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Practice Tips: Introduction to Working Remotely – A Guide to Small Firm Practice . . . Page 9 Management Counsel: Law Practice 101: The Cyber World and Your Responsibilities Regarding Nonlawyer Assistance. . . Page 13

A Monthly Publication of the Knoxville Bar Association | September 2017

RISK & CRISIS MANAGEMENT:

CHALLENGES FOR TODAY’S LAWYER


AROUND THE BAR By: Troy Weston Eldridge & Blakney, P.C.

WHAT A BOMB YEAR FOR OPEN SERVICE During the first half of 2017, the Open Service Task Force has been standup guy. hard at work bringing unique opportunities for service to the Knoxville Never a task force to rest on its good deeds, for the third quarter, we Bar Association. When the task force looks for a quarterly project, we will be heading back to the Love Kitchen. Like the YWCA, this will be consider a boat load of facts, ranging from the needs in the community, our third trip to the Love Kitchen in as many years. The Love Kitchen community organizations that are making an appreciable impact in our had its genesis right here in Knoxville when co-founder Helen Ashe community, and the needs and interests of our bar association members. watched a local news story about a soup line at a local community church. What we do not consider are projects that will not give our volunteers As she watched that broadcast, her mission became clear-she wanted to the opportunity to provide a real benefit to our community and the participate in making sure everyone in Knoxville had something to eat. organizations we are serving – our efforts are not exercises in vanity, and Two years later, on Valentine’s Day 1986, Helen, along with her twin we take the needs of these organizations and our community seriously. sister, Ellen Turner, opened the doors of the Love Kitchen. On day one, The results have consistently been projects where our volunteers work Helen and Ellen served 22 meals. That is not a bad start. Today, the Love hard and provide demonstrable benefits to the organization we have Kitchen, staffed entirely by volunteers, serves more than 3,000 meals a served. Fortunately, the byproduct of this service has been bushels of fun. week. That number of weekly meals is proof that when persistence and We started the year in March by returning for the third year to the passion run together in the mission of an organization, there is no limit on downtown YWCA to serve a Mexican fiesta to approximately 50 residents the good that can be accomplished. And, if you think that is impressive, of the facility. Under the leadership of Elizabeth Carroll – also a co-chair consider that, of these 3,000 meals, approximately 80% are delivered to of the task force, we brought together members of our bar and their family homebound individuals. members to provide an exciting evening of service and fellowship. In previous years, I have watched as the Noell family has worked In June, Deb House led a group of outdoor-loving attorneys in a to entirely reorganize the pantry, and Judge Lisa Lowe has brought her volunteer project at Beardsley Farms, an urban daughters to serve and come back to donate a garden about a mile from downtown. You might new vacuum cleaner (the 2016 volunteers took up am proud to watch our bar be thinking that volunteering in a community a collection when they saw the state of the Love come together to support a garden in June in East Tennessee has all the charm Kitchen’s vacuuming apparatus). Volunteering at community organization that the Love Kitchen is how I met my co-chair and of a compound fracture: it’s hot; it’s grueling work; there’s dirt; there is an ever-present threat of a hoe- does nothing but foster love and her lovely, service-minded daughters. These trips related injury. Let me allay your skepticism. After to the Love Kitchen have brought out tons of success in our community. a brief orientation where we learned about the other volunteers of the last two years, and I am importance of the work Beardsley Farm is doing in proud to watch our bar come together to support a the middle of an urban desert, we volunteers got to work on a wonderfully community organization that does nothing but foster love and success in pleasant morning. We watered and weeded, and we made new friends our community. and strengthened our bonds. A few weeks later, when I was making my Please join us on September 21, 2017 at 5:30 p.m. as we spend first appearance in a new court, I was able to rely on my new friend, Matt another year cleaning, organizing, and serving. If you are interested in Knable, to guide me through a tricky situation. That friendship is entirely signing up, please email me at tweston@eblaw.us. attributable to (1) the Open Service Task Force, and (2) Matt being a

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DICTA

September 2017


In This Issue

Officers of the Knoxville Bar Association

September 2017

Cover Story

President President Elect Amanda M. Busby Keith H. Burroughs

Treasurer Wynne du Mariau Caffey-Knight

Immediate Past President Wayne R. Kramer

Secretary Hanson Tipton

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

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

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

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

Lacey Dillon Programs Administrator

Adelyn Bryson LRIS & Membership Assistant

Volume 44, Issue 8

Dicta

DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522). DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. September 2017

Dicta is the official publication of the Knoxville Bar Association

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

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President’s Message

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

Managing Editor Marsha Watson KBA Executive Director

DICTA

Critical Focus

Diversity in the Practice of Law is Important for the Future of Our Legal Profession

Introduction to Working Remotely – A Guide to Small Firm Practice

Tennessee Court of Criminal Appeals…relevant social media

The Cyber World and Your Responsibilities Regarding Nonlawyer Assistance

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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

Risk & Crisis Management: Challenges for Today’s Lawyer

11

The Knoxville Bar Association Staff

Marsha S. Watson Executive Director

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14 18 21

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Practice Tips Legal Update

Management Counsel: Law Practice 101

Around the Community

Form Over Substance

Your Monthly Constitutional

Can you Sue the President?

Schooled in Ethics

Cybersecurity For Lawyers: A New ABA Ethics Opinion Clarifies A Lawyer’s Duty To Maintain Confidentiality Of Client Information

Conventional Wisdom Around the Bar

What a Bomb Year for Open Service

7 8 10 15 20

22 23 24

Outside My Office Window

Jack

Hello, My Name is

Jennifer Lowe

Time Out

Music Therapy

Thankworthy

On the Verge

Legal Myth Breakers

Reaffirming the Statute of Limitations for Uninsured Motorist Coverage Claims

Legally Weird

Don’t Move To Alabama

Magistrate Kay Kaserman Announces Retirement Life Hacks

Coping with Grief and Worry When Times Are Tough

Book Review: The Trial by Franz Kafka

27 4 19 22 29 30 31

Well Read

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

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event

EVENT CALENDAR & SECTION NOTICES

Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section The ADR Section has monthly CLE programs planned through the end of the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720). Bankruptcy Law Section To have your name added to the Bankruptcy section list, please contact the KBA office at 5226522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Thanks to the following members who volunteered at the Pro Bono Debt Relief Clinic on July 29th: Heather Banks, Hon. Suzanne Bauknight, Kim Cambron, Kathryn Ellis, Maurice Guinn, Coni Herinkova , Greg Logue, Kevin Newton, Chelsea Parrish, Brent Snyder and Lynn Tarpy. The next clinic is scheduled for Saturday, November 4, 2017 from 9:30 a.m. to 12:00 p.m. and will tentatively be held at the Knox County Public Defender’s Community Law Office. If you would like to volunteer for next clinic please sign up by clicking on November 4th on the event calendar at www.knoxbar.org. Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). Senior Section The KBA Senior Section will meet next on Wednesday, September 6, 2017 at Calhouns on the River. The program title is “The 2017 Volunteers: A Football Preview” and will feature Timothy A. Priest with Pryor, Priest, Harber, Floyd & Coffey. The luncheon will be held from 11:30 a.m. to 1:00 p.m. Details on page 28. Register online at www.knoxbar.org. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307. Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (546-8030) or Tripp White (712-0963).

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calendar

September n 6

Supreme Court Dinner

n 6

Senior Section Luncheon

n 12 Professionalism Committee Meeting n 13 Veterans’ Legal Advice Clinic n 13 Barristers Meeting n 14 Lunch & Learn CLE n 14 Judicial Committee Meeting n 14 Barre Event n 18 Diversity in the Profession Committee n 20

Board of Governors Meeting

n 21

Septemberfest

n 21

Open Service Project

n 21

In Chambers CLE

n 26

CLE Committee

n 28 Volunteer Breakfast n 28 Summer Fun – Gun Laws CLE

October n 2

ADR Section CLE

n 3

Diversity CLE & Reception

n6

Bankrutpcy CLE

n 11 Professionalism Committee Meeting n 12 Veterans’ Legal Advice Clinic n 12 Barristers Meeting n 13 Judicial Committee Meeting n 16 Diversity in the Profession Committee n 17 Wills & Estates CLE n 18

KBA Board of Governors Meeting

n 19 Lunch & Learn CLE n 25

In Chambers with Judge Reeves

n 30

Barristers Golf Tournament

Annual Supreme Court Dinner September 6 September 2017


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

DIVERSITY IN THE PRACTICE OF LAW IS IMPORTANT FOR THE FUTURE OF OUR LEGAL PROFESSION Mark your calendar for Tuesday, October 3rd, from 4:00-6:30 p.m. to attend the KBA Diversity in Practice program and reception at The Square Room in Café 4 on Market Square. This event is hosted by the KBA, produced by the hard work of the KBA Diversity in the Profession Committee, and co-sponsored by The University of Tennessee College of Law, The Duncan School of Law, and the Knoxville Area Urban League. The CLE program topic is Diversity in Practice: Expanding Horizons, Establishing Connections, and will feature keynote speaker, Edward L. Stanton, III, a partner with the law firm of Butler Snow LLP. He will discuss practical strategies to combat implicit bias in the legal workplace and to diversify legal staff. Before joining Butler Snow LLP, Mr. Stanton served as U.S. Attorney for the Western District of Tennessee, and he also served as Senior Counsel for the FedEx legal department on its commercial litigation team. Following the keynote address, the Hon. Deborah C. Stevens, Knox County Circuit Court, Division III, and Phyllis Nichols, The Knoxville Area Urban League President, will moderate a panel presentation of local attorneys from diverse backgrounds, discussing how law firms and lawyers can work to create and foster a legal community in East Tennessee where the same opportunities for growth, development and advancement are open to everyone, and why lawyers from diverse backgrounds should choose East Tennessee for their home and legal career. The legal community in Knoxville has been grappling with issues of diversity in hiring and retention for many years. Lack of diversity in the legal marketplace based on factors such as race, national origin, ethnicity, sex, religion, disability, sexual orientation, and/or socioeconomic status is not unique to Knoxville. The statistics are daunting, and we as a profession have a lot of work to do to make effective progress in diversity hiring and retention. According to the Bureau of Labor statistics, law is one of the least racially diverse professions in the country. Nationwide, eighty-one percent (81%) of lawyers are white.1 According to the Minority Corporate Counsel Association, non-white attorneys comprised 16% of firm lawyers in 2015, but 21% of the lawyers exiting their firm the same year.2 And, according to the National Association of Law Placement, non-white partners in large firms increased only 0.21% from 1993 to 2016, from 2.55% to 2.76%. Women comprise about 1/3 of the attorneys in our profession, but only about 1/5 of law firm partners, Fortune 500 general counsels, and law school deans. The most recent ABA Commission on Women in the Profession study3 reports that in private practice settings 48.7% of summer associates are women and 45% of associates are women, but only 18% are equity partners. In the judiciary, only 33% of active Federal U.S. District Court judges are women, and only 31.1% of all state court judges are women. Why is it important to have diversity in the practice of law? Legal practitioners, including the judiciary, need to reflect the makeup of our community that is the public we serve. People with legal needs come from a wide variety of backgrounds. Clients feel most comfortable with and trust the advice of an attorney that they can relate to in some way. Law firms with demographics that more closely resemble the general population have an opportunity to attract a wider range of clients. Attorneys from a wider variety of backgrounds naturally participate in diverse community, business, and social activities that lead to a wider range of potential client contacts. Diversity also leads to more innovative problem solving that ultimately benefits our clients. Different September 2017

perspectives in a firm on how to best handle a case often result in healthy debate to produce the best options and possible outcomes for our clients. Law firms with more diversity also attract top law school graduates who want to work in an environment where a variety of opinions and perspectives are appreciated. Although the KBA does not have precise data on the percentage of Knoxville attorneys who identify in certain minority groups based on sex, race or ethnicity, we do know that the percentage of such attorneys compared to the total percentage of attorneys in Knoxville is significantly lower than the most recently reported U.S. Census Bureau statistics of 52% Female, 16.9% Black and 4.1% Hispanic populations living in Knoxville. We also know that the percentage of women and racial minorities who are equity partners in firms is significantly lower for each of these categories as compared to white, male attorneys. Attorneys in Knoxville are aware of many of these statistics. Many local law firms currently invest considerable time and resources into diversity efforts. Over the years, Knoxville has lost many talented minority attorneys, especially those new to the legal workforce, to larger, more progressive markets such as Nashville, Atlanta and Washington, D.C. Despite this statistic, Knoxville firms need to continue efforts to “move the needle” for success in diversity and inclusion. Firms must develop and implement concrete strategies to recruit, retain and advance attorneys and staff from diverse backgrounds. First, firms need to actively recruit and hire minority law students as summer associates and then as associates. Second, firms need to develop pathways for minorities to become firm leaders. Minority attorneys need to be given opportunities to engage on important firm projects. This often requires current firm partners to become their mentors and to advocate on their behalf. This is critical to career development for any lawyer. Third, firms need to make certain that minority attorneys are invited to attend and feel welcome at formal and informal firm networking and social events. Networking leads to opportunities for client development and helps build relationships with other lawyers in the firm. Often when attorneys decide to change firms or move to another city to practice, they report that they have not been able to build strong personal and business relationships within the community or within the firm that might have encouraged them to stay. And finally, minority attorneys need to advocate for and be given opportunities to serve on management committees and other firm decision making bodies. Minorities need a seat at the table. Such opportunities will not only serve to develop their own career, but will also give them a position to advocate for others, ultimately furthering the firm’s diversity and inclusion efforts and attracting future quality candidates. I hope to see you at the Diversity in Practice program and reception on October 3rd so that we can continue our dialogue on this important subject and learn more about what practical steps we might take to increase diversity and inclusion in our bar. 1 Deborah L. Rhode, “Law is the least diverse profession in the nation. And lawyers aren’t doing enough to change that,” Washington Post, May 27, 2015. 2 Marlon Lutfiyya, “Addressing Biases in Large Law Firms,” Law Practice Today, July 14, 2017. 3 “A Current Glance at Women in the Law, January 2017,” American Bar Association, Commission on Women in the Profession.

