Tech Tips: Four Bookmarks for Litigators . . . Page 7 Schooled in Ethics: When the Professional Conduct Rules Appear to be Silent: Tips for Finding Your Way . . . Page 21
A Monthly Publication of the Knoxville Bar Association | September 2018
TAKE ME PHISHING:
ENSURING YOUR FIRM IS PREPARED FOR THE UNFORTUNATE REALITY OF DATA BREACHES
Photo Ops
BREWS FOR BACKPACKS On August 6th, the Knoxville Barristers hosted Brews for Backpacks at Printshop Beer. Backpacks filled with school supplies and $850 was raised to purchase more school supplies for ChildHelp Foster Family Agency of East Tennessee! Thanks to TCV Trust & Wealth Management for making this event possible.
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DICTA
September 2018
In This Issue
Officers of the Knoxville Bar Association
COVER STORY 16
August 2018
Take Me Phishing: Ensuring Your Firm is Prepared for the Unfortunate Reality of Data Breachers
CRITICAL FOCUS
5 President Keith H. Burroughs
President Elect Wynne du Mariau Caffey-Knight
Treasurer Hanson R. Tipton
Immediate Past President Amanda M. Busby
Secretary Cheryl G. Rice
KBA Board of Governors Charme P. Allen Maha Ayesh Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis
Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear T. Mitchell Panter
M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe
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Tech Tips
Four Bookmarks for Litigators
Practice Tips
Family Matters – Dividing Retirement Accounts in Divorce
First Amendment Trumps Free Riders
Assessing your Coverage: Time for Cyber Liability Insurance?
Minimalism for Solo Practitioners, or, “What I wish I’d known when I first set up solo shop.”
When the Professional Conduct Rules Appear to be Silent: Tips for Finding Your Way
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The Knoxville Bar Association Staff
President’s Message
Sowing Seeds
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21
Legal Update
Management Counsel: Law Practice 101
Solo/Small Firm Practice Tips
Schooled in Ethics
WISDOM
Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Lacey Dillon Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
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The Catch
Games People of Walmart Play
Justice on the Knox County Frontier: Random Thoughts on the State of the Law during Knox County’s Formative Years
Bill & Phil’s Laptop/Tablet Round-up
The Soul of America: The Battle for Our Better Angels
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Dicta
DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Elizabeth B. Ford Joseph G. Jarret F. Regina Koho Matthew R. Lyon
Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Legally Weird
Of Local Lore & Lawyers
19 Of Thermometers and Thermostats Ending It 24 Gadgets 25
Volume 46, Issue 7
Outside My Office Window
26 27
28
Well Read
Your Monthly Constitutional
A Duty to Warn?
Long Winded
Father Knows Best
Barrister Bites
Making Good Food and Better Memories
COMMON GROUND
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Section Notices/Event Calendar Bar Hopping Clinically Speaking Barrister Bullets Bench & Bar In the News Pro Bono Project Last Word
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. September 2018
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event calendar
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 will be planning regular CLE throughout the year. Save the date for the Annual ADR extended CLE program on September 14, 2018. If you have a program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to 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 Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs 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. Join the Family Law section for a CLE on “Fast and Furious – Navigating the New and Proposed Changes in Child Support” on October 2 and a CLE on “Family Law: Hearsay and Rules of Evidence” on November 15. 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 The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. Save the date for the Annual Juvenile Court extended CLE program on November 9, 2018. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2016 will automatically be opted-in to the section. Join the New Lawyers Section for a CLE on “It’s All a Game: Winning at Trial” on September 24 at Elkmont Exchange Brewery. For information about the Section, please contact Section Chairs Liz Anne Bowden (637-1980) or Sam Louderback (546-0500). Senior Section The KBA Senior Section will meet next on Wednesday, September 5 at Calhoun’s on the River. The program title is “The 2018 Volunteers: A Football Preview” and will feature Timothy A. Priest, Pryor, Priest, Harber, Floyd & Coffey. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. Please indicate your choice of Grilled Salmon or Barbeque Chicken. Register online by clicking September 5 in the Event Calendar at www.knoxbar.org. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. To have your name added to the section list, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).
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Law Office Tech Committee Meeting Senior Section Supreme Court Dinner In Chambers CLE TN Faith & Justice Legal Advice Clinic Professionalism Committee Meeting Access to Justice Committee Meeting Veterans Legal Advice Clinic Memorials Committee Meeting Barristers Meeting Judicial Committee Meeting Lunch & Learn ADR Extended CLE Diversity in the Profession Committee Meeting Barristers CLE Board of Governors Meeting New Lawyers Section CLE CLE Committee Meeting Diversity Program Volunteer Breakfast Extended Social Media CLE Volunteer Breakfast
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ADR Section CLE Law Office Tech Committee Meeting Family Law Section CLE Professionalism Committee Fall Hike Professionalism Committee Meeting Veterans Legal Advice Clinic Barristers Meeting Lunch & Learn Judicial Committee Economics of Practicing Law – UT College of Law Diversity in the Profession Committee Board of Governors Employment Law Section CLE Barristers Golf Tournament Volunteer Breakfast Economics of Practicing Law – LMU DSOL
Mark Your Calendar Supreme Court Dinner September 5, 2018 September 2018
PRESIDENT’S MESSAGE By: Keith H. Burroughs Egerton, McAfee, Armistead & Davis. P.C.
SOWING SEEDS As I have mentioned in previous articles and as many of you know from discussions through the years, one of my favorite hobbies is vegetable gardening. I have a plot in my back yard approximately 5,000 square feet in size, and this year I have okra, green beans, all varieties of tomatoes, four types of peppers, cucumbers, yellow squash, zucchini, sunflowers, and sweet corn. With all the rain we have had, this has been a wonderful growing season. It should be corn shucking and silking time when this message is distributed. For the first time, I was able to introduce my 2-year-old grandson, Ellison, to the joys of gardening early this spring. In addition to my large garden, I have two 4 feet by 8 feet raised grow boxes in which I start early crops. Attached is a picture of Ellison and me sowing multiple varieties of lettuce seed and radishes in early spring. He was quite careful to make sure he sprinkled the seeds exactly where I pointed. Throughout the spring and early summer, we have gone to the grow boxes regularly to see how the lettuce and radishes were growing. It was great to see the excitement in his eyes each time he inspected what his seeds had grown to be. As lawyers, we have the regular opportunity to sow seeds. We do a remarkably good job caring for and supporting our fellow lawyers through organizations such as the lawyers assistance program. But the seeds that I am thinking about that we may not often sow are for the well being of our profession, our care and concern for one another in the day to day practice, and how our treatment of and connection to one another serve as an example to the public. It is important to empathize and meaningfully connect with other human beings, even when our positions differ. If we try to understand the other person’s story and what motivates them to believe what they believe rather than trying to prove a point and show why the other person is wrong, we have a better chance of reaching common ground that may lead to a satisfactory resolution. To be effective however, we must listen more and speak less to better understand and identify common ground to best serve our clients to reach reconciliation. Maybe, just maybe, we can in the process serve as an example to the public at large and connect with them by serving to illustrate a different and more productive means to settling disputes.
Justice Moore for the remainder of his term, effectively barring him from ever serving on the Court again due to the age limitations in Alabama. Coincidentally, Doug Jones, a former prosecutor and our keynote speaker for the 2016 KBA Annual Supreme Court Dinner, defeated Roy Moore in a special and highly contested election for the United States Senate seat in December of 2017. I hope that you will come to the Annual Supreme Court Dinner and listen to this meaningful story of professional and personal connection that is so vitally meaningful in our lives and that you will come away with a new or enhanced perspective on the importance of healthy connections within our lives. September also has another exciting program on September 25 from 4:00 to 6:30 p.m. at the Foundry led by our guest speaker, Vicki Clark, who will speak on the topic of “Diversity and Inclusion: A Call to Action: From Awareness to Commitment.” Vicki’s presentation and the exercise that will follow will naturally tie into the theme of Ashby Pate’s keynote speech on the need for connectivity in our lives. We will be encouraged and even challenged to try to identify concrete ways to take our discussions and considerations of the topics of diversity and inclusion to actual commitment to action. Vicki will help us identify ways we can easily and concretely meet our objectives to continue the efforts of our bar association and our bar community to attract and retain people of diverse backgrounds through direct action and inclusion in our bar association, legal community and the community at large. I hope you will attend Vicki Clark’s presentation and the law student reception on September 25. I promise you won’t be disappointed. We plant seeds each day intentionally or not. I encourage you to join with me to find new ways to plant seeds of concern, collegiality, and reconciliation as we live our lives as lawyers and all the other roles we play daily. And I wish for you the joy that I experienced helping Ellison sow his lettuce and radish seeds in the early spring in whatever way you find pleasing. It will do your heart good.
The individual need for connection, the rule of law in making or breaking that connection and the need to hear out both sides will be a primary emphasis Ashby Pate will share as our keynote speaker for the KBA Annual Supreme Court Dinner on September 5 at the Crowne Plaza Knoxville beginning at 6:00 p.m. Ashby Pate, whose accomplishments are many, will share with us his story to help us better understand the importance for the individual need for connection in all areas of our lives. Ashby will remind us that the law’s highest calling is not to disconnect but to reconcile, both with respect to our clients and fellow colleagues as well as to better understand and hopefully remove the great divides within our country. One of Ashby’s most recent accomplishments was serving as co-counsel in the prosecution of Alabama’s Supreme Court Chief Justice Roy Moore for judicial ethics violations in 2016 by his direction to county Probate Court Clerks not to issue marriage certificates to same-sex couples that ended with the permanent suspension of Chief September 2018
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The KBA offers the key to finding the right mediator! Identify mediators who have been professionally trained, are knowledgeable in all of the issues that need resolution, are truly neutral and are also skilled in resolving the complex legal and financial matters.
