__MAIN_TEXT__
feature-image

Page 1

Practice Tips: ACAP, Tennessee’s Indigent Claims Billing System, Best Practices . . . Page 7 Schooled in Ethics: “Dude, Like Hypothetically, Would that Be, Like, Against the Law?” Thoughts on Counseling or Assisting a Client in a Crime or Fraud . . . Page 13

A Monthly Publication of the Knoxville Bar Association | October 2020

THE EROSION OF LAWYERS IN PUBLIC OFFICE AND CORRESPONDING DETRIMENT TO SOCIETY


OUR PRIVATE BANKER’S CALLING

IS YOUR BECK AND CALL.

2

DICTA

October 2020


In This Issue

Officers of the Knoxville Bar Association

October 2020

COVER STORY 16

The Erosion of Lawyers in Public Office and the Corresponding Detriment to Society

CRITICAL FOCUS President Hanson R. Tipton

President Elect Cheryl G. Rice

Treasurer Jason H. Long

Secretary Loretta G. Cravens

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

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

Immediate Past President Wynne du Mariau Caffey-Knight

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

5

Oh, the Humanity

Knoxville Bar Foundation: Recognizing Distinguished Attorneys and Awarding Grants for our Community

ACAP, Tennessee’s Indigent Claims Billing System, Best Practices

“Dude, Like Hypothetically, Would that Be, Like, Against the Law?” Thoughts on Counseling or Assisting a Client in a Crime or Fraud

Interesting, Dynamic, the Tennessee Adoption Code

6

7 13

The Knoxville Bar Association Staff

President’s Message

15

Around the Bar

Practice Tips

Schooled in Ethics

Legal Update

WISDOM 8 Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

Elisabeth Martin Programs Administrator

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

Dicta

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).

Journey to a Better Understanding

Fast Times at Peyton’s Place

The Clinton 12

Two Attorneys and Two Angels

The Customs of the Knoxville Customs House

Ball Jars and Big Flavor

Contact Tracing Apps

Frank Herbert’s Dune

Losers and Suckers and Actual Malice

Unprecedented Crime: A Corona Cluster of Criminal Capers

Thank You, Pam

11 14 18 19 21 23

25

Volume 48, Issue 8

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.

Mary Newton

24

Rebecca Eshbaugh LRIS Assistant

Dicta is the official publication of the Knoxville Bar Association

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

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

Managing Editor Marsha Watson KBA Executive Director

Hello My Name Is

26 27 29

What I Learned About Inclusion and Why It Matters Passing By

Urban Legends

The Noble Profession Of Local Lore & Lawyers Barrister Bites

Bill & Phil Gadget of the Month Well Read

Your Monthly Constitutional Legally Weird Long Winded

COMMON GROUND 4 9 20 22 22 28 30 31

Section Notices/Event Calendar Habitat Blitz Day Photos Barrister Bullets Change of Addresses Welcome New Members Bench & Bar in the News Pro Bono Project Last Word

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

DICTA

3


SECTION NOTICES & EVENT CALENDAR

Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE programs “Mediating Complex Construction Disputes” on October 5 featuring David Draper and Ford Little and “Mediation Practice & Ethics Update 2020” on December 1 featuring Chad Hatmaker. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Join the Criminal Law Section for the CLE program “Criminal Law Rowdy Roundup of 2020” on November 19 featuring Sarah Keith and Josh Hedrick. The section plans regular CLE throughout the year. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. Join the Employment Law Section for the upcoming CLE program “Employment Law Update” on October 8 featuring Ward Phillips. If you would like further information on the Section or have suggestions for upcoming CLE programs, please contact the Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law section for the CLE program “TN Family Law Update” on December 8 featuring K.O. Herston. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (6961032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2018 will automatically be opted-in to the section. Save The Date! The Section will meet on October 20 (more details to follow). If you would like to get involved in planning Section activities, please contact Section Chairs Courtney Walker (292-2307) or Chuck Sharrett (637-0203). Senior Section The KBA Senior Section generally meets quarterly for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307) Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Small Firm Section for the CLE program “Practical Tips for Successful Remote Depositions” on October 20 featuring Beecher Bartlett and Ernie Tracy. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).

4

DICTA

event calendar October

n1 n3 n5 n6 n8 n8 n8 n 13 n 14 n 14 n 14 n 20 n 20 n 21 n 22 n 26 n 29

n n n n n n n n n n n n

Diversity & Inclusion: Removing Obstacles CLE Habitat Build ADR Webinar CLE Law Office Tech Committee Employment Law Update CLE Judicial Committee Game Night: Pub Poll Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Remote Depositions Webinar New Lawyers Section Program Board of Governors Economics of Practicing Law in Knoxville Lawyers Link Up Charity Golf Tournament LRIS Committee Meeting

November 3 6 7 10 10 11 11 11 12 17 18 19

Law Office Tech Committee Ain’t Behavin CLE Habitat Build Professionalism Committee Access to Justice Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Judicial Committee CLE Committee Board of Governors Criminal Law CLE

Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. October 2020


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

OH, THE HUMANITY With my fingers poised over my keyboard as I sit down to type this month’s President’s column, it occurs to me that I really hope that I still have all these fingers when this edition of DICTA arrives in your mailbox. I realize that seems like an odd thing to say, but allow me to explain… A few years back, when I was just beginning my service on the KBA Executive Committee, our amazing Executive Director Marsha Watson1 was, of course, looking ahead several years, because she is always several steps ahead of any of us, and she posed a question to me at an Executive Committee meeting. The look on her face suggested she was about to ask me for something quite big and important. “Hanson, is it OK if we do our next Habitat build in YOUR [presidency] year?” Marsha was probably impressed that I said “Yes” so quickly, but it honestly never even occurred to me that “No” was an option, for several reasons: 1) How could anyone say no to working with Habitat for Humanity, one of the most beloved and worthwhile charitable organizations in the world?; 2) How could anyone say no to Marsha Watson about ANYTHING?; and 3) How could I say no to the very first thing asked of me in my (still a couple of years away) KBA presidency? Thus began the long road toward the 2020 KBA Habitat build. In the spring of 2019, we had the first meeting of what Marsha called the “KBA Habitat Dream Team,” which includes 2020 Habitat Steering Committee Co-Chairs Sam Doak, The Hon. Greg McMillan, and Norm Templeton. Each of these guys has worked on many KBA (and other) Habitat builds in the past, and I was happy to have them on my side. This was to be my first-ever Habitat build, which I suppose makes me the Christian Laettner of the KBA Habitat Dream Team. That summer I sent out letters to many Knoxville firms that had supported KBA Habitat projects in the past, announcing that there would be a 2020 build and gauging interest in financially supporting the project. I was delighted by the response we received, and we quickly raised the necessary amount of money to begin our build. Thank you to everyone who contributed financial support! This year, the KBA is partnering once again with First Presbyterian Church and will share building duties with our partner thanks to coordination with KBA member Bruce Anderson. At the very first Dream Team meeting, we discussed the fact that this build would be our first one without beloved KBA member and Habitat supporter Bob Stivers who unfortunately passed away in March of 2019. We decided that dedicating KBA Build #9 to Bob would be a fitting tribute to him and a great way to recognize how much Bob gave to Habitat for Humanity. We accepted financial contributions made in Bob’s memory. We also spoke to Bob’s widow Beth in the fall of 2019 and told her about dedicating the build to Bob. She was very touched by the gesture and agreed to join us for the home dedication. With the money collected and the Dream Team in place, we October 2020

received our first build schedule from Habitat in February of this year. KBA Build #9 was set to begin with Blitz Day on May 16th. As we all know, the spring of 2020 brought a whole lot of continuances, postponements, and cancellations, and Habitat for Humanity was no exception. In order to ensure the health and safety of all Habitat volunteers and to comply with local regulations for COVID-19, many builds were delayed, including ours. After a couple more delays, we finally got our new Blitz Day date of September 16th. To make sure all volunteers are protected during the pandemic, Knoxville Habitat has also limited the number of volunteers allowed on-site and has implemented social distancing protocols. By the time you read this column, we should have already had most of our KBA construction days but there will still be a couple of days remaining, including installing vinyl siding, interior painting, and trim & cabinets. If you would like to join us for these days, information and registration can be found online through the KBA website at www. knoxbar.org. We would also love for KBA members to join us for the home dedication once it is scheduled. Stay tuned to DICTA and Marsha’s Friday e-mails for that information. The KBA and First Presbyterian Church are partnering to build this home for Teresa Raysin. Teresa is a grandmother who loves spending time and making memories with her family. She cares for five of her eight grandchildren every weekend. Building and owning a home through Knoxville Habitat will provide Teresa with an opportunity to safely care for her grandchildren, decorate her home to make it her own, and finally enjoy planting flowers in her yard – a hobby she has longed to be able to do for many years. Since 1994, the members of the KBA have been responsible for building eight Habitat homes in the Knoxville area. It has become part of the KBA tradition and is an accomplishment of which all of us can be proud. As lawyers, it is rare that we have the chance to work with each other outside of the courtroom or get to know one another on some basis other than a dispute between our clients. The KBA’s involvement with Habitat over the years has provided its members with a real opportunity to build relationships.2 All of which brings me to fearing for my fingers, as I mentioned in the opening to this column. When I told my wife that I was going to participate in building a Habitat house, she just laughed at me. I will be the first to admit that I am not the handiest fellow. But I’m willing to learn, and with the Dream Team guiding me I am excited to build my first house for such a good cause. I just hope that all of my appendages survive the experience.

1

2

DICTA

Please be sure to congratulate her and thank her for 30 years of fantastic service with the KBA if you have not already done so. Just ask Jason and Carol Anne Long, who first got to know each other on a KBA Habitat build!

5


AROUND THE BAR By: Charles W. Swanson City of Knoxville Law Director

KNOXVILLE BAR FOUNDATION: RECOGNIZING DISTINGUISHED ATTORNEYS AND AWARDING GRANTS FOR OUR COMMUNITY Established in the early 90’s, the Knoxville Bar Foundation provides a means for grants to be made to support important programs and projects of our community. The funding for the grants comes primarily from the Fellows of the Foundation. The Fellows program publicly honors and recognizes attorneys who have distinguished themselves in the legal profession and in service to the Knoxville legal community. Usually the new Class of Fellows would be introduced and welcomed at its annual dinner held in the spring. Alas, as you may have noticed, the past year has been anything but usual, and it has been necessary to postpone the induction ceremony. Although the dinner has been postponed, the Foundation is proud to honor and recognize the following members of the 2020 Class of Fellows: Hon. William T. Ailor

Mohamed A. Faizer

Jay W. Mader

Loretta G. Cravens

Rachel P. Hurt

Reuben N. Pelot, IV

Allison Easterday Alexander

Kathryn St. Clair Ellis

Steven L. Hurdle Steven D. Lipsey

Summer H. McMillan Shelly L. Wilson

The Fellows were selected from an outstanding list of nominees received from the members of the Foundation. This list was narrowed by vote of the Board of Directors due to the limited number of Fellows that may be chosen for each class. The reputation that each new Fellow holds in our legal community reveals that the Class of 2020 exemplifies the highest of ethical and professional standards and consists of individuals who continue to have a positive impact upon our profession. The Foundation is also proud to announce that it has awarded grants this year to the following entities: •

Blount Mansion Association for purchasing 5000 pocket Constitutions to provide to student visitors

CASA of East Tennessee for recruiting and training volunteers

Catholic Charities of East Tennessee in support of its Office of Immigrant Services

Federal Bar Association, Knoxville Chapter in conjunction with the United States District Court for the Eastern District in support of the Justice for All Program for underserved high schools in Knox County

Knox County Juvenile Court in support of the ASIST program for status offenders

Knoxville Bar Association Archives Committee for video interviews of pioneers and leaders of the Knoxville Bar

Knoxville - Knox County Community Action Committee Office on Aging in support of its Grandparents as Parents Program

Legal Aid of East Tennessee to continue funding the Knoxville Bar Foundation Fellowship for hiring a law student for the Pro Bono Project

TEAM Reentry, in support of the program of the United States Probation Office and the Federal Defender Services of Eastern Tennessee for people who have recently been released from federal custody

Tennessee Immigrant and Refugee Rights Coalition in support of its Legal Services Clinic

Tennessee Innocence Program to help fund law student interns and externs

The Florence Crittenton Agency to provide a case manager for low-income adolescents in state custody

YWCA of Knoxville in support of its Victim Advocacy Program

The total sum of all grants awarded this year is $30,000.00. The Foundation’s goal is to facilitate and support projects and programs that seek to improve the administration of justice, to enhance the public’s understanding of and confidence in the legal system, to support access to the legal system, and to serve the legal profession. Since 1997, the Foundation has awarded grants totaling approximately $485,000.00. Each year the Foundation solicits and receives multiple applications for grants. This year the grant requests totaled $60,336.00. Each application was reviewed by the Board of Directors, and a determination was made as to what, if any, sum should be awarded for each application. The Foundation’s Board of Directors for the preceding year were Heidi Barcus, Bill Coley, John Harber, Reggie Keaton, Morris Kizer, Harry Ogden, Mary Ann Stackhouse, The Honorable Deborah Stevens, and Charles Swanson. Morris Kizer has completed his tenure on the Board, and Wayne R. Kramer was appointed to a three-year term. If you would like to make a financial contribution to help support the work of the Foundation or if you would like to learn more about the Foundation, please feel free to contact me or any other member of the Board of Directors.

6

DICTA

October 2020


PRACTICE TIPS By: Michael J. Stanuszek The Stanuszek Law Group, PLLC

ACAP, TENNESSEE’S INDIGENT CLAIMS BILLING SYSTEM, BEST PRACTICES

October 2020

claim appears a second time. But this time, they can now enter their new claims data into ACAP and save it. Sure, it only took 23 steps to get there, but trust me--damn it feels good once you do!!! Lastly, just ignore the Summary tab, which tells the user how many hours they have submitted for payment in that calendar year. Its intent was to offer users real-time billing information so they can stay under the state’s annual cap on the number of hours court appointed counsel may bill in any given calendar year. The problem is that the Summary tab’s figures include hours earned in prior calendar years; however, those hours don’t count against the state’s annual cap in the current calendar year. As such, the Summary tab is absolutely useless to the user. So…. Assuming the user was able to find ACAP on the AOC’s website by clicking on the ICE link, and registered with the state at least 30 days in advance, and downloaded Mozilla Firefox, and found their old laptop that they vowed they’d never use again because its 2020 and everyone uses a tablet these days, and then memorized the 23 step process to updating a claim, and finally, took my advice to ignore the Summary tab, they’re now ready to rock and roll with ACAP. If you are one of those users, good luck! (And God help you!)

