. This way, they will know what you need, why you need it, and how to help. Don’t be shy, these folks can make recommendations and suggestions to help you get more out of their software.

So now you have the beginnings of a paperless office and a plan on how to communicate with everyone who is still chained to their desks.

Next month we will deal with how to make sure things get done, bill appropriately, get your bills out, and get paid all while standing in line for Flight of Passage in Disney’s Animal Kingdom. With an average wait time of 4 hours, you should be able to get a lot done and get paid to stand in line!

DICTA

November 2017

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

LEAD BY GOING

When it comes to remembering things, Knoxville does a fairly discovered or re-discovered at Lawyerpalooza 2.0, and the Ethics Bowl good job. Like most cities, we have our share of statues and monuments. will celebrate its 11th year of competition.

We have the Sunsphere and a beautiful park to remember the time

This is just a snapshot of 2017. It does not include monthly the World’s Fair came to town. In front of the City-County Building, executive committee meetings, Board of Governor meetings, phone calls, we have a monument filled with chimes to remember each person our questions, requests for “just 5 minutes of your time,” and to top it all off, country lost on September 11, 2001. We remember events. add writing a monthly column for DICTA. That last one is not as easy

We remember people. We remember people who had a national as it sounds. For 2017, there was one person who was at the center of all impact – like Alex Haley, whose thirteen-foot high bronze statue in of this – someone who took to heart her own call to serve and her own Morningside Park is dwarfed only by the legacy left by his book Roots. call to motivate other lawyers to join and serve.

We remember the three women, Lizzie Crozier French, Anne Dallas

Ken Kesey, author of One Flew Over the Cuckoo’s Nest, said, “You Dudley and Elizabeth Avery Meriwether, who pulled back the curtain on don’t lead by pointing and telling people some place to go. You lead the voting booth so that women could participate in electing our leaders by going to that place and making a case.” That is precisely what this and shaping our democracy. month’s thankworthy person has done for the Knoxville Bar Association

We remember those who shaped our as an organization and for each attorney who is he bar leaders who worked with privileged to practice in the Knoxville area. city with their presence, such as James White, Amanda this year have described For the past year, Amanda Busby has led John Sevier, and William Blount. We also her as a quiet diplomat, a calm remember those who shaped our city with their our organization, not by pointing in the right absence – the 14 Medal of Honor recipients problem-solver, and someone who just direction and telling us where to go. She just and thousands of others who gave up the went there and got to work in such a way that makes things better. comfort and safety of East Tennessee and people wanted to join. She asked each of us ultimately gave their lives in military service. to serve on one KBA committee or section We remember Air Force Captain Charles T. McMillan who, at the age of and then tackled 8 of them herself. She asked us to get more attorneys 28, died while attempting to rescue the American hostages held in Iran.1 involved in our bar association and was there at each event to lunch, You have probably passed his plaque dozens of times as you went by the learn, laugh, and lead us in that process. The bar leaders who worked Old Knox County Courthouse. with Amanda this year have described her as a quiet diplomat, a calm

A lot of cities have statues and monuments to commemorate problem-solver, and someone who just makes things better. national events, military sacrifice, and past leaders. Knoxville is special

Although lots of people have been willing to say how much because we remember and recognize those who serve in less public ways. they appreciate her, so far no one has been able to tell me how to best

We remember the twenty-five war dogs who served side-by-side remember Amanda’s service as KBA President. Neither a marble with the Marines while liberating Guam during World War II. You can archway nor a twelve-foot high statue seem fitting. Certainly, there will find the memorial for Poncho, Yonnie, Koko, and their canine compadres be a plaque or some other memento presented at the Annual Meeting, in front of the UT College of Veterinary Medicine. At the end of Krutch and Amanda’s name will join the list of Past Presidents in the front of Park, sits the statue erected to honor William Sergeant who worked our Attorneys’ Directory. For someone described as a quiet diplomat, tirelessly to eradicate polio through childhood vaccinations. Anyone perhaps the best way to remember her service is to put her on the who has climbed the stairs to the Old Courthouse from Gay Street has thankworthy list and then, go serve the Knoxville Bar. walked under the archway erected in honor of Dr. John Mason Boyd who invested 53 years of his life treating the medical needs of the Knoxville 1 ETVMA, Charles T. McMillan II, https://etvma.org/veterans/mcmillan-ii-charles-t. community. He also served for 40 years on the Board of Trustees of the 2 Malford W. Thewlis, M.D., Doctor John Mason Boyd-A Great Physician (May 5, 2015), Tennessee School for the Deaf and went so far as to learn sign language https://savingtnhistory.blogspot.com/2015/05/john-mason-boyd.html?m=1. so that he could communicate with the students.2

Knoxville remembers the people who serve in simple ways, and for the past 11 months, we have had one of those within our midst. In December 2016, DICTA published a column entitled, 2017 – A Time for Gratitude and an Opportunity to Serve. The column was a call to the Knoxville Bar to serve on a section or committee of the Knoxville Bar Association. It was also a call to bring someone with you – to ask another lawyer to serve alongside of you.

Apparently, these were not just words to the author because the next eleven months were full to say the least. Eleven bar-wide events, 8 different committees, 3 Lunch & Learns, 2 Open Service Projects, and 1 Lawyerpalooza – the calendar was packed to the maximum. There was a trip to the Smokies to see the fireflies, a morning at the Saturday Bar, a day volunteering at the Love Kitchen and another day serving at the YWCA. Past Presidents were gathered, and the Justices of the Tennessee Supreme Court were honored. The bench and the bar came together to promote professionalism and encourage diversity. Hidden talent was

T

November 2017

DICTA

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DISTILLING THE LIQUOR-BY-THE-DRINK TAX LITIGATION

On August 8, the Tennessee Court of Appeals held oral arguments in the consolidated liquor-by-the-drink cases that are being litigated by several of our East Tennessee neighbors. Many of us in Knoxville and Knox County, as casual observers of the ongoing lawsuits, may be only generally aware that the disputes have something to do with the distribution of tax revenues between counties and municipalities and with the funding for public schools. In order to more thoroughly understand these cases, we must navigate multiple obtuse statutes, Attorney General Opinions, and a series of conflicting Chancery Court decisions. This article is designed to familiarize you with the key issues as we await the decision of the Court of Appeals and perhaps, eventually, the Tennessee Supreme Court.

The Statute Governing Distribution of the Liquor-by-the-Drink Tax

Although the facts and specific legal arguments in each of the cases differ, they all center on the interpretation of Tennessee Code Annotated section 57-4-306. That statute sets forth the formula for the Tennessee Department of Revenue to use in distributing the 15 percent gross receipts tax for onpremise alcohol consumption – the so-called “liquor-by-the-drink tax.”1 Section 57-4-306 states that half of the gross receipts is to be distributed to the state’s general fund “to be earmarked for education purposes,” while the other half is “to be distributed to local political subdivisions.”2 It is this second half of the distribution that is at issue in the litigation.

The version of section 57-4-206 that existed between 1982 and 2014, which is the relevant statute in each of the ongoing liquorby-the-drink lawsuits,3 provides that the local political subdivision is to distribute the second half of the gross receipts by splitting them yet again in half. The first half of the local political subdivision’s distribution (or one-quarter of the total tax revenue) is to be expended and distributed in the same manner as the county property tax for schools is expended and

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distributed; provided, however, that . . . any proceeds expended and distributed to municipalities which do not operate their own school system separate from the county are required to remit one-half of their proceeds of the gross receipts liquor by the drink tax to the county fund[.]4 The second half of the local political subdivision’s distribution was to be distributed to either the general county fund (for gross receipts collected in unincorporated areas) or the city or county collecting the tax (for gross receipts collected in incorporated cities and counties).5

Further complicating matters is Tennessee Code Annotated section 57-4-103, which provides that the chapter of the Code governing on-premises consumption of liquor shall be effective “in any jurisdiction which authorizes the sale of alcoholic beverages for consumption on the premises in a [local option] referendum.”6 Put in clearer terms: section 57-4-306 required for decades that a municipality allowing sales of liquor-by-the-drink share half of the tax revenue to which it was entitled with its county fund, at least if the municipality did not operate its own school system. The question became much more muddled if the city ran its own school system. Moreover, even a delinquent municipality could argue, based upon section 57-4-103, that it owes no tax payments if the county in which it sits has never held a public referendum on allowing liquor-by-the-drink in its unincorporated areas. Finally, since 2014, the General Assembly has amended Section 57-4-306 on a year-by-year basis, making explicit that cities operating their own school systems retain the first half of their local political subdivision distribution for the city school system.7 Origins of Liquor-by-the-Drink Litigation in East Tennessee

The liquor-by-the-drink tax issue emerged after Hamilton County sued the city of Chattanooga several years ago for recovery of unpaid liquor-by-the drink tax revenues.8

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The difference between that case, which ended in a settlement,9 and the cases pending before the Court of Appeals is that Chattanooga has not operated its own school system since 1995, yet still did not distribute half of its share of the liquor-by-the-drink tax revenues to Hamilton County. As described above, the distribution statute at the time clearly required municipalities not operating their own school systems to make such a distribution to the county fund.