Supreme Court plans Pro Bono Recognition in Knoxville http://www.tncourts.gov/ProBonoRecognition
The Supreme Court’s Attorneys for Justice program recognizes attorneys and law students who have done 50 or more hours of pro bono work in a calendar year. Attorneys can apply to be recognized when they renew their license with the BPR or they can apply using the attorney application. Law offices can also be recognized if the attorneys in the office do an average of 50 or more hours of pro bono work per attorney. The recognition recipients receive is a certificate signed by all of the Justices and an electronic version of the Attorneys for Justice seal which they can use on their websites, letterhead, and marketing materials. Local attorneys will be recognized during the KBA Annual Supreme Court Dinner on September 5, 2018 and have an opportunity to have their photo taken with the Justices. Learn more at http://www.tncourts.gov/ProBonoRecognition. 6
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September 2018
TECH TIPS By: Chuck Young Consolidated Nuclear Security, LLC
FOUR BOOKMARKS FOR LITIGATORS Keeping pace with developments in law and technology can be as dizzying as trying to read a novel while on the Tilt-A-Whirl at the Tennessee Valley Fair. I’ve found four websites that are valuable dizziness deterrents. Two are useful starting points for developing and maintaining your fluency when you have a case involving technology issues, and two offer a software tool that can both amuse and enlighten you. Sideways Dictionary (sidewaysdictionary.com) Suppose a client or prospect seeks your advice about a business opportunity involving BitCoin technology, or they show up complaining about a contract that they think involves unfair “sandboxing” of their work. You might have heard of BitCoin, and your last memory of a sandbox might be from kindergarten. In any event, you need a clearer understanding of the problem before you, both to communicate sensibly with your client and if you have to explain things to a judge someday. Sideways Dictionary provides easily grasped analogies to explain complicated tech concepts. It’s a joint project of The Washington Post, which is owned by Jeff Bezos of Amazon, and Jigsaw, which is affiliated with Alphabet/Google. You might dislike certain things about one or more of those parents, but most of us can agree that their depth of technology knowledge is superlative. The quality of the analogies you can access is equally high. The site’s simple, clean interface presents the most compelling analogy at the top, then offers other entries below it that you can vote on, just as you could “like” a Facebook post or vote up or down on an entry on the infamous Urban Dictionary website (which you probably should not do at work). The Post uses the site’s best analogies when its reporters use tech terms. For example, the entry for “Dark Web” starts with this: It’s like the dark side of the moon. The bright side (the internet) is visible to everyone – all you have to do is look up. To access the dark side, you need specialist software (a rocket). It then proceeds to analogize to icebergs, deep sea diving, and “a neighborhood with no visible house numbers.” In just a few minutes, you know enough to be dangerous, or at least survive an initial client meeting with a bit of confidence while they educate you further. The Sedona Conference (thesedonaconference.org) As Prosser is to torts, as Wright & Miller are to federal procedural law in general, the Sedona Conference is to the law of electronic discovery. Simply put, if you have an issue in any court, and certainly in federal court, that involves gathering or producing or preserving or properly deleting electronically stored information, you can most effectively serve your clients and enhance your own credibility by conducting research on the Sedona website. September 2018
The “Publications” tab not only lists freely downloadable articles and guidebooks, it also offers them in public comment versions that give you an opportunity to see how the sausage gets made. Some Sedona documents go through multiple rounds of commentary and drafting, creating a gold mine of insights and knowledge. You might find useful arguments for your client’s position that Sedona Conference members made in the process of drafting the final versions of the group’s documents – and you’re also likely to find counterarguments, which you can then anticipate and address before your opposition does. The easiest, and fairest, criticism of Sedona publications is that they can quickly get in the weeds and lose the layman. They do indeed dive deep on the Federal Rules of Civil Procedure, but they almost always preface their detailed discussions with accessible high-level summaries. They’re also great finding tools for cases or articles that may be even more on point for you. And sometimes, as we all know, you must get in the weeds to win. WordClouds (wordclouds.com) and Wordle (wordle.net) These fun apps are close enough in quality and content to present jointly. Paste text, upload a document, or open a URL in either one and it will generate a “word cloud” that helps you see what words appear most frequently in the source text. You can edit the clouds’ fonts, colors, layouts, and other properties to make the cloud more visually interesting – or to make a point. Of course, the word cloud is a familiar phenomenon; people have posted clouds depicting the Constitution, Supreme Court opinions, Shakespeare’s works, and so on. But I like to use these tools in my practice in two ways. First, in my own writing, whether I’m brainstorming or close to a final written product, I always reach points when I need a brain break. A good way to spend one is to run your existing text through one of these services. You’ll instantly get a visual that might convince you that you’re on the right track or surprise you with unnecessary redundancies you were unaware of and need to cure. Second, I like to take others’ work and run it through. If you’re writing a reply brief, in particular, you can identify themes in the opposition brief and, perhaps, pick up on subtleties that you need to address. If you have favorite law and technology bookmarks, please feel free to share them by e-mailing them to me at my address in the KBA Attorneys’ Directory. If I get enough interesting suggestions, I might be persuaded to repeat this exercise.
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OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber robertpryorjr.blogspot.com
THE CATCH A solitary fish moved beneath the surface of the pond to within a few feet of the shore, its slick body reflecting sunlight onto the rocks beneath. Then there was another and another until a large shadow formed before me. I felt like I could just reach in and pick one up. My father slid the hook through two kernels of the corn and handed me the cane pole. “Drop it in and let the bobber rest on the water,” he instructed. I couldn’t catch my breath and paced back and forth with excitement. “You have to be still,” he laughed. This is the image that comes to me now, 45 years later, when I think about fishing. Although fishing would never really serve as a bonding experience for me and my father outside of that first day in 1973, we have built a wonderful relationship over the years through other activities. We play golf, eat at the best places, go to UT games, and sue people that need suing - you know, the ties that bind. We would go on to try fishing on later occasions - on lakes, on rivers and on deep-sea-fishing vessels. However, if you go fishing with Bob Pryor, packing a cooler, finding a restaurant and the potential menu on the boat always carry precedence over tackle, rods, reels, skills or strategy. Perhaps I could’ve come to love fishing had he not fooled me on that spring day when I was 5 years old.
myself, I now know the accelerated feeling of euphoria watching your child’s excitement. I quickly concluded that fishing was fun…and easy. We were caught in the moment, and in that moment when my father and I were lost to the joys of practically fishing in a bucket, he did not realize there would be a cost. When we went to return our rods, our bucket was full. When the man began to weigh the bucket, my father learned we were going to be charged for our excursion…by the pound. Cue the cameras. The nice man put the fish on a stringer and got out his Nikon. My father forked over our family grocery money for the next two weeks and immediately began to consider how he would explain this explosion in the family budget. As Christmas approached that year, about the time we finished the last of the trout from the freezer, my Dad opened the Knoxville Journal to see an advertisement for my favorite fishing hole - “The fish are always biting at The Crosseyed Cricket”. A truer statement has never been offered in advertising. The photo captured my pride, and even now, in the weathered newsprint, you can glimpse the possible explanations to my mother turning over and over in my father’s head.
I
I never enjoyed fishing nearly as The Crosseyed Cricket is a much once I realized real fishing wasn’t can replay the excitement that came Lenoir City landmark. For those that easy. Even now I hear stories of of you who have never been, it is a with having that first fish on the men sitting for hours with their sons and locally-famous farm that at one time line beneath an East Tennessee sky only bringing home a couple of fish, and included a campground, restaurant and recapture the sense of jubilation and I have to roll my eyes, thinking ‘what a and two ponds. It still operates as a waste.’ They could’ve played golf or filed surprise I shared with my father. campground, having closed its fishing a complaint in Circuit Court. But, it and restaurant operations almost a wasn’t about the fish that day. The exact details of life’s early experiences decade ago. Back in the day one pond was stocked with catfish and the are sometimes hard to grasp, and as hard as I search I can’t remember other, smaller pond, with trout. The menu in the old mill and cabin many of the specifics outside of what is recounted above. But, I always on the property consisted of fried fish from the ponds, french fries and remember how I felt. I can replay the excitement that came with having hushpuppies that would break your heart. When we were growing up it that first fish on the line beneath an East Tennessee sky and recapture the was a regular treat for me and my siblings to go to the Crosseyed Cricket sense of jubilation and surprise I shared with my father. More than any of for dinner. We could run around before they called our name, skip rocks it, I’m still overcome by the warmth of feeling safe, happy, and loved on and look at the fish inside the pond. the bank of a pond in a world that seemed so big. On that first visit, we weren’t eating. We were fishing, and It felt like it was going to be as easy as sticking your hand in a bucket of Halloween candy. I wasn’t too far off. When I put my line in the water, the corn actually landed ON a fish. Within 5 seconds a trout hit my line, and I yanked to set the hook. He began to run, but there was nowhere for him to go. The pond was the size of a large swimming pool. I ran along the bank, trying to keep my balance, and my father grabbed my shirt to keep me from falling in. I pulled him onto the bank, and my dad put him into our bucket and removed the hook from his mouth. Watching my father perform these tasks quickly revealed his lack of expertise. He looked like he’d been handed hot rocks. He has always told us that we had Cherokee blood. I’m sure his Cherokee name didn’t include a fish reference. Just like that, I had corn on the hook and back into the trout-filled depths. These fish wanted you to catch them. The onslaught began. There were other kids there, but they weren’t filling their buckets like mine. They didn’t stay long, quitting after only a couple of fish. They looked so distraught and jealous. I was “a hoopin and a hollerin” as my grandmother use to say. Dad joined in the excitement. Being a father
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September 2018
PRACTICE TIPS By: Elizabeth Towe Bernstein, Stair & McAdams LLP
FAMILY MATTERS – DIVIDING RETIREMENT ACCOUNTS IN DIVORCE The dreaded QDRO… even the mention of a Qualified Domestic Relations Order is enough to send some long-suffering divorce attorneys over the edge and to dissuade wise barristers from taking a cousin’s teacher’s friend’s divorce case. Be that as it may, if you have ever considered jumping into the world of divorce law, you have come face to face with the issue of equitably dividing retirement accounts. The following is a trusty checklist for facing retirement accounts with confidence: DO plan ahead. When crafting your discovery, you should always include requests for information regarding the opposing party’s retirement accounts, including whether that party claims a separate interest in each account and any information you will ultimately need when dividing the account. Armed with this information, you can contact the plan administrator in advance, so that you can avoid the next DON’T. DON’T assume all plans can be divided by QDRO. Realizing only too late that a plan cannot be divided has been the cause of much weeping and gnashing of teeth among those attorneys who did not ensure in advance that the plan could be divided as set forth in the parties’ agreement. By way of example, as recently as 2016, Tennessee Consolidated Retirement System Plans (TCRS) could not be divided by QDRO.1 Employees of the state of Tennessee have TCRS plans, including those working for county schools. Mercifully, that prohibition has since been abandoned, but it serves as a good reminder to find out before the divorce is finalized whether you will be able to execute the Martial Dissolution Agreement as agreed to and ordered. DO determine what kind of plan you are dealing with. 401(k)s, Individual Retirement Plans, Pensions, and Military Pensions all have different requirements for division, and some do not even necessitate a QDRO, but rather need some other form or order. DO determine the marital and separate interest of each plan. A 2015 revision to the Tennessee Code Annotated2 provides as follows: “The account balance, accrued benefit, or other value of vested and unvested pension benefits, vested and unvested stock option rights, retirement, and other fringe benefits accrued as a result of employment prior to the marriage, together with the appreciation of the value, shall be “separate property.” In determining appreciation for purposes of this subdivision (b)(1)(B)(iii), the court shall utilize any reasonable method of accounting to attribute postmarital appreciation to the value of the premarital benefits, even though contributions have been made to the account or accounts during the marriage, and even though the contributions have appreciated in value during the marriage; provided, however, the contributions made during the marriage, if made as a result of employment during the marriage and the appreciation attributable to these contributions, would be “marital property.” When determining appreciation pursuant to this subdivision (b)(1)(B)(iii), the concepts of commingling and transmutation shall not apply.” (emphasis added)
September 2018
This update to the law allows for the appreciation in a party’s premarital interest in an employer sponsored retirement account to be considered that party’s separate property. So, how do you determine the appreciation of the premarital interest, when some (or even most) of the contributions were made during the marriage? (I know you are on the edge of your seat. Keep reading!) DON’T let your client leave money on the table. You should know the methods of determining the marital and separate interest of each type of plan. You will need to prove the post marital appreciation of your client’s premarital retirement account value. The legislature provides that you can do this by “any reasonable method of accounting.” This does not expressly require an expert, but you shouldn’t attempt to prove it without one. If you can see that proving post marital appreciation is going to be an issue in your case, get a forensic accountant on board early, so that you can have the numbers you need for negotiating before proceeding to mediation. DO proceed with caution when dealing with pensions. The Courts have used two methods to determine the marital and separate interests in a pension. The first is a coverture fraction. This method requires the performance of simple math, the bane of many a litigator’s existence. It allows the court to “determine the formula for dividing the monthly benefit at the time of the decree, but delay the actual distribution until the benefits become payable. The marital property interest is often expressed as a fraction or a percentage of the employee spouse’s monthly benefit. The percentage may be derived by dividing the number of months of the marriage during which the benefits accrued by the total number of months during which the retirement benefits accumulate before being paid.”3 Another method of determining marital value and dividing a pension is the present cash value method, which typically requires an actuary. The present cash value method “requires the trial court to place a present value on the retirement benefit as of the date of the final decree.… Once the present cash value is calculated, the court may award the retirement benefits to the employee-spouse and offset that award by distributing to the other spouse some portion of the marital estate that is equivalent to the spouse’s share of the retirement interest.”4 Finally…. DO request QDRO requirements from the Plan Administrator prior to drafting the QDRO and send the QDRO to the plan administrator for approval prior to sending the order to the Court for entry. Each plan administrator has specific (and often tedious) requirements for accepting a QDRO and dividing a plan. You will save yourself hours of banging your head against a wall (and an Amended QDRO) if you request the information necessary for approval of the QDRO prior to submitting it for entry. http://treasury.state.tn.us/tcrs/QDRO.html. 2015 Pub.Acts, c. 202, § 1, eff. July 1, 2015. Cohen v. Cohen, 937 S.W.2d at 831. 4 Id. 1
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L E G A L LY W E I R D By: Lisa J. Hall Hodges Doughty & Carson
GAMES PEOPLE OF WALMART PLAY Shoplifting can be really challenging. Many stores have video surveillance, the watchful eye of employees, and for certain items, attached security devices that would trigger an alert if not removed before the item leaves the store. Necessity being the mother of invention, Dennis Jackson thought outside the Play Doh jar late last year and used the modeling compound to cover the security device attached to electronics at a Walmart store in Leicester, Massachusetts. Ultimately, the Play Doh was ineffective, so Jackson dropped the item and ran. Unfortunately for Jackson, not only did the Play Doh betray him by failing to thwart the security device, but it also preserved a very good fingerprint, which the police posted on Facebook. Eventually, there was a match with Jackson, who had 129 entries on his Board of Probation record and has used 18 aliases. When the fingerprint led the authorities to Jackson, he was already in custody for outstanding warrants in New Jersey and Pennsylvania. Play Doh has always been a great way to express creativity, and Jackson was able to come up with a new use for it. Maybe if he had spent more time playing chess and less time playing with Play Doh as a child, he could have developed some skills that would have better supported his criminal career by learning to think a step or two ahead. Instead, he may as well have left a calling card for the police.