DICTA

DICTA

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

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

N

EDITORS’ NOTE:

C

Asking me to write a DICTA article about the state’s indigent claim billing system, the AOC Claims and Payment System (“ACAP”), without criticizing its abysmal 2018 roll-out, its lackluster daily performance, or its “Craigslist-esque” design layout, is like asking an eight year old who sneaks downstairs on Christmas Eve and catches mommy and daddy putting presents under the Christmas tree to still believe in Santa Claus—it’s probably not going to happen; I’ve just seen too much. However, as an attorney who: 1) uses ACAP daily in my practice; and 2) has had a dozen or so associates who use ACAP daily in their practices too, I’m uniquely qualified to offer practice tips on how to use the system as effectively as humanly possible (warts and all). So, lips pursed, here we go…. First thing any ACAP user should know is how to find it on AOC’s website. Unfortunately, that’s easier said than done. More specifically, once a user goes on AOC’s website and clicks on the Attorney tab, they’ll notice there’s not a link that references ACAP anywhere. Instead, there’s a link that references ICE, which is the acronym for the billing system AOC used prior to 2018. For reasons unknown, the ICE link is now the ACAP link. However, AOC never bothered to update its name from ICE to ACAP on its website. So, unless the user clicks on the ICE link (which again, there would be no reason for the user to know to do that), they won’t be able to find ACAP anywhere on AOC’s website. Second, ACAP users should know that it can take AOC upwards of a month (or longer) to approve a user’s ACAP registration. So, for ACAP users, it’s important to register as soon as they start taking court appointed cases. Otherwise, if they wait to register until after their first appointed case becomes billable, they may have to wait an additional four weeks or so before they can even access the system to bill their first case. Best practice is to get it done sooner rather than later. Third, ACAP is not compatible with every web browser. To be sure, ACAP does not play well with Internet Explorer or Microsoft Edge. If a user tries to use one of those web browsers, they’re just asking for a headache--they’ll get kicked out of the system frequently, it will freeze up every few minutes, and what data they are able to enter may not get saved. Use Mozilla Firefox instead; it’s the only web browser I know that works (most of the time). Fourth, ACAP doesn’t work with tablets or iPhones. Laptops and desktops only. Fifth, once a user is logged in, it’s relatively easy to start a claim and enter data; however, if a user intends to start a claim and save it to work on later, they should note that there is a pretty complicated process to update their claim. First, they need to click on the Search tab and enter their client’s last name. All cases with that last name will now appear. Then, they should find the appropriate claim and click on it. Next, they should click on the Properties tab and copy the claim number listed. Then, they should click on the Active Work tab. When they do that, an itty-bitty, teensy-weensy, barely-there arrow will appear in the upper left-hand corner of their screen. Once they click on that, a new, hidden tab will open up where they can paste the claim number they previously copied. Then, they should click the Apply button, and “Viola!”—their

7


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

MARY NEWTON This month, we are featuring Mary Newton, a solo legal practitioner participating in The Justice Initiative’s Holistic Legal Incubator program. Mary practices criminal and family law and is a member of the KBA, TBA, and the National Lawyers Guild. She is a 2019 graduate of the Emory University School of Law and completed her undergraduate education at Maryville College, where she double-majored in Art and Religion. I hope you enjoy learning about Mary and her unique perspective. What brought you to Knoxville? My husband and I both grew up in Knoxville. We loved Atlanta, but we knew we wanted our kids to grow up close to our families. Although I graduated from Emory, the UT College of Law was gracious enough to let me spend time there as a visiting student during my 3L year. This allowed us to get a head start on putting roots down as a young family in Knoxville, and it allowed me to connect with the Knoxville legal community while still in school.

You mentioned your family. Do you have children? We have two precious children: a son (soon to be six years old) and a daughter (two years old). Our son was part of my law school journey from day #1. He walked with me at my law school graduation! Do you have pets? We have two cats: Persephone and Arkham. The day I found out I passed the Bar, we went to the animal shelter as a way of celebrating. We said we’d “just look” and would take our time deciding. Well, we went from zero pets to two wonderful cats, so it was a good day. Do you have a significant experience that shaped your legal career? I began seminary at Emory’s Candler School of Theology before starting law school, and I will forever be grateful for the opportunities I was given there. I was able to lobby for sentencing reform for non-violent drug offenders on Capitol Hill, and I co-organized an anti-death penalty book tour. Those incredible experiences have absolutely been formative in guiding my legal pursuits. Tell our readers about The Justice Initiative. TJI is a Knoxville-based non-profit that seeks to ensure a just and empowering process for clients and marginalized communities impacted by the justice system. I’m a participant of TJI’s inaugural Holistic Legal Incubator cohort, which allows me to run my own practice with the benefit of excellent mentorship, social services, and other resources for holistic legal representation. Our program was founded by Mark Stephens and co-developed by Dr. Sarah Buchanan, both formerly of Knox County’s Community Law Office.

What do you like most about the Knoxville legal community? I have been blown away by the support and guidance of fellow attorneys in Knoxville. There are many unknowns in being a new attorney, but time and time again I’ve received help from people who have walked this path before me. I’m beyond grateful to the Knoxville Bar (and want to give a special shout out to KBA’s Mentor for the Moment program!).

8

When you’re not working, what are you reading and what are you watching in your down time? I love mystery books, so about a year ago, I decided to read every Agatha Christie novel. She was a prolific writer--the best-selling novelist of all time, actually--and I’ve barely made a dent. At any time, I have at least one of her novels checked out from the library. For shows, I’ve lost count of how many times I’ve watched The Office. It’s a constant in my life.

DICTA

October 2020


A DECENT PLACE TO LIVE – BLITZ DAY 2020 The KBA is celebrating more than 25 years of partnering with Knoxville Habitat for Humanity to build homes for families in our community. We started building on our ninth house on Saturday, September 12, and this KBA tradition is an accomplishment of which all of us can be proud. KBA member Bob Stivers was a team leader for each of the eight homes built by the KBA. Sadly, we lost Bob last year, but the KBA wanted to recognize his significant contribution by offering members an opportunity to contribute to the Habitat project in Bob’s memory. Through generous member donations, we met our $20,000 goal at the first of the year. We thank all of the members who donated and have made this home a reality. The remaining $20,000 for the house was provided by our partner First Presbyterian Church. Bob’s wife Beth, and two of his children Alli Umbarger and Rob Stivers, joined us for Blitz Day. Now more than ever, Habitat for Humanity’s work is critical. For many families, those who were already struggling with a need for decent and affordable housing, their daily lives have only become more challenging. The KBA and First Presbyterian Church will be building a home for Teresa Raysin, who is a grandmother that loves spending time and making memories with her family. The KBA’s involvement with Habitat over the years has provided members with a real opportunity to build relationships, not only among lawyers but also among community volunteers who have a shared vision of a world where everyone has a decent place to live. To volunteer, click on https://www.knoxbar.org/habitatvolunteer.

October 2020

DICTA

9


Bernstein, Stair & McAdams LLP announces Matthew T. McDonald has joined the firm as an Associate Attorney. Mr. McDonald recently served the Knox County Chancery Court as Chief Deputy Clerk & Master. He is a 2014 University of Tennessee School of Law Graduate and practices in the areas of Civil Litigation, Estate Planning and Probate. Email: mmcdonald@bsmlaw.com Phone: (865) 546-8030

Since 1993, our focus has been on preserving our clients’ financial assets, managing growth, and efficiently transferring wealth from one generation to another. We work closely with attorneys to insure the coordination of our clients’ personal and financial goals.

Tax-Managed Investing Trust and Estate Services IRA Management A trust is not required to utilize our investment expertise. In Knoxville, contact:

John L. Billings Vice President - Client Administration 865.297.4070

|

tcvwealth.com

Independent Trust Company | Employee Owned

10

DICTA

October 2020


W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Wayne R. Kramer Kramer Rayson

JOURNEY TO A BETTER UNDERSTANDING When Akram Faizer asked me to write a short note on “inclusion and cultural competence, and how it has affected your career,� I said, “Sure. No problem.� As I thought about the topic, it struck me he was asking that I share from where I came, and how I got to where I am today on inclusion and related issues, which are profoundly important as we attempt to navigate through this time in our history; a time in which this country seems to be so deeply divided. I was born in Little Rock, Arkansas, in 1952, two years before the United States Supreme Court rendered its decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). My father worked for the Aluminum Company of America which had a significant bauxite facility nearby, and we lived in the small town of Benton, Arkansas, some 15 miles from Little Rock. My first experience with the issue of race was through the lens of a young, white male living in the “Jim Crow� segregated South. Caldwell School, my elementary school, was all white and middle class. I observed signs such as, “Colored Only� and had very little contact with African Americans, or any other people of color. Despite being a child in the segregated South, my parents were the antithesis of racists, and I never heard a negative word growing up about people of color. They believed firmly in equality, yet we were living in the midst of anything but such. I had the privileges of being a white male with no real understanding or appreciation of that privilege, or the advantage I had over other young people my age who had a different color of skin. Later in my elementary school years, we moved to Evansville, Indiana, my first real experience “North of the Mason Dixon Line.� Things were different there. Nevertheless, as a result primarily of economics, I had very little contact with any people of color. The same was true even as a high school student upon our move to Pittsburgh, Pennsylvania.

My first real interaction with African Americans and other people of color came as a student at Maryville College, a place which impacted me in so many ways in how I think relative to issues of inclusion, race and cultural competence. Maryville College has a long and storied history of inclusion. From its earliest days, the College welcomed as students women and people of color, far in advance of other institutions of higher learning in this region. Although the College was forced by law to segregate during the Jim Crow years, in September of 1954, the first semester following the decision in Brown v. Board of Education, the College once again was integrated. It was at Maryville College where I came to appreciate the enormous importance that everyone, regardless of race, gender, creed, religion or color, brings to the table and how they enrich our lives. Only when everyone is involved in, and contributes to, decision making, can we develop the best answers. In our legal world and regardless of the issue, justice and fairness are not possible without a Bar and judiciary that fully reflect the reality of those who live in the community. White male attorneys alone cannot possibly accomplish the same goals of justice and fairness as a Bar and judiciary that are multi-racial, multi-gender, multi-religious and multieconomic. Or in the words of today’s world, all lives cannot matter until black lives matter. From a young boy in the Jim Crow South to a 67 year old attorney in Knoxville, Tennessee, I have seen much. I have learned that the road is long, the challenges are difficult and the answers are not easy. But we must be vigilant, and the work must continue. For in the end, without justice for all, there cannot be justice for anyone. Despite the division which we see across this great land in 2020, I believe the vast majority of us agree on this fundamental truth. That is certainly my hope, and it will always be my dream.

Join us for a night of fun and games

KBA GAME NIGHTÂ PUB POLL Thursday, October 8 Check-in 6-6:15 pm Pub Poll 6:15-8:15 pm Let's bond over a virtual game night! the registration fee of 10 helps cover the event epenses and prizes. This is a family event, so everyone in your household is invited! Or if you want to gather together with friends or co-worers, just sign up as a team.

If you’ve ever seen Family Feud, you know how to play Pub Poll. During Pub Poll, pre-polled results from Challenge Entertainment’s online surveys are compiled and teams are asked to submit their best guess as to what the top answer, top two answers, or top three answers for that specific survey question. Teams are

$10 per team if paid on or before 10/1 $15 per team if after 10/1

awarded points for each matching answer. Leave your book knowledge at school. This is common sense trivia.

REGISTER ONLINE BY CLICKING OCTOBER 8 IN THE EVENT CALENDAR AT WWW.KNOXBAR.ORG.

October 2020

DICTA

11


TENNESSEE CHAPTER Knoxville Area Members recognized for Excellence in the field of Mediation or Arbitration

Gail ASHWORTH (615) 254-1877

Bob ARRINGTON (423) 723-0402

Hon. Daryl FANSLER

(865) 546-8030

Paul HOGAN Jr. (865) 546-2200

Dana HOLLOWAY (865) 643-8720

James LONDON (865) 637-0203

Richard MARCUS (423) 756-0414

David NOBLIT (423) 265-0214

Sarah SHEPPEARD (865) 546-4646

Mark TRAVIS (931) 252-9123

William VINES (865) 637-3531

Howard VOGEL (865) 546-7190

Check preferred available dates or schedule appointments online directly with the state’s top neutrals TennesseeMediators.org is free, funded by members

12

DICTA

October 2020


SCHOOLED IN ETHICS By: Alex B. Long Williford Gragg Distinguished Professor of Law University of Tennessee College of Law

“DUDE, LIKE HYPOTHETICALLY, WOULD THAT BE, LIKE, AGAINST THE LAW?” THOUGHTS ON COUNSELING OR ASSISTING A CLIENT IN A CRIME OR FRAUD conscious, deliberate failure to inquire amounts to knowing assistance of criminal or fraudulent conduct.” Thus, conscious avoidance of a fact or deliberate ignorance of the fact can equate to actual knowledge of the fact and subject the lawyer to professional discipline (as well as potential criminal or civil liability) where the lawyer “knows” the lawyer’s advice will further the client’s planned crime or fraud. The opinion concludes by providing a series of hypotheticals, each involving varying degrees of suspicious behavior on the part of a client that might necessitate further inquiry on the part of a lawyer. If the client refuses to answer the lawyer’s request for more information, the lawyer must decline the representation.