DICTA

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Photo Ops

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Join members of the KBA Solo & Small Firm, Criminal and Family Law Sections for an informal social gathering on Thursday, September 21, 2017 from 5:00-7:00 p.m. at Schulz Brau Brewing. This is a great opportunity to network, meet new faces, and get involved. Attendees will have a chance to win a few door prizes. RSVP by clicking September 21 on the event calendar at www.knoxbar.org. DICTA

September 2017


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

JACK I am a son of the suburbs, raised up in the shade and scents of Southern Pines and Sugar Maples planted to grow along streets of neighborhoods drawn up on blueprints. As a child I rode my Schwinn Scrambler with black banana seat and trail tires down Heritage Drive to buy baseball cards at the White Store. I played junior golf at the country club and learned to roller skate at Skatetown U.S.A. on Mondays after school. Odds were not good that I would ever own and tend to horses in my lifetime. But, I couldn’t know that Nancy would walk into my life. In the fall of 2005, the beautiful and mysterious creature I married three years earlier took me to look at a house and surrounding property in Lenoir City on one of those East-Tennessee days at the peak of Autumn when providence descends and the colors steal your breath. I thought it was a phase, just my wife itching for a change - a “hey-let’s-take-alook-around” moment. But when the girl jumps...The farm stood in the middle of a forest of exploding color and included a four-stall barn and fenced pasture. It wasn’t a fair fight. She wanted it - I got it. I’ve always hated change. It took my first wife’s death to bring me to fully understand that change was inevitable and something over which I exercised no control. Perhaps it was because I finally accepted life was not a series of paths forking in the wood, but instead a roller coaster, the car following a track designed by someone else. Once you strap yourself in there is nothing to do but hold on. After I met Nancy, I let go. I followed her way, her instinct. I stopped trying to control everything. This cloud, this whisper of a woman, so filled with mystery, magic, and beauty, in less than 4 minutes, said “buy it,” and I didn’t think twice. Not only was a farm in my path, but something had to go in the barn. Just like that this child of privilege, educated inside the walls of a fine university and a first-class law school, a man whose hands were soft and void of callus, a man of letters and books and the law, a man who’d never maintained more than enough land to require a push mower, became a farm owner and, yes…a horseman. His official papers from the American Quarter Horse Association revealed the name of Two Eyed Jack, III. On May 30, 1985, just after Nancy’s graduation from high school and during a time my only cares in the world included varsity basketball and the girls roaming the halls of Farragut High School, Jack was born to his mare, Miss Snipfire, on a barn-stall floor in Bottineau, North Dakota. As he was struggling to raise himself on his awkward rail-thin legs I was in my first year of driving, seated behind the wheel of a 1984 Camaro Berlinetta, a cocky 16-yearold blaring Bruce Springsteen and sporting my Members Only jacket and convinced that if I didn’t already, I would soon own the world. The track travelled by Jack was one colored by tragedy. His first owner, a teenager, shot and killed his step-father after the man sold Jack without permission and as punishment for the boy’s insubordination. Jack had been loved that much. There’d been other stops for Jack along the way, including years with a man who would drink until passing out on trail rides only to have Jack safely deliver him home. Then, after 22 years of finding his way to my family, our paths crossed on a day when snow threatened. I handed a man an envelope with cash in it. I’d owned the farm for two months. That evening, as darkness fell in unison with the temperature, Nancy and I went to the fence to feed him for the first time. As we walked to the fence, a red bucket in her hands and a bag of grain in mine, the snow began to fall out of the darkness. The flakes first the size of dimes, then nickels and then quarters - were wet and of the kind that excite young children and the child still living in all of us. It was the kind of snow that somehow enhances silence. Nancy banged the bucket against the fence as we were instructed by the previous owner. We September 2017

waited. We couldn’t see him in the field. Out in the darkness, he heard the bucket. Long before we ever saw him we heard him. He galloped toward us, the thundering of his hooves in the clay and the sound of his exhalations rushing through the first East Tennessee snow of the season like a train without headlamps. We didn’t know where he was coming from but the sound of him pulsed through the night. He emerged from the snow only a few feet from us, his breath rising like a cloud, his head bobbing back and forth. When he plunged his face into the bucket we both knew we would never forget what we’d just witnessed. It was magic. Kids grow up and move away. Seasons end. Two years ago, we returned not only to the suburbs, but to the very neighborhood where I grew up. As I write this, I look out the window of my home office upon the street where I rode my yellow Schwinn Scrambler with a banana seat and trail tires. I see my 12-year-old self, curly dark hair, my #89 Tennessee Jersey (Larry Seivers for you who don’t love the Orange), trying to ride a wheelie up Heritage Drive with three packs of baseball cards in my pocket. The children in the photo below are now 24, 21, 21 and 18. Their beloved Jack is 32 years old and is barely hanging on. He is with a friend who loves him well on her farm. Nancy and the girls visit every now and then. I don’t know what to believe, for Jack has always beaten the odds, but I know it won’t be much longer now. Perhaps I’ll go visit this week. It will only confirm the truth he’s known since that day over a decade ago when I paid a man for the gift and privilege of having him - Two Eyed Jack, III will forever own us.

DICTA

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HELLO MY NAME IS

. . .

JENNIFER LOWE

By: Katheryn M. Ogle McDonald, Levy & Taylor

After spending her college years in Middle Tennessee, Jennifer Lowe was ready to come home. The Fountain City native recently returned to Knoxville and began practicing with Moore, Ingram, Johnson & Steele, LLP. Her current focus with the firm involves workers’ compensation insurance defense and general civil litigation. During law school, Jennifer wasn’t sure of the area of law that she’d be practicing, and feels that she’s gained some great experience working this area of law. Prior to returning to Knoxville, Jennifer also worked in insurance defense at a firm in Nashville. However, working in civil defense hasn’t been Jennifer’s only career. After graduating from Middle Tennessee State University with a background in music, Jennifer joined the music industry in Nashville and began working at Sound Stage Recording Studios. Here, she served in many assistant roles and coordinated the comings and goings for much of the studio. “I didn’t have the opportunity to meet any celebrities in this position, but I did always have free music tickets, so that was a great perk,” notes Jennifer. While she ultimately realized that a career in the music industry wasn’t an immediate interest, she did leave this position with great experience and also credits her stint here with meeting her husband, Tyler, who was a musician in the industry. This experience also led her to beginning law school at Belmont University in Nashville. During law school, Jennifer was very focused on her studies and was named to the Dean’s List. Between her first and second years in law school, Jennifer interned for Judge Keta Barnes in Smyrna, Tennessee, and notes that this experience was formative in shaping her attitude toward the law. “Judge Barnes influenced me to keep character at the forefront of your practice, and that fairness is always of the utmost importance.” Following her law school graduation, Jennifer wasn’t sure what direction her career would be taking, but she did want to remain in Nashville for the short term, so she began working in insurance defense. Today, she has many complex cases in litigation and spends much of her days in depositions or preparing for trials. Jennifer is also becoming more active in the Barrister’s organization within the Knoxville Bar, and recently attended the group’s summer event at Westwood. When she isn’t working, Jennifer enjoys spending time outdoors, especially in the Smoky Mountains. The Smokies are special because they remind the young attorney of her East Tennessee home, and also happen to be where she and her husband were engaged to be married a few years ago. In fact, the weekend before this interview, Jennifer and

her husband had hiked a new trail, Grotto Falls. “It was beautiful,” remarks Jennifer. “This was my first time on this particular trail, and I highly recommend the hike. It was about three miles, with a great waterfall at the end.” To take it up a notch from hiking, Jennifer also recently completed an adventure whitewater rafting with her family. We at DICTA thank Jennifer for her willingness to be profiled in this issue and extend a warm welcome to her from the Knoxville Bar Association.

Attorney Jennifer Lowe enjoys spending her free time in the outdoors and recently took a whitewater rafting trip with her family. September 2017 DICTA

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PRACTICE TIPS By:

Patrick Slaughter LaFevor & Slaughter

INTRODUCTION TO WORKING REMOTELY – A GUIDE TO SMALL FIRM PRACTICE In law school I was asked by other students, professors, and lawyers, Here are some suggestions to help you escape being chained to your “What kind of law do you want to practice?” My answer was, “The desk. First, don’t worry about scanning old files or converting your old kind you can practice from an Airstream trailer on a beach in Florida.” files to a new paperless format. Don’t waste the energy. Second, only During my third year I started researching how I might set up my begin working with your newest files in the digital world. Third, do not practice to be able to work from anywhere. While the process is still give up paper entirely… yet. When you are first getting accustomed to evolving, I think we are off to a pretty good start based on the amount this new digital frontier, it is helpful to also maintain a paper file that you of good natured teasing I get about how often Zena and I are out of the can use as a reference and as a safety blanket. As your comfort with a office. Immediately after the teasing, I get asked a ton of questions about digital practices increases, you will naturally begin to thin out the paper how I have managed to be able to set up my practice so that I can work file and rely more on the digital file. Fourth, put time on your calendar remotely as much as I do. With that in mind, I decided to write this to be out of the office to begin this process. You might want to schedule article to answer some of these questions and hopefully motivate others working from your home instead of the office just one day a week or to consider doing likewise. every other week. If an emergency arises, you can run into the office to For those of you that do not know us, we are a small office with two deal with it, but you can also start figuring out the solutions to problems attorneys, a paralegal, and an office manager. We have family law cases you will inevitably encounter. In order for everything to work, you must over most of northeast Tennessee, and I handle immigration law cases in give yourself the opportunity to make it happen. When you start working various jurisdictions including Tennessee, remotely, you will run into some kind of nce you make the decision that you problem that you don’t know how to solve Louisiana, and Florida. are going to set up your practice to right away. However, my experience was I tend to be out of the office at least one week every other month for that for every problem I ran into, a solution allow you to work from home, the immigration cases in other states; to work beach, or even Walt Disney World, half the was usually a Google search or telephone from home so I can concentrate on large call away. Once you have solved the projects; and I try to schedule a full week of battle is won. problem once, the next time is much easier. vacation every 90 days. When I’m out of the There lots of resources out there that will office, I am still working in some form or fashion, even on vacation. make this transition much easier than you think. Why do we take time off? I’ve found getting “away from everything” With these ideas in mind, let’s dive in. I’ll offer suggestions over is a good way to clear my head, get a new perspective on things, and the next few months that outline how we do things. There are tons of regroup. The most important benefit I’ve found for myself is that it other options out there- I don’t mean to suggest that our way is the only gives me a chance to think. Often when I’m away, I’ll stumble on a new way. These ideas are what have worked for us. Along the way if you have approach or a solution for a case that has been troublesome. It’s amazing questions, or want to talk about something, give us a call. We would be what you can accomplish when you aren’t bombarded with distractions. happy to help in any way we can. In the immortal words of Big Thunder When I started investigating how I could work anywhere in the Mountain Rail Road, “Hang on to them hats and glasses, ‘cause this here world I wanted without being chained to an office, I was afraid that I was is the wildest ride in the wilderness!” going to have to learn to be a technology guru. Little did I know, nothing could be further from the truth. Today, you don’t have to know that much about computers to make everything work. I was also afraid that I was going to have to buy a lot of expensive equipment. This was also wrong. If you have electricity, an internet connection, a laptop, and a cell phone you already have all you need. In getting started, the single most important thing you must do is decide that you are going to it. Once you make the decision that you are going to set up your practice to allow you to work from home, the beach, or even Walt Disney World, half the battle is won. As long as you are “looking into it,” you will never actually be taking the steps necessary to make having a virtual office a reality. As Walt Disney said, “The way to get started is to quit talking and begin doing.” The first thing that needs to be decided is what type of work needs to be accomplished out in the field. You need to be able to: 1) Draft documents; 2) Review Files; 3) Initiate and Answer Telephone calls; 4) Email; 5) Bill; and 6) Stay on track. All of these tasks can be distilled down into these topics: A) Working with Paperless Files; B) Communicating with Clients; C) Getting Things Done. Over the next few months, I will be outlining how we dealt with each of these issues in other individual articles.