At a Walmart in Lake Wales, Florida, one man must have used his skills developed playing charades as a young lad when he faked having a heart attack to distract Walmart employees from the fact that his friend was stealing almost $400 worth of toys, including a motorized Power Wheels Barbie car. The two men were captured on surveillance video filling a cart with items. As they neared the exit, 27-year-old Genard Dupree began clutching his chest as if he was having a heart attack. As surrounding shoppers tried to assist Dupree, his companion, Tarus Scott left the store with a cart full of toys. Once Scott made his getaway, Dupree recovered quickly and left the store in the same car as Scott, who also had a LeapFrog tablet and Barbie vacation home play set. The two men were positively identified and arrested a short time later. I have to give them props for the initial execution, but maybe if they had worked on a simple disguise, they could have gotten away with the theft and escaped identification on the video. Maybe next time. In Virginia, a man simply wore a Walmart vest over his tan cargo pants and gray hooded sweatshirt and entered the stockroom, where he loaded four flat-screen televisions and pushed them out of the store through an emergency exit. He loaded them into a waiting SUV and left. Clearly, of the three Walmart bandits featured here, he is the winner. I have not identified him, because at least at this point, he has not been caught. He kept it simple, kept his confidence, and kept those four TVs. If there is a moral to this story, it has to be that the game of chess will serve you better in life than playing with Play Doh. That, or that a clever disguise may just help you steal that Barbie Dream House after all. Or, fake it till you make off with four televisions.
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LANDING HOUSE IN SOUTH KNOXVILLE WAS THE LOCATION FOR THE KBA SOCIAL HOUR ON JULY 26TH
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L E G A L U P DAT E By: Howard B. Jackson Wimberly Lawson Wright Daves & Jones, PLLC
JANUS: FIRST AMENDMENT TRUMPS FREE RIDERS
Background
For those not familiar with the process, a union seeks to represent a set of employees, called the “unit.” When a union succeeds in becoming the representative of the employees, it represents all employees in the unit for collective bargaining and other purposes. The union must provide fair representation to every employee in the unit, without regard to whether the employee is a member of the union.
The Court then applied that standard to the justifications advanced in support of permitting the “fair share” fee laws. In Abood, the primary justifications were labor peace (described as avoiding inter-union rivalries and confusion from employers signing agreements with more than one union), and avoiding free riders. The Court rejected the labor peace justification. Experience postAbood has shown that public sector employers, including in the federal government and in the twenty-eight states that do not have “fair share” fee statutes, did not experience labor difficulties. In short, the asserted justification simply did not exist.
Previously, twenty-two states had laws that permitted unions representing public sector employees to charge fees, sometimes called The Court also rejected the free rider justification. Avoiding free “fair share” or “agency” fees, to employees who were in the unit, but who riders did not constitute a compelling public interest. In this regard, the had chosen not to become members of the union. The intent was for the Court noted that “free rider arguments . . . are generally insufficient to “fair share” fee to meet the cost of collective bargaining and other overcome First Amendment objections.”6 activities engaged in by the union on behalf of the employees, but to In addition, the Court found that any relieve non-members of costs associatconcern that allowing free riders would ed with other union activities, such as he right of free speech includes remove the incentive for unions to political activities. The most common represent public employees did not square the right not to speak, and the justification for this arrangement was with experience. Unions represent millions right not to be compelled to that it prevented “free riders.” of employees in the federal government and support any particular viewpoint. the twenty-right states that do not allow the In a 1977 decision, Abood v. fair share fee arrangement. Accordingly, that 1 Detroit Board of Education , the U.S. concern was not valid, much less compelling. Supreme Court approved state laws that permitted such fair share fee The Court concluded that “public-sector agency-shop arrangements arrangements. In Janus v. American Federation of State, County and Muviolate the First Amendment, and Abood erred in concluding otherwise.”7 2 nicipal Employees , a child support specialist with the Illinois Department This did not end the Court’s considerations, however. of Healthcare and Family Services who was forced to pay a $44 a month The Court then engaged in an extended analysis of whether stare agency fee challenged the law on First Amendment grounds. decicis nevertheless counseled against overruling Abood. In holding that it did not, the Court found that the factual underpinnings of Abood The Janus Decision had eroded. Its assumptions about the importance of a closed shop to the survival of public sector unions were not borne out by experience. The bottom line is that the Janus court overruled Abood, and found Moreover, Abood’s reasoning was inconsistent with much of the Court’s that requiring payment of such fees was unconstitutional: “States and First Amendment jurisprudence, including particularly “cases holding public-sector unions may no longer extract agency fees from nonconthat public employees generally may not be required to support a political 3 senting employees.” Going forward unions must obtain the employee’s party.”8 In short, the decision had become an outlier, and was founded consent to collect such fees. on factual assumptions that turned out not to be correct. Therefore, the Court was not required to maintain the decision on stare decisis grounds. In its analysis, the Court noted the central importance of First Amendment free speech rights in our Constitutional framework. The Conclusion right of free speech includes the right not to speak, and the right not to Some predict that this decision sounds a financial death knell be compelled to support any particular viewpoint. In this regard, requirfor public employee unions. But as the Court noted, unions represent ing a person to financially support the speech of another also raises First millions of public sector employees where fair share fees are not allowed. Amendment concerns. While the financial loss will certainly be significant, and may curtail certain expenditures, reports of the impending demise of such unions are With the above background in mind, the Court turned its attention greatly exaggerated. to determining what level of scrutiny should be applied when analyzing the constitutionality of a compelled subsidy of the speech of another. 1 431 U.S. 209 (1977). The Court found that, “Because the compelled subsidization of private 2 No. 16-1466, 585 U.S. ___ (2018). 3 speech seriously impinges on First Amendment rights, it cannot be Janus, Slip. Op., p. 48. 4 Id. at p. 10. casually allowed.”4 Accordingly, the Court determined that the “exacting 5 Id. (citation and quotations omitted). scrutiny” standard applied. Under that standard, “a compelled subsidy 6 Id. at p. 13, (citation and quotations omitted). 7 must serve a compelling state interest that cannot be achieved through Id. at p. 33. 8 Id. at p. 44. means significantly less restrictive of associational freedoms.”5
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MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Cathy Shuck East Tennessee Children’s Hospital
ASSESSING YOUR COVERAGE:
TIME FOR CYBER LIABILITY INSURANCE? By now, most law practices understand that computer security is important. Cyber threats are everywhere: email phishing schemes designed to infiltrate your system and steal valuable information; hackers attempting to plant ransomware in your network, locking it down until you pay for the key; and careless employees who don’t follow your data security policies. Staying ahead of cyber threats can require more time and attention than most small or medium size businesses can muster. And with the pervasiveness of hacking, it is probably best to think about cyber incidents the same way pest control companies tell us to think about termites: it’s not a question of if you’re going to be infiltrated, it’s a question of when. As such, cyber incidents need to be a part of any business’s risk management and risk mitigation strategy. If your system is hacked, what is your exposure? As the feature article in this issue points out, you could be liable for malpractice. If you handle regulated information, such as patient information or certain types of financial information, you are at risk for stiff regulatory penalties and notification requirements in the event of a breach.1 If you handle personal information, including consumer information, you may be liable for individual damages and be responsible for notification under Tennessee’s breach law.2 If your entire system is locked down or infected, consider the lost productivity you will incur.3 A key component in your risk mitigation strategy may be cyber liability insurance. Relying on other types of insurance to cover the losses flowing from a cyber incident can be risky. Fidelity and crime policies are often too narrowly-written to cover the full range of losses from a cyber attack originating outside your organization. Property insurance often will not cover intangible losses. And commercial general liability policies may outright exclude electronic incidents and/or privacy breaches, or the insurance company may argue successfully that the act(s) at issue are not within the scope of the policy. For example, in Innovak International, Inc. v. Hanover Insurance Co., the plaintiff software firm was sued in a class action brought by consumers who were allegedly harmed by a hack of the plaintiff ’s internet portal. 4 The firm tendered the claim to the defendant insurer under its general liability policy, identifying four possible bases for coverage: bodily injury, property damage, advertising injury, and data breach. The insurer denied coverage entirely.5 The firm brought suit seeking a declaration that the insurer had a duty to defend, but the court granted the insurer’s motion for summary judgment. The insurer was able to distinguish the claims asserted in the underlying action from all of the possible avenues of coverage, arguing successfully that, among other things, the underlying claimants’ alleged injuries were emotional, not physical; there was no accident or negligence, because the hack was an intentional act; the damages were caused by the third-party hacker(s), not the insured; there was no publication of the claimants’ personal
information; and there was no duty to defend under the data breach coverage.6 The take-home lesson from Innovak is that, rather than trying to shoehorn coverage for a breach or other cyber claim into a policy that was never intended to cover the claim, it is better to get coverage that actually fits. But how do you know what to buy if you’ve never needed it? Unlike most types of business insurance, cyber insurance is still a relatively new product, and coverage and cost can vary substantially among carriers. It is important to look at multiple options, and be sure you understand what is and is not covered. Some coverage elements to look for include: • Breach notification expenses • Expenses related to forensic investigation of the breach • Legal advice related to the breach • Media/PR expense • The cost of offering credit monitoring to customers • Business interruption • Costs of defense • Settlements, damages and judgments related to the breach • Regulatory fines and penalties Finally, in considering the appropriate policy limits, note that there are likely to be separate sub-limits and retention levels for different coverages. As one of my colleagues likes to say, spending money on insurance is the dumbest thing in the world – until you need it. Just like fire insurance, theft insurance, and other types of insurance you carry to guard against possibilities that may seem remote, cyber liability insurance should be considered as part of your overall strategy to protect your law practice. 1 See,e.g., the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d et seq. and its implementing regulations. People are sometimes surprised to learn that HIPAA fines apply even where the entity reporting the breach is the victim of a cyber attack. 2 Tenn. Code Ann. § 47-18-2107. 3 See,e.g., Richard Winton, Hollywood hospital pays $17,000 in bitcoin to hackers, LA Times, Feb. 18, 2016 (describing the ransomware attack on Hollywood Presbyterian Medical Center that shut down the hospital’s computer system for three days), available at http://www.latimes.com/business/technology/la-me-ln-hollywood- hospital-bitcoin-20160217-story.html. 4 280 F. Supp. 2d 1340, 1341-42 (M.D. Fla. 2017). 5 Id. at 1342-44. 6 Id. at 1343-44; 1347-48.
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. September 2018
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BAR HOPPING By: Brady Cody Lewis Thomason
New for 2018, Bar Hopping will highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. Congratulations to Brian Sellers and Andi Anderson for correctly identifying the Bradley County Courthouse. This month we’re taking you inside the courtroom. Need a hint? This is the last courtroom where a lawyer will appear on your behalf. Think you can name this courthouse? Email me at bcody@lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of Dicta. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.
CORRECTION TO THE 2018 ATTORNEYS’ DIRECTORY
It’s a Family Matter
Please note that the firm listing for The Burkhalter Law Firm, P.C. was incorrect in the recently released Attorneys’ Directory. Please note the following changes on page 203.