Hypo: This summer, the Nashville District Attorney’s office announced that it will no longer prosecute individuals for possession of less than a half ounce of marijuana. A current client mentions this new policy to you and asks, “Hypothetically, does that mean if I wanted to sell some tasty buds to a friend that I can’t be arrested as long as I’m only carrying less than half an ounce at the time? What if I brought some other friends along and they were only carrying less than half an ounce – hypothetically, could I sell more that way without getting arrested?” You suspect the questions aren’t completely hypothetical. What should you tell your client? Although the hypo involves the illegal sale of marijuana, the basic issue – providing advice to a client whom a lawyer suspects might be about to break the law – may arise in any number of situations. Real-life examples include lawyers who faced professional discipline, civil liability, or criminal prosecution after counseling clients who ultimately engaged in money laundering, real estate fraud, and even illegal arms sales. In April, the ABA issued Formal Ethics Opinion 491 concerning an attorney’s obligations under Rule 1.2(d) to avoid knowingly counseling or assisting a client in a crime or fraud. (In June, the California Bar also issued an ethics opinion specifically on the subject of advising a client on state cannabis law when the proposed conduct would nonetheless violate federal law, hence the inspiration for the hypo at the beginning of this article.). The new ABA opinion provides useful guidance to lawyers who may find themselves advising clients who might use that advice in furtherance of a crime or fraud. The opinion also highlights an important distinction with the parallel Tennessee rule on the subject. ABA Model Rule 1.2(d) provides that a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” (emphasis added). While the words “knows” in the rules is defined as actual knowledge of a fact, Formal Opinion 491 explains that Rule 1.2(d) may sometimes impose a duty to inquire on the part of a lawyer. The opinion explains that where the facts known to the lawyer “indicate a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, a lawyer’s

Closer to home, TRPC Rule 1.2(d) is actually broader on its face than the ABA Model Rule. Tennessee’s rule prohibits a lawyer from counseling a client to engage, or assisting a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. Thus, on its face, TRPC Rule 1.2(d) holds lawyers to a heightened standard of constructive knowledge when it comes to counseling or assisting clients when it comes to client crime or fraud. This heightened standard may also potentially impact the ethical duty to inquire further that is described in ABA Opinion 491. In the civil context, Tennessee caselaw already recognizes the concept of “inquiry notice,” which Tennessee courts have defined as “knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.” Hughes v. New Life Development Corp., 387 S.E.2d 453, 483 (Tenn. 2012) Thus, sometimes the circumstances may be sufficient to put a lawyer on notice “of all the facts to which … inquiry will lead” when pursued “with reasonable diligence and good faith” when it comes to a client’s planned actions. Id. at 485. In such cases, a lawyer who fails to make the necessary inquiry is likely to have violated TRPC Rule 1.2(d). In short, Tennessee law is generally consistent with and indeed broader than the standard articulated in ABA Formal Opinion 491 when it comes to assisting a client with respect to a crime or fraud. It is worth noting that under either rule, a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. But where there the lawyer has solid grounds for suspecting that the lawyer’s advice will be used in furtherance of a crime or fraud, the lawyer must inquire further before providing advice.

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

DICTA

13


PA S S I N G B Y By: Katie Ogle McDonald, Levy & Taylor, PLLC

By: Nate Ogle

Knox County District Attorney General’s Office

FAST TIMES AT PEYTON’S PLACE This month, we leave the home barbeque pit and return to our roots in this article to check out a really exciting new option off Cumberland Avenue, or as we all refer to it – the Strip. Katie and I had the opportunity to check out Peyton Manning’s new Saloon 16 on Lake Avenue attached to the Graduate hotel. For those of you not familiar, this location sits in the area right behind Gus’s Good Times Deli and the Golden Roast Café. It’s close to campus and yet not directly on Cumberland Avenue. If it were a normal year, I have no doubt this place would be regularly packed on game days because it has everything you would expect from a bar with a name oozing with nostalgia: UT sports memorabilia all over the walls, an old-school jukebox full of country classics with a little rock’n’roll mixed in for flavor, and a menu packed with items and beverages serving as references to some of our favorite people and places in Knoxville. We went to Saloon 16 on a Saturday afternoon to avoid the crowd. As we darkened the doors for the first time, I couldn’t help but feel a bit of excitement because this place is a shrine to Tennessee sports and all those fun memories on the Strip before and after our favorite games. The bar has orange and white checkerboard glass-paneled chandeliers over it donning “Rocky Top” with a significant selection of beverages behind the bar. The ceiling appears to be copper-tiled. There are leather-clad booths all along the back wall of the dimly lit seating area. There are generous televisions for sports viewing. In the back, there is a seating area with couches resembling an old college apartment with checkered fabric curtains and all. Saloon 16 is like a cross between Old College Inn (OCI for those that remember), Back Door Tavern, and the Copper Cellar. In short, Peyton & company nailed the look and feel. The menu didn’t disappoint either. Now, this place is not the spot for a nice date night steak dinner. However, whatever it lacks in refinement it more than makes up for in rich, local cultural call-backs. The selection is standard fare Knoxville bar food with some great names and unique references – cheese bings (another call back to OCI greatness), Rocky Top Pork Rinds, Haywood & Gus’s Meat & Cheese Plate, Cutcliffe’s Crinkle Fries, Zane & Creed’s Mac & Cheese, and Faye’s Fried Chicken Basket are just a couple of examples. The drink menu had three options on tap with a cocktail list with titles like Toddy’s Jack & Pepsi, Pat Summit’s Royal Sprite, Deanna’s Strawberry Margarita, and Peyton’s own Sweetens Cove Tennessee Treasure featuring his new brand of Tennessee aged bourbon titled after the Pittsburg, Tennessee nine-hole golf course treasure, Sweetens Cove. Because we were just dropping in, we ordered cheese bings and a

14

couple of drinks. I can report the deepfried cheese squares were hot and tasty and the drinks ice cold which is all anyone can ask of in this type of spot. We will definitely be back to try more of the other great menu options. Katie and I had to walk around and look over all of the memorabilia on the walls. There are pictures from some of Peyton’s biggest moments and victories while at Tennessee. A dartboard and old-school jukebox can be found in the back. I’m not talking about one of the new-aged jukeboxes where you pay for your songs on your smartphone and select among every choice available on the internet – this is the real thing packed with country and rock classics. As we walked out the door, we both commented this place will undoubtedly be a local favorite going forward. This fall, football season will be undeniably different. There won’t be the familiar sight of tailgating, the Vol walk, or watching the team run through the T. At this point, most of us are just hoping to make it through the season while maintaining the health and well-being of the young men representing the University of Tennessee. Although things aren’t the same this year, if you’re looking for a touch of nostalgia, fun, and a touch of normalcy this fall – Saloon 16 is a great place to drop in for a bite to eat, a cold drink, and a celebration of all that is Tennessee sports.

DICTA

October 2020


L E G A L U P DAT E By: Dawn Coppock

INTERESTING, DYNAMIC, THE TENNESSEE ADOPTION CODE Adoption is a microcosm of values, politics, psychology, economics, public policy, emotion and aggressively competing interests. It is interesting, dynamic, and, in the past three legislative sessions here in Tennessee, very active. Let’s hit the high points. 2018 In 2018 the legislature responded to complaints that adoption was too expensive and complicated with the “First in Adoption Act.” The “FIAA” contained many revisions, including: a new and much shorter surrender form; a shift of proof of willfulness in the abandonment ground; limiting the class of putative fathers to those who take some affirmative action; and removing men from that class whose sole qualification was that the birthmother remembered their name. The law now requires checks of out of state putative father’s registries where available, closing two loopholes in dependency and neglect grounds for termination of parental rights that previously only applied to the unfit parent who tried, but not to one who disappeared. This expands venue for adoptions, permitting non-residents to petition for adoption in Tennessee in some cases. Finally, the law expanded the ground for severe abuse to abuse perpetrated against any child and not just the subject child or a sibling or household member. 2018 was a big year for adoption.1 2019 The major bill in 2019 created legally enforceable post-adoption contact agreements or PACAs, another big deal. Previously, in Tennessee birth and adoptive families often agreed to post-adoption contact but there was no option to create an enforceable agreement. The new law2 is based in contract and makes all written and signed agreements for post-adoption contact between birth and adoptive parents legally enforceable unless they expressly say enforceability is not intended. Enforceable post-adoption contact agreements “PACAs” are the national trend but Tennessee’s statute is exceptional in a couple of ways. It requires child-centered conflict resolution attempts before litigation and it guarantees birth parents a realistic opportunity to enforce the agreement even if they are poor. The pre-litigation conflict resolution costs are borne by the adoptive parents and the litigation cost of the all parties are to be apportioned by the court based on means and good faith. A concept that merits broader application.3 Another 2019 law is highly unpopular with guardian ad litems. It begins with prefatory language that adoption needs to be more affordable and then creates a rebuttable presumption that the GAL’s fees be divided between all parties, that any indigent parties portion be paid by the AOC, and if any party is indigent, the GAL calculate the fees for all parties at the AOC rate.4 A big clean-up bill was also passed in 2019, Public Chapter 36. The law requires that people, usually birth mother’s, must disclose certain information to adoption professionals or be subject to criminal penalties. In 2019 the identity and whereabouts of a biological parent was removed from the list. Naming putative fathers and legal parents is still required, but because under the FIAA being a biological but not a putative father no longer elevates the man to the class of those whose rights must be terminated, the mother can now keep that information private without criminal implications. Judges were given the authority to waive responses to out of state putative father registry checks when the other state has a registry but isn’t able to process requests from Tennessee petitioners in a timely way. The requirement of out of state checks was removed altogether for termination of parental rights cases without adoptions. Some typos were October 2020

fixed in the 2018 surrender form, and an express statement was included that proof that a parent is dead satisfies the requirement to terminate that parent’s rights. In a bill primarily related to the state child welfare system, the definition of severe child abuse was expanded to cover a parent whose child under age 8 tested positive for illegal drugs.5 Sadly most attorneys who work regularly in juvenile court have had at least one case like that, as drugs continue their war on Tennessee families. 2020 2020 arrived with a political bang in Tennessee adoption. Church affiliated agencies in several states, including Tennessee, passed laws to permit private agencies to discriminate guided by their, “religious beliefs or moral convictions.” As a practical matter, Tennessee’s church-affiliated adoption agencies have always discriminated for any number of reasons and there was no promising movement afoot here to stop them. The law does not have a stated target. The news coverage indicated that the law’s target was the LGBT community, who is overrepresented as foster parents nationally. Knoxville is home to many adoptive families headed by same sex parents. They were the primary target. But the law is plenty broad enough to permit many other kinds of discrimination, like leaving out abortion when counseling a woman about option for an unplanned pregnancy, excluding prospective adoptive parents of other faiths, or no faith, and of the agency’s faith who are not faithful enough, discrimination against single parents, working mothers and divorced people. Tennessee’s private adoption agencies’ policies are all over the board. All these kinds of discrimination are practiced here, or have been in the recent past. As state child welfare functions are increasingly privatized, including to church-affiliated agencies, this is a legal issue that we will see again. 2020 also saw passage of some technical bills including clarifying which guardian’s rights needed to be terminated and which did not, and simplifying the calculation of the time period used to determine abandonment for those who are or have recently been incarcerated. Under the original calculation, it was possible to be in and out of jail so frequently that an abandonment period could not be calculated so abandonment could not be proven. At least on that point of law, a parent can no longer win by being extra bad. Consider yourself current until our representatives reconvene in Nashville. Side note from Dawn The best of these bills were created and driven by ordinary Tennessee lawyers, often working together on a code they know well. Next time you find yourself frustrated yet again by a state statute that is unclear or just wrong, draft something better, phone a few lawyer friends and a legislator and improve the pond we all swim in. It is satisfying work.

See TBA Journal, July 2018 “Tennessee’s New Adoption Law” by Dawn Coppock and Mike Jennings for more detail on the First in Adoption Act. T.C.A. §36-1-145 3 See TBA Journal, May 2019 “A New Concept,” by Mike Jennings and Will Vetterick for more a more detailed discussion of the PACA statute. 4 T.C.A. §36-1-146 5 T.C.A. § 37-1-102(b)(27) 1

2

DICTA

15


THE EROSION OF LAWYERS IN PUBLIC OFFICE AND CORRESPONDING DETRIMENT TO SOCIETY

Introduction and the Diminution of Lawyers in American Political Office While lawyers constitute less than 0.5% of the total U.S. population,1 lawyers have historically dominated American political offices.2 Notably, over half of all Congressmembers, presidents, and vice-presidents have been lawyers.3 More obviously, while not a formal requirement, all Supreme Court Justices have been lawyers.4 This trend holds true for state government positions as well.5 However, in recent years, the number of lawyerspoliticians has plummeted.6 This Article explores the recent diminution of lawyers in public office. Meanwhile, it emphasizes the importance of the lawyerpolitician. Scholars and practitioners postulate several reasons for the recent decline of lawyers in public office. Former Knoxville City Councilman and mayoral candidate Marshall Stair believes the public simply no longer perceives lawyers in a favorable light.7 Instead, Councilman Stair asserts the public considers lawyers to be untruthful, unlikeable, and overreaching, and the public instead prefers for “outsiders” to serve as public officials.8 Recent presidential elections support this position. Indeed, since the mid-1970s, only two presidents have been lawyers.9 Jimmy Carter was a farmer; Ronald Reagan was an actor; and George H.W. Bush, George W. Bush, and Donald Trump were businessmen.10 Indeed, only Presidents Clinton and Obama were lawyers.11 Yet, at the same time, there is evidence that the existence of fewer lawyers in office has caused the public to disfavor government.12 Specifically, there is a steep negative correlation between the number of lawyers holding Congressional positions and public distrust in government.13 Several other factors have diminished the number of lawyers in public office. Education and licensing requirements make it more difficult for individuals to become lawyers at the outset.14 Unlike historically when the legal profession had no formal education requirements (or otherwise when merely a bachelor’s degree was required), individuals today must acquire a J.D. degree to obtain a license to practice law.15 Moreover, extensive compensation in private practice