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

Music Therapy Recently and for no apparent reason, an expression came to mind: music soothes the savage beast. I explored the origins and discovered that various iterations of the phrase could be traced to 1697 and William Congreve in The Mourning Bride.1 Musick has Charms to sooth a savage Breast, To soften Rocks, or bend a knotted Oak. I’ve read, that things inanimate have mov’d, And, as with living Souls, have been inform’d, By Magick Numbers and persuasive Sound. A little research at WebMD revealed that music can short-circuit the stress response and keep it from becoming chronic. Stress starts in the brain and kicks off a chain reaction that switches on the stress response in every cell of our bodies. Over time, these cellular switches can get stuck in the “on” position, leading to burnout, anger, or depression as well as a host of physical ailments. Music sets off an opposite chain reaction that switches these genes off again.2 That listening to music can have a profound effect on both emotion and body is probably not a news flash for most of us. Perhaps less well known, however, is that faster music can make you feel more alert and concentrate better. Upbeat music can make you feel more optimistic and positive. A slower tempo can quiet your mind and relax your muscles, making you feel soothed while releasing the stress of the day. Some current findings indicate that music around 60 beats per minute can cause the brain to synchronize with the beat causing alpha brainwaves. This alpha brainwave is what is present when we are relaxed and conscious. To induce sleep (a delta brainwave of 5 hertz), a person may need to devote 45 minutes, in a relaxed position, listening to calming music.3 Researchers at Stanford University (press release 2006) have suggested that listening to music seems to treat a range of neurological conditions, including attention deficit disorder and depression. “We may be sitting on one of the most widely available and cost effective therapeutic modalities that ever existed,” said Gabe Turow, the Stanford symposium organizer. “Systematically, this could be like taking a pill. Listening to music seems to be able to change brain functioning to the same extent as medication, in many circumstances.”4 One new field is Music Therapy. Studies are finding that listening to music before surgery can reduce anxiety and may reduce the need for sedatives. Listening to music after surgery, and even during, may ease pain and the need for pain meds. There is even an American Music Therapy Association. Al Bumanis, a spokesperson for the Association, estimates that there are about a thousand hospitals currently offering this type of therapy in the U.S.5 To try a sound “bath” – preferable to elective surgery -- click on youtube.com and enter, for example, the following terms in the search box: “A Moment of Peace Meditation”; or “Quiet Mind”; or “The Winding Path”; or “Earth Drum – Spirit Vision.” One of my favorites is “Angels of Venice – Pachelbel’s Canon in D Major.” Recalling that Beth Ford recently told me the only way to tour the Rock and Roll Hall of Fame in Cleveland is for Jonathan Moffatt

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to be your personal guide, I called and arranged to meet with Jonathan. Jonathan is an Assistant Federal Defender with the Federal Defender Services of Eastern Tennessee. He has been with that office for approximately 15 years, and for a time he was in private practice with my husband, Bob Simpson. So, basically, I have known Jonathan for a long time, but I had no idea about his musical interests until we spoke. Jonathan is a self-described lifelong R&B and Blues fan. His mother, he said, was something of a “Hippie.” Her brothers and sisters ended up with all the good Bob Dylan albums, so he grew up listening to the Dylan leftovers. Jonathan volunteered that Knoxville is a very good music scene. And the market for vinyl records has made a strong comeback. He owns one of the old sound systems with a turntable. He prefers the bass in the older systems. He frequents many of the record stores in town – I had no idea there were so many. He particularly likes Lost & Found Records on Broadway. I asked Jonathan to name some of his favorite concerts in Tennessee. He smiled and didn’t hesitate. First, he named Buddy Guy’s concert at the Tennessee Amphitheater in 1989 or 1990. Second, Bob Dylan’s concert in 1998 at the old Fairgrounds off of Magnolia, shortly after Dylan had his near-death experience and was making a comeback with his Time Out of Mind album. His third pick was the 1996 Lollapalooza music festival in Newport that featured Metallica, Soundgarden, Rage Against the Machine, Rancid, Shaolin monks, Screaming Trees, Psychotica, and the Ramones. Somewhat as an aside, Jonathan also mentioned that Hanson Tipton had turned him on to the “Flying Burrito Brothers.” After asking Jonathan to spell the name, I, of course, looked them up. I learned that they released in April 1970 the original version of “Wild Horses” (written by Mick Jagger and Keith Richards), one year before the Rolling Stones version on their Sticky Fingers album. And, yes, that song I do remember! As for his listening habits, Jonathan always has an iPod handy. He listens daily to a couple of albums and much more on the weekends. One of the newest trends he is seeing is internet sites that “learn” from the music you select and then make recommendations on other music you might like. I personally find that creepy, kind of like the ads that pop up on by Facebook page after I have been looking at something to purchase. Jonathan’s last advice to me was to try listening to music while performing legal research. I usually prefer silence or just background noise, but I promised him I would give it a try – could be better than Ibuprofen. William Congreve, The Mourning Bride, Act I, Scene I. http://www.webmd.com/balance/stress-management/features/how-making-musicreduces-stress#1. 3 https://www.unr.edu/counseling/virtual-relaxation-room/releasing-stress-through-thepower-of-music. 4 http://news.stanford.edu/pr/2006/pr-brainwave-053106.html. 5 http://www.cnn.com/2015/08/13/health/music-therapy-surgery-patients/index.html. 1 2

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L E G A L U P DAT E By: Melanie D. Wilson Dean and Lindsay Young Distinguished Professor, University of Tennessee College of Law

AFTER FINDING THE ISSUE “NONJUSTICIABLE,” THE TENNESSEE COURT OF CRIMINAL APPEALS RECENTLY DECLARED THAT THE ACCUSED IN A CRIMINAL CASE CAN COMPEL VICTIMS AND WITNESSES TO OBTAIN AND PRODUCE THEIR RELEVANT SOCIAL MEDIA AND OTHER ELECTRONIC COMMUNICATIONS BEFORE TRIAL. Compelling production of social media and cellular telephone communications in a criminal case Most of us now use social media and electronic communication extensively.1 We text, tweet, instant message, and email, often instead of calling or talking in person. When we use these modern communication tools, our conversations, thoughts, views, biases, interests, and experiences are captured in a tangible record (often complete with pictures and video). Unlike an old-fashioned conversation, which leaves behind only memories, electronic communication follows us long after the conversation stops, and sometimes reaches unexpected audiences. The recent decision in State v. Johnson reminds us that our jokes, boasts, exaggerations, photos, videos, and other electronic discussions may also show up later as evidence in a courtroom.2 The defendants in Johnson, who are charged with aggravated rape, asserted that the victim and other witnesses “had communicated with both of the defendants and each other via text message, iMessage, and social media before and after the alleged offenses occurred.”3 The Tennessee Court of Criminal Appeals indicated that as part of pre-trial discovery, the defendants could subpoena the victim and witnesses to acquire and produce records of their relevant text messages and social media posts.4 While the decision could have farreaching effects because of the prevalence of electronic communication,5 the impact of the decision remains unclear because the court reached the discovery issues only after holding that the prosecution lacked standing to challenge the subpoenas.6 Although our conclusion that the State lacks standing to challenge the subpoenas renders the remaining issues nonjusticiable, in the interests of judicial economy and potential further appellate review, we address the merits of each party’s claim regarding the subpoenas.7 Technically, the Johnson decision lacks precedential effect, given that the discovery issues were nonjusticiable. But, trial courts (and other litigants) are unlikely to ignore the decision. No trial judge enjoys a reversal, and the decision explains how three experienced Tennessee appellate judges8 would rule in this increasingly popular (but still developing) area of law, were the issues properly before the court. All three judges believe that a defendant charged with sexual assault may compel victims and witnesses to secure copies of relevant electronic communications and provide them to the accused, even though a federal statute protects phone and electronic service providers from producing these same records.9 The Stored Communications Act protects electronic service providers from subpoenas.

service providers protected from any duty to produce their customers’ communications by the Stored Communications Act (SCA).10 The SCA permits a governmental entity to obtain a subscriber’s electronic communications pursuant to a warrant as part of a criminal investigation but does not extend to criminal defendants.11 That’s the conclusion the Johnson court would have reached had the issue been justiciable. “[W] e would have held, had the issue been justiciable, that the defendants could not obtain any information directly from the social media providers under the terms of the SCA because they do not meet the definition of ‘governmental entity.’”12 The Court’s opinion creates unanswered, yet important, questions. The court’s aim to promote “judicial economy and potential further appellate review” is admirable.13 Undoubtedly, the court sought to guide the many trial judges across Tennessee who are confronting these complex issues of first impression. But, in addressing nonjusticiable issues, the court inadvertently created more uncertainty in an evolving area of law that demands bright-line guidance. After Johnson, similarly-situated litigants, as well as victims and witnesses, are left to wonder whether the decision will be treated as if it were binding. If trial courts follow the advice in Johnson, at a minimum, they will need to grapple with Tennessee’s constitutional provision protecting crime victims from “intimidation, harassment and abuse throughout the criminal justice system”14 and with Tennessee’s victim’s rights statute, which guarantees victims a right to “[b]e treated with dignity and compassion.”15 The Johnson decision dismissed the victimsrights’ arguments with little discussion, declaring that “nothing in the record suggests that the subpoenas . . . caused ‘undue harassment’ of the witnesses or that any of the witnesses, including [the victim] was in a particularly vulnerable position.”16 Citing cases requiring witnesses to appear and give testimony, the Johnson decision downplayed the fact that the victim and witnesses were subpoenaed to acquire, as well as produce, information in the hands of service providers, information that the witnesses did not possess. The court’s response: “To be sure, complying with the subpoenas in this case will require some sacrifice on the part of the witnesses, but ‘the personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.’”17 In other words, the court focused on the non-justiciable legal arguments – particularly those involving the SCA – without giving any weight to the trial court’s factual findings, including that the subpoenas “were oppressive.”18 In rejecting the lower court’s findings, the appellate court overlooked the real difficulty – that the victims and witnesses – the “end-users” of the technology – “were not able to access the information in spite of what appeared to be sincere efforts to do so.”19 Arguably, the factual record in the case would have been significantly stronger had the victims and witnesses challenged the subpoenas, rather than the government. That’s the point of limiting a court’s jurisdiction to parties with standing.20

The Johnson court declared the electronic communication (Continued on Page 12)

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LEGAL UPDATE

(Continued from Page 11)

Conclusion Despite good intentions, the Johnson opinion fails to provide trial judges, prosecutors, victims, witnesses, and defendants with clarity in an area of law that is increasingly relevant, particularly in cases alleging sexual assault.21 Trial courts are left with uncertainty about what, if any, weight to give the Johnson decision, as well as how to balance the constitutional rights of victims and the accused when dealing with potentially relevant texts, instant messages, videos, posts, and photographs maintained by an independent third party service provider. Johnson does, however, tell us what three of the twelve criminal appellate judges think of the CSA and the need of criminal defendants to access the relevant electronic communications of victims and witnesses. No Tennessee lawyer should ignore that. 1 A 2016 survey by Pew Research Center found that 68% of all adults in America use Facebook, and “[m]ore than half of online adults (56%) use more than one of the five social media platforms measured in th[e] survey[.]” See www.pewinternet. org/2016/11/11/social-media-update-2016/. 2 See State v. Johnson, No. #2015-02486-CCA-R9-CD, 2017 WL 1364136 (Tenn. Ct. Crim. App. Apr. 12, 2017). 3 Johnson at 2, *1. 4 See Johnson at 44, *26 (“nothing prevents [defendants] from obtaining the information . . . directly from the witnesses themselves.”). 5 The Knoxville News Sentinel reported that the appellate court “ruled…that former University of Tennessee star linebacker and a former teammate have the right to go after the social media history of the woman who accuses them of rape.” See Jamie Satterfield, State Casts Social Media Fight in A.J. Johnson case as Victims’ Rights Issue, Knoxville News Sentinel (June 14, 2017). 6 The court ruled that the government lacked standing to challenge subpoenas served on the victim, the witnesses, and cell phone and social media service providers of the victim and witnesses. See Johnson at 25, *14 (noting that the “State lacks standing to challenge the subpoenas render[ing] the remaining issues nonjusticiable”). After recognizing the discovery issues as nonjusticiable, the court continued, offering what can fairly be called an advisory opinion on the merits. See West v. Schofield, 468 S.W.3d 482 (Tenn. 2015) (explaining that ripeness and justiciability are doctrines to avoid premature adjudication and ensure that a “dispute has matured to the point that it warrants a judicial decision.”); see also Clark v. Cain, 479 S.W.3d 830, 832 (Tenn. 2015) (finding an issue “nonjusticiable” and, therefore, “unripe” for decision).

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7 Johnson at 25, *14. The court did not expound on how issuing an advisory opinion furthered these interests. 8 James Curwood Witt, Jr., authored the opinion in which judges Thomas T. Woodall and Norma McGee Ogle joined. 9 “Although the defendants cannot obtain the witnesses’ electronic communications directly from the social media providers, nothing prevents them from obtaining the information . . . directly from the witnesses themselves.” Johnson at 44, *26. “[T]he evidence presented by the defendants supports a conclusion that the four witnesses named in the subpoenas communicated electronically, either via text message or social media, about the party where the events transpired and the offenses themselves. Johnson at 31, *18. 10 See 18 U.S.C. §§2701-2712 (addressing service providers’ legal obligations to disclose stored wire and electronic communications and records). 11 See, e.g., 18 U.S.C. §2703(a) (providing that “[a] governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication . . . only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) . . . ”). See also Johnson at 42, *25 (“we easily conclude that the defendants cannot obtain the contents of the witnesses’ social media accounts from the social media providers via a Rule 17 subpoena because the SCA requires a warrant to obtain those communications.”) 12 Johnson at 43, * 25 (citing 18 U.S.C. §2711(4)). 13 Johnson at 25, *14. 14 See Tenn. Const. art. I, §35b. 15 See Tenn. Code Ann. §40-38-102(a)(1). Although not directly applicable in the Johnson case, the Tennessee Public Records Act also expressly protects information regarding the victims of sexual violence. See generally Tenn. Code Ann. §10-7-501 through 515. In particular, §10-7-504(q) (1) provides: “Where a defendant has plead guilty to, or has been convicted of, and has been sentenced for a sexual offense or violent sexual offense . . . [specified] information regarding the victim of the offense shall be treated as confidential and shall not be open for inspection by members of the public . . . .” 16 Johnson at 21, *12. 17 Id. (citing Blair v. United States, 250 U.S. 273, 282 (1919)). 18 See Johnson at 45, *27. 19 See Johnson at 14, *7 (discussion trial court’s findings). 20 See Johnson at 18, * 10 (recognizing that “the doctrine of standing precludes courts from adjudicating an action at the instance of one whose rights have not been violated or infringed.”) (quoting Fannon v. City of LaFollette, 329 S.W. 3d 418, 424 (Tenn. 2010)). 21 For example, in March of 2016, the Tennessee Supreme Court decided a Public Records Act issue in an unrelated criminal, sexual violence case involving a reporter’s request for text messages, video, and photographs contained in the police investigative file. See The Tennessean v. Metropolitan Government of Nashville, 485 S.W.3d 857 (2016). 22 On August 16, 2017, the Supreme Court of Tennessee denied the state’s application to appeal. State v. Johnson, No. E2015-02486-SC-R11-CD (Aug. 16, 2017) (per curiam).

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MANAGEMENT COUNSEL: LAW OFFICE 101 By: Eliza Scott Woolf, McClane, Bright, Allen & Carpenter, PLLC

THE CYBER WORLD AND YOUR RESPONSIBILITIES REGARDING NONLAWYER ASSISTANCE Cyber threats affect your duties as an attorney to conduct yourself professionally and ethically. This is particularly true for attorneys with managerial authority who engage the services of nonlawyer assistants. One need not be an attorney for long to understand that nonlawyer assistants (“assistants”) make our jobs possible and enjoyable, whether they work inside or outside of our organizations. It often takes longer for an attorney to understand our duties to supervise and direct the activities of assistants regarding technology and cyber threats. It is important to realize that the Rules of Professional Conduct have been updated to address many cyber-related issues and that these updates apply to our work with assistants both within and without our organizations.