A February 2014 Attorney General Opinion further raised the profile of the previously obscure issue10. That opinion clarified, among other things, that county school boards have no ability to waive their statutory rights to receive unremitted tax revenues from municipalities, and that there is no statute of limitations barring counties’ claims against delinquent cities.11 While the February 2014 Attorney General opinion helped shed light on disputes such as the one between Chattanooga and Hamilton County,12 it did not address the liability of cities operating their own school systems under section 57-4-306.

Cases Currently on Appeal

Each of the four lawsuits currently pending in the Court of Appeals was filed by an East Tennessee county against a city or cities that operates its own school system within the county’s borders: Bradley County against Cleveland; Blount County against Alcoa and Maryville; Sullivan County against Kingsport and Bristol; and Washington County against Johnson City. The Chancery Court decisions in these cases in 2015 and 2016 were split, with the three resulting in decisions for the cities and one favoring the county.

In July 2015, Chancellor Jerri Bryant sitting in the Bradley County Chancery Court issued the first decision among the four cases.13 Observing that the voters of Cleveland approved a liquor-by-the-drink referendum in 2002, Chancellor Bryant held that, under section 54-7-103, Bradley County had no rights or responsibilities under the liquor-bythe-drink distribution statute because a similar November 2017

COVER STORY By: Matthew R. Lyon LMU Duncan School of Law

referendum had failed in the county.14 In May 2016, Chancellor Bryant issued a second opinion pertaining to taxes collected at private clubs in Cleveland prior to the 2002 referendum, with the same outcome.15

In December 2015, Chancellor Telford Forgety, Jr. in the Blount County Chancery Court granted summary judgment to Alcoa and Maryville in their dispute with Blount County.16 One the one hand, Chancellor Forgety rejected one argument by the cities that Chancellor Bryant had accepted: that section 54-7-103 made section 57-4-306 inapplicable to the county because the county had not passed a liquor-by-the-drink referendum. To the contrary, liquor-by-thedrink taxes had been collected at private clubs in the Blount County for decades, and such taxes had been distributed to the county and shared with the cities. This represented “a long-standing practical construction” by the state, county, and cities that the statute did apply to the county, and this construction was entitled to “great weight.”17

On the other hand, Chancellor Forgety went farther than Chancellor Bryant in construing section 57-4-306 itself. The legislature added subsection (a)(2)(A), requiring cities not operating their own school systems to remit half of their distribution to the county fund, in 1982. Applying the venerable canon of statutory construction expressio unius est exclusio alterius (“to express one thing is to exclude another”), Chancellor Forgety determined that “the fact that the legislature did not include cities that operate their own school systems in the class that is required to remit [liquor-by-the-drink] funds to the county indicates that these cities were intended to be excluded from the class.”18 Like Chancellor Bryant, Chancellor Forgety also cited several Attorney General Opinions from the early 1980s that supported this construction of the statute.

In October 2016, Chancellor E.G. Moody, sitting by designation in the Chancery Court for Washington County, went the other way and held that Johnson City is required to share its liquor-by-the-drink tax revenue distribution with Washington County.19 After finding section 54-7-306 to be ambiguous, Chancellor Moody determined that the “temporary” amendment to the law in 2014 to allow cities to retain their own tax revenues “clearly shows that the statute, prior to the 2014 amendment, did not allow a municipality November 2017

to retain” all of the funds.20 Furthermore, the term “jurisdiction” in section 57-4-103 does not preclude Washington County from enjoying the benefits of the liquor-by-thedrink tax revenue distribution statute. By this term, “the General Assembly could have only meant that the sale of liquor-by-the-drink is permitted only in those jurisdictions that have authorized the sale of liquor-by-the-drink.”21 Potential Outcome

At oral arguments in August, the Court of Appeals heard separately from lawyers representing the cities and counties in all three of the cases described above, as well as Sullivan County’s dispute with Bristol and Kingsport over tax revenue owed to the cities by the county. It does appear that the cities may have the better argument in light of the General Assembly’s rush to “fix” the statute, first in 2014 and then in later years. However, it is difficult to predict what the appeals panel will do. Moreover, given the widespread impacts of this decision, both in East Tennessee and statewide,22 the liquor-by-the-drink cases may inevitably appear in the Tennessee Supreme Court. For now, however, the litigants must bide their time. In the words of the late, great Tom Petty, “the waiting is the hardest part.”

1 Tenn. Code Ann. § 57-4-301(c). This chapter of the Code pertains to the sale of alcoholic beverages with greater than eight percent (8%) alcohol by volume (“ABV”): spirits, wine, and high-gravity beer. See Tenn. Code Ann. §§ 57-4-102(1) & 57-5-101(b).

2 Tenn. Code Ann. § 57-4-306(a).

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3 The onslaught of litigation between counties and municipalities a few years ago led the General Assembly to clarify section 57-4-206.

4 Tenn. Code Ann. § 57-4-306(a)(2)(A) (2013) (emphasis added).

5 Tenn. Code Ann. § 57-4-103(a)(2)(B) (2013).

6 Tenn. Code Ann. § 57-4-103(a).

7 Tenn. Code Ann. § 57-4-306(b)(1)(A)(ii).

8 Gary B. Gray, Appeals Court Orders Consolidation of Washington, Sullivan, Bradley Counties’ Liquor-bythe-Drink Tax Suits, JOHNSON CITY PRESS (Feb. 3, 2017), available at http://www.johnsoncitypress.com/ Local/2017/02/03/Court-orders-consolidation-of-threeliquor-by-the-drink-suits.

9 Joy Luckachick Smith, Chattanooga/Hamilton County Schools Liquor Tax Settlement Imminent, CHATTANOOGA TIMES FREE PRESS (July 15, 2014), available at http:// www.timesfreepress.com/news/local/story/2014/jul/15/ schoolscity-liquor-tax-settlement-imminent/252203/.

10 Tenn. Atty. Gen. Op. No. 14-22, Authority of County School Board to Compromise Liquor-by-the-Drink Tax Revenue, 2014 WL 842692 (Feb. 26, 2014).

11 Id. at *2.

12 Joy Luckachick Smith & Kevin Hardy, Tennessee AG Ruling Prods Cities to Pay School Systems, CHATTANOOGA TIMES FREE PRESS (July 15, 2014), available at http://www.timesfreepress.com/news/ local/story/2014/feb/28/ag-ruling-prods-cities-to-payup/133020/.

13 Bradley Cty. Sch. Sys. v. City of Cleveland, No. 2014CV-84 (July 30, 2015) (on file with author).

14 Id. at 3 (quoting Tenn. Code Ann. § 57-4-103(a)(1)).

15 Bradley Cty. Sch. Sys. v. City of Cleveland, No. 2014CV-84 (May 2, 2016) (on file with author).

16 Blount Cty. Bd. of Educ. v. City of Maryville, No. 2014053 (Dec. 22, 2015) (on file with author).

17 Id. at 5.

18 Id. at 6.

19 Washington Cty. Sch. Sys. v. Johnson City, CA No. 42491 (Oct. 27, 2016) (on file with author).

20 Id. at 12 21 Id. at 17.

22 An appeal is also pending in the Court of Appeals in the Middle District of a liquor-by-the-drink suit between Coffee County and two of its municipalities, Manchester and Tullahoma.