16

yields an unacceptably high opportunity cost for lawyers who would otherwise run for public office.16 This opportunity cost is worsened by the fact that politicians receive extremely low salaries.17 Likewise, Councilman Stair posits many lawyers refrain from seeking office because of the daunting time commitment that corresponds with holding public office (especially while also maintaining an active law practice).18 What is more, lawyers must discontinue relationships with clients, if not completely suspend their practices, to hold certain offices.19 Finally, some lawyers may not seek office to avoid the stress that accompanies running a campaign and holding a public position.20 The Importance of the LawyerPolitician Unfortunately, the erosion of the lawyer-politician causes detriments to society. Councilman Stair maintains that lawyers’ suitability and training for positions of public offices is “common sense.”21 Specifically, with respect to legislators, legal training provides the skillset required to draft laws and ensure they comport with public policy.22 More principally, the analytical skills that accompany a law degree prepare a lawyer “for a career in politics or government [where one’s] job is making and interpreting laws . . . .”23 Likewise, the manner in which a lawyer advocates for a position on behalf of his or her client mirrors the manner in which a lawyer holding public office advocates for a position for his or her constituents.24 As Knoxville City Councilman Andrew Roberto describes, attorneys can quickly digest and explain obscure legal principles, and Councilman Roberto himself has utilized his legal experience when responding to policy issues impromptu during public meetings.25 Similarly, United States Attorney Douglas Overbey explains that lawyers’ training allows them to “look at issues from all sides” and make rational decisions considering countless competing viewpoints.26 Nevertheless, some lawyers who might otherwise run for public office choose not to do so because they are untrained in the intricacies of successful campaign management. Fortunately for these lawyers, a few states’ bar associations––including the Tennessee Bar Association–– recognize the benefits that flow from lawyers holding public offices,

DICTA

October 2020


COVER STORY By: Kaleb Byars Editor-in-Chief, Tennessee Law Review University of Tennessee College of Law

See QuickFacts: United States, U.S. Census Bureau, https://www.census.gov/ quickfacts/fact/table/US/PST045219, (last visited Aug. 21, 2020) (stating the U.S. population totaled 328,239,523 in 2019); New ABA Data Reveals Rise in Number of U.S. Lawyers, 15 Percent Increase since 2008, Am. Bar Ass’n (May 11, 2018), https:// www.americanbar.org/news/abanews/aba-news-archives/2018/05/new_aba_ data_reveals/ (noting as of May 2018, there were 1,338,678 licensed lawyers). 2 Nick Robinson, The Decline of the Lawyer-Politician, 65 Buff. L. Rev. 657, 658 (2017). 3 Id. 4 About the Court: Frequently Asked Questions: General Information, Sup. Ct. U.S., https://www.supremecourt.gov/about/faq_general.aspx, (last visited Aug. 21, 2020). 5 See Adam Bonica, Adam S. Chilton, & Maya Sen, The Political Ideologies of American Lawyers, 8 J. Legal Analysis 277, 278 (2016). 6 See Robinson, supra note 2, at 659 (stating the percentage of lawyers in Congress has decreased from 80% at the time of framing to 60% during the 1960s and is currently as low as 40%). 7 Telephone Interview with Marshall Stair, Former Councilman, City of Knoxville (Aug. 20, 2020). 8 Id. 9 By Occupation, POTUS, https://www.potus.com/presidential-facts/occupations/ (last visited Aug. 21, 2020). 10 Id. 11 See also Jeffrey W. Stempel, Lawyers, Democracy and Dispute Resolution: The Declining Influence of Lawyer-Statesmen Politicians, and Lawyerly Values, 5 Nev. L. J. 479, 483 (2004–2005). 12 See Justin Fox, Maybe Washington Does Need More Lawyers, Bloomberg (Mar. 8, 2019, 8:00 PM), https://www.bloombergquint.com/view/congress-might-needmore-lawyers. 13 Id. (citing Public Trust in Government, Pew Rsch. Ctr. (Apr. 11, 2019), https://www. pewresearch.org/politics/2019/04/11/public-trust-in-government-1958-2019/ (showing that public trust in government––which was consistently higher than 50% and as high as 80% during the Eisenhower, Kennedy, Johnson, and Nixon administrations––reached historic lows beginning with the Carter administration and recently during the Obama and Trump administrations). 14 Ana Swanson, How the Most Disliked – and Elected – Profession is Disappearing from Politics, Washington Post (Jan. 19, 2019, 10:20 AM), https://www.washingtonpost. com/news/wonk/wp/2016/01/19/how-the-most-disliked-and-elected-professionis-disappearing-from-politics/. 15 Robinson, supra note 2, at 704. 16 Id. 17 Id. at 705. 18 Interview with Marshall Stair, supra note 7. 19 Robinson, supra note 2, at 706. 20 Running for––or from––Office?: New Lawyers Face Tough Choices, Practice, Nov.– Dec. 2015, https://thepractice.law.harvard.edu/article/running-for-or-from-office/. 21 Interview with Marshall Stair, supra note 7. 22 Id. 23 Rick Schmitt, The Run for Office: JDs in Politics, Stan. Lawyer, Fall 2017, https://law. stanford.edu/stanford-lawyer/articles/the-run-for-office-jds-in-politics/ (providing that at least one lawyer believes his jury trial practice trained him to communicate with the public as a whole). 24 Interview with Marshall Stair, supra note 7. 25 E-mail from Andrew Roberto, Councilman, City of Knoxville, to Kaleb Byars, U. Tenn. Coll. L. (Aug. 23, 2020, 09:29 AM EST) (on file with author). 26 E-mail from Douglas Overbey, United States Attorney, Dep’t Just., to Kaleb Byars, U. Tenn. Coll. L. (Aug. 24, 2020, 10:35 AM EST) (on file with author). 27 Marilyn Cavicchia, Through Public Service Academies, Bars Encourage Lawyers to Run for Office, Am. Bar Ass’n: Bar Leader, Jan.–Feb. 2020, https://www.americanbar. org/groups/bar_services/publications/bar_leader/2019_20/january-february/ through-public-service-academies-bars-encourage-lawyers-to-run-for-office/ (stating that the Tennessee, Arkansas, and North Carolina Bar Associations provides these types of academies). 28 Id. 29 Deborah L. Rhode, Leadership in Law, 69 Stan. L. Rev. 1603, 1661–62 (2017). 30 Email from Andrew Roberto to Kaleb Byars, supra note 25. 31 Running for––or from––Office?, supra note 20. 32 Email from Douglas Overbey to Kaleb Byars, supra note 26. 1

and they offer “academies” to train lawyers in campaign management.27 These academies train lawyers, inter alia, in: (1) media management; (2) fundraising; (3) campaign budget management; and (4) maintaining a law practice while campaigning.28 Consequently, even lawyers who initially lack political knowledge can procure information sufficient to maintain a successful campaign. Finally, lawyers have at least some (admittedly self-serving) incentives to seek public office. Studies show persons who lead careers that contribute to society generally experience greater workplace satisfaction.29 Accordingly, lawyers can lead more satisfying and fulfilling careers by serving as public officials. As Councilman Roberto explains, serving in public offices permits lawyers to fortify their communities and provide greater opportunities for future generations.30 Of course, public standing, career outcomes, and pride also follow holding public office.31 Conclusion United States Attorney Overbey asserts, “Holding public office is not an easy job. Perhaps it should not be an easy job.  But, I think it is a worthwhile job for which lawyers are particularly suited.”32 Lawyers should understand and be aware of the need for their particular set of skills in a variety of public offices. More importantly, lawyers should strive to serve in these capacities for not only their own benefit, but also the benefit of their communities. Our society as a whole can thrive with assistance from passionate lawyer-politicians. October 2020

DICTA

17


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

THE CLINTON 12 While most students locally and nationally are well-familiar with the Brown v. Board of Education of Topeka Supreme Court decision, the local movement for integration, not as well-remembered nor discussed, began somewhere around 1947. Black residents of Anderson County began publicly questioning the legality of the separate but equal doctrine, demanding that the K-8th grade Clinton Colored School get its own cafeteria, gymnasium, indoor restrooms, and high school classes. A kitchen and cafeteria were approved by local officials, who also changed the name of the school to Green McAdoo, named for Anderson County’s own “buffalo soldier” who returned home from the Army at the turn of the twentieth century and worked as courthouse custodian for the next twenty-five years.1 While it was a step in the right direction, young activists were more concerned with the larger issue regarding high school – there wasn’t one for African-American students in Clinton at the time. When four Black students who were eligible to attend Clinton High School were turned away in August 1950, they filed a lawsuit, which came to be known as McSwain v. County Board of Education of Anderson County, Tennessee. The case was heard in February 1952, at the U.S. District Court of Knoxville. Despite the presence of Black attorneys on the case who would go on to be very influential in the civil rights movement, including Alexander Looby and Avon Williams from Nashville, Carl Cowan from Knoxville, and Thurgood Marshall of the NAACP’s Legal Defense Fund in New York City, Judge Robert L. Taylor was not swayed by their legal arguments.2 He opined that the separate but equal doctrine was not violated, nor were families terribly inconvenienced by being bussed to Knoxville every day, despite the fact that students drove past the white high school that was within walking distance of them on their twenty-mile commute. When the Supreme Court issued the Brown decision two years later, the Sixth Circuit reversed Taylor’s ruling and remanded McSwain back to the district court. Judge Taylor ordered the school to be desegregated in the fall term of the 1956-1957 school year.3 Registration on August 20th went smoothly. Then white segregationists arrived in Clinton, led by John Kasper and later also Asa Carter, top members of the White Citizens Council. Despite their arrival in town, the students who would come to be known as the “Clinton 12” made their way down Foley Hill to attend Clinton High School on August 26, 1956: Maruice Soles, Anna Theresser Caswell, Alfred Williams, Regina Turner Smith, William R. Latham, Gail Ann Epps Upton, Ronald Gordan Hayden, JoAnn Crozier Allen Boyce, Robert Thacker, Bobby Cain, Minnie Ann Dickey Jones, and Alvah McSwain.4 Legend has it they were the first students to desegregate a state-supported Tennessee high school and the first to do so in the South. But by September 1st, the White Citizens Council, the Klan, and other segregationist-minded folks had fueled the fires of hate until Clinton was the scene of a full-blown riot. Cars were overturned. Windows were smashed. Anonymous, threatening phone calls were made. Hooded Klan members drove through Foley Hill nightly. The mayor’s house was threatened with dynamite. Clinton and its police force were outnumbered and overwhelmed. Local men were deputized to keep the peace until the National Guard arrived, another first in the civil rights movement. Seven tanks and 635 National Guardsmen arrived, and they stayed through September to keep the peace.5 After the Guard left, parents of the Clinton 12 gathered at GreenMcAdoo and ultimately decided their children could not return to the high school. However, something different happened instead. They received escorts to school. Local Baptist minister Paul Turner and some friends walked with the students from their residential neighborhood to the school. Turner was violently beaten that first day, but Principal David Brittain also recruited the captain of the football team, Jerry Shaddock (who would later go on to attend Princeton and become a lawyer in Clinton), to aid in the

18

escorts and facilitate peace within the walls of the school. The Clinton 12 “literally had to walk the gauntlet” to get to school, said Shaddock, but once there, Upton and some other students agreed their interaction with teachers and administration was “excellent.”6 Bullying was largely confined to a small group of hateful students. Preacher Turner’s sermon that Sunday was titled “No Color Line at the Cross,” and his sentiments have largely been echoed by Mr. Shaddock in recent interviews. “Here in Clinton we are not especially against segregation, we are not especially against integration, but we are positively and defiantly against the disintegration of our community and our body politic that we cherish above all things, realizing that where anarchy prevails, none of us have anything of any value, and none of us have any freedoms anymore.”7 Bobby Cain became the first African-American to graduate from a court-ordered, state-supported integrated high school in the South when he walked across the stage on May 17, 1957 – exactly three years after the Brown decision.8 He was sucker punched leaving his graduation. A year later, Gail Ann Epps became the first Black female to graduate from a public integrated school in Tennessee.9 That fall, the high school would be destroyed by three explosions on a fall Sunday morning, rumored to be caused by one hundred sticks of dynamite. It was the “climax of two years of racial tension.”10 No arrests were ever made in the case. The Green McAdoo Primary School would not be integrated until 1965. For more on the Clinton 12, I encourage you to visit the Green McAdoo Cultural Center, a beautiful interactive museum at the site of the restored school, devoted to creating a comprehensive picture of the integration story from all perspectives. Additionally, local Keith McDaniels’ award-winning film, “Clinton 12: A Documentary,” is a fantastic, painstaking, and affectionate recording of the school’s integration, narrated by James Earl Jones.