An attorney’s responsibilities regarding assistants and technology are described in Rule of Professional Conduct 5.3. Attorneys are responsible for conduct by assistants that is incompatible with our professional obligations, whether we specifically direct an assistant to complete an action, ratify an action, or fail to mitigate an action as an attorney with managerial or direct supervisory authority.

outside vendor for printing. You must direct this assistant in a way that provides reasonable assurance that the assistant will conduct himself or herself in a manner consistent with your professional obligations as an attorney. According to Rules 1.1, 1.6, and 5.3, you should familiarize yourself with the benefits and risks of the relevant technology so that you will be able to ask this assistant the right questions and then direct them regarding maintenance of client confidentiality. During this process, you might ask some of the following questions: What are the risks associated with different transfer methods based on the current cyber threat landscape? Should the documents be sent on an “as needed” basis via encrypted email, downloaded by the assistant from a private and encrypted link on your server, or mailed or handdelivered to the company in bulk on an encrypted multi-terabyte drive? Is encryption really necessary? How should I deliver the decryption key to the assistant? Do the files contain medical records? How should the assistant maintain client confidentiality? What are the firm’s reporting requirements should a breach of confidentiality occur? According to Rule 5.3, as an attorney with managerial authority, you will also want to establish an internal policy for third-party printing, based on your answers to the above questions. (See Note [1] to RPC 5.3).

Competence, Confidentiality, and Policy-Making

How Bad Is It Really?

Folded into Rule 5.3 is an obligation to be competent, which now includes knowledge of “the benefits and risks associated with relevant technology.” (See Note [8] to RPC 1.1). Attorneys need to know the risks and benefits of the cyber-related services provided by assistants to them and therefore to their clients as well. Services provided by outside assistants may include cloud services, email filtering, and provision of containerization services for personal devices. Attorneys must know how such assistants are going to maintain the confidentiality of their clients. (See RPC 1.6). The reasonableness of an attorney’s efforts to maintain confidentiality are determined by the sensitivity of the information, the likelihood of disclosure without safeguards, the cost and difficulty of implementing safeguards, and any adverse impact on the attorney’s ability to represent clients. (See Note [18] to RPC 1.6). Attorneys with managerial authority must also make “reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance” that the behavior of assistants is consistent with the Rules of Professional Conduct. (See Comment [1] of RPC 5.3). A managing attorney may choose to view creating and enforcing cybersavvy policies as “just one more thing” on his or her to-do list. However, viewed rightly, such process is a tool that may well prevent a cyber villain from delivering a fatal blow to an organization’s reputation and budget.

To understand the risks and benefits of technologies employed by outside assistants, you must understand the larger cyber threat landscape. I am confident that you are at least aware of several cyber-attack methods but that you desire to avoid taking on an alarmist mentality. While I encourage due diligence in this regard, it is important to understand two points regarding the cyber world we live in. First, the cyber security incidents discussed in public forums are those that have been discovered, admitted to others, and are considered worthy of media attention. For example, the Department of Health and Human Services displays some of the larger breaches reported to it at https://ocrportal.hhs.gov/ocr/breach/breach_report.jsf, but even many of those do not make the nightly news. You may well be surprised to see the percentage of breaches reported on their site that result from cyber attacks. Second, many organizations do a poor job of gathering and reviewing security logs and therefore have no means of discovering either the quantity or quality of the cyber attacks launched against them. They choose to make information security policy “in the dark” and derive a false sense of security from a lack of observable security compromise. Based on my cyber security experience, I know that not all malicious software is going to make a system unusable or announce itself with a splash screen letting users know where to deposit their electronic currency. To the contrary, if you allow it, some programs will quietly reside on a system and slowly leak information for years. Law firms are often easy prey and house some very valuable information, so let’s get serious about meeting our obligations with regard to cyber threats and nonlawyer assistance.

Rule 5.3

Example: A Simple Printing Job To understand how the rules might work together in a practical scenario, imagine you are an attorney with managerial authority in a large firm and have decided to send some electronic client documents to an

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

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AROUND THE COMMUNITY By: Richard Graves Frantz, McConnell & Seymour, LLP

FORM OVER SUBSTANCE I have always been somewhat of a land use policy aficionado (which, I believe, is Latin for “nerd”). Thus, imagine my delight upon learning of Knoxville’s current endeavor to overhaul its existing zoning code in a process dubbed “Recode Knoxville”. Can life get more exciting?1 Recode Knoxville’s current project timeline roughly extends through October 2018, with a first draft of a new code to be available sometime between September and December 2017.2 The Knoxville City Council could vote to adopt Recode Knoxville’s finished product as early as late 2018. However, it is far from certain whether the City Council will do so in part because five of the nine council seats will be filled by new members after this November’s local election. Recode Knoxville aims to increase the number of “form-based code” districts. Knoxville’s current zoning code regulates land predominantly by “use” (i.e., it enumerates uses permitted in certain zones and largely separates commercial uses from residential uses). “Form-based codes,” by contrast, regulate land predominantly by the form the land improvements take rather than predominantly by the use of the land. Form-based codes often enable commercial and residential uses in the same area. True to their name, form-based codes, in design and effect, elevate form over substance. Knoxville already has form-based code districts on Cumberland Avenue and the South Waterfront.3 Each district’s form-based code promotes two related things: (1) a mix of commercial and residential uses in the same area; and (2) walkability. Recode Knoxville will almost certainly seek to expand formbased districts to areas such as Bearden, the Central Avenue corridor, and portions of Magnolia Avenue. The writing is on the wall. The Metropolitan Planning Commission (“MPC”) recently studied expansion of mixed-use zoning in the Bearden area before tabling that project at the

City Council’s request in anticipation of Recode Knoxville.4 The North Central corridor has its own heading, albeit incomplete, in Knoxville’s current form-based zoning code section.5 Knoxville will also soon undertake streetscape improvements to portions of Magnolia Avenue designed in part to promote walkability.6 Expansion of mixed-use districts is already underway. The MPC is currently studying amending Knoxville’s current zoning code to allow residential uses, subject to some conditions, in certain commercial zones.7 The conditions include regulations aiming to promote walkability.8 If this sounds like a stop-gap measure to permit more walkable, mixed-use development before Recode Knoxville’s completion, that’s because it is. Recode Knoxville has the potential to significantly affect the future of Knoxville (and your clients) in obvious and discreet ways. It’s worth your attention. No, it cannot. Project Timeline, MPC, http://recodeknoxville.com/about/timeline/ (last visited August 8, 2017). 3 See generally Knoxville Zoning Code art. IV § 4.1-4.2. 4 Memorandum from MPC Executive Director on Bearden Village Opportunities Plan to MPC, Dec. 1, 2016, available at http://agenda.knoxmpc.org/2016/dec2016/10-A-15-OA. pdf. 5 Knoxville Zoning Code art. IV § 4.3. 6 Public Meeting Presentation, Magnolia Avenue Streetscapes Project (Jan. 21, 2016), available at http://www.knoxvilletn.gov/UserFiles/Servers/Server_109478/File/ Redevelopment/MagnoliaAve/Magnolia%20Ave%20Streetscapes%20Presentation_ Minus%20Rendering.pdf. 7 See Draft Knoxville Zoning Code Amendment, July 26, 2017, available at http://www. knoxmpc.org/zoning/proposed-zoning-ordinance-changes/resources/r3uor/_Draft%20 Ordinance_with%20C-6%20Amendment%20(2017-07-26).pdf. 8 See id. 1 2

Pop Up Pure Barre & Social Hour The KBA Functions Committee is hosting a Pop Up Pure Barre & Social Hour on Thursday, September 14. The Pure Barre class will be held at Sutrree’s Landing Park, 701 Langford Ave from 5:45-6:45 p.m. and an instructor will be provided by Pure Barre Knoxville. In case of rain, Barre will be moved to Alliance/Laundry. Everyone is welcome to Pure Barre like Eric Berry! Please bring a mat and a water bottle. Social Hour to follow the class at Alliance Brewing Company, located at 1130 Sevier Ave. To register, click on September 14 in the event calendar at www.knoxbar.org.

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

ON THE VERGE For all you trivia fans, it is time to play, “What year is it?” This is Every month, we have multiple CLEs and opportunities to get the year Paul Sheldon broke free from his writer’s block with a little help together with our colleagues over lunch or through professional mixers. from Annie Wilkes and Marv and Harry kept Kevin McAllister from We have a vibrant Mentor for the Moment program to help continue the having a lonely Christmas. Arnold Schwarzenegger became the first tradition of experienced attorneys lending a hand and guidance to those man who ever wanted to forget Sharon Stone, and Demi Moore inspired who are newer to the practice. We have a website that looks great and is thousands of women to try their hand at making pottery. kept up to date. We have the stories and memories of many of the finest Need more help? The same year, M.C. Hammer had two songs in members of the Bar safely preserved through the Legal History Project. Billboard’s top 100 list – extra points if you can name the one that was We have information, lots and lots of information. When a not U Can’t Touch This – and Vanilla Ice developed the anacrusis defense: colleague has passed, we know about it. When a colleague should be an anacrusis made the bassline of his song, Ice Ice Baby, completely recognized, he or she is. different than the bassline of Queen’s Under The KBA helps us to connect and to stay awyers who practice in other Pressure. connected to each other. Lawyers who practice That year, things were happening in cities and states often comment in other cities and states often comment about Knoxville as well. The Knoxville Museum of the collegiality of the Knoxville Bar. Over the about the collegiality of the Art opened its doors. It was the first full year in course of twenty-seven years, there are hundreds Knoxville Bar. 69 years that Knoxville did not have a single day of people who could and should be thanked which remained at or below freezing. The SEC for this, but if Marsha Watson is not on your Championship Trophy came back home to Neyland Stadium, and the thankworthy list, she should be. Cotton Bowl and Sugar Bowl were just icing on the cake. But, there is someone else who should be on your thankworthy Things were looking up for the Marble City. But, Knoxville was list. In March of 1990, a few months after Thomas S. Scott, Jr. took missing something. More specifically, the Knoxville Bar was missing office as the KBA’s President, Ms. McCampbell decided to retire. That something. The Knoxville Bar was not missing leadership. It had a fine left a gaping hole in the management and coordination of the day to slate of officers and an active Board of Governors. What it was missing day activities of the KBA. Under Mr. Scott’s leadership, the Board was someone to keep all of the members informed and connected. It of Governors decided to employ a professional bar administrator needed someone to screen through a thousand good ideas to find the best who, as he described it, “could solidify our present programs, identify ones. It needed someone with energy and passion to take the Knoxville opportunities of further service to the members and help organize our Bar to the next level. efforts in accordance with the state of the art bar leadership.”1 The KBA leadership found a person with all of those qualities in Marsha Watson For a long time, the KBA had only one employee, Executive who joined the KBA as its Executive Director in September 1990. Director Marguerite McCampbell. At the time, many of the At the time, Mr. Scott predicted, “We are on the right track and, administrative duties of the KBA fell to the legal assistant of whoever in my opinion, we are on the verge of becoming the most dynamic and was the KBA’s president at the time. If you turn to page 10 of your effective local bar association in Tennessee.”2 Twenty-seven years later, newly minted KBA Attorney’s Directory, you will find the list of KBA past under Marsha’s steady hand and the leadership of numerous officers, presidents. There are a lot of adjectives and adverbs that could be used to governors, section chairs, and committee chairs, his prediction is a reality. describe all of them. “Busy” has to be one of them. Everyone knows that For having the prescience to recognize what the Knoxville Bar needed in a busy lawyer means a busy legal assistant, and that is before the duties of an Executive Director, the diligence to find the right person for the job, the KBA presidency were added to the list. and the vision to see what the KBA could become, Tom Scott is truly But, times were about to change because the person that the thankworthy. Knoxville Bar needed was still 500 miles away working in Baltimore, Maryland as the Director of the Maryland Trial Lawyers Association. You see, this month marks the twenty-seventh anniversary of Marsha Thomas S. Scott, Jr., President’s Page, DICTA Vol. 15. No. 4 (Nov. 21, 1990). Watson arriving on the scene to become the Executive Director of the Id. KBA, and what a difference it has made. We have seventeen very active committees and eleven equally active sections. That doesn’t include the Barristers who have their own eleven committees. We have our own Palooza for goodness sake.