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WELL READ By: Campbell D. Cox Student, University of Tennessee College of Law

THE FEDERALIST PAPERS & HAMILTON: AN AMERICAN MUSICAL

Both defining works, although from vastly different time periods, play a significant part in telling the foundational and inspirational story of young America. Lin-Manuel Miranda’s mega-hit musical, Hamilton, has brought to light the story of one of America’s frequently forgotten founding fathers, while The Federalist Papers show how that same man bore the brunt of the monumental task of swaying an entire country of new American citizens to back the ratification of the new U.S. Constitution. Seeing both the show and reading the book offered up as one of the examples of Alexander Hamilton’s insatiable, almost urgent, drive to write and speak his mind was truly an experience. As a future lawyer, these works have served to remind me of the undeniable significance of zealous, “non-stop” determination in both the legal profession and personal endeavors.

Hamilton presents Alexander’s story as tragic and interwoven with the threads of American history, but also does an incredible job of staying true to its historical subject material.

The show brings us from Alexander first arriving as a young man in New York City, to him moving through the Revolutionary war and political ranks, his marriage to Elizabeth Schuyler, and finally to his untimely and heartbreaking death in the duel with Aaron Burr. These waypoints are all reflected through Aaron Burr’s lyrics at the beginning of many songs. Burr will tell the audience what is to come, the current state of America, and the progress of Alexander’s career alongside his own. It is this competitive relationship between Aaron Burr and Alexander Hamilton that drives the story of the show. Burr is a man who “hides in wait” and does not speak his mind unless he knows he is on the winning side while Alexander fights relentlessly for what he believes in and speaks his mind, even to his own detriment. It is in one of the final turning points of Alexander and Burr’s story that The Federalist Papers comes into play.

After the Revolutionary War, Hamilton and Burr both become lawyers and eventually work together as co-counsel for a murder trial in Albany, New York. During this time, the U.S. Constitution has come under attack before being ratified and the new states are considering

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breaking off into their own separate pieces.

Alexander approaches Burr and asks him to help defend the Constitution by writing anonymous essays directed at the public as a part of The Federalist Papers; it is here where Alexander asks him “if you stand for nothing, Burr, what will you fall for?”

Burr, believing that the Constitution was too flawed to possibly succeed, turns his back on Alexander. This moment is one of many where I was reminded how important a zealous defense is, especially to a client like the early U.S. Constitution. If Alexander Hamilton had not stepped forward and written fifty-one of the eighty-five essays of The Federalist Papers, the unparalleled country we live in today may have been very different.

As a key plot point of Hamilton (with practically an entire song devoted to it) The Federalist Papers was a collection eightyfive anonymously published essays defending the Constitution and promoting the benefits of its ratification to the new American citizens.

Hamilton, James Madison, and John Jay composed these essays under the pseudonym “Publius,” a Latin term meaning “of the people,” and published them in New York newspapers beginning in 1787.

After gaining widespread popularity, the essays were compiled into collections and published, but still continued to predominately circulate through newspapers. Most essays address a single topic regarding the Constitution or America’s future. These topics range from the economy, separation of powers, the dangers of a fractured country, taxation, and much more. It is best to read these essays in groups in order to not become confused because of an overwhelming wealth information to absorb. It would be impossible to detail the full contents of The Federalist Papers, but on the whole it presents a look into what early Americans hoped, feared, and predicted for their country.

Luckily, one need not travel to Broadway to be inspired to action: even hearing the Hamilton musical is likely to motivate any legalminded listener to follow in his footsteps. As far as The Federalist Papers in connection with Hamilton, it is best taken as a shining example of Hamilton’s commitment to his country and defending what he believed in, no matter what burden it put on him. If we take a page out of Hamilton’s book and capture even a small amount of his fervor and willingness to step forward, the profession would reap untold benefits.

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November 2017

barrister bullets BARRISTER ELECTIONS & HOLIDAY PARTY

PROFESSIONAL OUTREACH

The Barristers are seeking nominations for the following officers to serve in 2018:

KBA Barristers, YPK, TSCPA Young CPAs, and are joining forces for Professional Mixer November 1st from 6-8 p.m. at Maple Hall, 414 S. Gay Street! Bowling and shoe rentals will be covered on a first come, first served basis, so make sure to arrive early if you would like to play.

The highest scoring bowler will receive a $50 Maple Hall gift card and one year of free membership to Young Professionals of Knoxville!

Appetizers will be available to all attendees. We also ask that those attending bring a can of food or peanut butter as a donation to the Second Harvest food bank. Happy Hours are open to members and nonmembers, so make sure to invite your friends! RSVP online by clicking November 1 on the KBA Event Calendar.

• Vice President • Secretary/Treasurer • (2) At-Large Executive Committee Seats Please notify Lacey Dillon (ldillon@knoxbar.org) by Monday, November 6th, if you would like to nominate someone or are interested in running for a Barristers office. Please note that the person elected Vice-President in December will automatically become the Barristers President for the 2019 bar year. Candidates must be current KBA members.

VOLUNTEER BREAKFAST

Additionally, please mark your calendar to attend the December 6 Knoxville Barristers Elections and Holiday Party at the Bistro at the Bijou. Even if you can’t stay for the whole party, make sure to drop in before 5:15 p.m. to be able to vote. There is no need to RSVP just stop by, have a drink on us, grab some refreshments and help shape the future of our profession and community.

The Knoxville Barristers Volunteer Breakfast Committee is looking for a sponsor and volunteers for the November 23rd Volunteer Breakfast.

The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. that provides and serves breakfast at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, TN 37917.

MONTHLY MEETINGS

This is a great chance to partner with members of your firm, involve your staff in a group philanthropic effort, or serve the community with your law school classmates or friends.

Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month beginning at 5:00 p.m. at the Bistro by the Bijou (807 South Gay Street). The next meeting will be held on November 8, 2017. There are many opportunities to get involved, so please contact Barristers President Samantha Parris (samantha@sparrislaw.com) or Vice President Mitchell Panter (tmp@painebickers.com) for more information.

If you have any questions, please contact committee co-chairs Paul Wehmeier at (865) 546 7000 or Matt Knable at (865) 360-5044.

HUNGER AND POVERTY RELIEF The Hunger & Poverty Relief committee would like to thank everyone who donated to last month’s coat drive! Our annual canned food drive to benefit Second Harvest will take place November 6 - 20. For specific rules and details, keep an eye on communications from the KBA or contact Courtney Houpt (crhoupt@gmail.com) or Meagan DavisCollver (mdaviscollver@londonamburn.com)!

MEMBERSHIP COMMITTEE Help us welcome our newly admitted attorneys to the local bar on Monday, November 6, 2017 from 5:30-7:00 p.m. at Calhoun’s on the River, 400 Neyland Drive. This event is open to all KBA members and new bar admittees and there is no charge to attend. Members are encouraged to attend this festive occasion. One free drink ticket will be provided to each KBA member and some light refreshments will be provided. KBA members will enjoy mixing and mingling with members of the bench and bar in a relaxed, informal environment. RSVP online by clicking on November 6 on the KBA Events Calendar.

New this year, we are offering a CLE Program from 4:30-5:30 p.m. entitled “How to Start a Law Practice 101” featuing Michael J. Stanuszek, with the Stanuszek Law Group, PLLC before the New Admittee Reception. Approved for 1 hour of Dual CLE Credit.

Register online by clicking on November 6 on the KBA Events Calendar.

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November 2017

SCHOOLED IN ETHICS By:

Paula Schaefer UT College of Law

WHY DON’T MY STUDENTS BELIEVE ME WHEN I TELL THEM ABOUT AN ATTORNEY’S CONFIDENTIALITY OBLIGATION? Answer: It may be because of something they heard (or read) you say . . .

Every fall, I teach second-year law students about their obligation of confidentiality under the professional conduct rules. It is one of the most difficult classes for them. That is not because the material is hard, but because my students simply do not believe me.

They read RPC 1.6 for this class. The rule provides: “A lawyer shall not reveal information relating to the representation of a client.”

The rule goes on to state that disclosure is allowed when authorized by the client to carry out the representation. There are also exceptions that allow disclosure in certain narrow situations. But the default rule is that all information relating to the representation of the client must be kept confidential.

Someone usually pushes back. “The rule cannot possibly mean all information about the client must be kept confidential. Doesn’t it just mean privileged information?”