The Burkhalter Law Firm, P.C.
Asset Management | Trust Administration | Estate Services Since 1993, our focus has been on preserving our clients’ financial assets, managing growth, and efficiently transferring wealth from one generation to another. We work closely with attorneys to insure the coordination of our clients’ personal and financial goals.
To learn more about our services, contact:
John L. Billings, Vice President - Client Administration 865.297.4070 | tcvwealth.com
111 S. Central Street Knoxville, TN 37902 P.O. Box 2777 Knoxville, TN 37901 Telephone: (865) 524-4974 Facsimile: (865) 524-0172 Website: www.burkhalterlaw.com
Serious Personal Injury and Wrongful Death Cases; Wrongful Discharge/Discrimination/Sexual Harassment Cases; Whistleblower Qui Tam Cases (False Claims Act, SEC, IRS, Anti-Kickback Statute, Stark Law, etc., such as contractor/securities fraud or Medicare/Medicaid fraud). [Representing injured parties, employees or whistleblowers only] David A. Burkhalter, II Zachary J. Burkhalter
D. Alexander Burkhalter, III
A trust is not required to utilize our investment expertise.
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SOLO/SMALL FIRM PRACTIVE TIPS By: Esther Roberts Global Intellectual Property Asset Management, PLLC
MINIMALISM FOR SOLO PRACTITIONERS, OR, “WHAT I WISH I’D KNOWN WHEN I FIRST SET UP SOLO SHOP.” When I graduated law school in 2001, the economy was booming and there were jobs aplenty for newly minted attorneys. Today, Tennessee has six law schools. If one assumes each school graduates at least 100 law students per year who pass the bar, then every five years we add 3,000 practicing attorneys to the State Bar. On the one hand, it is wonderful to have new attorneys joining our profession. On the other hand, however, is the stark reality that many of those new attorneys will not be taking the traditional path to partnership. Put plainly, there are too many new lawyers for the number of openings available to them in traditional law firms. Thus, many of these new lawyers are going to be opening their own firms out of necessity. Others choose to take the solo route as they seek a better work-life balance. Whatever the rationale, starting a solo firm is a monumental and daunting task. Having survived that challenge (I started my firm in December, 2011), I offer these lessons learned and cautionary tales in the hopes that those who are just starting out might learn from my mistakes. Minimize Physical Space Costs. How I started out. I specialize in intellectual property and pet trusts, both of which are niche fields of law. Because of this, when I first opened my firm, I thought I needed to lease downtown office space to be visible to the local bar and (hopefully) gain referral business. While that did, in fact, work for me in 2011, the costs of leasing office space, buying furniture and multiple computers, printers, phones, and etc., meant my start-up overhead was astronomical. What I learned. Eighteen months ago, I moved my firm to my home. This move has allowed me to: lower my overhead by at least 50%, work in a more focused environment thus enhancing my work efficiency, work on a more flexible schedule while simultaneously increasing workload, lower my overall stress and anxiety, and be a better lawyer. Takeaways. Working from home can be a very cost-effective way to start your firm. If you choose to do so, I recommend these things: 1. Devote at least two hours per week towards “maintaining visibility.” Join a KBA committee, attend CLEs, get involved in specialized organizations such as ETLAW or NACDL, call attorneys you know and invite them to lunch, etc. These activities will keep you engaged with your colleagues for networking/referrals and will help you avoid feeling isolated. 2. Work away from home for a half-day at least twice a month. Take your laptop and sit in a coffee shop with a cool vibe, or in your nearest public library, or under a tree in a park. Otherwise, you wind up living and working in the same space for hours and days on end. Changing up your environment will help you keep a healthy perspective on “work” versus “home.” Minimize Employee Costs. How I started out. It is a fact that having an excellent assistant can make any attorney more productive. Throughout the first five years of my firm, I had assistants than ran the gamut from awesome to awful. What I learned. Solo practitioners rarely keep good help. Solos
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unwittingly serve as “trainers” for assistants who, if they’re good, get recruited by larger firms who can pay higher wages and/or better benefits. Takeaways. These days, I do not have an assistant. I analyzed the time I had invested to advertise, recruit, interview, hire, and train assistants and decided the cost was too high. I set aside one half-day per week to do administrative tasks. Minimize Equipment Costs - wisely. How I started out. In 2011, I purchased three Apple® computers, three printers, a multi-phone system, wired internet service, fridge and microwave, along with a variety of new and used furniture. Two of the computers were custom-ordered to have enhanced storage up to 3Terabytes. What I learned. If you do not have a home office, the fridge and microwave are important purchases. You save enough in “brownbagging” your meals to pay for both appliances in the first year. I still use the computers; investing in the extra storage on those two machines was one of the smartest things I ever did. I could have purchased much cheaper computers, but the long-term investment was far smarter than having to replace computers every three or so years. I have cloud backup and also onsite backups via 3 separate storage units (two 1Ts; one 4T). I use a wifi hotspot instead of wired internet service, so my “office” is very portable. I use my cell phone as my office phone. My clients appreciate having direct access to their attorney. I set aside certain hours to answer/ return calls and otherwise focus on the work and let voicemail do its job. Takeaways. Invest in the best technology you can afford, but do not buy what you do not need. Minimize Fiscal “Costs.” How I started out. Fiscal “costs” mean the concerns I have about managing money correctly. I never want to make a mistake with my client’s money nor my firm’s bookkeeping. So, within just a few weeks of opening my firm, I took a CLE on IOLTA management. I found an excellent accountant. What I learned. Whether I use Excel® or old-fashioned green ledger books doesn’t matter. All that matters is the firm’s bookkeeping is correct. To the penny. Every month. Takeaways. Always remember your client’s money is theirs until you earn it, even if it’s sitting in your IOLTA. Final thoughts. - Invest in a comfortable chair and excellent lighting. A stand/sit variable desk is also a wise investment. - Utilize the KBA mentor-for-the-moment program and the LRIS program. - Take appointed work, especially in juvenile courts – many Tennessee children need good attorneys. - Set aside at least one day each month and do not work at all. Solo practice is incredibly stressful, so be a good boss and give yourself regular days off. - Most importantly, believe in you.
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Take Me Phishing:
Ensuring Your Firm is Prepared for the Unfortunate Reality of Data Breaches When discussing data breaches, the consensus among data security a security policy in place, that day will come soon. Corporate clients go to professionals is that it is no longer a question of “if ” an organization might great lengths to protect their customers’ information. There is a growing get breached, but rather a matter of “when” and “how often” an organiexpectation among clients that, when they hand over their information to zation has been breached. In the last year alone, large companies such a law firm, it will be just as safe as when it is the client’s possession. as Facebook, Equifax, Panera Bread, Saks Fifth Avenue, Under Armor, With Tennessee’s 2017 adoption of the Ethics 20/20 comment, Forever 21, and Whole Foods have made headlines when their customers’ the need for regular review of your firm’s data security policy may soon personally identifiable information was breached (or at least suspected by be intertwined with your ethical obligations as an attorney. Under the some to have been breached). Based on the latest reports from insurance newly revised comments to Tennessee Rule of Professional Conduct 1.1, carriers, hackers have set their sights on a new target—law firms. While an attorney’s duty of competence includes a requirement to “keep abreast larger corporations may have the resources to fortify their technical perimof changes in the law and its practice, including the benefits and risks eter security, in many cases, law firms do not. Law firms often maintain at associated with relevant technology.”2 It is not difficult to foresee a future least a portion of their clients’ treasure trove of proprietary, financial, and where a client could conceivably file a professional responsibility comhealthcare data, but without the commensurate security measures as their plaint because of a data breach due to an alleged failure of a lawyer to stay clients. With Tennessee’s recent up to date on issues related to data adoption of the American Bar security. While we may not be there ccording to a recent report by Association’s Commission on Ethics yet, with the increase in client expecthe American Bar Association, 20/20 model comment concerning tations pertaining to data security, a an attorney’s ethical obligation in approximately one-third of surveyed rise in legal malpractice claims related connection with new technologies, to law firm data breaches may be on firms reported either having no data security now is a great time to assess your law horizon. Based on a survey of policy or no knowledge about security policies, the firm’s data security practices to reduce nine major malpractice insurers, data the likelihood of these attacks, as well and only one-quarter reported having an security breach issues have recently as evaluate your readiness to respond become a leading basis of legal malincident response plan. when hit. practice claims.3
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A new kind of malpractice? Like any good attorney, you know your case inside and out. Can you say the same for your firm’s data security? Law firms have been regarded as a soft underbelly of their clients’ data security for too long. Without a data security policy in place, it is hard for a law firm to begin to assess and improve their data security. According to a recent report by the American Bar Association, approximately one-third of surveyed firms reported either having no data security policy or no knowledge about security policies, and only one-quarter reported having an incident response plan.1 Don’t be in the minority when it comes to this issue—your firm needs a data security policy. If your firm already has a security policy, that’s a good start but, before you think you are ahead of the curve, when was the last time that someone reviewed that policy? It needs to be reviewed regularly—at least once a year. Not only are security technology and practices constantly evolving, but perhaps more importantly, the cyber threats that security technology and those procedures are intended to guard against are an ever-changing target. Also, if a client has not asked whether your firm has
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Additionally, you should know whether or not your firm has client information covered by data protection statutes or regulations, such as HIPAA. Regulators are taking notice, so you should, too. For instance, the U.S. Department of Health and Human Services, Office for Civil Rights announced a $650,000 settlement in 2016 with a business associate for a HIPAA violation, reportedly the first such action taken directly against a business associate.4 In addition to these types of laws and regulations, your firm may also have contractual obligations to protect information. Another consideration in protecting client data is knowing how and where it is stored. As cloud storage becomes ubiquitous, lawyers should know the considerations involved in storing data in the cloud. The Tennessee Board of Professional Responsibility issued a formal ethics opinion addressing the question “May an attorney ethically store confidential client information or material in ‘the cloud’?”5 The answer is yes, so long as the lawyer takes reasonable care that the data remains confidential and that reasonable safeguards are employed to protect the information from breaches and other loss. When was the last time you reviewed your service agreement with your cloud storage vendor? Does it cover safeguards?
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COVER STORY By:
Justin Joy and Brady Cody Lewis Thomason King Krieg & Waldrop
Even with reasonable data security safeguards in place, law firms should be ready to respond and recover from a data breach. Chances are, at some point in time, your firm will experience some type of data security incident. Your data security incident response plan – like your firm’s security policy – needs to be reviewed often. The plan should identify individuals to contact in the event of a breach. These individuals should include those responsible for operational functions, such as HR and IT officers, and specialized outside professionals such as computer forensic experts and legal counsel familiar with breach response. Beyond simply reviewing the plan, it is a good idea to have the breach response team identified in the plan go through mock scenarios to determine if it works and where there may be gaps, either internally or externally. The 2016 amendment to Tennessee’s data breach notification law added a provision specifying the number of days within which affected individuals must be notified. Under the current law, law firms have only 45 days to notify those affected.6 While 45 days may seem like more than sufficient time to provide notification, a law firm caught flat-footed and unprepared to address a data breach may have a difficult time complying with this timeline. Have you thought about whether, and more importantly how, your firm can comply with this new requirement?
1 David G. Ries, ABA TechReport 2017, American Bar Association (2017), https:// www.americanbar.org/content/dam/aba/publications/techreport/2017/security/ security-dave-ries.authcheckdam.pdf. 2 In re Petition to Amend Selected Provisions of Tenn. Supreme Court Rule 8, No. ADM2016-01382, 2017 Tenn. LEXIS 148, at *15 (Mar. 6, 2017); Tennessee Rule of Professional Conduct 1.1, Cmt. 8 (2018). 3 News Release, Ames & Gough, Conflicts of Interest, Expending and Complex Practice Areas Trigger Most New Legal Malpractice Claims (June 26, 2018), https://www.amesgough.com/sites/default/files/A%26G%20News%20Release%20 %202018%20LPLI%20Insurer%20Survey%20-%206-26-18%20-%20Final_0.pdf. 4 Press Release, U.S. Dep’t Health & Human Servs., Office for Civil Rights, Business Associate’s Failure to Safeguard Nursing Home Residents’ PHI Leads to $650,000 HIPAA Settlement (June 29, 2016), https://www.hhs.gov/hipaa/for-professionals/ compliance-enforcement/agreements/catholic-health-care-services/index.html. 5 Tenn. Bd. Prof’l Responsibility, Formal Ethics Op. 2015-F-159 (2015) (addressing storing client information in the cloud). 6 Tenn. Code Ann. § 47-18-2107(c).