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RISK & CRISIS MANAGEMENT: CHALLENGES FOR TODAY’S LAWYER

I beg you take courage; the brave soul can mend even disaster! 1 In the Native American Ojibwa tongue, the term for disaster is whangdepootenawah: “an unexpected affliction that strikes hard.”2 For many practicing lawyers today, such unexpected afflictions, or more commonly, crises that strike without warning, can make or break a law practice.3 During the two plus decades I’ve spent practicing law and serving as a risk manager in both the public and private sectors, it became apparent that a large number of private and public-sector lawyers rarely, if ever, gave any serious thought as to how they would respond to any number of crises that could serve to threaten their clients’ best interests, and disrupt or destroy their livelihood. They either assumed they were disaster-proof (due to investments in various insurance policies), or likewise wrongly assumed they could manage through the crisis. This explains, in part, the dearth of material written on the subject of lawyer risk management, as well as the scarcity of loss prevention continuing legal education programs for lawyers and their staff. Add to this the failure of many private and public- sector law firms to ensure that all new hires (lawyers and staff ) are provided with formal orientations or training on basic client protection and loss prevention principles, and you have a recipe for disaster. Neglecting to plan for a crisis or disaster can result in a loss of credibility, business, and firm productivity, as well as lead to lawsuits, bar complaints, and all manner of woe for the unsuspecting and unprepared lawyer. Risk Management The notion of risk takes many forms. For the purposes of this writing, however, an emphasis must be placed on “legal risk.” In a nutshell, legal risk is simply risk to which lawyers are exposed that can disrupt one’s practice, yet be readily identified and hopefully mitigated. Because the law is forever changing, developing, and evolving (or in some cases, devolving), lawyers are faced with many unanticipated risks. We all know the aftereffects when an unclear law is clarified by the courts, or a law, rule, or regulation,

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though clear, is widely misunderstood or widely ignored, or the law changes entirely due to legislative action or court interpretation. Further, there is the risk of loss or disruption to a law practice due to natural or manmade disasters. Although legal risk is often specific to the individual firm depending upon its field of practice, nevertheless there exist certain risk management principles that can be universally applied to all manner of risk. These principles are: Risk Avoidance, Risk Acceptance, Risk Mitigation, and Risk Transfer. Risk Avoidance: Risk avoidance is any action that avoids any exposure to the risk whatsoever. It may come in the form of refusing a new client with a legal issue the attorney feels unqualified to handle, the existence of a potential conflict of interest, the inability of the firm to take on more cases, or any other issue contrary to the best interests of the firm and its clients. Risk Acceptance: Risk acceptance is a conscious decision the lawyer makes when viewing a prospective risk. It should not be confused with the defense “assumption of risk.” Risk acceptance is by no means a default action or a decision based upon a lack of information or unwillingness to conduct due diligence, but rather a willingness to knowingly and intelligently assume a risk because it appears it can be managed (i.e., the rewards outweigh any potential downside). Risk acceptance can come in the form of proceeding with a certain litigation strategy, or deciding to take on a new client, or declining to exercise a novel defense in a case. Risk Transference: Risk transference is the act of handing risk off to a willing third party and most commonly includes the use of holdharmless clauses, contractual requirements to provide insurance coverage for another party’s benefit, and reinsurance. For instance, some law firms outsource certain operations such as litigation or the handling of routine motions. Risk Mitigation: Risk mitigation is the most common risk management strategy used by lawyers when an unavoidable risk looms. This strategy limits an entity’s exposure by

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employing a bit of risk acceptance along with a bit of risk avoidance or a combination thereof. Risk mitigation measures can be directed towards reducing the severity of risk consequences, reducing the probability of the risk materializing, or reducing the organization’s exposure to the risk to a tolerable or acceptable level. This could translate into pre-suit mediation, or dismissing a case and refiling it another day. For instance, the time to meet with a client who asks, “What is the chance I’m going to lose my case and what am I looking at if I do?” is long before the matter is set for trial. Assumption of Risk: When we hear the term “Assumption of Risk,” what immediately comes to mind is a type of defense available for most personal injury and negligence lawsuits. In the context of this piece, however, I am referring to the legal risks a client is willing to take in order to achieve a desired outcome. Regardless if a firm’s clients are public or private citizens, today’s lawyer needs to fully understand and appreciate the delicate balance between the risk a client wishes to assume and the possible reward or detriment for assuming that risk. While it is not the job of the lawyer to eliminate risk, it is the lawyer’s job to educate his or her clients on the legislative, regulatory, and litigation environments impacting their case, and to work collaboratively with the client to strike the appropriate balance of risk and reward. Of course, that balance must continually be revisited as external environments change and the client’s risk threshold likewise changes. Attorney William H. Fortune warns against attorneys using language that the client reasonably interprets as guaranteeing a result rather than only promising to diligently and competently attempt to obtain a result. “Ordinarily, a lawyer’s contractual obligation to a client will be considered an implied promise of diligence and competence. In some instances, however, a lawyer’s words may be reasonably interpreted as guaranteeing a result (i.e., “Don’t worry, we’ll get your child back.”).4

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COVER STORY By: Joe Jarret University of Tennessee

Managing Risk: Considering the complexity of today’s legal environment, it is not feasible to attempt to provide an exhaustive list of areas that pose risk and potential liability to law firm and solo practitioners alike. However, some of the more common risks can be mitigated and/or eliminated by undertaking the following: •

• •

• •

Does the firm have periodic ethics and loss prevention continuing legal education programs for lawyers and staff? Does the firm have professional liability insurance and a tickler system in place to ensure there are no missed premium payments? Does the firm have an adequate law library, or access to electronic legal research software for its normal practice requirements? Does the firm communicate to the client verbally and in writing the fee or billing procedures and communicate with the client in general? Does the staff avoid discussing client matters in the ”public“ areas of the office (e.g., reception, kitchen, elevators, restrooms, etc.)? Do lawyers stay abreast of court decisions, the Tennessee Rules of Professional Conduct, and ethical opinions which disqualify lawyers from representation? Do lawyers explain to the staff how to manage difficult, demanding clients? Upon completion of a matter, is the client notified in writing that services are concluded? Do attorneys new to the practice of law or unfamiliar with a body of law refer cases to an associate or an expert if they lack the necessary expertise, attend CLE courses related to their fields of practice, keep current with the changes in the law, make a thorough independent investigation of the facts, and conduct reasonable legal research on all of the pertinent issues? Does the firm have a fail-safe conflict system within the office? Does the firm have a well-articulated policy on hiring to include qualifications, experience, integrity, motivation, and character? When it comes to office sharing, is there a written agreement setting forth all the terms and conditions of the shared office arrangement? Do receptionists answer the telephone in such a way to avoid giving

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the impression of a law partnership? If lawyers sharing offices refer to each other as partners, or go into each other’s office at will, or discuss business in front of clients or visitors, an aggrieved client could reasonably assume their grievance is with “the firm” and not merely with the attorney they retained. When rendering pro bono services, does the attorney maintain the same standard of care and due diligence afforded paying clients? Does the firm have written procedures providing how the firm will manage risk and indicating the specific responsibilities of each lawyer and staff member for loss prevention? Do firm members or the solo practitioner possess a solid understanding of the federal, state, and local laws governing emergency preparedness and response, and how these laws and regulations will affect their clients’ business and other interests? In many jurisdictions across the United States, Tennessee included, state and local government entities are empowered to suspend or limit the sale, dispensing, or transportation of alcoholic beverages, close places of amusement and assembly, and prohibit and control the presence of persons on public streets.5

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Summary: Managing legal risk need not be an arduous undertaking. By remaining ever vigilant, assuming a proactive rather than a reactive posture, and constantly assessing the needs, and wants of one’s client, the attorney can go a long way in protecting both clients and his or her legal practice, thus minimizing the risk inherent in the practice of law. 1 Catherine II of Russia, quoted at Thinkexist.com, Catherine II Quotes, http://thinkexist.com/quotes/ catherine_ii/ (accessed June 17, 2017). 2 The Ojibwa, also known as the Chippewa, were considered one of the largest and most powerful Great Lakes Native American tribes east of the Mississippi. Native Americans: Chippewa, http://www. nativeamericans.com/Chippewa.htm (accessed June 27, 2017). See also Ambrose Bierce, The Devil’s Dictionary 204 (Am. H. 1983). 3 Joseph G. Jarret & Michele L. Lieberman, When the Wind Blows: The Role of the Local Government Attorney before, during, and in the Aftermath of a Disaster, 36 Stetson L. Rev. 293 (2006). 4 William H. Fortune & Dulaney O’Roar, Risk Management for Lawyers, 45 S. Car. L. Rev. 617 (1993). 5 Id. at 640.

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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

CAN YOU SUE THE PRESIDENT? At 7:35 AM on Saturday, March 4, 2017, @realDonaldTrump tweeted:

At 12:04 PM, Obama’s spokesman, Kevin Lewis, denied Trump’s allegation. The next day, Former Director of National Intelligence James Clapper issued a similar denial. Over the next six months, Trump offered no evidence to support his tweet. The independent fact-checking organization PolitiFact calls it “false.” Could Obama recover from Trump, personally, for defamation? While there are differences in state law, a public figure like Obama would typically have to prove that: 1) Trump made a factual statement; 2) the statement was about Obama; 3) the statement was false; 4) the statement was defamatory; 5) Trump “published” the statement to a third party; 6) the statement damaged Obama’s reputation; and, with clear and convincing evidence, 7) Trump knew that the statement was false, or, alternately, that Trump acted with reckless disregard for the truth. The first three elements could be easily proven, unless Trump were to suddenly produce evidence to the contrary, which seems unlikely at this point. The fourth and fifth elements would also be easy to prove. The Second Restatement of Torts defines a defamatory statement as one that “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”1 And Trump’s tweet has been “liked” on Twitter over 100,000 times. That’s a lot of publishing. The sixth element might also be easy to prove, since damages are often presumed when, as here, the statement alleges unethical and probably criminal conduct.2 The last element is typically the most difficult. It’s almost impossible, for example, to prove that Trump knew that his statement was false when he hit his “Tweet” button. However, given the complete lack of evidence, and, indeed, the unequivocal denials of people who should know, and whom Trump could easily have contacted before tweeting, a jury might well conclude that he had acted recklessly. But, wait – he’s the President! You can’t just sue him, can you? Well, maybe. The general rule, as Bill Clinton learned to his chagrin, is that you can sue the President for acts that allegedly occurred before he was President. On the other hand, it’s just about impossible to sue the President, as an individual, for something he does while President. This “presidential immunity” is not mentioned in the Constitution. It’s a judicially-created

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concept, and the rationale is essentially that we want the President to be able to do his job, arguably the most important job in the world, without worrying that millions of people might sue him for doing it. What about claims based upon something the President does, while President, that is not part of his official duties? It’s hard to imagine such an act – after all the Presidency is a 24/7 job, and arguably, anything the President does is, in some sense, “official.” But the Court has acknowledged that some presidential actions may fall outside of the range of his official duties, and might, therefore, be the basis of a civil suit. Trump tweeted from his personal account @realDonaldTrump, not his official, @POTUS account. But this distinction doesn’t necessarily determine the official/unofficial question, since Trump sometimes uses his private account interchangeably with his government account. The Obama tweets were perhaps merely political or personal, but they also involved an issue of public importance. My colleague, Doug McKechnie, who teaches at the U.S. Air Force Academy, has a suggestion on how we might distinguish between official and unofficial presidential actions. Drawing upon tort law and upon other areas of constitutional law, Doug suggests that presidential actions that are reckless or, perhaps, motivated by personal animus, rather than policy, are beyond the scope of a president’s duties and thus may be appropriate bases for a civil claim. I recently discussed this fascinating idea with Doug on my public radio program and podcast, Your Weekly Constitutional. Please join us online if you’d like to learn more. Until then, you might want to follow the President on Twitter. He might be tweeting about you. Restatement (Second) of Torts § 559 (Am. Law Inst. 1977). Tennessee, however, does not allow presumed damages. Plaintiffs are “required to prove actual damages in all defamation cases.” Handley v. May, 588 S.W. 2d 772, 776 (Tenn. 1979). 1

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September 2017


barrister bullets

ATTEND THE MONTHLY MEETING

WELCOME NEW ADMITTEES

Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month beginning at 5:00 p.m. at the Bistro by the Bijou (807 South Gay Street). The next meeting will be held on September 13, 2017. There are many opportunities to get involved, so please contact Barristers President Samantha Parris (samantha@sparrislaw.com) or Vice President Mitchell Panter (tmp@painebickers.com) for more information.

The Welcome Reception for New Bar Admittees will be on Monday, November 6, 2017 from 5:30-7:00 p.m. at Calhoun’s on the River, 400 Neyland Drive. KBA Members are encouraged to attend this festive occasion to welcome the 2017 new admittees to our local legal community. The Knoxville Barristers host this event and all KBA members are invited to attend this free event. One drink ticket will be provided to each KBA member and some light refreshments will be provided. Enjoy mixing and mingling with members of the bench and bar in a relaxed, informal environment. New this year, we are offering a CLE Program from 4:30-5:30 p.m. entitled “How to Start a Law Practice 101” featuring Michael J. Stanuszek, with the Stanuszek Law Group, PLLC before the New Admittee Reception. The program is approved for 1 hour of Dual CLE Credit. Register online by clicking November 6 on the event calendar at www.knoxbar.org.

FAITH BASED LEGAL CLINIC – SEPTEMBER 9 The Faith and Justice Legal Advice Clinic will be held on September 9, 2017, at Grace Lutheran Church, 9076 Middlebrook Pike, in conjunction with Legal Aid’s regular Saturday Bar Clinic. From the beginning, the goal has been to build a coalition of faith leaders in the Knoxville area and to host legal advice clinics at places of worship to make give people a less intimidating environment to talk to a lawyer. Participants in the Faith & Justice Alliance will invite congregants from their churches, synagogues, and mosques to bring their legal questions as well. Register by clicking September 9 on the event calendar at www. knoxbar.org. GOLF TOURNAMENT SEEKS SPONSORS This year’s charity golf tournament will take place on October 30, 2017, at Holston Hills Country Club. We are currently seeking sponsors for the event. If you or someone you know is interested in sponsoring, please contact the Athletics Committee co-chairs, Luke Ihnen (lihnen@londonamburn.com) or Jeremey Goolsby (jgoolsby@ londonamburn.com).

VETERAN’S LEGAL CLINIC: Thank you to our volunteer attorneys, Dave Beck, Chris Cain, Laura Chambers, Michael Davis, Devin DeVore, Douglas Dunn, Daniel Ellis, David Fielder, Richard Hollow, Turner Howard, Joseph Jarret, John Lockridge, David Rexrode, Wilson Ritchie, Andrew Roberto, Bob Stivers, Kelly Street, Dudley Taylor and summer law clerks and law students, who helped with the Joint Operation Clinic on July 19, 2017. The volunteer attorneys served over 60 veterans/spouses during the clinic. The Committee owes a special thank you to our monthly clinic coordinator, Spencer Fair and Legal Aid of East Tennessee attorneys Kathryn Ellis and Christina Magrans-Tillery. Join us for the next Veteran’s Legal Advice Clinic on September 13 from 12 Noon- 2 p.m. at the Public Defender’s Office.