National Register of Historic Places form, https://npgallery.nps.gov/ GetAsset/5e5cd0c7-cfa3-4580-b47d-d0d4463246bb (last visited Sept. 9, 2020) Carol Van West, Clinton Desegregation Crisis, Tennessee Encyclopedia, https:// tennesseeencyclopedia.net/entries/clinton-desegregation-crisis/ (last visited Sept. 9, 2020). 3 Id. 4 Green McAdoo Cultural Center, http://www.greenmcadoo.org/about-the-center (last visited Sept. 9, 2020)./ 5 Howard Blount, The Clinton 12 Story: Tennessee’s Green McAdoo Cultural Center, Backroad Planet (last visited Sept. 9, 2020). 6 ‘ALL of us are part of history,’ says Upton, 1st black female Clinton High graduate, The Oak Ridger, https://www.oakridger.com/news/20190215/all-of-us-are-partof-history-says-upton-1st-black-female-clinton-high-graduate (last visited Sept. 9, 2020). 7 Blount, supra note 5. 8 West, supra note 2. 9 Id. 10 1958 School Blast United a Divided Tennessee Town : Bombing Over Desegregation Recalled, The LA Times, https://www.latimes.com/archives/la-xpm-1988-10-16mn-6500-story.html (last visited Sept. 9, 2020). 1

2

DICTA

October 2020


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

TWO ATTORNEYS AND TWO ANGELS On April 9, 1942, twenty-four-year-old attorney Bertram “Bert” Freedman was standing in the headquarters of Brigadier General George M. Parker, Jr., when he learned that the garrison at Bataan was surrendering.1 This news came after the “Battling Bastards of Bataan” had spent four months surviving on hope and rumors of coming reinforcements and supplies.2 But, those rumors were not reality. Reality was the Japanese blockade preventing food and ammunition from reaching the troops.3 Reality was soldier after soldier losing 30% of their body weight after living on halfrations for months.4 Reality was malaria, dysentery, and other tropical diseases leaving nearly 10,000 of the emaciated troops barely able to stand.5 Reality was Freedman and 75,000 American and Filipino troops being pushed further and further into the Bataan peninsula.6 Reality was First Lieutenant Josephine Nesbit. Nesbit was serving her second tour of duty with the Army Nurse Corps in the Philippines when they received word that Pearl Harbor had been attacked.7 “Girls! Girls!” Nesbit, the veteran nurse, shouted in an attempt to maintain calm. “You’ve got to sleep today. You can’t weep and wail over this, because you have to work tonight.”8 Work they did. That night, and the next night, and for the next four months, these “Angels of Bataan” worked. They set up two field hospitals in the middle of the jungle, nursed the wounded, and fought tirelessly to save soldiers from the ravages of tropical diseases then sent them back to the front lines.9 When the food supplies ran low, they cut their rations—from three meals a day, to two.10 And, they stayed with their soldiers. As they were pushed back further and further into Bataan, they set up an underground hospital in Malinta Tunnel on the island of Corregidor so they could continue to provide medical treatment.11 After Bataan fell, the Angels knew they had little time. Captain Maude C. Davison, the chief nurse of the Philippine department, and her commanding officer, Colonel Wibb Cooper created a list of twenty nurses for evacuation.12 The selection was supposed to be random, but they ended up being those who were ill, injured, or otherwise physically unlikely to survive captivity.13 Captain Davison and First Lieutenant Nesbit were not on that list. They stayed with the remaining sixty-six nurses, who were captured and then shipped to the Santo Tomas Internment Camp in Manila.14 There, these Army nurses met Lieutenant Laura M. Cobb and her ten Navy nurses all of whom had chosen to stay in Manila to care for patients that could not be moved even as the city fell around them.15 In the meantime, Freedman and his fellow soldiers had begun the brutal Bataan Death March. For sixty-five miles, Freedman marched, through oppressive heat, with barely enough food or water to sustain a child, let alone a grown man. If you fell, you were executed. If you tried to escape, you were executed. If you accepted a bit of extra food or water from a compassionate civilian, you were executed. If someone wanted to make an example of you, you were executed. An estimated 7,000 and 10,000 soldiers died on that journey.16 Once they reached the prison camp, it quickly became apparent that things can always get worse. With barely any food, little running water, and extremely crowded conditions, the soldiers began dying at a rate of four hundred men a day.17 Freedman was repeatedly beaten and struck with a bayonet.18 After two years of captivity, he and thousands of other soldiers were stuffed into the darkness of cargo ships so tightly that they could not sit or lie down. Many suffocated in the heat as they were transported to Japan to continue working in coal mines and factories.19 Their dead bodies were left in the hold.20 By the time American forces liberated the prison camps, nearly two-thirds of the American soldiers from Bataan had died.21 These soldiers did not have the Angels to fight for their lives against malaria, dysentery, beriberi, and the brutality of their captors. The Angels were experiencing their own hell. Their captors reduced their daily rations to just 700 calories—one cup of rice in the morning, one in the evening. That is all they had to survive.22 For three years, these nurses maintained discipline, working in four-hour shifts to care for their fellow prisoners even as they resorted to eating weeds, roots, and anything else they could find to survive.23 Due to their efforts, 3,396 of the 3,785 prisoners of war held in Santo Tomas October 2020

survived.24 Captain Davison went from 135 pounds to 80 pounds, but she survived.25 Lieutenant Nesbit survived. In fact, all seventy-seven of the captured Army and Navy nurses survived all three years as prisoners of war.26 They went into captivity together, and they came out of it together. Freedman was released in September 1945, and two years later, he returned to the practice of law as a staff attorney for the U.S. Department of the Interior.27 Much of his practice involved working with Native American tribes to preserve water and mineral rights. He spent the last five years of his legal career as an administrative law judge for the U.S. Commerce Department adjudicating claims of unlawful busines practices, and passed away in 2010.28 Sixty-year-old Captain Davison and the rest of the Angels were released in 1945 and returned home. But they had a slightly different experience than the soldiers they served. They received Bronze Stars but were denied many military benefits because they were not considered “combat forces.”29 Captain Davison was recommended for the Distinguished Service Medal for her heroism, but her award was denied because the War Decorations Board determined that Captain Davison was merely acting under the direction of male medical personnel.30 In 2001, forty-five years after she died, she finally received the Distinguished Service Medal.31 Survive. We hear that word a lot nowadays. But Litton, Freedman, Davison, and Nesbit—two attorneys and two angels—did more than just survive horrific conditions. They inspired those around them to survive as well. They show us that, to survive is one thing, but to inspire others is truly noble. Herald-Tribune, U.S. Forces Surrender at Bataan (Aug. 12, 2004), available at https://www.heraldtribune.com/news/20040812/us-forces-surrender-at-bataan. 2 Id. 3 Ashley N. McCall-Washington, Surrender at Bataan Led to One of the Worst Atrocities in Modern Warfare (USO Nov. 14, 2015), https://www.uso.org/stories/122surrender-at-bataan-led-to-one-of-the-worst-atrocities-in-modern-warfare, last visited Sept. 9, 2020. 4 Id. 5 Id. 6 Id. 7 Elizabeth Hanes, The Angels of Bataan and Corregidor 70 Years Later (Aug. 30, 2018), https://www.history.com/news/the-angels-of-bataan-and-corregidor-70years-later, last visited Sept. 9, 2020; A Mighty Girl, Angels of Bataan: The World War II Nurses who Survived Three Years in a Japanese Prison Camp (May 24, 2020), https://www.amightygirl.com/blog?p=24228, last visited Sept. 9, 2020. 8 Hanes, supra n.7. 9 Id. 10 Id. 11 Id. 12 Mighty Girl, supra n. 7. 13 Id. 14 Hanes, supra n. 7. 15 Mighty Girl, supra n. 7. 16 McCall-Washington, supra n. 4. 17 Id. 18 Herald-Tribune, supra n. 1. 19 McCall-Washington, supra n. 4. 20 Id. 21 Id. 22 Mighty Girl, supra n. 7. 23 Id. 24 Elizabeth M. Norman, Maude Campbell Davison (2000). 25 Mighty Girl, supra n. 7. 26 Id. 27 Matt Shudel, Bertram Freedman Survived Death March (Washington Post June 7, 2010), http://archive.boston.com/bostonglobe/obituaries/articles/2010/06/07/ bertram_freedman_survived_death_march/, last visited Sept. 9, 2020. 28 Id. 29 Mighty Girl, supra n. 7. 30 Id. 31 Natalie Riegler, Maude Campbell Davison 1885 – 1956, American Association for the History of Nursing. (2000). 1

DICTA

19


barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. The next meeting will be held on October 14 at 5 p.m. through Zoom. There are many opportunities to get involved, and you are encouraged to contact Barristers President Allison Jackson (ajackson@emlaw.com) or Vice President Amanda Tonkin (Amanda.Tonkin@ssa.gov) for more information.

Association for its continued support and will continue to accept sponsorships for breakfasts. Volunteer groups will be contacted about their respective months as the situation develops. Please contact Matt Knable (knablelaw@gmail.com) or Mitchell Panter (mpanter@ lewisthomason.com) with questions or concerns. Additionally, we would like to recognize Beth Ford for her generous efforts in making several breakfast casseroles this month. Her kindness and enthusiasm is very appreciated!

HUNGER AND POVERTY RELIEF EVENTS SCHEDULED The Professional Clothing Drive and Coat Drive are being combined and are set for October 5-19, 2020. Brews for Backpacks is tentatively scheduled for October, with details to come. Our Second Harvest Food Bank food drive is tentatively scheduled to be from November 5-28, 2020 with specific details on donating to come. Please contact the committee co-chairs , Chuck Sharrett (Csharrett@ londonamburn.com) or Meagan Collver (MDavisCollver@ londonamburn.com) with questions or to learn more about how you can help.

SEEKING TEAMS AND SPONSORS FOR CHARITY GOLF TOURNAMENT The Barristers and the KBA join together to co-host the annual Lawyers Link Up Charity Golf Tournament on Monday, October 26, 2020 at the Holston Hills Country Club. Revenue from the tournament goes directly to funding various charitable endeavors of the Barristers, including the efforts of the Hunger & Poverty Relief Committee. Regular Registration is $125 per player. Registration for Law Students & Attorneys Licensed 2016-20 is $100 per player. Space is limited, so sign up now! Registration includes green fees, cart, range balls, lunch, water, sports drinks, and beer while golfing, and a commemorative tournament gift along with other prizes! The Athletics Committee is looking for sponsors for this year’s event. If you know of someone who would like to sponsor, please contact the Athletics Committee co-chairs, Luke Durham (ldurham@tcflattorneys.com) or James Parker (jparker@hdclaw.com).

VOLUNTEER FOR THE VETERANS LEGAL ADVICE CLINIC The Barristers Veterans Legal Advice Clinic was held virtually for the first time on August 12 from 12 p.m. to 2 p.m., and was held successfully again on September 16. We are pleased with how the virtual process is working, and plan to host another on October 14th. Sign up to help at www.knoxbar.org/volunteer. DIVERSITY SMALL GROUP LUNCHEONS POSTPONED The Diversity Committee has been meeting with law students for small group discussions regarding pertinent topics in today’s ever changing landscape. Please watch for updates from the Diversity Committee via email and on the KBA online Calendar or contact committee co-chairs, Soojin Kim (Skim@emlaw.com) or Jessica Jernigan-Johnson ( JJerniganJohnson@londonamburn.com), to learn how you can become involved in upcoming Diversity meetings and events.

Sure, you practice here...

VOLUNTEER BREAKFAST The Volunteer Breakfast Committee will continue to deliver breakfast to the Volunteer Ministry Center on the fourth Thursday of the month, however, the Center has suspended in-person volunteer opportunities until further notice. We thank the Knoxville Bar

...But what about here?

Or here? We've got you covered. LRIS serves Knox and all surrounding counties.

108 panel attorneys have earned $1.4 million from LRIS-referred cases since July 1, 2019

(865) 522-6522 Tracy Chain, LRIS Administrator tchain@knoxbar.org

20

DICTA

October 2020


OF LOCAL LORE & LAWYERS By: Joe Jarret Attorney, University of Tennessee

THE CUSTOMS OF THE KNOXVILLE CUSTOMS HOUSE Following the advice of Alexander Hamilton, on July 31, 1789, President George Washington and the First Congress created the United States Customs Service just four months after ratifying the United States Constitution. The Customs Service was created to provide revenue to the new nation through the collection of duties and tariffs on imported goods. For the next 122 years, the revenue collected by Customs represented the vast majority of funds used to support the federal government. Throughout the 1850s, Congress was petitioned by cities across the country to provide courtrooms and post offices. Congress was reluctant to provide funding for buildings that only contained judicial and postal functions, so the title “Customs House” was typically used instead of “courthouse” or “post office.” Congress was viewed as more agreeable to providing construction funding if excise taxes collected from foreign imports were linked to projects, since taxes generated revenue. It is important to note that, before the imposition of the income tax in 1916, customs duties were the greatest single source of revenue for the U.S. government. 1 Congress originally appropriated funding for Knoxville’s Customs House in 1856, withheld same during the pendency of the Civil Way, and re-appropriated the funding in 1869. Construction of the original portion of the Customs House began at the corner of Clinch and Market streets. It was built on what was originally Lot 11 of James White’s 1795 extension of Knoxville. An 1871 map of Knoxville shows the property as an open grove surrounded by a few small houses. It was designed by U.S. government chief architect Alfred B. Mullett (1834–1890), and built in the Italianate style of architecture, a distinct 19th-century phase in the history of Classical architecture derived from medieval Italian villas and farmhouses. 2 Construction began in 1871 and was completed in 1874. Knoxville’s first federal building, it was purposely constructed out of East Tennessee marble at a time when federal bureaucrats were making derogatory remarks about Southern architecture, which they suggested lacked endurance and permanence. The marble used was extracted from a quarry in the Forks of the River district, near the confluence of the French Broad and Holston rivers. By 1873, this quarry was being operated by the Knoxville Marble Company, one of East Tennessee’s first modern marble businesses. It was conveniently located near the confluence of the Tennessee, Holston, and French Broad Rivers, a selling point to Congress because it meant that river commerce could be easily regulated and taxed. The first floor of Knoxville’s Customs House was used as a post office, while the second and third floors were used for the federal court and as office space for various federal officials, namely, postal inspectors, court officials, internal-revenue officers, and customs officers. According to the National Archives, the duties and responsibilities of 19th Century customs officers included: October 2020

Assessing and collecting customs fees and penalties. Intercepting and seizing contraband, including liquor. Processing persons, carriers, cargo, and mail into and out of the United States. Administering navigation laws. Detecting and apprehending violators of customs laws. Enforce export control laws. 3 Knox County defense lawyers often found themselves pitted against U.S. Customs law enforcement officers who investigated smuggling, tariff evaders, and other violations of customs and revenue laws. Further, because the building housed a federal courtroom, local lawyers found plenty to keep them busy. The courtroom became notorious when Wild West outlaw Harvey Logan, a.k.a. “Kid Curry,” the Wild Bunch hit man, escaped from the county jail in 1903, mid-trial, never to be seen alive again. 4 Cases involving corporate enterprise and private property rights occupied a place of importance on the Tennessee Supreme Court’s docket in the late nineteenth century, so Knox County lawyers found themselves litigating both federal and state matters. Further, Knox County lawyers were called upon to challenge the despised Tariff of 1828, a protective tariff passed by the Congress of the United States on May 19, 1828, designed to protect industry in the Northern United States. Enacted during the presidency of Andrew Jackson, it was labeled the “Tariff of Abominations” by its Southern detractors because of the effects it had on the Southern economy. It set a 38% tax on some imported goods, and a 45% tax on certain imported raw materials. As with so many classic buildings, the Knoxville Customs House ultimately proved too small for a city and county experiencing explosive growth, and ultimately fell out of use as a government center. In 1977, this grand building was awarded to the Knox County Public Library to be developed into the East Tennessee History Center and Museum. The Museum of East Tennessee History holds the key to Knoxville’s past. Ever-changing, award-winning exhibits tell the history of the people, places and events that shaped this region. Consequently, it behooves us as lawyers to pay this grand building a visit now and then to learn more about the origins of the attorney’s craft in Knox County. To quote those immortal words chiseled into the façade of the National Archives, “What is past is prologue!” 5 3 4 5 1 2

DICTA

http://customsmuseum.org/. https://savingplaces.org/stories/what-is-italianate-architecture. https://www.archives.gov/research/guide-fed-records. http://knoxheritage.org/. William Shakespeare: The Tempest, Act 2, Scene I.