“The duty of confidentiality is broader than the attorney-client privilege,” I respond. I draw two circles on the board to show the relationship between the confidentiality duty and the attorney-client privilege.

The attorney-client privilege is an evidentiary privilege that protects a confidential communication between attorney and client for the purpose of seeking or giving legal advice. The privilege means that attorney and client cannot be compelled to testify about that communication or turn over evidence of that communication in discovery.

But the confidentiality duty is broader. It covers privileged information and all other information relating to the representation of the client. That is why the privilege circle is inside the confidentiality circle.

Simply put, the confidentiality rule directs lawyers not to talk about our work to third parties. This means lawyers should not do many of the things law students have heard (or read) lawyers do.

We should not tell “war stories” to other lawyers or law students.* We should not talk to our spouses, partners, and families about our cases – even information revealed in a courtroom or public filings. We should not mention information about a client’s matter in social media posts.

We should not respond to negative client reviews (on websites like Avvo and Yelp) by revealing facts about a client. We should not blog about our cases.

Absent client consent, we should not make any of these disclosures November 2017

because they reveal “information relating to the representation of the client” that we are required to keep confidential. In 2010, the Tennessee Supreme Court was presented the opportunity to narrow the scope of the confidentiality rule, but it declined to do so.

Students want to know if lawyers really get in trouble for disclosing confidential information to third parties in scenarios like the ones discussed above. The answer is that they do. See, e.g., People v. Isaac, 2016 WL 6124510 (Colo. O.P.D.J. Sept. 22, 2016) (attorney was suspended six months for posting confidential information in response to two negative client reviews); In the Matter of Skinner, 758 S.E.2d 788 (Ga. 2014) (attorney was reprimanded for revealing confidential information in response to negative reviews posted online by the client); In re Disciplinary Proceedings Against Peshek, 798 N.W.2d 879 (Wis. 2011) (imposing identical, reciprocal 60-day suspension against attorney (licensed in Wisconsin and Illinois) who disclosed client confidences in blog posts); In the Matter of Anonymous, 932 N.E.2d 671 (Ind. 2010) (attorney was reprimanded for revealing to a friend that client had filed for divorce); Iowa Supreme Court Attorney Disciplinary Bd. v. Marzen, 779 N.W.3d 757 (Iowa 2010) (holding that an attorney can violate the confidentiality obligation even if the information revealed is also available from public sources).

A broad confidentiality rule encourages us not to be careless with client confidences. Take for example the lawyers who recently had a loud conversation in a restaurant about their representation of President Trump in the Russia investigation. If they had not casually discussed confidential information in public, the contents of their conversation would not have been the subject of a New York Times story authored by the journalist who was sitting at the next table.

I recently asked students if they think their own lawyer should have a lesser confidentiality obligation than their doctor or therapist. Viewing the issue from the position of the client, the vast majority of the class said they would expect no less of their lawyer than they expect of their doctor or therapist. They don’t want the professionals they trust to talk about their case, medical issue, or therapy session to third parties.

When we reveal client confidences, it shows a lack of respect for our clients and it can lead to unanticipated negative consequences – for our clients and ourselves. If we take the confidentiality rule seriously, we protect our clients and serve as good role models for the next generation of lawyers. * It is of note that the comments to Tennessee’s RPC 1.6 suggest one situation in which telling what I term “war stories” is not a confidentiality breach. Comment [4a] provides:

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Unless there is a reasonable likelihood of adverse effect to the client, this Rule does not prohibit a lawyer from disclosing information relating to representation of a client for purposes of providing professional assistance to other lawyers, whether informally, as in educational conversations among lawyers, or more formally, as in continuing-legal-education lectures. Thus, a lawyer may generally confer with another lawyer (whether or not in the same firm) concerning an issue in which the disclosing lawyer has gained experience through representing a client in order to assist the other lawyer in representing that lawyer’s own clients.

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

THANKSGIVING TRADITIONS

Even if the temperature is still hovering in the 80s throughout most of the South, autumn is officially here.* The season for changing leaves, football games, evening campfires and pumpkin-flavored everything is in full swing. Soon, the first frost will hit, gardens will be put to rest, and the harvest decorations will adorn Thanksgiving tables.

Even if the weather hasn’t received the memo yet, fall in East Tennessee brings to mind the traditions each family incorporates into their annual holiday celebrations. Growing up in rural West Virginia, Thanksgiving was a holiday that allowed an entire week out of school, with many of my family members retreating to the woods in search of a prize whitetail buck. I spent much of this week in the kitchen with my mother, learning to prepare homemade bread and pie crust for her wellknown pecan pie. Now that I live in Knoxville, fall is synonymous with cheering for the Vols, and incorporating Thanksgiving traditions that have been part of my husband’s family for many years.

In this edition of “Lawyer Hobbies,” members of the KBA were asked to share some of their favorite fall and Thanksgiving traditions.

There were many unique responses, several of which provided ideas for beginning new traditions with my family. Thank you to my fellow attorneys for your contributions to this article.

“My husband’s favorite fall tradition is our weekly tailgate with our friends in the Fort.” - Allison Starnes-Anglea

“Fall is my favorite season, and Halloween is my favorite holiday. So much so that my husband and I were engaged in a corn maze in autumn.

Each year, we go back to that same corn maze and I’m reminded of years past.” - Mindy Nower

chili dinner. It’s an easy way to keep everyone out of the kitchen as she begins preparing Thanksgiving dinner, and a great way to spend time with family before the holiday festivities.” – Carolyn Gilliam

“Every year, my wife and I take our daughter to the Fruit and Berry Patch in Halls to select her own pumpkin. We’re all looking forward to next year when we’ll be taking three kids on the adventure.” – Alex Brinson

“Saturdays in the fall mean beginning my home improvement projects while watching/listening to college football. The better my teams are doing, the longer my projects take.” – Bailey Harned

“On Thanksgiving morning, I go on a gratitude walk with a close friend and we share the things we’ve been grateful for during that year.” – Hillary Dewhirst

“When we have a large group for Thanksgiving and multiple dinner tables, we place a playing card at each place setting. Each person selects a playing card to find their seat. It keeps the group mixed up and eliminates a ‘kids’ table’ and an ‘adults’ table.’ During dinner we all take turns saying one thing we are most thankful for.”- Heidi Wegryn

“For us folks from Michigan, Thanksgiving represents a morning of anticipation and hope, an afternoon of anxiety and disappointment, and an evening of complaining about another Detroit Lions’ loss.” – Mike Stanuszek

“On the Friday after Thanksgiving, all the women in my family go shopping and have a ‘ladies’ lunch,’ while the men stay home and watch football.” – LizAnne Bowden

“Each year I travel to McMinnville to prepare dinner with my 93-year-old mother and my sons. Cooking is not my forte, but I give it a ‘good faith effort.’ I’ve also made a quick trip to Cracker Barrel if those efforts fail.” – Sherry Mahar

*At the time this article was written, the temperature in Knoxville was a crisp 84 degrees.

“The Wednesday before Thanksgiving, my mother-in-law hosts a

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November 2017

TECH TIPS By: Stephen Ross Johnson Ritchie, Dillard, Davies & Johnson, PC

APPLE VERSUS MICROSOFT: WHO WON? ANSWER: THE CLOUD

The great debate of which is better - Apple or Microsoft - is over.

In an ever-evolving world where we use many devices to communicate, write, research, and generally conduct the activity of our practices and daily lives, Apple and Microsoft both won, and they both lost to the cloud in a world where the operating system of the device you are using is largely irrelevant.

For most users, there is no appreciable difference in functionality, stability, or security between an Apple computer running macOS and a PC running Microsoft Windows. You still pay a premium to have an Apple with the same specifications as most Windows computers, and you have many more styles and options with a Windows machine. Even Microsoft makes its own hardware now. The easy explanation is that Microsoft has found its voice again, and Apple has sat on its laurels, devoting itself to mobile devices like iPhones and innovating less with its computers. But that’s not the whole (or accurate) story. Rather, the way we use our computers has changed significantly, making the individual operating systems (macOS or Windows) less important.