SCHOOL SUPPLIES DRIVE SUCCESSFUL The Hunger and Poverty Relief Committee would like to thank everyone who donated to this year’s School Supplies Drive. Because of your generosity, we collected over $500 worth of school supplies— including backpacks, paper, pens, pencils, markers, colored pencils, pencil cases, glue sticks, and more – to benefit the Childhelp Foster Family Agency of East Tennessee, an organization that provides training and support for foster families in our area. We are thrilled with the results of this year’s collection, and we hope to make next year’s drive just as successful! VOLUNTEER BREAKFAST The Barristers Volunteer Breakfast Committee is looking for a sponsor for the November 23rd Volunteer Breakfast. The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. that provides and serves breakfast at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, TN 37917. This is a great chance to partner with members of your firm, involve your staff in a group philanthropic effort, or serve the community with your law school classmates or friends. If you would like to sponsor or volunteer, signup forms are available on the KBA’s website under Barristers Volunteer Breakfast. If you have any questions, please e-mail committee co-chairs Paul Wehmeier at (865) 546-7000 or Matt Knable at (865) 360-5044.

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Mark Your Calendar Barristers Annual Elections & Holiday Party December 6, 2017

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

REAFFIRMING THE STATUTE OF LIMITATIONS FOR UNINSURED MOTORIST COVERAGE CLAIMS Uninsured Motorist (“UM”) litigation is not for the faint of heart. It can present both unusual and difficult questions. For example, there has been a debate over a number of years in various situations as to the statute of limitations applicable to UM claims. Suppose that a person (soon to be a plaintiff ) purchases UM coverage as part of her auto policy. She is later rear-ended by the defendant in an automobile accident. She files a lawsuit and finds out the defendant either has no liability insurance or purchased a minimumlimits policy. The Tennessee UM statutes allow her to serve the UM carrier (her own insurance company) with process as a party defendant and, if applicable, bring her own UM policy limits into play in the litigation.1 In situations where the uninsured motorist cannot be served, the UM carrier can be required to proceed as the only defendant.2 In other words, Rule 3 of the Tennessee Rules of Civil Procedure does not hold a plaintiff hostage to service of process rules in those situations. In the recent case of Larrystine Bates v. Michael J. Greene,3 the Western Section Court of Appeals addressed a UM statute of limitations issue where the defendant motorist could not be served. Plaintiff was in an accident on May 5, 2011. Prior to the one-year limitations period for personal injury,4 Plaintiff filed a General Sessions warrant against Defendant, which was returned unserved. On January 25, 2013, alias process issued again and was returned unserved along with a server affidavit stating Defendant was not to be found. On July 22, 2013, Plaintiff tried again, but this time added the UM carrier as a defendant. The UM carrier was served on July 31, 2013, two years after the accident.5 The UM carrier‘s summary judgment motion was denied at the sessions level but granted by the circuit court on the basis the underlying action was a personal injury case governed by the one-year statute of limitations, as opposed to a contract action governed by the six-year statute of limitations.6 The circuit court based its ruling on the gravamen of the action, as opposed to the underlying contract of insurance. On appeal, the Western Section reversed, applying the six-year contract statute of limitations. It pointed out the UM contract was not designed to protect the UM driver, but was designed to compensate the insured.7 While acknowledging UM was through a liability carrier, the Court relied on the reason for the contract itself, i.e., protection of the insured. The Court cited a number of sister jurisdictions holding actions based on UM coverage are at their essence ex contractu not ex delicto.8 The Court also cited a number of cases pre-dating the adoption of the current UM statutes, including the 1966 case of Schlief v. Hardware Dealer’s Mutual Fire Insurance Co.9 In Schlief, the Tennessee Supreme Court reversed a lower court ruling that the statute of limitations was one year and held the action was based on the contract, mandating a six year statute of limitations.10 Other Tennessee cases have determined in UM situations, the gravamen of the action does not control the statute of limitations.11 In Bates, the UM carrier argued the UM statutes, including TCA section 56-7-1206(d), were passed after the older cases and therefore superseded the older precedent. The carrier argued the UM statute was subject to the one-year statute that controlled service on the UM driver, arguing that any determination to the contrary would “add” to the

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statutory language. The carrier argued section 1206(d) does not require the plaintiff to wait until “not to be found” is returned by the process server, and waiting does not toll the one-year statute. In rejecting the argument, the Court held the UM statute does not mandate service on the UM carrier within one year.12 In other words, if the original UM motorist was sued prior to the one-year statute of limitations, the UM carrier cannot rely on the one-year statute to bar the claim if it is served with process outside the one-year statute of limitations, unless it can show prejudice.13 Interestingly, the court declined to reach the issue of whether service in the Bates case was subject to the “prejudice” exception because it was raised on appeal for the first time.14 Many insurance policies have language requiring the insured to notify the insurance company of claims or potential claims within a certain time. The requirement gives companies notice and prevents the insurance company being brought into a litigation that is already well underway.15 The interesting “takeaway” from Bates is the fact that in insurance matters, the gravamen of the case deciding the statute of limitations issue is often not apparent. Depending on the circumstances, such as a UM claim against the contract, one cannot simply “follow the pleadings” to determine the issue. See Tenn. Code Ann. § 56-7-1201 to -1206. Tenn. Code Ann. § 56-7-1206(d) (providing in pertinent part that if the defendant uninsured motorist cannot be found, “the service of process against the uninsured motorist carrier, pursuant to this section, shall be sufficient for the court to require the insurer to proceed as if it is the only defendant in the case”). 3 No. W2016-01868-COA-R3-CV, 2017 Tenn. App. LEXIS 503 (Tenn. Ct. App. July 27, 2017). 4 Tenn. Code Ann. § 28-3-104(a)(1). 5 Bates at *2 and*3. 6 Bates at *3 and *4; Tenn. Code Ann. § 28-3-109(a)(3) (six years for actions on contract not otherwise expressly provided for). 7 Bates at *5 (citations omitted). 8 Bates at *6-*8. 9 404 S.W.2d 490 (Tenn. 1966). 10 Bates at *8-*10 (citations omitted). 11 E.g., Price v. State Farm, 486 S.W.2d 721,724-25 (Tenn. 1972) (six-year statute of limitations applies to declaratory judgment action against UM insurer). 12 Bates, at *13-*14 citing Buck v. Scalf, No. M2002-00620-COA0R3-CV, 2003 Tenn. App. LEXIS 361 (Tenn. Ct. App. May 20, 2003) (plaintiff sued defendant and did not serve UM carrier within one year; the UM statue did not bar claim against UM carrier as long as statute of limitations has not run against UM motorist). 13 Bates at *18-*20, citing Bolin v. Tenn. Farmer’s Mut. Ins. Co., 614 S.W.2d 566, 568 (Tenn. 1981); Robbins v. City of Chattanooga, 1985 Tenn. App. LEXIS 2644, at *1-2 (Tenn. Ct. App., Jan. 29, 1985) (if service is within one year on uninsured motorist, process served on UM carrier later is valid unless the UM insurer can show prejudice). 14 Bates at *21. 15 The Tennessee Supreme Court addressed the competing interests this situation presents in Alcazar v. Hayes, 982 S.W.2d 845, 856 (Tenn. 1998), holding the notice provisions in UM policies are not “technical escape hatches” but are meant to prevent prejudice to the insurer. The Court held that if the notice provision is not followed there is a rebuttable presumption prejudice has occurred, but the insured can rebut the presumption by offering proof the insurer was not prejudiced by the delay. This reasoning has since been applied to other types of policies as well, such as liability policies. See, e.g., Everest Nat’l Ins. Co. v. Rest. Mgmt. Group, 2011 Tenn. App. LEXIS (Tenn. Ct. App. March 7, 2011). 1 2

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September 2017


SCHOOLED IN ETHICS By:

Judy Cornett UT College of Law

CYBERSECURITY FOR LAWYERS: A NEW ABA ETHICS OPINION CLARIFIES A LAWYER’S DUTY TO MAINTAIN CONFIDENTIALITY OF CLIENT INFORMATION Have you ever emailed your client? Have you ever sent documents to opposing counsel via email attachment? Does your office have a computer network over which you share client information with colleagues? If you answered “yes” to any of these questions, a new ABA Formal Ethics Opinion will be of interest. On May 22, 2017, the ABA issued Formal Ethics Opinion 477R addressing the lawyer’s duty to maintain the confidentiality of client information in cyberspace.1 The opinion concludes that a lawyer must make “reasonable efforts to prevent inadvertent or unauthorized access” to confidential client information. Moreover, “a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.” Two Model Rules are relevant to a lawyer’s communication of confidential client information over the internet. Both of these Model Rules have been adopted verbatim in Tennessee’s Rules of Professional Conduct. First, Rule 1.6(a) provides that a lawyer “shall not reveal information relating to the representation of a client” unless an exception applies. Rule 1.6 also provides: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Second, Rule 1.1 provides that “[a] lawyer shall provide competent representation to a client,” and Comment [8] to that rule explains that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Taken together, these two rules impose an ethical duty on a lawyer to use reasonable efforts to safeguard the confidentiality of client information in cyberspace. But what constitutes “reasonable efforts”? The ABA opinion does not adopt a bright-line rule; instead, it endorses a “fact-specific approach” that considers a number of factors, including those set forth in Comment [18] to Rule 1.6: - - - - -

“the sensitivity of the information”; “the likelihood of disclosure if additional safeguards are not employed”; “the cost of employing additional safeguards”; “the difficulty of implementing the safeguards”; and “the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device of important piece of software excessively difficult to use).”

The opinion envisions a continuum of security for internet communications. For “routine” client communications, lawyers can use “basic and reasonably available methods of common electronic security.” Among these basic security measures are “secure Wi-Fi, the use of a Virtual Private Network, or another secure internet portal,” the use of “unique complex passwords, changed periodically, implementing firewalls and anti-Malware/ AntiSpyware/ Antivirus software on all devices upon which client confidential information is transmitted or stored, and

applying all necessary security patches and updates to operational and communications software.” At the other end of the spectrum is “highly sensitive information,” such as “proprietary information in highly sensitive industries such as industrial designs, mergers and acquisitions or trade secrets, and industries like healthcare, banking, defense or education.” Reasonable efforts to protect this information might include encryption. In that case, however, the opinion counsels that Rule 1.4 may require the lawyer “to obtain informed consent from the client regarding whether to the use enhanced security measures, the costs involved, and the impact of those costs on the expense of the representation where nonstandard and not easily available or affordable security methods may be required or requested by the client.” Citing with approval a Texas ethics opinion, the ABA opinion notes other situations that may require enhanced security measures, including those in which the client shares an email account with others, or uses an email account to which others have access, especially in a domestic relations case or employment dispute. Lawyers should also consider enhanced security when the client uses a public computer or an unsecure network. Finally, if a lawyer is particularly concerned that the client’s email communications are being monitored by a government entity, either with or without a warrant, enhanced security measures may be required.3 The opinion also counsels lawyers to label client communications as “privileged and confidential” and to use appropriate and accurate disclaimers on all emails. In addition, lawyers must fulfill their supervisory duties by establishing policies on internet security and training subordinate lawyers and nonlawyer staff in using secure electronic communications and in securely storing those communications. Finally, if an outside vendor is employed in connection with electronic communications, the opinion reminds lawyers of their ethical duty under Rule 5.3 to make “reasonable efforts to ensure that” the nonlawyer’s “conduct is compatible with the professional obligations of the lawyer.” What is Tennessee’s take on this issue? In Formal Ethics Opinion 2015-F-159, the Board of Professional Responsibility addressed whether a lawyer may ethically store confidential client information in the “cloud.” The Board concluded: “A lawyer may ethically allow confidential client information to be stored in ‘the cloud’ if the lawyer takes reasonable care to assure that: (1) all such information or materials remain confidential; and (2) reasonable safeguards are employed to ensure that the information is protected from breaches, loss, and other risks.” Citing extensively to ethics opinions from other jurisdictions, the Board noted: The lawyer is not required by the rules to use infallible methods of protection. . . . Rather, the lawyer must use reasonable care to select a mode of communication that, in light of the circumstances, will best protect confidential client information . . . Special circumstances, however, may warrant special precautions. . . . What safeguards are appropriate depends upon the nature and sensitivity of the data.

The Board also noted that a lawyer who hires an outside vendor to (Continued on Page 22)

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L E G A L LY W E I R D By: Jeremy D. Miller Egerton, McAfee, Armistead & Davis, P.C.