Fires, floods and data breaches. Just like other risks facing your law firm, such as fire or flood, cyber liability risk must be considered and managed. One way of managing this risk is obtaining a cyber liability insurance policy. Chances are, a loss caused by a data breach is not going to be covered under a professional liability or general commercial liability policy. A policy covering specific risks associated with cyber liability may not only provide indemnification in the event of an actual loss but, depending upon the policy, may also provide coverage for things like ransomware attacks and breach notification expenses. Like other risks threatening your law firm, cybersecurity risks cannot be eliminated but they can be managed, and in many ways, mitigated. As security technology continues to improve and become more accessible for organizations of smaller sizes, hackers are focusing their attention on the network components that continue to be most susceptible to their attacks: humans. Whether it is a weak password, clicking on a malicious link, opening an attachment in a bad email, or other action creating a vulnerability to a network, assessing and addressing the human element must be part of any cyber risk management program. Creating a security aware culture within a law firm is just as, if not more, important than spending considerable sums on sophisticated cybersecurity technology. Regular security awareness training for law firm employees goes a long way in helping to prevent data breaches.
Is your firm prepared for a data beach? If your firm hasn’t considered its cybersecurity risks and you don’t know where to start, resources are available. Likewise, in our experience, organizations who have had data security policies in place for years often need just as much help as those just starting to consider their cyber risk. Over time, policies begin to overlap, can become duplicated, and may even conflict with other policies. Security procedures need periodic review and updating to keep up with dynamic cyber threats. With Tennessee’s adoption of the Ethics 20/20 model comment, now is a great time to reassess – or perhaps assess for the first time – your firm’s cyber readiness. In the process, you will increase your firm’s ability to keep your client’s information confidential and secure, and reduce your firm’s risk of a potential ethical complaint or other problems. September 2018
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OF LOCAL LORE AND LAWYERS By: Joe Jarret Attorney At Law, University of Tennessee
JUSTICE ON THE KNOX COUNTY
FRONTIER: RANDOM THOUGHTS ON THE STATE OF THE LAW DURING KNOX COUNTY’S FORMATIVE YEARS The Not So Grand Jury When members of the Bar reflect on the institution known as the Grand Jury, we view its function as very limited and minimal as provided for in the United States and Tennessee Constitutions. 1 The same cannot be said of the form this venerable institution took in 18th Century Knox County. Endowed with the lofty title “Grand Inquest for the Body of the County,” Knox County’s first grand jury was convened in 1792, the same year Knox County was founded. For the next four years, until Tennessee achieved statehood, cases were brought in the name of the United States under which the territorial government functioned. 2 A body independent of the courts, the Grand Inquest seemed to spend about as much time seeking to rid the county of various nuisances as it did bringing criminal charges against local miscreants. For instance, it attempted to declare the local army barracks, an arm of the United States Government, a nuisance. A copy of the presentment was sent to John Sevier who was, at the time, a member of Congress. It likewise issued a presentment declaring the “County Privy” (public toilet), a nuisance, and only desisted when a Knox County Judge vowed to bring the matter before the County Court. 3 It also issued an indictment against one Peggy McMahon for committing the offense of being a “public scold,” a type of public nuisance considered to be a troublesome and angry person who broke the public peace by habitually chastising, arguing, and quarrelling with their neighbors. Both men and women were subject to being labeled public scolds, and it appears the Grand Inquest regularly busied itself with such busybodies, indicting more men than women. 4
Jailhouse Blues Pick up a newspaper or go online, and you’ll be hard-pressed NOT to find an article announcing the deplorable condition of America’s correctional institutions. Social scientists are constantly lamenting the fact that our jails are overcrowded, that inmates aren’t receiving adequate healthcare, etc. As is often the case in our Nation’s history, what is past is prologue. Take John Love, sheriff of Knox County, who, in 1802, approached the Knox County Court and did something most politicians avoid like the plague: he advocated for a tax. Specifically, he sought a jail tax to remedy the deplorable condition of the Knox County Jail. Back then, county courts were empowered to “Levy a tax on land and polls within the County respective, for the purpose of repairing or building court houses, prisons, and stocks.” 5 Writing to the “Worshipful Court of Knox County” he offered the following: “The jail of Knox County has been so frequently broken open and so much Injured thereby that it is by me deemed inadequate for the safe keeping of offenders against the law. I also feel it to be my duty to protest and I do hereby protest against the jail of the said County of Knox to the end that I may not, in case of escapes from confinement therein, be charged with neglect of my duties or be considered answerable for damages for want of a good and sufficient jail.” 6 Persuaded by the good Sheriff ’s argument, the tax was enacted, and a new jail constructed.
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While on the subject of taxes, the county court was circumspect when it came to levying taxes, despite its broad authority to do so. Soon after levying the jail tax however, the county court approved this additional, and I would argue, necessary expenditure: “Order that the body of this County purchase the following books for the the use of the court, to wit, Iredell’s revisal of the Laws of North Carolina, Ruffhead’s Dictionary, Blackstone’s Commentarys [sic] and such blank books are necissary [sic] for the records of this Court.” 7 Seven years later, the court approved monies to secure bound copies of the laws of the Territory South of the Ohio, and the Laws of Tennessee, “to be kept for the use of the court. 8
Conclusion As you can imagine, the formative years of Knox County’s legal system are rich with anecdotes, courthouse lore, and the trials and tribulations of life on a fledging state’s frontier. I can hardly do it justice in this terse writing, but it is my hope that it will give you a glimpse into the lawyer’s lot of a bygone era. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...” Amendment V, United States Constitution; see also Tenn. Const. Art. I, § 9, that in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment. 2 Rothback, Mary. The French Broad-Holston country: A history of Knox County, Tennessee: a contribution to the sesquicentennial celebration of Tennessee statehood, page 46. East Tennessee Historical Society 3 Id at 51. 4 Minutes of the Knox County Court, Minute Book no.8, page 4. 5 Id at 51. 6 Minutes of the Knox County Court, Minute Book no.4, page 26. 7 Minutes of the Knox County Court, Minute Book no. 5, page 25. 8 Minutes of the Knox County Court, Minute Book no. 2, page 108. 1
2018 KBA Attorneys’ Directory Available NOW One free copy of the directory has been reserved for each KBA member and additional copies are available for $20 if purchased by a KBA member. As in the past, the Attorneys’ Directory will be mailed in September to members whose office is located outside of downtown Knoxville. Also, if you practice outside of downtown Knoxville but have three or more attorneys at your location, please make arrangements to pick up your copies at the KBA Office, which is located in the basement of the
Supreme Court Building at 505 Main Street, Suite 50.
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O F T H E R M O M E T E R S & T H E R M O S TAT S By: Melissa B. Carrasco Shareholder, Egerton, McAfee, Armistead & Davis, P.C.
ENDING IT Not much is known about George F. Chadwell. We know that George was born on April 1, 1838 to William E. and Jane Hoskins Chadwell in Claiborne County outside of Tazewell, Tennessee.1 We know he married Ms. Malissa (Murphey) Chadwell in 1856, and they raised their six children – two daughters and four sons – in Claiborne County, TN.2 We may not know much about George, but we do know one thing. He had a big family. George was one of six children – four brothers and a sister. He also had dozens of uncles, aunts, and cousins. The Chadwell family hailed from Lee County, Virginia,3 and somewhere along the lines, the Chadwells got crossways with the Morgan family, and a bona fide feud was born.4 Some records report that the feud started as early as 1864, but we do not know how.5 What we do know is that, by the turn of the century, the feud was heating up. In June 1899, there was an altercation between Dave Chadwell and a sheriff ’s deputy in Manchester, Kentucky over a bottle of whiskey. Chadwell and his friends had beaten the deputy nearly to death.6 However, the dispute was over more than whiskey. The Sheriff at the time was Beverly White, and the White family had aligned with the Howard family (the Howard-White faction) after the Baker family, joined by the Bowling family (the Baker-Bowling faction) accused the Sheriff White of murdering one of their own.7 Tom Baker was killed while he was awaiting trial for the murder of Will White. About an hour before Tom was to appear in court, a shot was fired from Sheriff White’s house, and Tom Baker died in his wife’s arms. She quickly gathered all 10 of her children around their father’s body and made them swear to avenge their father.8 As a result, Sheriff White had stockpiled ammunition and “deputized” 25 additional men (including the one beaten by Dave Chadwell). He believed the Governor was sending men to arrest him and take him to court where he would have been tried before a judge who was a relative of the Bowlings.9 The Howard-White/Baker-Bowling feud was an extension of the Philpot-Griffin feud, which had been going on for eight years. It started when I.B. Philpot was killed on Election Day in 1891.10 Two years later, in 1893, the Chadwells joined with the Stuarts, who were aligned with the Griffins, when one of the Chadwells’ own, Maj. Jack Downey, was killed, allegedly by one of the Bowlings.11 John Bowling was sent to jail for Downey’s death but was later pardoned.12 By June 1899, Dave Chadwell was the leader of the Griffin faction, which may explain the beating of Sheriff White’s deputy over a bottle of whisky.13 But, that was just the beginning. On September 11, 1899, a group of men on horseback – the Griffins said it was the Philpots – opened fire on the house of a woman who is only described as “Widow Chadwell.”14 Widow Chadwell was the wife of Dave Chadwell’s brother, Evan, and she survived by throwing herself onto the floor.15 Purportedly, the attack upon Widow Chadwell was in retaliation for the killing of Deputy Sheriff Wash Thacker, who had testified against the Griffins.16 Deputy Thacker worked for Sheriff White of the White-Howard faction who, by then, were aligned with the Philpots and all of which were feuding with the Baker, Bowling, Chadwell, and Griffin families. Dave Chadwell’s two sons, Eddie and Floyd, were accused of assisting Jim, Tom, and Sol Griffin in the murder of Thacker, and by October 1899, Dave, Eddie, and Floyd Chadwell had left town.17 In 4 months, there had been 12 assassinations and over 20 shootings.18 Things quieted down in early1900, but on December 27, 1900, there was another altercation, this time at a dance in Walnut Hill, Virginia. Buck Chadwell, Estepp Morgan, and Frank and Richard Davis had what the newspaper described as a “falling out” which left Frank Davis dead and Estepp Morgan and Richard Davis mortally wounded.19 Meanwhile, in Claiborne County, Tennessee, George and Malissa September 2018
were busy raising 6 kids. In 1844, George’s father and mother sold their property in Lee County, VA and moved to Claiborne County, TN, where they raised George and his siblings.20 That seems to have kept them out of the violence surrounding their relatives in Clay County, Kentucky. Unfortunately, that peace did not last. On October 7, 1901, about 600 people had gathered for church at Big Springs Union Church just north of Tazewell. Just before the service was to begin, George’s son Tipton went to the spring near the church for some water. Rush Morgan was at the spring, and he opened fire on Tipton. There were a lot of Chadwells and Morgans attending church that morning, and they all started shooting.21 When the shooting stopped, Tipton Chadwell and his brother Alwain were dead. So were William and James Morgan.22 Two days later, two more family members – one a Chadwell, the other a Morgan – died from their injuries. The situation was escalating. “Relatives of the feudists are hastening to their aid and all are heavily armed. Len Chadwell, Bud Chadwell, Joe Dooly, Henry Lynch and seven others have left Middlesboro, armed with rifles to join the Chadwell forces.”23 “Both factions were barricaded in their homes and were armed to the teeth. Many believe that they were waiting for darkness to renew the trouble. Two members of each faction went to Cumberland Gap and secured a large supply of ammunition.”24 The feud was coming to Tennessee. But, then something happened, and that something was George Chadwell. With relatives riding into town, rifles in hand, George took a different path. On October 10, 1901, he told the newspaper, “the factions will submit their differences to the law.”25 On October 16, 1901, John Morgan, James Estep, and Robert Brooks were arrested for the murders of Tipton and Alwain Chadwell. Isaac Chadwell, brother of the two victims, was the prosecutor. At the arraignment, Isaac appeared, and withdrew the warrants. “This ended the proceedings.”26 Just like that, decades of fighting and killing ended because one father who lost 2 sons and one prosecutor who lost 2 brothers changed a legacy of violence and showed everyone that the law could work. That’s what thermostats do.