My first memory of working with a computer was in elementary school. A couple times a week, my class would get herded into the computer lab, where the walls were lined with shiny new Apple computers. We learned very rudimentary programming and played lots of games, including those classics Oregon Trail and Tekken. At least Oregon Trail required some level of strategic thinking; if you didn’t manage your resources correctly, you died on the trail from starvation or an ambush. With Tekken – a martial arts game – I can remember getting to the final levels simply by constantly hitting the space bar and the right arrow on the keyboard, which allowed for constant kicking and forward motion that decimated every adversary in my heavily pixelated path. By high school, though, I had inherited from my uncle an older Commodore computer, complete with a thermal printer and a tape drive for storing files. Much to the chagrin of my editor, my school newspaper articles were written on that Commodore and printed on that thermal paper. But I still pined away for a shiny new Mac.

I loved Macs as a kid, but then made the switch to Microsoft Windows as I entered higher education and the workforce. Microsoft was the overlord throughout the 1990s and early 2000s (so much so that the federal government brought an anti-trust suit against Microsoft). I played with building computers. It was fun and sort of like Legos. You would buy a motherboard, cd-rom drive, processor, harddrive, a case and some cables, and a version of Windows, and you could be up and running in a few hours. From my first days as a lawyer, I had my Windows laptop in meetings and in the courtroom with me. Then, like the rest of America and the world, in the mid-2000s I became an Apple fan. Big time. The iPod. The iPhone. The iPad. The MacBook Pro. The MacBook Air.

The new MacBook. I had several versions of them all over the course of a decade, and have used them all in jury trials, oral arguments, research and writing, discovery production and analysis, and investigation of cases. After Apple pushed its way ahead of Microsoft in overall business value and surpassed it as the overlord of technology, Microsoft re-tooled its business model to focus specifically on business computing, making its popular Office software ubiquitous across devices, focusing on cloud computing for businesses, and developing Windows 10.

Apple still practically prints money, largely due to its phone division, but its innovation in software and hardware for computers has been lackluster the past few years. Google’s entry into the operating system and software business (with Android and Chrome), and the movement to cloud based computing where we spend most of our time working in our internet browsers across mobile phones, tablets, laptops, and desktop computers, has further muddied the waters. A Windows 10 computer and an Apple computer have similar reliability and functionality. Both can be buggy. Both are relatively secure and stable (if configured correctly). And, by far, Microsoft Windows machines offer many more options on the type of computer hardware you use and the software you install. I work on both a MacBook and a new Windows 10 computer, and my primary courtroom laptop runs Windows.

I can work on my files easily no matter what machine I’m using, and often I am reviewing documents or responding to emails via my phone. The phone is not a good device to generate or produce the document, and my phone can’t run my exhibits and presentations during a jury trial, but is a great device to quickly review and respond. Much of the processing our phones do is in the cloud.

The cloud. What does that mean? The current movement is to have processing and storage space in the cloud, which is just a term for a shared powerful computer system outside of your home or office that is maintained by a larger company or organization that has specialized in maintaining that infrastructure. That allows for economies of scale to work its magic, letting individual users and businesses harness the power of incredibly fast and powerful computer systems on an as-needed basis instead of investing in building out and maintaining those hardware and software systems in-house. This allows for substantial cost savings. Yet, the only thing new about the “cloud” is the terminology; this basic setup was how computing was done decades ago, albeit with less powerful machines.

This sort of stuff was the regular topic of conversation in my house as a kid. My dad was a rocket scientist. He helped design the computer systems on spacecraft, to include the massive Saturn V rocket that carried astronauts to the moon and back. When he started working with NASA in the early 1960s, computers were large mainframe devices that took (Continued on page 24)

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TECH TIPS

(Continued from page 23)

up a big room. One of NASA’s great achievements was miniaturization of computers to allow use on spacecraft, where weight and space are a premium. That technology allowed for the personal computing revolution in the late 1970s and 1980s, and for the dominance of Apple and Microsoft as computers ended up on desks in homes, schools, and offices.

As computer technology developed in the 1950s-1970s, many government organizations, universities and large businesses invested in mainframe computers. The large entity would recoup the infrastructure investment by leasing out computer time - processing and storage space – where small businesses and other like users could access the mainframe’s computing power via “dumb terminals” - just screens with keyboards that had no independent processing power, at least not processing power equivalent to the mainframe they were paying to access. This is how many companies ran their billing and accounting systems, and how many universities and large businesses made some extra money to help pay for expensive mainframe computers, which had less processing power than the clock on a modern microwave oven. The processing on the 1970s mainframes was the equivalent to today’s cloud computing. The market forces at work then are similar to those at work now; high level computer processing requires substantial financial resources and expertise beyond what is cost-effective for individual users or businesses, so that expertise is concentrated and leased out on an as-needed basis. That is the opposite of the trend toward personal computing we saw in the 1980s and 1990s.

We’ve come full circle.

What do these devices, operating systems, and companies mean for us as individual consumers and specifically as lawyers? It means more

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choice. For most of the things we do, it doesn’t matter if our computer is an Apple, Windows, or Chrome machine. Most software runs on multiple platforms and has similar functionality, and it increasingly runs in an internet browser. You choose the software and the laptop, desktop, or mobile device that makes the most sense for your budget, personal preference, and needs. Most lawyer-specific software, such as case management systems, still are Windows-centric, but that is changing, also. Many have web or mobile versions, and many are only web-based.

Most modern e-discovery database platforms are web-based. The old debate of Apple versus Microsoft is over. The new question isn’t even cloud versus in-house, since it is impossible now to not be in the cloud.

The primary questions we should all be debating are how much of our information, particularly as lawyers who have privilege and confidentiality concerns, we want in the cloud, and how secure is the cloud? Those are the questions that will continue to shape our individual practices and the clients we advise.

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November 2017

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

THE CONSTITUTION AT WAR

Does it ever seem to you that the United States is perpetually at war? Think about it: since World War Two, we’ve fought in Korea, Vietnam, Kuwait, Afghanistan and Iraq (to this day); as well as in Grenada, the Balkans, and Libya. And several of these “hot” conflicts took place against the backdrop of the Cold War, during which we were locked in a 45-year death struggle with Russia, a/k/a the Soviet Union.

How did we get here – constitutionally speaking, that is? As you may recall from your second year of law school, the Constitution has a great deal to say about war. Indeed, the war-making power, and especially the issue of standing armies, was a major subject of contention at the Constitutional Convention of 1787. Here’s what the Framers worked out:

First, the national government can have an Army and/or a Navy, but the power to fund them lies solely with Congress.1 That’s a pretty big power: no money, no military.

Second, only Congress has the power to declare war.2 That’s another big power. Whether to go to war is perhaps the single most important decision the national government can make. It takes thought, deliberation, and, pursuant to Article I, a vote by the people’s own representatives.

Third, once Congress has created an Army and/or a Navy, and has declared war, the President becomes the Commander-in-Chief, our top military officer.3

But does it ever happen that way? Do we ever actually jump through these constitutional hoops? Well, we did it at least once.

According to David Adler, the former Director of the Andrus Center for Public Policy at Boise State University, the War of 1812 was conducted in strict compliance with the Constitution. I interviewed Professor Adler recently for my radio show and podcast, Your Weekly Constitutional.

Adler praised President Madison for asking Congress for a declaration, laying out his reasons for war against Great Britain, waiting for Congress to deliberate, and conducting hostilities only once the declaration was in place. Adler also noted that, when the war was over, Madison negotiated a treaty, which he then put before the Senate for its eventual, and unanimous, ratification.

But that was two hundred years ago. And the War of 1812 is not one that Americans typically want to remember. Your high school teacher may have called it a “draw” (as mine did), but I contend that a war in which few, if any, of your objectives are achieved, and during which your enemy marches into your capital city and burns it to the ground—well, that kind of war is something less than a draw.

In any event, subsequent American wars have been conducted very differently, especially after World War II, when the United States never fully demobilized, and when it dealt for the first time with the existential threat of nuclear weapons. Since 1950, when Harry Truman decided to respond to North Korean aggression without asking for a declaration of war, American presidents, both Democrats and Republicans, have assumed greater and greater power over the use of military force. We have lately reached the point where Barack Obama routinely and unilaterally authorized drone strikes against alleged terrorists, and where Donald Trump seems to be threatening pre-emptive military action against North Korea. Congress, meanwhile, is largely AWOL. November 2017

Professor Adler thinks that much of this is unconstitutional. He contends that Congress should not only debate questions of war and peace, but that no offensive military action should occur without a declaration of war. Adler agrees that a president can respond to an attack, at least in the short term, as Truman did initially in Korea.