Don’t Move To Alabama I’m sure you’ve heard the phrase: “I’d give my right arm for ____________”. Maybe they want to look like George Clooney, meet the President, or win the lottery. Since most people are right-handed, if they’re willing to give up their right arm for something, then they must really value the thing they’re trading it for. But just how valuable is that right arm? If you lose your arm on the job, the average maximum workers’ compensation benefit in the United States is $169,878.1 However, if you lose your arm on the job in Tennessee, you might be awarded enough money to buy that new family home you’ve always wanted because the maximum compensation for an arm in Tennessee is $309,096.2 If you prefer a new beach house, you may want to move to Nevada, where the maximum compensation for an arm is $859,634.3 On the other end of the spectrum, if you would like to buy a new tiny home, you could settle down in Alabama, where the maximum compensation for an arm is a whopping $48,840, the lowest of any state.4 In fact, Alabama is consistently the lowest amongst states for maximum compensation for lost body parts.5 For example, Alabama has the lowest or second lowest maximum compensation for the loss of legs,6 hands,7 thumbs,8 pinkies,9 and feet10.11 Realistically, few people would give up an appendage for money, no matter the amount they may receive. Moreover, it seems cruel to poke fun at stories of people who have actually lost appendages on the job. Instead, let’s look at a few of my favorite workers’ compensation cases where folks risked life and limb. First, in 2017, an Australian woman received workers’ compensation benefits after being hit in the face by a lamp that she ripped from the wall while having violent coitus in a hotel room on a business trip.12 Next, a Montana “bear feeder” successfully won his workers’ compensation case for injuries he sustained after being mauled by a bear he fed.13 It’s true; the Montana man’s job was to feed bears at an attraction in Glacier National Park.14 However, on the morning of his attack, the man decided to smoke all the marijuana in his sock.15 And as everyone knows, “grizzly bears are equal opportunity maulers; attacking without regard to race, creed, ethnicity or marijuana usage.”16 Although the court referred to the man’s decision to mix weed and grizzly bears as “mind-bogglingly stupid,” he was awarded more than $65,000 in benefits.17 Finally, there is nothing worse than watching that delicious bag of Fritos get stuck in the vending machine. Well, one male employee at a Circuit City in Illinois refused to let his female counterpart feel such

SCHOOLED IN ETHICS

1 Lena Groeger, Mochael Grabell, and Cynthia Cotts, Workers’ Comp Benefits: How Much is a Limb Worth, ProPublica (Mar. 5, 2015), https://projects.propublica.org/graphics/ workers-compensation-benefits-by-limb. 2 Id. 3 Id. 4 Id. 5 Id. 6 Maximum compensation for a leg in Alabama is $44,000, while the national average is $153,221. 7 Maximum compensation for a hand in Alabama is $37,400, while the national average is $144,930. 8 Maximum compensation for a thumb in Alabama is $13,640, while the national average is $42,432. 9 Maximum compensation for a pinky in Alabama is $3,520, while the national average is $11,343. 10 Maximum compensation for a foot in Alabama is $30,580, while the national average is $91,779. 11 Lena Groeger, Mochael Grabell, and Cynthia Cotts, Workers’ Comp Benefits: How Much is a Limb Worth, ProPublica (Mar. 5, 2015), https://projects.propublica.org/graphics/ workers-compensation-benefits-by-limb. 12 Aussie court: Worker’s comp covers sex mishap, CBS News (Dec. 17, 2012), http:// www.cbsnews.com/news/aussie-court-workers-comp-covers-sex-mishap/. 13 Dan Testa, In Grizzly Mauling, Judge Rules Pot Not the Cause, Flathead Beacon (Jun. 3, 2010) http://flatheadbeacon.com/2010/06/03/in-grizzly-mauling-judge-rules-pot-notthec-cause/. 14 Id. 15 Id. 16 Id. 17 Id. 18 Circuit City Stores, Inc. v. Ill. Workers’ Comp. Comm., No. 2—08—0722WC (Ill. App. Ct. Workers’ Comp. Div.). 19 Id. 20 Id. 21 Id.

(Continued from Page 21)

deal with cloud storage must “ensure that tasks are delegated to competent service providers which the lawyer has selected after investigating the qualifications, competence, and diligence of the provider to ensure that client information is reasonably likely to remain confidential and secure through storage and retrieval.” These principles are consistent with the approach taken in the ABA Formal Opinion and suggest that the Tennessee Board would probably adhere closely to the principles and conclusions set forth there. In this era of the “paperless office,” of Wikileaks, and of nonstop

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agony.18 As soon as he saw her Fritos get stuck, he rushed over to shake the machine and save the day.19 Unfortunately, he broke his hip in the process.20 According to an arbitrator, the male employee was “injured while coming to the aid of a co-worker seeking personal comfort,” thus workers’ compensation benefits were awarded.21 That’s one way to impress a girl! I am sure we all agree that if we are injured on the job, we want maximum compensation under the law. Thus, if you decide to risk life and limb at work by doing something wild in a hotel room, mixing grizzlies and weed, or taking on a vending machine: whatever you do, don’t move to Alabama.

news about the hacking of various celebrities’ email accounts, it behooves us to educate ourselves about our ethical duties with respect to confidential communications. ABA Formal Ethics Opinion 477R is a good place to start. 1 This opinion updates Formal Ethics Opinion 99-413, which was issued in the infancy of electronic communications. 2 This provision appears as subsection (d) of Tennessee Rule of Professional Conduct 1.6; it appears as subsection c of Model Rule 1.6. 3 Tex. Prof’l Ethics Comm. Op. 648 (2015),

DICTA

September 2017


Magistrate Kay Kaserman Announces Retirement After 27 years of service as a Magistrate in Knox County Juvenile Court, Kay Harrison Kaserman has announced her retirement. On Friday, August 11th, a portrait unveiling ceremony was held at the Division Street courthouse. Judge Tim Irwin commented on Kaserman’s incredible work as a guardian ad litem for the children of Knox County that led to her appointment as a magistrate. “She handled her position with grace and class, even faced with some unimaginable cases. She has had a deep and lasting impact on my legal career and I will miss appearing before her,� commented local attorney Meghan Bodie. Magistrate Kaserman and her husband, attorney Barton Kaserman, will be spending their retirement in Utah where their daughter, son-in-law, and grandson currently reside.

Attorneys Richy Robinson and Joy Robinson met while practicing in front of Magistrate Kaserman. They have now been happily married for four years.

September 2017

DICTA

Attorneys Stephanie Crippen and Deanna Breeding pose with Magistrate Kay Kaserman at her farewell brunch.

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LIFE HACKS By: Angelia Nystrom University of Tennessee Institute of Agriculture

COPING WITH GRIEF AND WORRY WHEN TIMES ARE TOUGH While there have many wonderful things that have happened this year (and while I have many, many things in my life for which I am eternally grateful), 2017 has been a year marked with profound sadness. This year has brought the deaths of four very close cousins, all sudden and unexpected. People who I have known my entire life and who I never imagined would not be here are suddenly gone. I’ve experienced the loss of three of my former law partners. Several clients who were more like friends have passed away. A law school classmate died suddenly from a heart attack just days after his 49th birthday. In one week’s time, I attended four funerals. My mom has had knee replacement surgery, ACL surgery, and has had major surgeries on both of her feet, each of which has necessitated long and complicated recoveries. My aunt, who is like a second mother, has had a third recurrence of cancer. Several of my close friends have been diagnosed or are suffering from serious illnesses. People I love are suffering, and I feel powerless to help. I have seen several friends suffer through the end of their long-term marriages, and several more have children who are struggling. It is sad to see so many people I care about in so much pain. Sometimes, it is hard to see the light at the end of the tunnel. And sometimes it feels like the light at the end of the tunnel is the front of a freight train bearing down on me. So far, 2017 has been marred with grief, worry, and sadness, and it has been difficult on some days to cope. Thankfully, I have found some coping strategies that have made this year a little less stressful. 1. Support from others will help you heal from loss or deal with difficult situations. Take time to lean on the people who care about you, even if you take pride in being strong and self-sufficient. Rather than avoiding them, draw friends and loved ones close, spend time together face-to-face, and accept the assistance that is offered. Oftentimes, people want to help but don’t know how, so tell them what you need – whether it is a shoulder to cry on, help with a difficult task, someone to hang out with, or (my own personal favorite from Hugh) someone to mow your yard. If you don’t feel as though you have someone you can regularly connect with face-toface, it is never too late to build new friendships.

5. Take care of your physical health. Grief and worry take a physical toll as well as an emotional toll. Rest, exercise, and proper nutrition are essential to dealing and healing. Counteract a poor appetite by eating small amounts of healthy foods rather than large meals. If you have difficulty sleeping, try taking brief naps or just putting your feet up and relaxing whenever you can. And while you may not be motivated to exercise, just taking a brief walk now and then can lift your spirits and help you to sleep at night. 6. Avoid using chemicals to numb your feelings. A glass of wine can be good for the soul and help to settle jangled nerves, but overdoing it can bring a host of new problems. Attempting to numb your feelings with alcohol or prescription medications will only prolong the pain. Eventually, one way or the other, you must come to terms with your sadness and worry. 7. Have fun. Grieving, whether it be over the loss of a loved one or the loss of life as you have known it, is difficult, but it doesn’t mean you have to feel bad all the time; in fact, it’s important to take a break from focusing on your grief and stress. Have fun when you can, whether it’s reading a good book, watching a movie, playing games, or resuming other activities you enjoyed before your loss. Don’t feel guilty about it. 8. Avoid making major decisions. Stress can cloud your judgment and make it difficult to see beyond the pain you’re feeling at the moment. Impulsive decisions – to move or change jobs, for example – can have far-reaching implications for which you may be unprepared. If you must make an important decision, discuss your options with someone you trust, such as a friend or financial advisor. It has been said that grief never ends – it just changes. It is a passage – not a place to stay. And we must deal with it in order to get through whatever the situation. Remember, grief is not a sign of weakness, nor a lack of faith. It is the price of love.

2. Draw comfort from your faith. If you are a religious person, embrace the comfort of your religion’s traditions. Spiritual activities that are meaningful to you – such as praying, meditating, or going to church – can offer solace. 3. Cry if you need to. Crying is a normal response to sadness, but it isn’t the only one. If you don’t cry, though, it doesn’t mean that you are not upset. Those who don’t cry may feel pain just as deeply as others. They may simply have other ways of showing it. 4. Express yourself creatively. Writing is another excellent way to express yourself and alleviate grief and sadness (i.e., contribute a DICTA article). If you don’t want to write for publication, try keeping a journal or writing letters, whether you send them or not. When words won’t come, artistic outlets like painting or sculpting can help you to communicate what’s in your heart and soul. Creative expression can bring clarity to the turmoil you feel and insight into feelings you weren’t aware of.

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September 2017

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Annual Fall Hike October 7 The Professionalism Committee invites you to the annual fall hike on Saturday, October 7 at 10:00 a.m. at Frozen Head State Park in Wartburg, which is approximately an hour from downtown Knoxville. Frozen Head State Park is situated in the beautiful Cumberland Mountains of Eastern Tennessee. We will hike to the Debord and Emory Falls, which is about a three-mile roundtrip. We will meet at 10 a.m. at Picnic Shelter A (it’s on the right, about two minutes from the park entrance). Everyone should bring snacks and water for hiking as well as food and your favorite beverage for a post-hike picnic lunch. If you have questions about the hike, please contact James Stovall. If you are planning on bringing food or drink, please let James know that as well. Everyone is welcome to bring their family, and join us on Saturday, October 7! Register by clicking October 7 on the event calendar at www.knoxbar.org.

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September 2017


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

BOOK REVIEW: THE TRIAL BY FRANZ KAFKA “Someone must have been telling lies about Joseph K., for without having done anything wrong he was arrested one fine morning.” In the opening sentence to one of his most quintessential works, The Trial, Kafka introduces the reader to his disturbing interpretation of the modern legal system: a world where lawyers have less influence than a court painter, where people are presumed guilty until proven innocent, where cases are handled in complete secrecy, even to the accused, and where definite acquittals are considered “fairytales” to the court system. Through The Trial, Kafka presents a depiction of a legal system that seems on its face nonsensical and confusing, but also frequently walks the line between utter fiction and an uncomfortable semblance of our current system. This troubling, sometimes arduous, but enjoyable read will call on the reader to question just how closely they believe Kafka’s absurd system of law reflects the reality of our own. At well over two-hundred pages of Kafka’s classic, intricate style, without counting the appendices of unfinished chapters and Kafka’s journal entries, this novel is best read methodically and in short bursts. There is a reason why the word “Kafkaesque” is used to describe disorienting and complex literature. Franz Kafka is the godfather of confusion. Like many of Kafka’s works, The Trial is partially unfinished. Most of the chapters, and the novel as a whole, come to a mostly coherent end, however, there is a disjointed feeling to many of Kafka’s scenes. Only after finishing the story and seeing the unfinished chapters and cut material was I able to realize just how fractured the story was. Although The Trial may not have reached its full potential without the finished chapters, the translation I read did a great job of stitching everything together to create a flowing story. I did not feel that many concepts, if any at all, were lost on me reading this story in English rather than the original German. However, at times some of the conversations between characters seemed off, although this may be due to Kafka’s writing style rather than any error in translation. The Trial follows Joseph K. referred to mainly as “K.,” as he struggles endlessly to prove his innocence to the court and its agents. It is in K.’s struggle where Kafka makes his comment on the state of the legal system. K. has no idea of the intriqices of the system, he has a hard time even finding the courtroom where his interrogation is being held, and he is not afforded any counsel to help him. Legal-minded readers may struggle with the feeling of helplessness as they will likely be just as lost in The Trial’s legal system as poor K. The lack of any real explanation or information about the system, even simply the question of what K. is being charged with, remains unanswered in The Trial. The perplexing nature of the system, especially to a legal reader, is infuriating at times. I found myself audibly groaning after a cryptic answer led me to five more questions. I found that the legal system of The Trial was sometimes absurd to the point of humor; one of my favorite parts is when a lawyer tells a story of a Magistrate going mad and how lawyers had to quite literally threw themselves at him until he got tired out. However, the humor is few and far between. The reader will mainly struggle with the same feeling of confusion and helplessness as K., even through the final page of the novel. September 2017

While reading, many times I had to stop and question how absurd some of these practices really were: Realistically, weren’t people sometimes deemed guilty until proven innocent? Does everyone truly have equal access to the justice system? Is everyone afforded the same zealous defense in a courtroom? These are just to name a few. The Trial will leave readers with many more questions like these rather than answers. This is why The Trial is such an important novel to read, especially for those involved in the practice of law. This novel demands that the reader ask his novel demands that the questions as to why things happen a reader ask questions as to certain way, and if why things happen a certain that if that is the way way, and if that if that is the way it it should be, both should be, both about Kafka’s legal about Kafka’s legal system, and our own. system, and our own. Reading The Trial, and The Trial itself, is truly something that cannot be put into words. It is a deep exploration of bureaucracy, justice, and humanity. Only at its closing will the reader be able to answer the novel’s most important question: is this system really complete nonsense, a prediction of what could be… or are we already too late?