Find a Grave, George F. Chadwell, https://www.findagrave.com/ memorial/131895372/george-f-chadwell, last visited Aug. 11, 2018. 2 Find a Grave, Malissa Murphey Chadwell, https://www.findagrave.com/ memorial/131897128/malissa-chadwell, last visited Aug. 11, 2018. 3 See Find a Grave, William E. Chadwell, https://www.findagrave.com/ memorial/139635124/william-e.-chadwell, last visited Aug. 11, 2018. 4 Bloody Feud, Fort Wayne News (Oct. 7, 1901), available at https://yesteryearsnews. wordpress.com/tag/tennessee-feuds. 5 Factions Fight Like Two Armies, Atlanta Constitution (Oct. 8, 1901), available at https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. 6 Row Among Sheriffs, Naugatuck Daily News (June 19, 1899), available at https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. 7 Id. 8 Walter Q. Tavistock, Some of the Famous Vendettas of the Feud States, Mansfield News (May 29, 1903), available at https://yesteryearsnews.wordpress.com/tag/ tennessee-feuds. 9 Id. 10 Revival of Deadly Feud, Lima Daily News (Jul. 21, 1899), available at https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. 11 Id. 12 Id. 13 Feud on in Earnest Again, Nebraska State J. (Sept. 12, 1899), available at https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. 14 Id. 15 Id. 16 Ambushed, One More Kentuckian Bites the Dust, Butler County Democrat (Sept. 7, 1899), available at https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. 17 Banished from Clay County, Trenton Times (Nov. 7, 1899), available at https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. 18 Indict Kentucky Murderers, New York Times (Oct. 26, 1899), available at (Continued on page 20) 1
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C L I N I C A L LY S P E A K I N G Legal clinics are full of stories. Lawyers are able to meet people in need - where those people are - and volunteer attorneys are not only discovering the satisfaction of serving directly, they are becoming part of peoples’ stories. Upcoming opportunities: • September 8 – Faith and Justice Clinic, Annoor Academy of Knoxville, in conjunction with LAET’s Saturday Bar, 9 a.m. – 12 p.m. • September 12 - Barristers’ Access to Justice Veterans’ Legal Clinic, at the Knox County Public Defender’s Community Law Office, from 12 Noon- 2 p.m. • September 15 – Blount County Saturday Bar at LAET’s Blount County Office, 9 a.m. – 12 p.m. • October 6 – Knox County SUPER Saturday Bar at LAET’s Knoxville Office, 9 a.m. – 12 p.m. • October 10 - Barristers’ Access to Justice Veterans’ Legal Clinic, at the Knox County Public Defender’s Community Law Office, from 12 Noon - 2 p.m. • October 20 – Blount County Saturday Bar at LAET’s Blount County Office, 9 a.m. – 12 p.m. • November 3 - Pro Bono Debt Relief Clinic – 9:30 a.m. – 12 p.m., Knox County Public Defender’s Community Law Office. • November 3 – Knox County Saturday Bar at LAET’s Knoxville Office, 9 a.m. – 12 p.m. • November 3 – Morristown inaugural TFJA Clinic, St. Patrick’s Catholic Church • November 14 - Barristers’ Access to Justice Veterans’ Legal Clinic, at the Knox County Public Defender’s Community Law Office, from 12 Noon- 2 p.m. • November 17 – Blount County Saturday Bar at LAET’s Blount County Office, 9 a.m. – 12 p.m.
ENDING IT
To volunteer for ANY Saturday Bar, contact Kathryn Ellis, LAET Pro Bono Project Director by phone at (865) 637-0484, by email at kellis@laet.org, or visit http://bit.ly/2PBPvol to sign up online.
(Continued from page 19)
https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. 19 Another Kentucky Affray, Davenport Daily Leader (Dec. 27, 1900). 20 See Find a Grave, William E. Chadwell, https://www.findagrave.com/memorial/ 139635124/william-e.-chadwell, last visited Aug. 11, 2018. 21 Battle, Encounter in a Church, Daily Chronicle (Oct. 8, 1901) available at https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. 22 Factions Fight Like Two Armies, Atlanta Constitution (Oct. 8, 1901) available at https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. 23 Two More Feud Victims Die, Naugatuck Daily News (Oct. 9, 1901) available at
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Clinics coordinated by KBA committees and sections may be found at www.knoxbar.org under “CLE & Events” and “Upcoming Legal Clinics” along with online signup forms.
https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. Battle, Encounter in a Church, Daily Chronicle (Oct. 8, 1901) available at https://yesteryearsnews.wordpress.com/tag/tennessee-feuds 25 Big Springs Feud Ends, St. Louis Post-Dispatch p. 11 (Oct. 10, 1901) available at https://www.newspapers.com/clip/9842116/morgan_chadwell_feud_ends. 26 Feudists Released, Mansfield News (Oct. 16, 1901), available at https://yesteryearsnews.wordpress.com/tag/tennessee-feuds. 24
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SCHOOLED IN ETHICS By: Paula Schaefer University of Tennessee College of Law
WHEN THE PROFESSIONAL CONDUCT RULES APPEAR TO BE SILENT: TIPS FOR FINDING YOUR WAY The Tennessee Rules of Professional Conduct do not explicitly address every issue that an attorney may face in practice. For example, the rules do not appear to address whether a lawyer can record conversations with a client without the client’s consent. In the absence of such a rule, does that mean that a lawyer, such as Michael Cohen,1 can record client conversations without facing professional discipline or other legal repercussions? Cohen’s client thinks the conduct is sad;2 but is it unethical? Silence (or apparent silence) of the professional conduct rules is not necessarily a green light for an attorney’s planned conduct. This article provides some tips on finding the authority that will guide you in various situations when a client’s interests are implicated and the professional conduct rules appear to be silent.
Duties to Clients: Legal Duties and Associated Professional Conduct Rules When an attorney’s planned conduct will impact a client, the attorney should start his or her analysis by considering the legal duties owed to a client. The lawyer-client relationship is a fiduciary one.3 As fiduciaries, we owe our clients duties of care and loyalty. Various professional conduct rules parallel these duties. Thus, conduct that violates a fiduciary duty owed to a client may result in legal liability (for violating the legal duty) and professional discipline (for violating one or more of the associated professional conduct rules). The fiduciary duty of care requires attorneys to exercise the ordinary care, skill, and diligence commonly possessed by attorneys in Tennessee.4 If a client is harmed by a lawyer’s breach of that duty, the client has a cause of action for legal malpractice. The attorney could also be disciplined for violating the professional conduct rules that mirror the duty of care, such as TRPC 1.1, which describes the duty of competence, and TRPC 1.3, which describes the duty of diligence. The fiduciary duty of loyalty encompasses the obligations to keep client confidences and protect client property, to avoid conflicts of interest, to deal honestly in interactions with the client, and to take no advantage of the client.5 If a breach of these duties harms the client, a lawyer can be held liable for breach of fiduciary duty.6 Numerous professional conduct rules mirror these legal duties, such as TRPC 1.6, describing the duty of confidentiality, TRPC 1.7, explaining conflicts of interest in the representation of a current client, and TRPC 1.8, describing prohibited conflicts of interest between attorney and client. There are numerous others. As you look for professional conduct rules related to the duties of care and loyalty, start with Rule 1 (TRPC 1.0-1.18) concerning the Client-Lawyer Relationship. Another important rule to consider is TRPC 8.4 which is entitled “Misconduct.” This rule covers a lot of ground (including dishonesty, fraud, and conduct prejudicial to the administration of justice) and is frequently cited in disciplinary complaints. Think about how it may be implicated by your proposed conduct.
Identify the Duty First, Then Research Associated Professional Conduct Rules Suppose an attorney is considering writing a book about a high-profile case that she handled for a former client in litigation that concluded several years ago.7 An attorney who understands fiduciary duty would rec-
ognize that the question implicates the duty of loyalty. Running through the issues implicated by the duty of loyalty, the attorney might recognize possible concerns about confidentiality and conflicts of interest. Turning to the professional conduct rules, TRPC 1.8(d) is likely implicated. It prohibits a lawyer making an agreement giving the lawyer literary rights to an account based on the representation “prior to the conclusion of the representation.” But even though the representation has concluded in our hypothetical, the lawyer should not conclude under TRPC 1.8(d) that she is free to write her book. She needs to consider all of the aspects of the duty of loyalty. Tennessee RPCs 1.6(a) and 1.9(c) address confidentiality duties to current and former clients. TRPC 1.9(c) provides that unless the information has become “generally known,” consent of a former client is necessary for the attorney to reveal information related to the representation. A focus on fiduciary duty may help an attorney avoid liability and discipline in this situation. Rather than assuming that writing a book about a concluded representation is fine under TRPC 1.8(d), our hypothetical lawyer will understand that the duty of confidentiality is also implicated and that additional steps must be taken to protect the client’s interests.
No Specific Rule? Look for a More General Rule Implicated by the Duty Now our hypothetical attorney wants to initiate a romantic relationship with an existing client. He has a vague recollection that some states have a professional conduct rule that prohibits sex with clients. He learns that the Model Rules of Professional Conduct contain a prohibition against sex with clients in Rule 1.8(j). If he researches Tennessee RPC 1.8(j) and finds no comparable rule, should he feel free to ask the client on a date? Again, fiduciary duty should be our hypothetical attorney’s touchstone. The issue here is the duty of loyalty. An attorney should not take advantage of the trust that a client has placed in him. In this scenario, the client may feel pressured to engage in a sexual relationship with her attorney because she fears negative repercussions for the representation if she declines. And the lawyer’s involvement with the client may impair the attorney’s representation. If the relationship sours, the client might pursue a claim for breach of fiduciary duty. On the professional conduct side, the attorney should be aware of possible disciplinary consequences even in the absence of a specific rule prohibiting sex with clients. Thumbing through the conflict of interest rules, an attorney would find that TRPC 1.7(a)(2) prohibits representation of a client when there is a significant risk that the representation will be materially limited by the personal interest of the lawyer. Comments 12, 12a, and 12b explain the hazards of a fiduciary entering an intimate relationship with a client. Comment 12a specifically notes, “A sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role and thereby violate the lawyer’s basic obligation not to use the trust of the client to the client’s disadvantage.” Legally and ethically, attorneys are well-advised not to enter intimate relationships with clients, even in a state that has not adopted Rule 1.8(j). (Continued on page 22)
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. September 2018
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WHEN THE PROFESSIONAL CONDUCT RULES APPEAR TO BE SILENT: TIPS FOR FINDING YOUR WAY (Continued from page 21) When the Legal and Ethical Obligations are Unclear, Research Ethics Opinions
Conclusion Even when professional conduct rules do not squarely address an issue that will impact your client’s interests, your fiduciary duties should guide you. Identifying the fiduciary duty implicated – as well as related professional conduct rules, comments, and ethics opinions – will help you reach a better decision about how to proceed.
Returning to the original hypothetical of this article, does an attorney engage in professional misconduct (or face other liability to a client) when she records a conversation with a client without the client’s consent? For purposes of this question, you should assume that the attorney and client are in a state that otherwise does not require both parties to the conversation to consent to the recording. As in the other scenarios, the fiduciary nature of the attorneyclient relationship means that the attorney owes her loyalty to her client in matters related to the representation. The best place to start may be for the attorney to ask herself why she wants to record the conversation. For example, does she record conversations to make a record for herself to review later – instead of taking notes? Or is she recording the conversation for some other purpose? To get to the heart of the purpose, the attorney might ask herself: why not just seek the client’s consent to recording the conversation? If there is a reason the attorney wants to keep the client in the dark, the attorney may have a conflict of interest that weighs against the recording and against continuing the representation. Tennessee RPC 1.7(a), discussed above, may be implicated. An attorney might also consider TRPC 8.4(c) which prohibits conduct involving fraud or deceit. If an attorney is still unsure how to proceed, consulting published ethics opinions may be helpful. In ABA Formal Ethics Opinion 01-422, concerning Electronic Recordings by Lawyers Without the Knowledge of All Participants, the ABA Standing Committee on Ethics and Professional Responsibility could not agree on whether recording conversations without client consent was an ethics violation. However, the committee was unanimous in its conclusion that “it is almost always advisable” to inform a client prior to making such a recording.