But then, he insists, the president should go to Congress at the first opportunity and obtain its assent before conducting a longer war.

That may seem unrealistic in a world where Russian missiles can reach American cities in less than an hour. Nuclear war is, however, only the most terrible type of potential conflict, and Adler agrees that a president has the power to respond, immediately, to such an attack. But most wars, thank goodness, are not so swiftly cataclysmic. And wouldn’t it be a good idea to have a debate among the people’s own representatives in Congress before taking aggressive military action? David Adler thinks so. And, apparently, so did the Framers.

“The Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States . . . . To declare War . . . . U.S. Const., Article I, Section 8.

2 “The Congress shall have Power . . . . To raise and support Armies . . . . To provide and maintain a Navy . . . .” U.S. Const., Article I. 3 “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . .” U.S. Const., Article II. 1

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LIFE AND LAW IN HARMONY By: Leslie L. Beale, Success Coach Profusion Strategies

JD

WRITE YOUR OWN SUCCESS STORY

Success is an ever-present concept. We all want to feel successful and to be seen as successful by our peers, and there’s certainly no shortage of advice on how to get there.

Three Habits of Successful Leaders Morning Routines of the Most Successful Entrepreneurs Successful Parenting Tricks You Can Use Secrets of Successful Marriages

The problem with this approach is it assumes we all think about success in the same way. That the same things will make all of us feel successful. That the same set of steps create success for everyone.

It seems to me the reality is far different. As I talk to my friends, clients, and the others I meet, I hear very different ideas of what it means to be a success. For some, it is being wholly invested in their families.

Some want to fulfill a passion through their work, and seek to integrate their interests seamlessly into their lives. Still others want to find challenging work that rewards them well financially. Though they are all different, these concepts of success are each valid and meaningful.

The danger in following the popular notion that success means the same thing to everyone is that you may well end up chasing someone else’s dream. We see it all the time. The woman who thinks being a successful mom requires staying home with her children, and can’t bring herself to admit that she really would prefer to work. Or the high-paid professional who gives it all up mid-career to pursue a career in nonprofit work.

What ultimately drives people to make a change in their lives? It’s

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fairly simple, actually. Chasing someone else’s dream is draining. You spin your wheels and never get the sense of satisfaction that you’re seeking.

You feel like you don’t have the time to do the things that really matter to you. Spend too long this way, and you can end up feeling like a failure, despite all your apparent achievements. Ultimately, people throw up their hands and say to themselves, “There has to be a better way.”

Designing your own notion of success, however, is not for the faint of heart. It requires knowing yourself inside and out. What makes you feel energized and satisfied? What are your deepest values and desires?

What would a life well-lived look like to you? Each of these questions must be answered from your own heart, free from the influence of your family, your friends, and the ubiquitous “they” who cloud our best judgment.

If you’ve already answered these questions for yourself, great!

But, the journey is far from over. Even when you are on the right path for your own success, you aren’t insulated from fear, self-doubt and discouragement. It takes real commitment and confidence to keep muddling forward in the face of these challenges, to say nothing of all the critics and naysayers that will stand in your way. But the rewards are there for those who overcome.

Wherever you are in your life, it’s never too late to ask whose dream you are chasing. If the answer is anyone’s other than your own, it’s never too late to correct course in some meaningful way. After all, it’s your story to write.

Leslie L. Beale, JD, is a success coach who helps professionals develop strategies to thrive at work and beyond. After spending fifteen years as a lawyer and executive, Leslie founded Profusion Strategies, where she offers individual and group coaching, consulting, and training programs on a variety of topics. To find out more, visit her website at www.ProfusionStrategies.com.

DICTA

November 2017

LONG WINDED By:

Jason H. Long London Amburn

TRUE CHARACTER

Do you remember anything about your character and fitness interview for the practice of law? For the majority of lawyers out there, I suspect the answer is “no” or “very little.” I recall having to drive to Loudon County and meeting with an attorney who worked just off the courthouse square. He seemed old to me then (nowadays I consider 60 to be the new 20). I didn’t have any red flags in my background (an unpaid speeding ticket that my dad told me he would “take care of ” which eventually turned into a warrant because I unknowingly kept missing my court appearances – it’s a long story but it had a happy ending). Other than the speeding ticket turned warrant, I had really been a pretty model citizen leading up to my application to practice law.

As a result, I recall that my interviewer discussed golf with me for about 45 minutes, and, the next thing I knew, I was being invited to a swearingin ceremony.

I know some lawyers who had a much more rigorous interview; lawyers who came to the bar with a colorful history which merited deeper investigation. In my early years, I practiced with Charles Swanson, and I recall that he served as an interviewer for the Board of Law Examiners. Charles always got the difficult cases, and there were several young applicants who showed up to our office with a look of fear and trepidation. They knew they had some marks on their record that they were going to have to explain. I always thought Charles was the perfect person to handle these delicate cases because he could put the fear of God in you and reassure you in the same breath. In a one hour interview, Charles could make you see that the profession you were embarking upon demanded more than most jobs, and he could get people who had a checkered past to recognize the seriousness of the obligations they were about to take on. Fortunately, to my knowledge, no one who ever walked through those doors with serious questions to answer failed to do so or was ultimately denied a license to practice law. That is a good thing, as some of the very best lawyers I know started with a checkered past. Perhaps it is because they had to think more seriously about the obligations they were undertaking and the path that led them there than I did. I just had to answer a few questions about playing golf while they had to reassure Charles, or whoever their interviewer was, that they were more than capable of shining in the practice of law. In any event, the people with the greatest number of red flags going in are typically the same people I point to as stalwarts of the profession today.

I say all of this because I had the “honor” of serving as a Board of Law Examiner interviewer this year. It is a dubious honor at best. I did not volunteer for it, I was drafted. At the time, I was put out that someone (and I think I know who) put my name on the list without my consent. I had to go through a formal training, contact my interviewees, schedule times to meet with them, and commit time and resources to the project. Quite frankly, it was a burden I did not want.

The day came for my interviews (I had scheduled all three back to back). I spent the requisite time poring through the applications. Unlike Charles, I had been given the “easy” applicants, boring, nondescript candidates. They all excelled in school. They all had impressive resumes.

None of them had ever done anything that would call into question their integrity and fitness to enter into the practice of law. I gave very serious consideration to just talking with them each for 45 minutes about playing golf.

November 2017

I was pleasantly surprised, however, when they showed up to my office. These three candidates were clearly taking this interview very seriously. In reality, they had no reason to be concerned, and yet they came to me sweating this final interview. They knew that I was one of the last hurdles they needed to clear to achieve a goal they had worked long and hard for. They wanted to be lawyers in the worst way possible, and they were ready to convince me that they should be. There was something encouraging about that. We hear all the time that there are too many lawyers and our schools are flooding the market with more and more candidates each year. It is easy to view the profession as a competitive marketplace and lawyers are just fungible cogs in the wheel.

If one doesn’t work out, just replace him or her with the next one in line.

But these candidates did not strike me as interchangeable parts. These were people committed to being the best lawyers they could be and I think they are going to be an asset to our profession. I am thankful for the experience of getting to know them and I appreciate that the future of our profession, as uncertain and unstable as it may be, continues to be held in the hands of people who care about the law and care about the service we give the community.

On an unrelated side note, I kept this column intentionally short for two reasons. First, I couldn’t think of anything more to say. Second, and more importantly, like many, Carol Anne and I have been watching and mesmerized by the PBS Documentary on the Vietnam War. Before I forget, and my best intentions get drowned out with the rush of everyday life, I thought it worth taking a second to say “thank you” to all of the veterans in our midst. We are indebted to you all beyond measure and certainly beyond any reasonable ability to repay. I really can’t think of any way to adequately express the esteem I hold you in for the service you performed. Thank you.

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

Phil Hampton

Founder and CEO, LogicForce Consulting

AMAZON ECHO SHOW

A couple of years ago, when we first purchased the Amazon Echo, we predicted that Amazon had a hit with this new voice-activated digital assistant/smart speaker. We were not wrong. In the past two years Amazon has not only sold millions of Echos, but they have expanded the Echo device franchise to include the Echo Dot, Amazon Tap, Echo Look, and, now, the Echo Show. If you guessed that we had purchased all of these, you would be correct. Our latest purchase was the Echo Show which offers the biggest upgrade to date to the Echo device lineup.