DICTA

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Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records: Elizabeth Anne Bowden Winchester, Sellers, Foster & Steele, PC BPR #: 034701 First Tennessee Plaza 800 South Gay Street Suite 1000 Knoxville, TN 37929-9726 Ph: (865) 637-1980 Fax: (865) 637-4489 elizabeth@wsfs-law.com Brenda G. Brooks Moore & Brooks BPR # 013176 6223 Highland Place Way Suite 102 Knoxville, TN 37919-4035 Ph. (865) 450-5455 Fax: (865) 622-8865 bbrooks@moore-brooks.com Lesa Fugate Christian PennStuart BPR # 016693 2513 Wesley Street Suite 1 Johnson City, TN 376011762 Ph. (423) 282-1006 lchristian@pennstuart.com

Loretta G. Cravens Cravens Legal BPR # 023576 P.O. Box 396 Knoxville, TN 37901-0396 Ph. (865) 544-8929 Loretta@CravensLegal.com Dustin S. Crouse BPR # 029950 9111 Cross Park Drive Suite D200 Knoxville, TN 37923-4521 Ph. (865) 691-3355 dustin@knoxelderlaw.com Jennifer Dobbins BPR # 035114 1533 Foolish Pleasure Ln. Knoxville, TN 37931-4624 Ph. (865) 850-3674 jdobbins3591@gmail.com Julie D. Eisenhower Wykoff & Sikes, PLLC BPR # 027777 P.O. Box 31526 Knoxville, TN 37930-1526 Ph. (865) 320-9444 Fax: (877) 288-7152 julie@wykoffandsikes.com

Ashley H. Morgan Lewis, Thomason, King, Krieg & Waldrop, P.C. BPR # 032273 40 S. Main Street, Suite 2900 Memphis, TN 37108-5529 Ph. (901) 525-8721 Fax: (901) 525-6722 amorgan@lewisthomason.com

Randall E. Reagan The Law Office of Randall E. Reagan BPR # 005995 100 W. Summit Hill Drive Knoxville, TN 37902-1025 Ph. (865) 637-8505 Fax: (888) 761-5005 justice@randallreagan.com

J. Cade Morgan Baker, Donelson, Bearman, Caldwell & Berkowitz, PC BPR # 032272 165 Madison Avenue Suite 2000 Memphis, TN 38103-2752 Ph. (901) 577-2132 Fax: (901) 577-0733 cmorgan@bakerdonelson.com

George T. Underwood Underwood Law Office PC BPR # 013077 Executive Plaza 9041 Executive Park Drive Suite 216 Knoxville, TN 37923 Ph. (865) 247-5547 Fax: (865) 247-5047 george@underwoodjustice.com

Abigail G. Patterson DeRoyal Industries, Inc. BPR # 030162 200 DeBusk Lane Powell, TN 37849-4703 Ph. (865) 362-2334 Fax: (865) 362-1340 apatterson@deroyal.com

THE KNOXVILLE BAR ASSOCIATION

presents

OVER 50 LUNCH FOR SENIOR ATTORNEYS & THEIR GUESTS

The 2017 Volunteers: A Football Preview Featuring

Timothy A. Priest Pryor, Priest, Harber, Floyd & Coffey Wednesday, September 6, 2017

11:30 a.m. - 1:00 p.m. Calhoun’s on the River - 400 Neyland Drive Price includes Barbeque Chicken or Grilled Salmon, vegetable, salad & beverage. If you have dietary restrictions, please provide us with at least 48 hours’ notice of your limitations. PRICE: $35.00 (Includes tax & gratuity) Enclose check payable to “The Knoxville Bar Association” and indicate entree choice. Mail or deliver check to: The Knoxville Bar Association 505 Main Street, Suite 50, P.O. Box 2027, Knoxville, TN 37901-2027 (865) 522-6522 Prepay online at www.knoxbar.org.

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September 2017


BENCH AND BAR IN THE NEWS This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations. Email submissions to mwatson@knoxbar.org by the 10th of each month. ANNIVERSARY CELEBRATION Plan now to attend the UT Legal Clinic’s 70th Anniversary Celebration on Friday, November 17, 2017, from 7-10 p.m. at The Emporium (100 S. Gay Street). The event will honor those who have served the Legal Clinic as students, staff, and faculty and pay tribute to our 70 year legacy of legal representation. The event is free but please register. EGLE ELECTED TO TJC BOARD OF DIRECTORS Kramer Rayson LLP is pleased to announce that Partner Shannon Coleman Egle has been elected to the Tennessee Justice Center Board of Directors. The Justice Center is a public policy advocacy organization committed to promoting healthcare and justice for all. Ms. Egle’s practice areas include healthcare regulation and transactions, general business consulting and transactions, real estate acquisition and development and civil tax controversies. She received her J.D. from the University of Tennessee College of Law. GARST ELECTED FELLOW OF CONSTRUCTION LAWYERS SOCIETY Lewis Thomason announces that David N. Garst has been selected as a Fellow of the Construction Lawyers Society of America. Garst is a shareholder in the firm’s Nashville office. He is chair of the firm’s Construction Law Practice Group and serves on the firm’s Board of Directors. Mr. Garst practices principally in construction law, focusing on architects and engineers professional liability, construction defect litigation, construction contract law, professional discipline, and commercial litigation. ANNUAL RED MASS SCHEDULED Bishop Richard F. Stika extends a special invitation to those serving in the legal and law profession to join him for the annual “Red Mass” on Sunday, October 8 at 11:00 am at the Cathedral of the Most Sacred Heart of Jesus at 711 S. Northshore Dr. in Knoxville. As a time honored tradition of the Catholic Church, the Red Mass is celebrated to honor and to pray for our judges, attorneys, law school professors, students, and government officials, and to invoke the guidance of the Holy Spirit upon all who serve in the judiciary and legal profession. Please direct questions to Paul Simoneau or 865-862-5753.

September 2017

VACANCY FOR BEER BOARD HEARING OFFICERS The Beer Board of the City of Knoxville is seeking applicants to fill three vacancies for Beer Board Hearing Officers. Chapter 4, Article II of the Knoxville City Code contains the ordinances involving the Beer Board Hearing Officer. Interested parties may obtain the application form from the Office of the City Recorder, 865-215-2075 or wjohnson@knoxvilletn.gov. The deadline to apply is noon on September 8, 2017, and applications are to be filed with the Office of the City Recorder. In 2016, there were 22 Noncompliance Complaints filed. Pursuant to a recent City Council Resolution, a Beer Board Hearing Officer shall be paid a flat fee of $225.00 for each Noncompliance Complaint received pursuant to Chapter 4, Article II, Division 3, Section 4-85; or, alternatively, in the event of a Beer Board Hearing Officer conducting a contested hearing pursuant to Chapter 4, Article II, Division 3, a Beer Board Hearing Officer shall be paid $150.00 per hour. Noncompliance Complaints are generally heard on a rotating basis. CONSTRUCTION LAW PRACTICE BOOK Members of the Lewis Thomason Construction Law Practice Group have co-authored a book, Tennessee State Construction Law. The project was spearheaded and the book edited primarily by R. Loy Waldrop, Jr. Tennessee State Construction Law is a comprehensive summary guide of Tennessee construction law aimed at non-lawyers and industry participants. To purchase, go to the Construction Channel’s website, www.constructionchannel.net and on the left margin click on “State Construction Law Books/Seminars” then click “Tennessee” on the map for the order form. LEGAL CALL-IN SHOW Knoxville has a new legal live television call-in program and you can be a part of it! WVLT Local 8 LawCall will air Sunday night at 11:35 right after the news. The Producers say the show will cover such varied topics as divorce, traffic accidents, careers in the law and bankruptcy, along with many others. There will be a new topic each week. The station has partnered with The Law Offices of Ogle, Elrod and Baril to act as the legal hosts of the program. They are also underwriting this public affairs show. The host will be local broadcaster Sara Mitchell. If you would like to be a guest or have any questions please contact the producer bill@lawcall.com.

DICTA

SEARCHING FOR A WILL The family of Jackie Frailey is looking for the attorney who prepared his will. Name: Mr. Jackie Frailey Date of birth: Not known, approximately 1932 Date of death: November 27, 2014 Last Known Address: 347 Blue Springs Circle, Ten Mile, TN 37880 The family is uncertain if there is a will, but seeking attorney who may have drafted one. Family Contact #: Lee Frailey (260) 750-3793 PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association will hold monthly meetings at the Blount Mansion Visitors Center at noon: September 14, R. Deno Cole of McGehee and Cole, P.C., providing an Overview of Firearms Laws; October 12, Daniel A. Sanders, of the Knox County Law Director’s Office, will offer Understanding of Tennessee Tax Foreclosure; and November 9, Chris W. McCarty of Lewis Thomason, will present What Is a Hostile Work Environment? A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@ smparalegal.org or (865) 637-2442 for additional information and/or lunch reservations. OFFICE SPACE AVAILABLE: •

2,870 sq ft 2nd floor office space with large reception area, 5 private offices, board room, two large work-rooms/ offices, common rest rooms & kitchen/ break room with one other tenant on the floor. Zoning C-3, Office Space Class B. Excellent high-visibility location with views of downtown Knoxville. Other tenants are a late-afternoon/evening youth music school downstairs (sound-isolated), and a single attorney. Ample parking and easy freeway access. An additional 1,500 sq ft of adjacent space is available if desired. Contact Frank Graffeo at 525-6806.

Furnished office space available in West Knoxville. Convenient to I-40 and Downtown. Quiet atmosphere perfect for sole practitioner or mediator. Contact Dana Holloway at Holloway Law & Mediation Center. (865) 719-1644 or (865) 643-8725

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

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

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

If you are interested in being a Sponsor for this year’s event, there are several options available.

SAVE THE DATE: October 20, 2017 for Legal Aid’s Forging Justice Pro Bono Celebration

There are three one-of-a-kind “specialty” sponsorships still availablae: • Bar Sponsor – $2,500 • Food Sponsor – $2,500 • Law Student Sponsor – $2,500 And, there are standard-level sponsorships available: • Damascus (limit 3) – $3,000 • Iron – $2,000 • Titanium – $1,200 • Copper – $750 • Aluminum – $400 This year, we will be honoring our Pro Bono Attorney of the Year, Pro Bono Law Firm of the Year, Pro Bono Law Student of the Year, and Community Partner of the Year. In addition, we will be inducting Terry Woods into the Donald F. Paine Memorial Pro Bono Hall of Fame.

Mark Your Calendars: • September 9 (9:00-2:00) – Faith & Justice Clinic at Grace Lutheran Church • September 13 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO • September 16 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office • September 30 (9:00-2:00) – Knox County SUPER Saturday Bar (Location TBD) • October 11 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO • October 14 (9:00-12:00) – Blount County SUPER Saturday Bar at LAET’s Blount County Public Library • October 20 – FORGING JUSTICE at Ironwood Studios • October 28 (9:00-2:00) – Expungement Clinic at Beck Cultural Center The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162

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DICTA

September 2017


Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

LeAnn, please share with DICTA readers about your experience with acupuncture.

LEANN MYNATT Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

For the past four years, I have come to embrace a holistic approach to things that benefit my health, or might. That’s not because I’ve had an epiphany or read an article in People magazine. It’s because four years ago I was diagnosed with stage four ovarian cancer. And since traditional medicine does not yet offer a money-back-guarantee cure, I’ve expanded my horizon on ways to deal with both the disease and the side effects of my treatment. As the old saying goes, there are no atheists in foxholes. When I was diagnosed, I was 47, a vegetarian, and had run (at least three miles) every day for over seven years. What that means is, I took credit for my good health. I ate chocolate cake with impunity. I did see my gynecologist every year, and got a mammogram. Unfortunately, ovarian cancer does not have a screening test (now they tell me). My cancer was discovered when I was having difficulty breathing on my morning runs. I had signed up to run the Cooper River Bridge Run in Charleston, South Carolina, while on Spring Break with my family. I went to a local doctor, assuming he’d prescribe some antibiotics (for what I assumed was a chest cold) and I’d be better by Saturday for the race. He detected a pleural effusion, which is fluid surrounding the lung, two liters in my case. The next day the fluid was drained and sent for pathology. By the time I got home from Charleston, I had received my mind-numbing diagnosis. Not only had I taken credit for my good health, I had taken also it for granted. As an aside, since ovarian cancer has no screening test, it’s important for women to know the symptoms. In my case, it was fluid around the lung (hence stage four). But typically, the fluid first accumulates around the pelvis, then the abdomen. Women who experience unusual bloating (can’t button your pants) or a feeling of fullness even though they have not eaten, should talk with their doctor. Risk factors include not having any or just one child, and a family history of breast or colon cancer, as well as ovarian. Like other cancers, ovarian cancer that’s caught early has a high survival rate. I met with a gynecologic oncologist here in Knoxville, and subsequently had surgery and seven rounds of chemotherapy. Unfortunately, I recurred in 2015, again in 2016, and again in May. I am currently back in treatment with chemotherapy. Suffice to say, if there were a superior drug or treatment at MD Anderson, or Memorial Sloan Kettering, or Cedars Sinai – or Switzerland – I’d be all over it. With treatment comes side effects. Some are what most people associate with chemotherapy: nausea and hair loss. Others are just... weird. And each patient’s experience is different. I have tolerated all of my treatments well, thank goodness. But I have done so, I believe, in part by having an open mind and using a holistic approach. That’s a long way for this anal, regulatory, left-brained environmental lawyer. Acupuncture, along with prayer, exercise (albeit less than I would like), somewhat improved eating habits, good sleep, meditation, massage therapy, herbs and essential oils are among the tools in my proverbial toolbox. Of course, anyone can avail themselves of these things, to manage things like stress, illness, and chronic pain. My internal medicine doctor, who utilizes integrative medicine, introduced me to acupuncture. As with other aspects of my treatment, I researched and downloaded books. Only, I didn’t find a consensus on how or why acupuncture works. It essentially involves the use of very small needles (no, it doesn’t hurt) on strategic parts of the body, to release electrical imbalance, also known as energy. In addition to needles, I have also received a cupping treatment (remember Michael Phelps’ back during the Olympics, those red circles?). Ancient texts on acupuncture have been found dating to at least 200 years B.C. And although most people associate acupuncture with China, its use has been found in ancient Mayan culture as well. I believe that acupuncture helps me. I don’t believe that it will cure my cancer, but it helps me tolerate the side effects of cancer treatment, which in turn might ultimately lead to my beating cancer. And that’s enough to open up this lawyer’s left brain.

“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. September 2017

DICTA

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DICTA.September 2017  

September 2017 Volume 44, Issue 8

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