1 Deanna Paul, Michael Cohen secretly recorded Trump. Does that make him a bad lawyer?, The Washington Post, July 26, 2018, available at https://www.washingtonpost. com/news/the-fix/wp/2018/07/25/michael-cohen-secretly-recorded-trump-does- that-make-him-a-bad-lawyer/?noredirect=on&utm_term=.85c8b884a741 2 Id., citing Donald Trump Tweet on July 25, 2018 in which Donald Trump states, “What kind of a lawyer would tape a client? So sad!” 3 In litigation between attorney and client, Tennessee courts have applied the famous fiduciary duty standard articulated in Meinhard v. Salmon: “Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” Security Fed’l Sav. & Loan Assn. v. Riviera, Ltd., 856 S.W.2d 709, 713 (Tenn. Ct. App. 1992). 4 Chapman v. Bearfield, 207 S.W.3d 736, 740 (Tenn. 2006). 5 Restatement (Third) of the Law Governing Lawyers § 16(3) (2000). See also Restatement (Third) of the Law of Agency §§ 8.02-8.06 (2006) (describing the duty of loyalty as including the duty not to take a material benefit arising from the relationship, not to act as or on behalf of an adverse party, not to compete, not to use the principal’s property or confidences, absent consent). 6 Restatement (Third) of the Law Governing Lawyers § 49 (2000); Security Fed’l Sav. & Loan, 856 S.W.2d at 714-15 (reversing trial court’s decision that contract between attorney and client was enforceable because the attorney did not prove that the transaction was fair). 7 Under a slightly different set of facts, a Tennessee attorney was recently disciplined for writing a book based on a case he handled as a prosecutor. In re: Dennis Dwayne Brooks, Tennessee Board of Professional Responsibility, File No. 44880-1-ES, available at https://docs.tbpr.org/brooks-44880-carter-county-lawyer-censured.pdf (providing for a public censure of the lawyer for violating TRPC 1.8(d) and 8.4(d)). See also Update: Local Prosecutor Censured Over ‘Facebook Murders’ Book, Johnson City Press, July 17, 2018, available at https://www.johnsoncitypress.com/Courts/ 2018/07/17/Local-prosecutor-censured-over-Facebook-murders-book
THE KNOXVILLE BAR ASSOCIATION presents OVER 50 LUNCH FOR SENIOR ATTORNEYS & THEIR GUESTS
The 2018 Volunteers: A Football Preview Featuring
Timothy A. Priest
Pryor, Priest, Harber, Floyd & Coffey
Wednesday, September 5, 2018
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11:30 a.m. - 1:00 p.m. Calhoun’s on the River - 400 Neyland Drive
Price includes Barbeque Chicken or Grilled Salmon, side item, 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”. Mail/deliver check & registration form 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. Please note that lunch will be served by 11:30 a.m.
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barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meeting begins promptly at 5:15 p.m. The next meeting will be held on September 12, 2018. There are many opportunities to get involved, so please contact Barristers President Mitchell Panter (tmp@ painebickers.com) or Vice President Mikel Towe (mtowe@lewisthomason.com) for more information. ACCESS TO JUSTICE The next Veterans Legal Clinic is scheduled for noon on September 12, 2018, at the Knox County Public Defenders’ Community Law Office from 12:00 p.m. to 2:00 p.m. If you are interested in signing up for the Veterans Clinic, you can do so on the KBA’s website: https://www.knoxbar.org/index. cfm?pg=Upcoming-Legal-Clinics The next Tennessee Faith & Justice Alliance Legal Advice Clinic will be on September 8, 2018 at Annoor Academy of Knoxville located at 100 13th St, Knoxville, TN 37916. In the Knoxville area, the program is coordinated by the KBA’s Access to Justice Committee, Legal Aid of East Tennessee, the UT College of Law, and the generous lawyers, law students, and others volunteering their time and talent. If you are interested in signing up for the Legal
Advice Clinic, please register on the KBA’s website: https://www.knoxbar.org/index.cfm?pg=UpcomingLegal-Clinics ATHLETICS The Barristers and the KBA joined together to co-host the annual four-person golf scramble on Monday, October 22, 2018 at the Holston Hills Country Club. Revenue from the tournament goes directly to funding various charitable endeavors of the Barristers, including the efforts of the Hunger & Poverty Relief Committee. ONLY 3 Team Spots Remain! The Athletics committee is still looking for sponsorships for this event. If you know of someone who would like to sponsor, please contact Jeremey Goolsby at JGoolsby@londonamburn.com or Bryce Fitzgerald at BFitzgerald@kramer-rayson.com. BARRISTERS CLE The Barristers will present a CLE entitled “The Legal Ethics of Better Call Saul: Professional Responsibility According to Saul Goodman” featuring Alex Long, U.T. College of Law and T. Mitchell Panter, Paine | Bickers LLP on Tuesday, September 18, 2017 from 5:30 - 6:30 p.m. at Schulz Bräu Brewing Company. The CLE will feature a discussion of the legal ethical issues raised in the show ‘Better Call Saul.’ The interactive discussion will address such topics as confidentiality, conflicts of interest, the duty of candor, solicitation of clients,
lawyer advertising, and any of the other many potential violations of the Rules of Professional Conduct committed by Jimmy McGill/Saul Goodman. This CLE is approved for 1 hour of Dual CLE credit. Register online by clicking on September 18 on the KBA Events Calendar. HUNGER & POVERTY The Hunger and Poverty Relief Committee would like to thank everyone who attended our first ever Brews for Backpacks event on August 6 at Printshop Beer Co. We collected more than 15 backpacks filled with school supplies and raised over $850 to purchase more school supplies to donate to ChildHelp Foster Family Agency of East Tennessee! We would also like to thank our event sponsor, TCV Trust & Wealth Management, for helping make this event possible. VOLUNTEER BREAKFAST The Volunteer Breakfast is a Barristers’ project. On the fourth Thursday each month at 6:15 a.m., the Barristers’ and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center. If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast in 2019, please contact Paul E. Wehmeier at pwehmeier@adhknox.com, Matthew Knable at knablelaw@gmail.com, or sign up on the KBA’s website at http://www.knoxbar.org/KBANews/help-volunteer-ministries.
Address Changes
Please note the following changes in your KBA Attorneys’ Directory and other office records: John C. Barnes Barnes Law Office BPR #: 028205 109 S. Northshore Dr., Suite 310 Knoxville, TN 37919-4925 Ph: (865) 805-5703 john@johnbarneslaw.com
Douglas A. Trant Trant Law BPR #: 006871 625 Market St., Suite 700 Knoxville, TN 37902-2205 Ph: (865) 310-4853 doug.trant@trantlex.com
Jenna M. Glenn Casco Bay Law, PLLC BPR #: 032747 1 Union Street, Suite 501 Portland, ME 04101-4050 Ph: (207) 608-6865 jenna.glenn@cascobaylaw.com
Julia A. Trant Trant Law BPR #: 035925 625 Market St., Suite 700 Knoxville, TN 37902-2205 Ph: (865) 310-4853 julia.trant@trantlex.com
Mark A. Pienkowski Gamut Legal Services BPR #: 035651 7417 Kingston Pike, Suite 203 Knoxville, TN 37919-5680 Ph: (865) 316-6812 mark@gamutlegal.com Amanda Tauber Tonkin Social Security Administration BPR #: 033660 135 Circle Lane Knoxville, TN 37919-4874 Ph: (865) 692-3141 amanda.tonkin@ssa.gov
September 2018
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B I L L & P H I L’ S G A D G E T S By: Bill Ramsey Neal & Harwell By: Phil Hampton Founder and CEO, LogicForce Consulting
LAPTOP/TABLET ROUND-UP Every year about this time of time of the year, we go shopping for some good deals on laptops. It seems that a lot of retailers offer good pricing for budget laptops centered around “back-to-school” promotions. We have no intentions of going back to school, but we are donning our backpacks and trying to act like students as we hunt for some good deals on laptops. Here are some of our favorite laptops suitable for students (or lawyers) on a budget. ASUS Chromebook Flip C302: This may be the first time we have written about a Chromebook. When Chromebooks (laptops that run Google’s Chrome operating system) first appeared on the market, we were not terribly impressed. Users with these laptops were limited to internet browsing and Chrome apps (which were limited). But times have certainly changed; now that you can even use Microsoft Office apps on Chromebooks, we believe they are indeed a good, inexpensive option for the budget-conscious consumer. The ASUS Spin C302 has a very compact form factor with a metal body, backlit keyboard, and bright touchscreen display. The screen portion of the laptop is hinged and can be rotated 360 degrees, giving a lot of options for work or play. We are not going to give up our Windows laptops for this Chromebook, but if you are needing just an inexpensive laptop to take to school or on the road for basic internet, e-mail, and even some word processing, this laptop will be a good fit. Surface Go: Microsoft surprised us once again when they announced a new, budget-friendly Surface laptop called Surface Go. We love our Surface laptops (we have multiple versions: Surface Pro, Surface Laptop, Surface Book), but we know that the price point for these excellent machines is somewhat higher than what most budget-conscious buyers are willing to pay. Microsoft has eliminated that constraint with the new Surface Go, which is priced very competitively with Apple’s new lower-priced iPad. While the Surface Go with its 10inch screen and incredibly light weight (just over 1 pound) reminds you of an iPad, under the hood it is a “real” computer running the Windows operating system on an Intel Pentium Gold Processor. No, it is not as fast or as powerful as the more expensive Surface Pro, but we think it is a great lower-priced alternative that will allow you to work as if you were working at your desktop at the office or at home. We love the fact that Microsoft kept the kickstand feature with the Surface Go, a great feature we love on all the Surface models.
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iPad 2018: We know the kids love their iPads, and we do too. But until recently you could buy a really nice, fully functional Windows laptop for the price you paid for an iPad. Facing pressure from the growing popularity of Chromebooks, Apple introduced a sub-$400 iPad in 2017 and followed it up with the iPad 2018 a year later. This entry-level iPad has a 9.7-inch screen and is plenty powerful for basic computing needs. It does not have the big, beautiful screen or the power of the iPad Pro, but this 2018 model does support the popular Apple Pencil (purchased separately). If you are in the market for an iPad but don’t want to break the bank, we recommend this entry-level model or perhaps even a 1 or 2-year-old “gently used” iPad from a reputable seller. Like the Chromebook, an iPad can handle Microsoft Office apps. Acer Spin 1: This 2-in-1 convertible sits in the budget bin, but we feel that it is a great buy for the money. The Acer Spin 1 is a fully functional Windows 10 laptop. With an 11.6-inch screen and tipping the scales at just under 3 pounds, it is a bit bulkier than the other laptops that we tried. But with an all-metal body and incredibly bright HD screen, you might be fooled into thinking this machine costs a lot more than it does. Where you really start to notice that this is a “budget” laptop is in the processing power. The Acer Spin has an Intel Celeron processor which, in our view, is sufficient for basic computing, but can show signs of strain with extreme multi-tasking or any graphics intensive application. Like the ASUS Flip, the Acer Spin has a screen that can rotate 360 degrees to be used in tablet mode or traditional laptop mode or somewhere in between. It’s a little heavy and it’s not a speed demon, but if you want to give Junior a good dependable laptop-tablet hybrid to take to school, the Acer Spin 1 will do the trick and leave you some extra lunch money.
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September 2018
WELL READ By: Luke P. Ihnen London & Amburn, P.C.