The distinguishing feature of the Echo Show is that it has a 7-inch LCD touchscreen. All the previous Echo devices are simply speakers of different sizes and shapes that only take input via voice commands or a linked smartphone app. Of course, the Echo Show is still always listening for voice commands, just like the other Echo devices; and it features a very good speaker that can fill a room with music or other audio content. But the touchscreen interface on the Echo Show is what intrigued us and seduced us into forking over $230 for yet another Echo device.

After we took the device out of the box, the first thing we noticed is that the Echo Show is not cylindrical like the other Echo devices. It is more of a square and sits nicely on your desktop or countertop with the 7-inch touchscreen sitting atop the speaker base. So why would we want a touchscreen on our smart speaker? For starters, the touchscreen makes the device setup much easier and user-friendly. We were able to configure our new Echo Show very easily using the touchscreen controls.

Another touted benefit of the Echo Show video screen is the ability to conduct video calls with other Echo Show owners (since the Echo Show also has a built-in camera). Think of this as Amazon’s answer to Apple iPhone’s popular Facetime app. As we tested, we found that it is quite easy to “call” another Echo user (whether or not they have the Echo Show device or some other Echo device). If the other user has

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Echo Show or has the Alexa app on their smartphone, you can video chat handsfree. If the user you are calling just has the screenless Amazon Echo, you can make a voice call. We really like this sort of private phone network capability of the Echo ecosystem. If you have family or business associates that you regularly communicate with and they have an Echo in their home or office, it is very easy to simply initiate a chat with them by simply issuing a voice command to Echo. The quality of both the audio and video is pretty good.

Other uses for Echo Show’s screen are nice but not necessarily overwhelming. You can view Amazon Video content, see weather forecasts, stream music lyrics to your favorite songs, etc. Of course, all of this content can be viewed by simply issuing a voice command (if you can remember what to say). We had to keep our voice command cheat sheet near our Echo Show so we could remember the various commands available. As with the other Echo devices we expect that third-party products will begin to create integrations (or skills) that take advantage of the Show’s video screen. For example, while we do not have this integration, we understand that there are home security systems that integrate with Echo Show to allow you to view your home security cams remotely via the Show. At the time of our testing, however, there were no dramatic video integrations that we observed outside the video chat capability.

So, while we are generally thrilled with our newest gadget, we tend to only use the Echo Show for the same functions that we use our less expensive Amazon Echo, Tap, and Dot devices. We’re not sure why, but we have found it difficult to find anyone who wants to video chat with us.

But, alas, that is not an Amazon problem. Just us. So, until we get some video chat partners or we see some really cool video integrations from third party vendors, we’ll just continue to use our Echo Show as a pretty expensive smart speaker that obeys our every command.

DICTA

November 2017

BENCH AND BAR IN THE NEWS This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations. Email submissions to mwatson@knoxbar.org by the 10th of each month.

PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association will hold its monthly meeting at the Blount Mansion Visitors Center at noon on November 9, Chris W. McCarty of Lewis Thomason, will present What Is a Hostile Work Environment? A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@smparalegal.org or (865) 6372442 for additional information and/or lunch reservations.

WE HAVE A REASON TO CELEBRATE! Who? YOU, and any alums or

friends of the UT Legal Clinic OFFICE SPACE AVAILABLE: What?

UT Legal Clinic’s 70th

Anniversary Party with a • 2,870 sq ft 2nd floor office space with Purpose large reception area, 5 private offices, When?

11-17-17, 7-10 p.m. board room, two large work-rooms/ Where?

The Emporium, 100 South offices, common rest rooms & kitchen/

Gay Street break room with one other tenant on the Why? To celebrate the Legal floor. Zoning C-3, Office Space Class B.

Clinic’s role in preparing law Excellent high-visibility location with views

students for practice, of downtown Knoxville. Other tenants are a

while serving the community late-afternoon/evening youth music school

and advancing the cause of downstairs (sound-isolated), and a single

justice for the poor attorney. Ample parking and easy freeway How much?

Free, but we need you to access. An additional 1,500 sq ft of adjacent

register by emailing space is available if desired. Contact Frank pwhite4@utk.edu Graffeo at 525-6806.

SAVE THE DATE! 2018 Law Practice Today Expo April 12-13, 2018 The KBA’s Law Practice Today Expo is the premier opportunity for you to get exposed to dynamic CLE courses from local and national speakers so that you can fast-forward your law office management skills and make new connections. If you are interested in helping plan the Expo, join the Law Office Technology and Management Committee.

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NEW ATTORNEY The Law Office of Lisa Collins Werner is pleased to announce Jordan D. Davis joined the firm and is an associate.

LEGAL CALL-IN SHOW Knoxville has a new legal live television call-in program and you can be a part of it! WVLT Local 8 LawCall will air Sunday night at 11:35 right after the news. The Producers say the show will cover such varied topics as divorce, traffic accidents, careers in the law and bankruptcy, along with many others. There will be a new topic each week. The station has partnered with The Law Offices of Ogle, Elrod and Baril to act as the legal hosts of the program. They are also underwriting this public affairs show. The host will be local broadcaster Sara Mitchell. If you would like to be a guest or have any questions please contact the producer bill@lawcall.com.

November 2017

Furnished office space available in West Knoxville. Convenient to I-40 and Downtown. Quiet atmosphere perfect for sole practitioner or mediator. Contact Dana Holloway at Holloway Law & Mediation Center. (865) 719-1644 or (865) 643-8725 Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft.

Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Christi Branscom Partners Development BPR # 014521 502 Union Ave. Knoxville, TN 37902-2113 Ph. (865) 524-7777 cbranscom@partnersinfo.com Julianna Loden Mason Loden Law BPR # 029276 P.O. Box 20547 Knoxville, TN 37940-1547 Ph. (865) 248-8474 lodenlaw@gmail.com Ann C. Pederson Quist, Fitzpatrick & Jarrad PLLC BPR #: 035286 800 S. Gay Street, Suite 2121 Knoxville, TN 37929 -9711 Ph: (865) 524-1873 pedersona90@gmail.com

FREE Education= Best Educated Bar KBA members have the option of watching any pre-recorded online CLE program for free.

More than 85% of our live CLE programs are recorded and are available on the KBA website for viewing. Members who wish to receive CLE credit will be required to pay for the online CLE program but if you just wish to view the program for educational purposes, feel free to watch the recording and even download the course material at no charge. This is a great opportunity for newly licensed attorneys and law student members who wish to view programs on a variety of topics that will help as they settle in to new practice areas. It is also a great chance for members who miss a live program or had to leave early, to watch the program for FREE.

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

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

I am writing this during Pro Bono Month and you will get your fresh copy of this article right as the month ends.

You’ll be putting away your Halloween decorations and pulling out your Thanksgiving decorations. You’ll be getting pictures taken of you and your family (spouse, children, dogs, cats, etc.) in matching sweaters for your Christmas cards.

I will be preparing to send out emails and letters to at least 100 of you asking for Status Reports or File Closure Reports on the more than 300 open Pro Bono Project cases you are all graciously and generously working on for LAET’s clients right now.

When Terry Woods was here, she always talked about just how hard it was to get updates from Pro Bono attorneys on the cases they were handling. I had no doubt she was exaggerating because attorneys are all excellent at keeping track of calendars, responding to e-mails and phone calls immediately, and knowing exactly what is happening on every single case they’re handling at any given millisecond.

Oh, wait . . . .

Marsha Watson might disagree with that description since she has to send several of us multiple e-mails every month reminding us when to turn in our articles so that she can make her own deadlines and, yet, she still ends up having to text “us” to see if “we” will have our articles to her in the next 15 minutes.

So, what I’m hoping is that those of you who are reading this article and know you have open Pro Bono Project cases will take this as the first reminder that Status Reports and File Closure Reports are heading your way!

Your second reminder about the reports will come in the form of an e-mail.

Your third reminder might come in the form of being singled out at the KBA Annual Meeting – I took notes every year Terry did this!

Your fourth reminder very well might come in the form of a text message. Are you SURE I don’t have your cell phone number?? Are you willing to risk it?!?