21


Address Changes

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

WELCOME NEW MEMBERS

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

NEW LAW STUDENT MEMBERS

Casey T. Arrowood U.S. Attorney’s Office

Samantha N. Buller-Young

Holly L. Fuller Legal Aid of East Tennessee, Inc.

John W. Clucas

Brianna Cuevas

J. Leo Richardson Law Offices of J. Leo Richardson, III

Sarah K. Gerkins

Jason R. Smith LMU – Duncan School of Law

Joseph K. Robinson

Marjorie M. Thigpen-Carter Justice Knox

Mecca Shabazz

Kayla L. Towe Tyler S. Waterfield Volunteer Law, PLLC

George M. Davis BPR #: 034724 Legal Aid of East Tennessee, Inc. 607 West Summit Hill Drive Knoxville, TN 37902-2011 Ph: (865) 637-0484 mdavis@laet.org

Rachel H. Jensen BPR #: 037820 Winchester, Sellers, Foster & Steele, PC P.O. Box 2428 Knoxville, TN 37901-2428 Ph: (865) 637-1980 racheljensenlaw@gmail.com

Kaitlyn E. Dean BPR #: 036782 Tennessee Court of Appeals P.O. Box 444 Knoxville, TN 37901-0444 Ph: (865) 594-5246 katie.dean@tncourts.gov

Anne Crisp

J. Nikki Price G. Keith Alley, P.C.

Lindsey L. Hobbs BPR #: 033703 Breeding Olinzock Carter Crippen, PC 800 S. Gay Street, Suite 1200 Knoxville, TN 37929-9729 Ph: (865) 670-8535 Lindsey@breedinglaw.com

Richard B. Armstrong BPR #: 027072 P.O. Box 14309 Knoxville, TN 37914-1309 Ph: (865) 659-8059 rbarmstronglaw@gmail.com

Joshua E. McFarland BPR #: 037959 Legal Aid of East Tennessee, Inc. 607 West Summit Hill Drive Knoxville, TN 37902-2011 Ph: (865) 637-0484 jmcfarland@laet.org

Kathryn St. Clair Ellis BPR #: 029143 Knoxville Family Justice Center 400 Harriet Tubman St. Knoxville, TN 37915-1339 Ph: (865) 215-6868 kellis@fjcknoxville.org

Caleb A. Smothers

Jacob L. Gilliam BPR #: 037858 Winchester, Sellers, Foster & Steele, PC P.O. Box 2428 Knoxville, TN 37901-2428 Ph: (865) 637-1980 Jacobg213@gmail.com

Zaria Walker David A. York

Alicia J. Teubert BPR #: 029421 Anderson Busby, PLLC P.O. Box 2588 Knoxville, TN 37901-2588 Ph: (865) 249-8011 ateubert@andersonbusby.com

THE LAW FIRM OF

WINCHESTER, SELLERS, FOSTER & STEELE, P.C. IS PROUD TO ANNOUNCE THAT

CECILIA S. PETERSEN

JACOB L. GILLIAM

After 35 years of practice, I announce the transition of my practice to exclusively Mobile Mediation and Appellate Work. A Rule 31 mediator in Family Mediation, Domestic Violence Mediation and General Civil Mediation, I will mediate by Zoom or at counsel’s offices at the rate of $200 per hour. Well experienced in appellate work, I also welcome the opportunity to assist with research, brief writing and argument. Member: ABA, TBA and KBA. · (865) 588-3701 (Phone) · cpetersen@ceciliapetersen.com · (865) 588-3703 (Facsimile) · P. O. Box 11366, Knoxville, TN 37939

RACHEL H. JENSEN

AND

22

HAVE JOINED THE FIRM AS ASSOCIATES. SHAREHOLDERS: J. Michael Winchester Gordon D. Foster Anthony R. Steele

E. Brian Sellers Walter N. Winchester Joshua R. Holden

Senior Associate: Ryen M. Lamb Winchester, Sellers, Foster & Steele, P.C. Attorneys At Law Street Address: Suite 1000, First Tennessee Plaza 800 South Gay Street Knoxville, Tennessee 37929

Mailing Address: P.O. Box 2428 Knoxville, TN 37901-2428

Telephone: (865) 637-1980 Facsimile: (865) 637-4489 Website: www.wsfs-law.com

DICTA

October 2020


BARRISTER BITES By: Angelia Morie Nystrom The UT Foundation Institute of Agriculture

BALL JARS AND BIG FLAVOR My husband has often called me a housecat: I don’t go outside if the temperature is above 80 or below 60 or if it is raining. I have always been this way. As a child, it was out of necessity. I would break out in welts in the sun during certain times of the year, and I was allergic to all sorts of plants and weeds. Unfortunately, there was no such thing as Allegra or Sudafed, and I was often left to suffer in stuffy, swollen, red silence. Having a dad that grew up on a farm, I found little sympathy at home. His response was always, “Suck it up.” For that reason, I hated Saturdays during Spring and Summer. My grandmother had a farm, and my aunt and uncle had very large vegetable gardens. And my sister and I were free labor. I recall in the 4th grade telling my dad that there were child labor laws, which meant I could not work. He told me I was not a lawyer. While Amy and I wanted nothing more than to watch cartoons, starting with Jot or Casper at 6:00 am and ending with American Bandstand and Soul Train at 1:30 pm, my dad wanted nothing more than to see us working. And he always won. He often said, “If you don’t pick it, you don’t eat it.” I became a master at picking all sorts of vegetables: green beans, cucumbers, okra, tomatoes, corn, beets, potatoes, and anything else that would grow in East Tennessee soil. I’ve often said that you don’t know hot until you pick vegetables and then sit all day on a porch, breaking beans and shucking corn in 100% humidity with nothing but a box fan. When I got old enough to actually have a job (which, ironically, was as a lifeguard at a swimming pool), my picking, breaking and shucking days ended. At that time, I swore that I would not do it again. Old age has softened me, and I have done flower gardening for quite some time; however, I have not ventured into my “farm roots” of the past. Until COVID. In March when everything shut down, Hugh and I went to Dandridge to check on my mom and to be sure that she had enough food. Since her diet often consists of potato chips and Reese’s cups, Hugh was worried. And then he saw her basement. In that basement, my mom had a stash of canned vegetables: green beans, corn, okra, squash, tomatoes, and a plethora of jams and jellies. Hugh remarked that she could eat until 2030 and still have food left over. While we had gone with the intention of sharing our supplies with my mom, she ended up giving us more than we gave her. After making a few fantastic meals (and getting remarks about how good the food was), I asked my mom the question she thought she would October 2020

never hear: “Will you teach me to can food?” Although I wanted to learn, I was a bit cautious at first. My mom uses the pressure canning method, which has always scared me. I recall as a child something going wrong one time and the jiggler (the pressure weight) shooting off the cooker and into the ceiling. The dent is still there. I’ve also seen the videos of exploding Instapots, so I know that bad things can happen. My mom assured me that I could use the pressure canner and that I would not blow up the house if I followed her directions. For weeks this summer, we sterilized jars and lids, prepared vegetables, and then placed the jars of those vegetables in 4-5” of water and heated the cooker to at least 240 degrees. Mom explained that this was necessary because most vegetables are low in acid and have a pH greater than 4.6. Because of the danger of botulism, we had to use the pressure canner to destroy any bacteria. As someone who overcooks most foods out of precaution because of the chance of food poisoning, I was happy to do anything that would alleviate the fear of botulism. My mom has several pressure canners, and the newest of them has a very heavy lid, fitted with a vent, a weighted pressure gauge, a safety fuse, and an extra cover-lock as an added precaution. We used Ball jars (which became increasingly hard to find… since apparently a lot of people decided to can food this year) and two piece self-sealing lids, which consist of a flat disc with a rubber-type sealing compound around one side near the outer edge and a separate screw-type metal band. I learned that (1) wide mouth jars are easier to use than the small mouth jars, and (2) the flat metal lid is not reusable. I also learned that it helps to have a jar lifter, a funnel, and a jar wand (a magnetized wand for removing treated jar lids from hot water). I don’t recall my mom having such conveniences when I was a child, but it certainly made the process much easier. When we finished each run and removed the jars, we waited to hear the lids “pop” as the jars cooled. It became a game to count the number of pops, which was evidence that our efforts were successful. I now have a pantry full of green beans, okra, squash, and corn. I also have tomatoes, potatoes, and salsa. We should eat well for a while. More than that, though, my mom was able to pass her knowledge of food preservation to me. I’m certain she thought that I would never have an interest in learning, as I have tended to purchase food on as “as-needed” basis (ie., the day I am going to prepare it). With all that is happening in the world, it was great to spend so much time learning from my mom. It was also great to end harvest season having not blown up my kitchen.

DICTA

23


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

By: Phil Hampton Founder and CEO, LogicForce Consulting

CONTACT TRACING APPS The global pandemic caused by the SARS-CoV-2 virus has had a huge impact on almost all aspects of our day-to-day lives. We have all had to change the way we work, meet, socialize, and relax. Technology has been critical in helping us manage the life-work changes mandated by the pandemic. One new application of technology that has emerged is a tech-enabled method for an old practice known as “contact tracing.” While the term “contact tracing” is new to a many of us, the practice is actually quite old. Public health officials have been doing contact tracing for decades as a very effective means of stifling outbreaks of communicable diseases. The concept involves old-fashioned detective work. Once a person is identified as having a highly contagious disease, he or she is interviewed by a public health worker to determine who the infected person has been in contact with while contagious. Those individuals are then contacted and advised to self-isolate and get tested. The idea is to stop the spread of the disease by re-tracing the steps of the infected person and isolating those who were in close proximity before they have had a chance to potentially spread the disease to their circle of contacts. The practice of contact tracing has become even more important with COVID-19 as some carriers of the virus can be asymptomatic and completely unaware that they may be infecting others around them. So, how does technology change the way public health officials do contact tracing? It’s easy when you think about it. What is the one device that just about everyone of us takes with us virtually everywhere we go? Our smartphone. So, if someone unfortunately tests positive for COVID-19, wouldn’t it be easy and save time for the contact tracers if that person’s phone had a record of all other phones (carried by people) that had been in close proximity to the infected individual over the past week or so? Yes, in theory, if smartphones could somehow keep a log of other phones that had been within say 6 feet of the infected person’s phone, it could hypothetically go back and warn those other smartphone users that they had been potentially exposed to the virus. That is the idea behind using technology, and specifically, smartphone technology, to conduct rapid contact tracing. Apple and Google, who dominate the smartphone market, saw how useful smartphones could be in helping public health officials curtail the spread of the virus. In a rare joint venture, they developed a toolkit of sorts that app developers can use to build contact tracing apps. The Apple/Google toolkit, which will work on both iPhone and Android phones, uses Bluetooth technology to communicate with other smartphones within a certain proximity automatically. A user would have to opt-in to the contact tracing app that uses this technology; but afterwards the system would work automatically without any prompting from the user. So, if I had a contact tracing app on my phone that uses this technology, and I had opted-in to allow the tracing, my phone would emit a unique identifier using the Bluetooth signaling capability of the phone. Other smartphones that came within so many feet (say 6 feet) of my phone for a certain length of time (say 15 minutes) would record my unique identifier in their history log; and my phone would record their unique identifier in my phone’s history log. Then if I happen to test positive for COVID-19, a public health official could take my phone and “see” the other phones that had been in close proximity to me within the past week. The public health official could then take those unique

24

identifiers and automatically contact the users of those other phones via the app to let them know that they had been potentially exposed to the virus. What could go wrong? Well, as it turns out, quite a few things could go wrong. First of all, for such a system to be effective, a large majority of the population would need to adopt the system. A large majority of the population does indeed own a smartphone; but, so far, adoption of contact tracing apps has been nowhere near universal. While some countries have developed and released universal contact tracing apps for their citizens; the U.S. has not developed, nor signaled intent to develop, any such federal app. Instead, the individual states have been left to develop contact tracing apps. Near the beginning of the pandemic, several states seemed eager to develop contact tracing apps for their citizens. But as the pandemic has lingered, the promised apps from state health officials have been few and far between. As of this writing, only three states, Alabama, North Dakota, and South Carolina, have requested access to the Apple/Google toolkit in order to develop contact tracing apps. Another state, Utah, has gone out on its own, developing an app that is not based on the Apple/Google toolkit standard, raising questions about the ease of sharing information with other non-Utah apps. There are questions about privacy issues related to contact tracing apps, and Americans’ reluctance to acquiesce to any type of government “tracking,” especially via their smartphones, hampers universal acceptance. If private companies, including for-profit entities, take up the slack and develop contact tracing apps, more questions may be raised about what these companies may be doing with information they gain access to and how they may be able market this data for profit. So, this idea of using smartphones to conduct contact tracing, while it is indeed technically viable, may not yet be accepted widely enough to be a practical solution. Perhaps more action from the CDC or WHO, who so far have shied away from developing or endorsing any contact tracing app, may be needed to make a widely accepted contact tracing app in the U.S. a reality.