If none of that works, well, I will undoubtedly be working on entering update notes on many of these cases on New Year’s Eve and you wouldn’t want me to have to track you down then, would you?

Thanks for all of the hard work you do for the Pro Bono Project every day! I’m looking forward to reading your reports!!

Mark Your Calendars: • November 3 (9:30-12:30) – Debt Relief • November 4 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knoxville office (607 W. Summit Hill Drive) • November 8 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO • November 18 (9:00-12:00) – Blount County Saturday Bar at LATE’s Blount County office • December 2 (9:00-12:00) – Faith & Justice Clinic (Ball Camp Baptist Church) • December 13 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO • December 16 (9:00-12:00) – Blount County Saturday Bar at LATE’s Blount County office • December 18 – Outstanding Pro Bono Case Status Reports and File Closure Reports Due (e-mail: kellis@laet.org; fax 865-525-1162)

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

phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162

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DICTA

November 2017

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Betsy, for this Veterans Day, please tell DICTA’s readers about your father and his military service.

BETSY MEADOWS Herbert, Meadows & Wall

“When I grow up, I want to be just like Bud Bacon.” These were words spoken about my father, Brigadier General Walter J. Bacon, USAF (retired), at his funeral on June 6, 2008 by his good friend, Col. Joseph E. Sutter, also USAF (retired). My father and Joe were both deeply involved in local military organizations. You can still see Joe at any military-related activity in Knoxville and on television commercials for the Knoxville Veterans Memorial, which my father was instrumental in getting built. The walkway leading to the Memorial at the World’s Fair Park is dedicated to him as a result.

Walter J. Bacon II was also known as General, Buddy, Bud, Pa, and Grand Buddy, depending on who was addressing him. Although he attained the rank of General, and was proud of that title, it was not his preferred way to be addressed. Pa was how I addressed him. And he is my hero – as my father, as a distinguished military officer, as an active member of the Knoxville community, as a friend to all, as a man of faith, and always as a person with a “glass half full” attitude (especially if the glass contained a martini). Almost every night he declared, “If I die tonight, I will have died a happy man.”

My father’s life is a truly American story of patriotic determination. He grew up in Knoxville experiencing the effects of two World Wars, and he had seen the sacrifices Americans made during those conflicts – many of whom were members of his family. As far as I know, there was never any question in his mind about his career choice – it was only a matter of how he was going to accomplish his goal. But, his military success didn’t come without challenges. The following story of his admission into West Point is an example of how doggedly determined my father was.

My father was short, which was a problem in 1946 when it became time to apply for admission at West Point. The height requirement for admission was 5 feet 6 inches and Buddy was only 5 feet 5. But, he would not be deterred. After twice being disqualified for West Point admission because he was too short, he did some research and found that a person is taller in the morning when he first wakes up. So, he hatched a plan to have his buddies carry him to his third physical so he could be measured before he stood up. As he told it, the first thing he was required to do at the third physical was 50 squat jumps (known today as a burpee), and his fate was sealed – another disqualification. Having almost lost hope of attending the U.S. Military Academy, he returned to classes at UT.

A few months later, he was informed that he could report to Fort Campbell, Kentucky for a fourth and final physical. This is his description of that day: “I found myself in an examination room with the hospital commander – a lieutenant colonel – and three other officers, one a major, and the other two captains. First, they measured me on a standard scale to verify the earlier exam. Finding me one inch too short they put me on an exam table and measured me reclining with a tape measure. Next was a yardstick. Then with a six-inch ruler that they flipped end over end down my torso.” When telling this story, he often quoted the Colonel who oversaw this final measurement as saying “If a midget wanted to get into West Point as much as you do, they ought to make an exception.” That Colonel obviously made a good choice because Buddy Bacon from Knoxville, Tennessee went on to a distinguished career in the US Air Force. He may have been short in stature, but he was towering in determination and character!

He graduated from West Point in 1951 and soon after completed pilot training (one of his classmates was Buzz Aldrin). He left to fly combat missions in Korea on Christmas morning 1952. He was awarded a Distinguished Flying Cross for a rescue mission on the Haeju Peninsula during that assignment.

He also saw combat in Vietnam where he commanded a unit known as the “Misty FACs,” or forward air controllers. Although he rarely spoke in detail of his time in Vietnam, his friend and fellow fighter pilot, retired Air Force Colonel Charlie Harr, explained that the Misty FACS were among the first planes to perform a highly dangerous job. They flew “low and slow” into enemy territory to attract flak so the pilots coming after them could find their targets. According to Col. Harr, the Misty FACs were widely known for their daring and bravery. During this time, my father lost several squadron members and a few good friends who were in other locations in the country. His very good friend, Kelly Cook, was MIA and was finally declared dead many years later. Such are the sacrifices in the life of a military member.

When my nephew, Schuyler, enlisted in the Marines, Pa could not have been prouder. Soon after Schuyler returned from his tour in Iraq – and about a week before Pa died – he sent the following email: Subject: Words of Encouragement If I may quote you, Schuyler, you said: “I believe strongly in what we are doing…” Those are, again in your words, words of encouragement to me. Those of us in uniform are obedient to our leaders and commanders, and we believe in the rights and privileges we have inherited – from those who went before us, in uniform and not in uniform. We are not automatons; we do have hearts and souls and minds of our own. But we recognize we are chosen to do the tough work – when the tough work has to be done. The pictures of you in uniform and in combat are treasures; you look as sturdy as a truck. You have made the Bacon family proud. Keep us informed of your progress toward special operations.

Love, Grand Bud

His decorations include the Legion of Merit, Distinguished Flying Cross, Bronze Star, Meritorious Service Medal, Air Medal, and Air Force Commendation Medal. But, most people who knew Buddy were probably not aware of all that. They were probably more aware of his deep roots in Tennessee, including being a descendent of David Henley after whom Henley Street and the Henley Street bridge are named.

On this Veterans Day, 2017 – nine years after my father’s death – I will visit the Veterans Cemetery where Boy Scouts adorn the graves with flags. If you have never visited this lovely location, you should. I will also proudly attend the Veterans Day parade where he was once the Grand Marshall, and I will proudly attend the Veterans Day luncheon at the Foundry. These are small ways in which I show my respect for those Soldiering at Edgehill across Soldiering at 830 N. 4th Ave., men and women who serve and have served in the military and whose sacrifices allow us the freedoms we Clinch Ave. from Ft. Sanders Knoxville enjoy in this country. I am pleased and proud to say my father is one of those who served.

Hospital c 1933.

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

November 2017

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NON-PROFIT ORG. US POSTAGE

PAID

P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 6 5 2

DIVERSITY Program & Reception

The Knoxville Bar Association, in conjunction with The University of Tennessee College of Law and the LMU Duncan School of Law, sponsored a CLE program entitled “Expanding Horizons, Establishing Connections” and a reception on October 3 at The Square Room at Café 4. The event was produced by the KBA’s Diversity in the Profession Committee and featured Edward L. Stanton III, Butler Snow, LLP, as the keynote speaker on Implicit Bias. A panel presentation followed which included Stanton A. Fears, Kramer Rayson LLP, Amanda L. Morse, Knox County Law Department, Phyllis Y. Nichols, Urban League President, Hon. Deborah C. Stevens, Knox County Circuit Court, Division III, and Carlos A. Yunsan, Kizer & Black.

The event drew more than 120 participants including sixty-six law students from the U.T. College of Law and the LMU Duncan School of Law. Attorneys from the following local law firms and government agencies participated in the event.

Anderson Busby PLLC Knox County Circuit Court City of Knoxville Law Department Cravens Legal Egerton, McAfee, Armistead & Davis, P.C. Elmore, Stone & Caffey, PLLC Federal Defender Services Hodges, Doughty & Carson, PLLC Kennerly, Montgomery & Finley, P.C. Kizer & Black, Attorneys, PLLC Knox County Law Department Kramer Rayson LLP Legal Aid of East Tennessee, Inc. Lewis, Thomason, King, Krieg & Waldrop, P.C. LMU- Duncan School of Law Luedeka Neely Group, P.C. Merchant & Gould P.C. Tennessee Valley Authority - Office of the General Counsel U.T. College of Law Watson, Roach, Batson, Rowell & Lauderback, P.L.C. Woolf, McClane, Bright, Allen & Carpenter, PLLC