DICTA

October 2020


WELL READ By: Kelly Street London Amburn

FRANK HERBERT’S DUNE Whether you’re a reader of history, literature or genre fiction, few books compare to Frank Herbert’s Dune. Written in 1965, Dune is a scifi classic. Where else can you find an adventure tale combined with a philosophical examination of fear? A description of a mind-altering drug combined with a treatise on dry-land ecology? Dune has all of these. It imagines entire fields of science that aren’t addressed directly in the text. It tells of new religions, fields of philosophy, gadgets and technology. It’s so intricate that it comes with its own glossary. Herbert basically sketched out twentythousand years of future human history just to lay the foundation for his book. In Dune’s future, there’s no shortage of human suffering or political intrigue; and of all the intrigues, none runs deeper than the centuries-old feud between House Atreides and House Harkonnen. The narrative follows young Paul Atreides, ducal heir to Leto Atreides, and his adventures on the desert planet Arrakis (also known as Dune).  When his family must leave their home planet for Arrakis, Paul struggles to adjust, comes to grips with life as a teenager, and finds love – all while avoiding Harkonnen assassins. It is here, on Arrakis, that Paul faces his deepest fears and confronts a possible future (one of many possible futures) where he will lead an interstellar revolution.          Much has happened in the time between our world and Dune’s distant future. Human beings have mastered interstellar travel. Great Houses control entire planets. Each of these Great Houses has pledged fealty to the interstellar emperor.  Humans have won a war against computers - a war against “thinking machines” - and in the many millennia since, we’ve evolved new forms of intelligence.  For example, a superhuman race of “Mentats” can perform computations similar to a super-computer. An all-female religious order possesses heightened abilities of intellect, instinct, and persuasion, allowing them to influence interstellar politics. Members of this order, known as the Bene Gesserit, can control others with modulations of their voice and tell with a glance if someone is lying.  A corporation called The Spacing Guild holds a monopoly over interstellar travel, and Guild members – now a separate race entirely - have evolved the reflexes and perception to pilot their ships at many times the speed of light.  Their physical and mental abilities are actuated by a rare substance called Melange.   And if all that sounds strange, consider that Melange (also known as “The Spice”) is the digestive byproduct of the giant sandworm of Arrakis.  It offers those who use it a heightened sense of self-awareness and the ability to see into the future. But more importantly, Melange extends the normal human lifespan. People who use it quickly become dependent, October 2020

and over time, they develop the tell-tale, all-blue eyes typical of a highSpice diet. Melange is harvested only on Arrakis, and because of its importance to space travel, commerce, politics and health, it is humanity’s most valuable natural resource. It’s also the focal point of the struggle between House Atreides and House Harkonnen, who fight for control of Arrakis. Dune was so far out there, even in 1965, that most publishers didn’t want to get near it. And even though it has been hugely successful since, Dune’s influence has been felt mostly through the works that borrowed its ideas. The most notable of these is George Lucas’s Star Wars (1977), which includes a long list of ideas borrowed from Dune. These include The Force, giant sandworms, a desert planet, a grotesquely obese villain, an inter-stellar trade federation, and of course, a rebel resistance against an inter-stellar Empire. More recently, Dune influenced James Cameron’s Terminator (1984), which features a futuristic war against machines. And don’t forget George R.R. Martin’s Song of Ice and Fire (1996), which includes Great Houses, zombies with all-blue eyes, and face-changing assassins. Dune’s influence (in books, film and popular culture) is nearly as vast as the universe it describes. It is easily the greatest sci-fi book ever written (prove me wrong). And that might be fine for us geeks, but the average person is basically clueless about Frank Herbert or this book. Dune is overlooked and underappreciated. And this is so because Dune has defied cinematic adaptation. Talented people have tried. In the 1970s, Chilean avant garde filmmaker Alejandro Jodorowsky (“El Topo”) and Swiss artist H.R. Geiger (“Aliens”) had barely begun a film when Hollywood killed their project. In 1984, director David Lynch (“Twin Peaks”) made a movie adaptation, but the film bombed when he was denied creative control. Lynch no longer discusses the project, probably because it’s pretty much impossible to watch now. And now there’s a new movie… because Hollywood never shirks an opportunity to make a big movie, especially one that’s been made already. Canadian director Denis Villineuve has a two-movie deal and tons of money to pay an ensemble cast, including Jason Momoa, Timothy Chalumet, Oscar Issac, Javier Bardeem, Josh Brolin, Rebecca Fergusson, and Dave Bautista. You can watch the trailer on the internet. It’s amazing. So, I guess it’s hard not to be a little bit excited. Maybe there will be some movie theaters in business when Dune opens on December 18, 2020. Dune fans have waited over 50 years for a decent movie adaptation, and only time will tell if this one can deliver. You should read the book first though.

DICTA

25


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

LOSERS AND SUCKERS AND ACTUAL MALICE Did Donald Trump refer to fallen American soldiers as “losers?” Did he call our combat veterans and POWs “suckers?” I don’t know, and, unless you’ve been hanging around with the President for the past several years, neither do you. But I do know a good way to find out. First, let’s acknowledge the importance of these questions, especially for those of us in uniform, or with relatives in uniform, or whose loved ones have made the ultimate sacrifice. If Trump actually said such things, then most Americans would agree that he should not be our Commander-in-Chief. The allegations appeared in a recent article in The Atlantic, a venerable periodical that has published some of the greatest writers in American history. The article in question was written by Jeffrey Goldberg, who is also the magazine’s editor-in-chief. Goldberg begins with a description of a cancelled 2018 presidential trip to an American cemetery in France: Trump rejected the idea of the visit because he feared his hair would become disheveled in the rain, and because he did not believe it important to honor American war dead, according to four people with firsthand knowledge of the discussion that day. In a conversation with senior staff members on the morning of the scheduled visit, Trump said, “Why should I go to that cemetery? It’s filled with losers.” In a separate conversation on the same trip, Trump referred to the more than 1,800 marines who lost their lives at Belleau Wood as “suckers” for getting killed.1 Goldberg references Trump’s public disparagement of John McCain as a “loser,” and Trump’s lack of respect for McCain’s more than five years of captivity in North Vietnam—five years which McCain could have shortened if he had accepted an enemy offer of special treatment. Goldberg then notes that Trump has also referred to former President George H.W. Bush, a Navy pilot shot down in World War II, as a “loser.” Goldberg alleges that, during a 2017 visit to Arlington National Cemetery, Trump displayed extraordinary callousness to a Gold Star father, John Kelly, his Secretary of Homeland Security: Trump was meant, on this visit, to join John Kelly in paying respects at his son’s grave, and to comfort the families of other fallen service members. But according to sources with knowledge of this visit, Trump, while standing by Robert Kelly’s grave, turned directly to his father and said, “I don’t get it. What was in it for them?”

These are serious allegations. Trump has vigorously denied them: It’s a disgrace that a magazine is able to write it. And anybody that — if the — if they really exist, if people really exist that would have said that, they’re low-lives and they’re liars. And

Goldberg stands by his story.3 Anonymous sources are always controversial, but other journalists, including Carl Bernstein, have defended using them: The same thing happened in Watergate. We used anonymous sourcing at the Washington Post — Deep Throat — almost all 200 of our stories about Watergate were based on anonymous sourcing. That’s the only way to do this. And we must continue in the press to do our reporting day by day by day because that’s how we know who this president — what this presidency really is.4 But the president has a point. Who are these sources? How reliable are they? Well, there’s one good way to find out: a civil claim for defamation.5 To prevail, the President, as a public official, would have to prove “actual malice,”—that The Atlantic either knew its allegations were false or published them recklessly.6 He can’t do that without knowing the identity of The Atlantic’s sources. Florida, which Trump claims as his state of residence, has a press shield law, but it provides only qualified immunity. A plaintiff can overcome this immunity by demonstrating: 1) relevance; 2) inability to obtain the evidence elsewhere; and 3) a compelling need.7 The President could make a strong case for elements one and three, relevance and need. He could prove the second element by deposing the relatively small group of people who might have knowledge of his alleged disrespect for the military—he knows who they are. If those witnesses testify, fine; if they refuse, the president will demonstrate his inability to obtain the identities of the confidential sources other than from The Atlantic itself. In either event, the truth would likely come out. So if the President wants to disprove The Atlantic’s explosive claims, he can do so in a way that is far more effective than merely calling his critics “low lives.” He can simply go to court.

Goldberg, Jeffrey, “Trump: Americans Who Died in War Are ‘Losers’ and ‘Suckers,’ The Atlantic, Sept. 9, 2020, available at: https://www.theatlantic.com/ politics/archive/2020/09/trump-americans-who-died-at-war-are-losers-andsuckers/615997/ 2 “Remarks by President Trump After Air Force One Arrival , Joint Base Andrews, MD, September 3, 2020,” available at: https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-air-force-one-arrival-joint-base-andrewsmd-september-3-2020/. 3 Video available at: https://www.cnn.com/videos/business/2020/09/06/goldbergto-trump-were-not-going-to-be-intimidated.cnn/video/playlists/business-reliablesources/. 4 “Carl Bernstein defends Atlantic editor: ‘Almost all 200 of our stories about Watergate were based on anonymous sourcing’. The Washington Examiner, September 6, 2020. Available at: https://www.washingtonexaminer.com/news/carl-bernstein-defendsatlantic-editor-almost-all-200-of-our-stories-about-watergate-were-based-onanonymous-sourcing. 5 As of this writing, the President has filed no such claim, and none of the anonymous sources has come forward. 6 New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). 7 90.5015(2), Fla. Stat. (2019). 1

Finally, Goldberg claims that Trump has expressed particular disdain for our wounded warriors: Trump has been, for the duration of his presidency, fixated on staging military parades, but only of a certain sort. In a 2018 White House planning meeting for such an event, Trump asked his staff not to include wounded veterans, on grounds that spectators would feel uncomfortable in the presence of amputees. “Nobody wants to see that,” he said.

I would be willing to swear on anything that I never said that about our fallen heroes.2

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

DICTA

October 2020


L E G A L LY W E I R D By: Lisa J. Hall Hodges, Doughty & Carson

UNPRECEDENTED CRIMES: A CORONA CLUSTER OF CRIMINAL CAPERS COVID-19 has taken many things from us this year, but material for the Legally Weird column is not one of them. When the pandemic hit us in March, we all faced common challenges in our new normal, like finding toilet paper and Clorox wipes, wanting to see friends and family but maintain social distance, and wearing pants. Maryland’s Taneytown Police Department posted this on Facebook on April 14:

and in this instance she exhibited a stunning lack of judgment. She now faces the same consequences for her ill-advised decision as the other individuals who chose to violate the “Stay at Home” order during this incident.” He probably scored some points with his constituents in refusing to be a hypocrite, but they may need to add a line item for attorney fees to their household budget – criminal defense lawyer for her, divorce lawyer for both of them. In Newport, Oregon, the police department had to post on Facebook advising residents, “It’s hard to believe that we even have to post this. Do not call 9-1-1 just because you ran out of toilet paper. You will survive without our assistance.” The police department then went on to provide a history lesson of how our ancestors handled such concerns (old rope and anchor lines soaked in salt water, corn cobs, pages from Farmers Almanac or catalogs) and made some suggestions appropriate for current times (grocery receipts, lace, cotton balls, or leaves). “Be resourceful. Be patient. There is a TP shortage. This too shall pass. Just don’t call 9-1-1. We cannot bring you toilet paper.”

(In full disclosure, I learned about this post from the article “From Criminal Licking to Thong Masks, Here Are Some of the Weirdest Coronavirus Crimes,” Miami Herald, which referenced the post as if it were legitimate. When I looked at the actual Facebook post, it was pretty clear this was satire. About attire. I digress.) Although not a crime, ABC reporter Will Reeve appeared on Good Morning America via video conference, sans pants. He later realized the camera angle was not as forgiving as he initially thought.

In Alton, Illinois, Mayor Brant Walker made national headlines when he issued a statement on Facebook regarding the statewide “Stay at Home” order and the fact that his wife was at a social gathering in downtown Alton at approximately 1:00 a.m. the previous Sunday morning: “My wife is an adult capable of making her own decisions, October 2020

The Miami Herald article cited above referenced thong masks, and you may be wondering why. In Battle Creek, Michigan, a 47-year-old man (“suspect”) went to his 57-year-old friend’s (“victim”) house wearing a makeshift mask made out of thong underwear. The victim told the suspect that his mask looked like the thongs laying around the victim’s house. The suspect left but returned for his revenge 45 minutes later, striking the victim on the side of the head, wrestling him to the ground, and kicking him in the ribs. This suspect is a bit of a study in contrasts. He was considerate enough to wear a mask, willing to be vulnerable enough to use underwear to serve as his mask, but turned violent when his friend said that the underwear on his face looked like underwear. Thankfully, masks and toilet paper are much easier to find these days, but we have all learned something about substitutions if needed (don’t throw away your corn cobs just in case, friends!), and that there is no truly “pants optional” situation. Wear your pants. And your masks. Wash your hands. We are all in this together. Unless you call me out on my thong underwear mask, in which case I will be kicking you in the ribs.

DICTA

27


BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. LAET WELCOMES MICHAEL DAVIS Legal Aid of East Tennessee is excited to announce that Knoxville attorney Michael Davis has been hired to be LAET’s Knoxville Staff Attorney. At UT Law, he participated in the Tennessee Journal of Law and Policy, Trademark Moot Court, the UT Health Law Society, and UT Law Appellate Legal Clinic, where he argued a Tennessee Supreme Court appeal as a student. He interned at the Tennessee Justice Center, and the Tennessee Department of Mental Health. LONG, RAGSDALE & WATERS, P.C. ADDS TWO NEW ATTORNEYS Long, Ragsdale & Waters, P.C. has announced that J. Scott Griswold has joined the firm as an attorney and Christopher A. Hall has joined the firm as an attorney (of counsel). J. Scott Griswold joined the firm on June 1, 2020 and focuses his practice primarily on trust and estate administration and related litigation as well as conservatorships and guardianships. Christopher A. Hall also joined the firm on June 1, 2020 and represents health care professionals, businesses, farms, real estate developers, and entrepreneurs in virtually all matters, including “angel” investing, mezzanine financing and initial public offerings. KNOXVILLE ATTORNEY WINS TDLA RISING STAR AWARD Devin Lyon with Arnett, Draper and Hagood in was the 2020 recipient of the TDLA Rising Star award. This award honors a TDLA member who has been practicing law 10 years or less and who has made significant contributions to TDLA, to the defense bar, and/or who has promoted the interests of young lawyers in Tennessee this year. Devin has actively participated in TDLA Young Lawyers programs including co-chairing the 2019 Boot Camp, procuring excellent speakers and judges. He is also one of three Bench / Bar Committee members serving a three-year term on behalf of TDLA.

28

VIEW THE CURRENT LIST OF KBA VETERANS The Knoxville Bar Association thanks all of our Veterans for their service and dedication to our country. Review the list of members who have served in the military at www.knoxbar.org/kbaveterans. If your name is not on the flyer and you would like to be added, please contact Jonathan Guess, Membership Coordinator | Database Administrator, by October 9. An insert is planned in the November DICTA. FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates. Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource at www.knoxbar.org. LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: • Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available. Email jfanduzz@gmail.com for inquiries • Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Office Space includes a reception area, conference room and work area for additional employees. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

DICTA

October 2020


LONG WINDED By: Jason H. Long London Amburn

THANK YOU, PAM This week, nineteen years ago, I sat at my computer with a dilemma on my hands. I had been writing this column for about two years, and Marsha had come to rely upon my monthly submission, even if late, to help fill out the publication. As usual, I had waited too long to write my column. It was due on September 10, but I knew Marsha would forgive me if I was a day late, as she always did. Then September 11 happened. By 9:00 a.m., I was no longer thinking about writing an article; instead, like everyone else, I was glued to the television watching the World Trade Center burn and trying to wrap my mind around what had happened. Of course, the world did not stop that morning (it only felt like it did), and I still needed to ostensibly write a humor column. I can distinctly remember the first words of that column: “I don’t feel funny today . . . .” Nineteen years later, I don’t feel particularly funny as I sit down to write this column. Two hours ago, I learned that Chief Judge Pamela Reeves passed away, after a fierce two-year battle with cancer. I don’t know exactly what I am feeling right now. It is a combination of loss, sadness, and nostalgia. There are a lot of other emotions in there, but somehow funny isn’t one of them (although I am sure Pam would be the first to make a joke). In the past few months and years, we have lost a number of giants in the bar, and it hurts every time because of what they have meant to us and how they advanced the profession. We feel a little less whole without their leadership and without their presence. I just read that J.D. Lee, also a giant, passed away yesterday. Less than a month ago, we lost Darryl Lowe. The list could go on and on, and I would still leave out important names of loved and respected bar members. Please do not take offense if I focus only on Pam in this column. She, as much as anyone, impacted and guided my legal career, so I will take the prerogative of focusing on her, although all of these lawyers deserve significant recognition. This column is not intended to eulogize Pam. There will be many others who will do that far more eloquently than I ever could. Rather, the purpose of this column is to motivate and call to action, two things at which Pam was particularly adept. Pam was a lot of things. She was an exceptional lawyer, a leader in the profession, an advocate for the advancement of women, a tireless worker for social justice, a judge of great talent and discernment, a loving wife, mother, and friend. For all of the many hats she wore during her life, I will always remember her first and foremost as a mentor. I was fortunate to begin my legal career in the Offices of Sheppeard & Swanson. Charles Swanson, as everyone knows, is the devoted husband of Pam, so it was quite natural that Pam was around our offices a lot. From the first day I met her, Pam stressed to me the importance of participating in the organized bar, to get involved. She let me know

October 2020

that it was not enough just to be a lawyer but that I was required to be a lawyer who did something good with my talents and opportunities. Moreover, Pam wasn’t content just to encourage me to get involved; she actively sought opportunities for me. Within a few months of knowing Pam, I was attending Barristers’ meetings, chairing two subcommittees, and was appointed to the Executive Committee of the TBA Young Lawyers’ Division. I was honored. I felt like Pam must have seen something special in me to take such an interest and devote her time to making sure I succeeded. Having spent the past twenty-four years around Pam and watching her interact with others, I now realize the foolishness of my hubris. Pam didn’t just see something special in me. Pam saw something special in everyone. She was one of those extraordinary people who always looked for the best qualities in others and then looked for ways to draw those qualities out. She was, in every sense of the word, a mentor. And when I say she was a mentor, I mean she was a mentor on a grand scale. There is an army of lawyers across this state who were encouraged, nurtured, and inspired by Pam. To put it in modern-day terms, if you tried to contacttrace all of the lawyers Pam touched in a meaningful way, nearly all of us would be in lockdown quarantine. Our judicial system would shut down. Moreover, she taught those she mentored how to do the same. There are lawyers all over the state today who have no idea how much Pam changed their lives because she mentored their mentor. Consider it a massive, altruistic Ponzi scheme. The practice of law is difficult and stressful. It is important to know that there are people like Pam, and the other giants we have lost, who make it rewarding. We owe them a debt of gratitude, not only for blazing a trail in the practice, but for taking our hands and leading us along the way. We stand on their shoulders to reach new heights. I owe a lot to Pam, as I am sure many reading this column do. I hope I can pay forward the kind of support and love she gave me. I know, based upon the emails I received and the social media posts I’ve seen in the past few hours, that many are feeling the same way (my story is certainly not unique). Her passing should serve as a reminder that lawyers are called to help others. We should be mentors in the profession to newly-minted and seasoned attorneys alike. We should work to provide greater access to justice, encourage and listen to diverse viewpoints, invite robust debate, always look for the best in one another, and enjoy our time together. I think it would make our bar stronger. I think it would make us happier lawyers. I think it would create a better system of justice. I think it would be the kind of tribute worthy of Pam Reeves.

DICTA

29


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

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

PRO BONO PROJECT New Pro Bono Project Attorney at Legal Aid

I am pleased to introduce myself as the new Pro Bono Project Attorney at Legal Aid of East Tennessee in Knoxville. I grew up in Greensboro, North Carolina and attended Wake Forest University in Winston-Salem for both undergraduate and law school. After graduating law school and passing the North Carolina bar exam in 2011, I practiced for two years handling a wide variety of cases ranging from basic criminal cases and child support defense to car accidents and worker’s compensation. In 2014, I was hired to teach the legal classes for the paralegal and criminal justice programs at Davidson County Community College. I fell in love with teaching and continued to teach classes online after moving to Knoxville in the summer of 2016 for my husband’s education. I worked at the YWCA of Knoxville and the Tennessee Valley for two years as their Court Advocacy Program Coordinator and taught the Divorcing Parenting class until that program ended in 2018. My family quickly fell in love with East Tennessee and Knoxville, and we decided to set down roots in the area. I passed the Tennessee bar exam in the fall of 2018 and am so excited to start working as the Pro Bono Attorney in the Knoxville office of Legal Aid. I look forward to getting to know more members of the local bar and continuing to grow the successful Legal Aid Pro Bono program in the years to come. My goal is to offer opportunities and support to make pro bono service as easy and effective for the all the local attorneys whose efforts make our program.

Virtual Veteran’s Legal Advice Clinic is a Great Way to Give Back to Veterans

On Wednesday September 16th we held our Virtual Veteran’s clinic from 12:00 p.m. to 2:00 p.m. The Veteran’s Legal Advice clinic is a joint project of the Knoxville Barristers, the Young Lawyers Division of the Knoxville Bar Association (KBA), KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, Knox County Public Defender’s Community Law Office, the University of Tennessee College of Law, Lincoln Memorial University – Duncan School of Law, and our local VA. Veterans and qualifying family members went through intake with Legal Aid in the days leading up to the clinic and were matched with a local attorney who contacted the client by telephone during the appointed time. The Legal Advice Clinics for Veterans are popular with both veterans and local attorneys, and we will continue to facilitate virtual clinics in the immediate future while COVID makes in person clinics unsafe. Any attorneys interested in providing advice to veterans in upcoming clinics are encouraged to sign up online through the KBA website at https://www.knoxbar.org/index.cfm?pg=Upcoming-Legal-Clinics.

Pro Bono Matters Website is Your On-Demand Pro Bono Experience

We are excited to offer a new way for interested attorneys to match with pro bono clients in the area through the Pro Bono Matters section of the Legal Aid of East Tennessee website. Pro Bono Matters is a new addition to our program and provides attorneys with the ability to survey available cases and sign up to represent a client through our website. A brief description of the client and their legal needs are provided and new cases are added regularly. Cases can be searched based on county, subject matter, and various other key factors. To check out cases currently available please visit https://www.laet. org/pro-bono-matters/.

October is Pro Bono Month

October is Pro Bono month and we are incredibly grateful for all the support we receive from our local bar. Our program currently has approximately 300 open cases where we have matched clients with local attorneys: your continued, enthusiastic support makes such a difference in our clients’ lives. In recognition of Pro Bono month, we are working with the University of Tennessee School of Law clinic program to organize a phone advice clinic. If you are interested in participating please email me directly at ctorney@laet.org or fill out a volunteer form at https://www.surveymonkey.com/r/JPM2X6C.

Forging Justice Fall Fundraiser

Our annual fall fundraiser Forging Justice is fast approaching and although we will be unable to hold a live, in-person event this year we will be hosting a virtual event. There will be an online silent auction with a wonderful and diverse array of experiences and products generously provided by businesses from across East Tennessee. The event this year will be Derby themed, and we will be introducing a virtual horse race where you can support a local personality by donating to their “horse,” the horse with the most donations wins! Tickets are available on our website for $45.00 per ticket or two tickets for $80.00. Although we will miss being able to be together in person, we hope you will continue to support the quality work our program provides for local residents in need of legal services and join us to celebrate this year’s award winners.

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

30

DICTA

October 2020


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

Q:

Willie, your work often involves what can be a complex and challenging subject matter for many of us: domestic abuse. You once had a mentor who not only helped prepare you for much of what the practice of law entails, but also who heartily encouraged you when you were a paralegal to attend law school.

A:

WILLIE R. LANE Assistant District Attorney General

Three decades, two husbands, an additional daughter and two grandchildren ago, I was a paralegal working in Knoxville. I had been hired by what was then McCampbell & Young in 1988, and I truly loved my job. I was fortunate to work with wonderful and gracious people. I found the work challenging, and I had far exceeded any career path I had dreamed for myself. It was there that I was asked to do some research by one of the associates, Lawrence F. Giordano. I turned in the work, and he brought me in and told me it was good. He gave me some other assignments, and I was surprised to discover that he was actually using the research in various responses and motions. Going into all the reasons this was amazing to me would add nothing to this story; just suffice it to say that he made me feel smart, which was new for me. Very new. I worked with him and his secretary, Sue Christenberry, for several years. I thought things were going fairly well, but apparently my boss thought otherwise. He called me in to his office one day and told me that he was tired of me putting in my two cents on the best way to handle his cases. He told me, verbatim, that I could not drive the bus without a license and handed me an application to the University of Tennessee College of Law. I was dumbstruck. The thought of attending law school was as foreign to me as becoming a brain surgeon. When I decided to try to be a paralegal, I had to go back and finish my undergrad degree (the path to which was a might crooked) because in order to get into the school I wanted to attend, the one that would give me the greatest chance at employment, I had to either have a bachelor’s degree or have an attorney recommend me. I didn’t know one to ask. Not one. To think I could be accepted by any law school, much less actually graduate and pass the bar? Out of the question. I held on to that application for a year. Kept it in my desk and pulled it out now and then. And during that year, Larry continued to encourage me. He made me think that just maybe I could do this. And so I did. Which brings me to today. I have worked at the Knox County District Attorney’s office since before I graduated law school and have been a prosecutor there since the day I (somehow) passed the bar. I am also the most fortunate soul in that I have been allowed to work the majority of those years where my passion lies; the prosecution of domestic violence cases. Four prosecutors and two of the best Victim Witness

Coordinators you could ever ask to work alongside focus solely on these difficult and complicated cases. None of which would have occurred but for Larry’s encouragement. But my debt of gratitude to Larry goes beyond the fact that he pushed me into obtaining a law degree. I witnessed attributes from the years I worked with him that help me to this day. He showed me that there is nothing wrong with arguing for your case strongly. Very strongly. Perhaps a little loudly as well. Passion for your client or your victim is not to be hidden or suppressed unless it takes away from your objectivity. Larry Giordano has always exemplified this and is not afraid to show just how much he cares for the cause or the client. He personified that it is possible to argue against opposing counsel (please refer to the strong and at times loud comment above) but still have respect for them and to leave it in the court room. For myself, this is never more true than when I am arguing against members of the Knox County Public Defender’s Community Law Office, truly some of the hardest working and most dedicated attorneys in our bar. We can argue our opposite sides fiercely, but maintain respect for each other and, very often, friendship. Larry showed me that. But the main thing Larry showed me was, even when dealing with complex situations, always use your common sense. Get to the heart of it and figure out the best thing to do for all involved, even if it is not the easiest path. Larry could break down an issue to its core and attack it or, more often than not, simplify it and solve it. He is not a one-note wonder and intuitively knows what is needed in each circumstance. This has guided me in so many ways. When trying to determine the best course to take on any given case, I try to remember that people’s lives are affected by the actions we take. The goal is to find out which path is most likely to keep the victim from being hurt again and to try to understand what brought the defendant in to that court room. What does he or she need to keep them from carrying out the same violent actions again? Demonizing a defendant in a domestic violence case is simplistic and damaging ultimately to the victim. To see each defendant as a monster aids in victim blaming because it should be easy to leave a monster. Not so easy to walk away from a person that you care about that has done a truly horrible thing for which they have to be held responsible and accountable. Could he or she benefit from mental health counseling, classes designed specifically for batterers, substance abuse treatment or is this someone whose act or history merits incarceration? The truth is seldom black or white. Each case is unique and should be treated so. Anyone that has ever worked with Larry would attest to the fact that he is thoughtful about each case and takes the time to find the right answer. I will never be half the attorney Larry Giordano is, and almost thirty years have passed since he made me believe I could try. I am more grateful than ever to have had his example as my guide.

“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 October 2020

DICTA

31


Prsrt Std US POSTAGE

PAID

KNOXVILLE, TN PERMIT NO. 3 0 9

P.O. Box 2027 Knoxville, TN 37901

OFFICE TECHNOLOGIES

MANAGED PRINT SERVICES

www.imagemattersinc.com

REMOTE PRINTER

COMMERCIAL PRINTING

Follow Us on Social Media

Profile for Knoxville Bar Association

DICTA. October 2020  

Advertisement
Advertisement
Advertisement

Recommendations could not be loaded

Recommendations could not be loaded

Recommendations could not be loaded

Recommendations could not be loaded