THE SOUL OF AMERICA:
THE BATTLE FOR OUR BETTER ANGELS For some, the election of Donald Trump to the American presidency signaled a return to America’s golden age – a reclaiming of something that was taken from them. For others, it signaled the total collapse of our democracy. Many of President Trump’s supporters relished – and still relish – in the rise of the politics of fear, bitterness, and strife. He appears to relish in it himself. For many more, however, this type of politics creates an uneasiness. The bitter division we find ourselves in feels strange to many of us. But we have been here before. On March 4, 1861, President Abraham Lincoln delivered his First Inaugural Address to a country that was so bitterly divided over the question of slavery that it would ultimately lead to war. Lincoln pleaded with his fellow countrymen to open their hearts so that the “better angels of our nature” might prevail.1 In context, the divisions of today seem trivial. That is the backdrop for Pulitzer Prize winning historian Jon Meacham’s latest book, The Soul of America: The Battle for Our Better Angels. Meacham, in his usual style, provides readers with a well-sourced and easy to read book detailing the “hours in which the politics of fear were prevalent.”2 As Meacham reminds us, history “shows us that we are frequently vulnerable to fear, bitterness, and strife.”3 The lesson, or good news, is that “we have come through such darkness before.”4
to all others; Wilson refused to take up the cause of woman’s suffrage; Franklin Roosevelt ordered the internment of Japanese Americans after Pearl Harbor; Kennedy failed to take meaningful action on civil rights until he was forced to; and the Vietnam War, inherited by Johnson, turned into a boondoggle under his watch. Our history is made up of imperfect people making imperfect decisions. We are, in many ways, an imperfect Union. It is why the preamble to the Constitution challenges us to be a more perfect Union. For Meacham, this is the genius of the Founding: the recognition “that the Republic was as susceptible to human passions as human beings themselves.”9 “That the nation was constructed with an awareness of sin and the means to take account of societal changes has enabled us to rise above the furies of given moments and given ages.” Our Constitution has endured and prevailed through much more. History, as Meacham puts it, “is more often tragic than comic, full of broken hearts and broken promises, disappointed hopes and dreams delayed. But progress is possible. Hope is sustaining. Fear can be overcome.”10 History, then, is not about trying to make something great again, but marching together through pain and tragedy towards a better tomorrow.
Meacham contrasts the American Creed: devotion to principles of liberty, of self-government, and of equal opportunity for all regardless of race, gender, religion or nation of origin; with the American soul, or what makes us us.5 According to Meacham, “there is a significant difference between professing adherence to a set of beliefs and acting upon them.”6 And so Meachem paints the portrait of the leaders that embody the American soul – that have pointed toward the future rather than to the past, or at some group or sect of people.7 He discusses the moments when the fate of America hung in the balance, and details the leaders that acted to change the course of history, including Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Dwight Eisenhower, John F. Kennedy, Lyndon Jonson and Ronald Reagan. He also recognizes the contributions to the American story from people like Frederick Douglass, Sojourner Truth, Susan B. Anthony, Booker T. Washington, Eleanor Roosevelt, Martin Luther King, Jr., and Rosa Parks.
On the eve of the Civil War, Abraham Lincoln said it best: “We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”11 President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861). Jon Meacham, The Soul of America: The Battle For Our Better Angels 5 (2018). Id. 4 Id. 5 Id. at 7. 6 Id. 7 Id. at 12. 8 Id. at 14 9 Id. at 17 10 Id. at 19. 11 Lincoln, supra note 1. 1 2 3
He also reminds us that “history’s stories of presidential leadership in hours of fear can be as often disappointing as they are heroic.”8 Lincoln was willing to sacrifice freeing the slaves if it meant saving the Union; Theodore Roosevelt believed that the white race was superior September 2018
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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
A DUTY TO WARN? In 1964, nuclear war was very much on people’s minds. Only two years earlier, John F. Kennedy and Nikita Khrushchev had nearly blown up the world. A year before that, Rod Serling introduced an episode of his television series with these words: “What you are about to watch is a nightmare. It is not meant to be prophetic, it need not happen, it’s the fervent and urgent prayer of all men of good will that it never shall happen. But in this place, in this moment, it does happen. This is the Twilight Zone.” That episode, “The Shelter,” told the story of a beloved doctor who had built a small fallout shelter in his basement. The doctor was celebrating his birthday with friends and neighbors when a report came over the radio that unidentified flying objects were headed toward the United States. Everyone assumed that the objects were nuclear missiles. The doctor took his family inside the shelter, reluctantly refusing the panicked requests of his friends to join him – there simply wasn’t room for everyone. Eventually, after some nasty and bigoted dialogue, the doctor’s friends used an improvised battering ram to smash open the shelter’s door. It was a false alarm. The world was safe, for the moment, but the doctor’s friendships had been destroyed.1 In this supercharged atmosphere, Republican presidential candidate Barry Goldwater criticized Democrats for being soft on Communism. He was asked, repeatedly, how far he would go in defending American interests, particularly after he noted that one way to defoliate the jungle routes used by the Viet Cong was to blast the landscape with nuclear weapons. A few weeks later, he responded to a question from the German magazine, Der Spiegel, as follows: Q. Do you still advocate helping possible uprisings in Eastern Europe by being prepared to move a task force equipped with appropriate nuclear weapons along with an ultimatum? A. If that became necessary, if that were the only way, yes. For example go back to Hungary. Had the United States followed through her commitments to Hungary I think Hungary would be a free country today. These are tools that we have to be ready to use if we’re going to be able to say to people, if you’re willing to fight for freedom we’re willing help you.2 Accused of extremism, Goldwater replied, in his acceptance speech at the Republican National Convention: “I would remind you that extremism in the defense of liberty is no vice. And let me remind you also that moderation in the pursuit of justice is no virtue.”3 His campaign slogan was, “In your heart, you know he’s right.” Democrats responded with “In your guts, you know he’s nuts.” Then, on September 7, 1964, President Johnson’s campaign unveiled one of the most controversial political advertisements in American history, the “daisy ad,” in which a little girl is seen counting petals in a meadow. There is birdsong in the background until the girl is interrupt-
ed by a countdown, then by a nuclear explosion. Lyndon Johnson’s voice intones: “These are the stakes: to make a world in which all of God’s children can live, or to go into the darkness. We must either love each other or we must die.”4 As if all of this were not enough, a magazine called FACT published “The Unconscious of a Conservative: A special Issue on the Mind of Barry Goldwater.”5 In the article, the magazine published unscientific and biased poll results suggesting that American psychiatrists and psychologists considered Goldwater unfit for office. The article prompted the two leading associations of the mental health profession to promulgate versions of something generally referred to as “the Goldwater Rule.” The Goldwater Rule declares that it is unethical for a mental health professional to publicly opine upon the mental health of a person unless: 1) the professional has personally examined the person; and 2) the person has consented. Enter President Donald J. Trump. Many of the issues raised during the 1964 presidential campaign are being raised today. Not just by the general public, and not just by irresponsible partisans, but by a number of well-credentialled psychiatrists and psychologists who insist that our current president is mentally unfit for office. They have published a book, Rocket Man: Nuclear Madness and the Mind of Donald Trump, in which they press their case. The leader of this group is Dr. John Gartner, a psychologist who taught at Johns Hopkins for 28 years. He says that the Goldwater Rule is superseded by another ethical rule, the “duty to warn.” When a patient presents a danger to a third party, Gartner notes, a mental health professional has a duty to warn that party of the danger. In Gartner’s opinion, President Trump presents a danger to the entire world, since he controls the nuclear launch codes. Not everyone agrees. Gartner and his colleagues have been criticized, notably by Dr. Charles Dike of the Yale School of Medicine, who directs Yale’s Program in Law and Psychiatry. Dr. Dike defends the Goldwater Rule, insisting that it is predicated upon the establishment of a doctor-patient relationship, which, obviously, does not exist between Dr. Gartner and President Trump. I recently spoke with both Dr. Dike and Dr. Gartner on my public radio show. It was a spirited, timely, and very constitutional discussion. I invite you to listen to the podcast online. If you dare. 1 “The Shelter” is available online: https://www.cbs.com/shows/the_twilight_zone/ video/659852108/the-twilight-zone-the-shelter. 2 Transcript of interview approved by the Goldwater campaign and reprinted in the New York Times of July 9, 1964, p. 20. 3 https://www.washingtonpost.com/wp-srv/politics/daily/may98/goldwaterspeech.htm; accessed August 9, 2018. 4 Video available at the Library of Congress: https://www.youtube.com/watch?v=riDyp P1KfOU. 5 Goldwater later sued FACT for defamation, and won more than $75,000 in damages. Goldwater v. Ginsburg, 414 F.2d 324 (2d Cir.1969), cert. denied, 396 U.S 1049, 90 S.Ct. 701, 24 L.Ed.2d 695.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
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September 2018
LONG WINDED By:
Jason H. Long London Amburn
FATHER KNOWS BEST When I was five years old, I attended kindergarten at Chilhowee Elementary School in east Knoxville. I don’t remember much about those days but the following story has been repeated by my mom and dad for years, so I have to assume it is true. There was another kid in my class at that time named Peanut. His real name is lost to history, but everyone called him Peanut. Anyway, one Friday afternoon, mom picked me up from school and could tell I was upset. She asked me how my day was and, apparently, I began crying and told her how Peanut had said something mean to me during recess and would not let me climb the jungle gym. Again, Peanut’s exact insult has been forgotten over time but clearly it was devastating to a five-year-old. That night, the topic of conversation at our dinner table turned to the subject of bullies and how to handle them. My dad, who I looked up to more than any person on earth, was not going to let his son get pushed around by a bully. It was the weekend, so he spent most of Saturday and Sunday teaching me how to make a fist and throw a punch. He instructed that, first thing Monday morning, when I got to school, I was to walk right up to Peanut and, without a word, punch him in the mouth. Dad assured me that hat Peanut would never bother me again.
and generally a “go along, get along” type of guy. That reputation, along with the fact that I tended to always be one of the biggest people in the room, allowed me to avoid most confrontations with bullies throughout my life. That changed when I started practicing law. I don’t believe there are more bullies practicing law than there are in the general population but I do think that there are more opportunities for lawyers to act like bullies and often that type of behavior is professionally rewarded. Nonetheless, it is still intolerable. I like to think that we, in the Knoxville Bar, are fairly well shielded from bullies. Sure, some exist, but generally we all frown upon such behavior and it is put in its place. Plus, our legal community is still small enough that bullies are easily identified and develop a reputation.
That brings me to a deposition I defended a few months ago with a Nashville lawyer who was unknown to me. Despite my best efforts, and those of my clients, this lawyer was constantly making threats during the discovery process that we were withholding information or abusing discovery. if Peanut was a lot tougher than my I shrugged off the threats and insults because I was confident we had provided what we were As I saw it, this plan had a number of dad thought? supposed to provide, but I have to admit that potential flaws. To begin with, if I didn’t my gut wrenched a little every time I had to say anything before I threw the punch, take a call from this lawyer. how could Peanut, or any other kid standing nearby, know why I was hitting him? Suddenly, I would just be the jerk in the class who decked Finally, the day came when I would see him in action, deposing toddlers for no reason whatsoever. Second, surely there would be some my nurse. He was over the top from the beginning. He was rude and retribution from the authorities (i.e. teachers) if I walked in and hit abrasive, making threats and accusations throughout the deposition. another kid. I know everything was more laid back in the 70s but surely There was a continual string of objections and off the record discussions my school had rules against that type of thing. Third, I really didn’t concerning his behavior. Finally, about midway through, I told him know that much about Peanut. This would be the first actual punch I the deposition was over, and he could call the judge if he objected. He ever threw – what are the odds I was going to land it squarely? What if made another comment about written discovery disputes and how we Peanut was a lot tougher than my dad thought? A kid bold enough to were likely hiding evidence. Having had enough of his behavior, I told kick others off the jungle gym may have more fight in him than my dad him that if he wanted to file a motion to compel and seek sanctions anticipated. If my single punch turned into a full-on fistfight, I was not he was certainly welcome to, but I was not going to listen to anymore equipped to improvise in that situation and it was going to go poorly for unfounded accusations. me. Dad overruled all of these objections and insisted Peanut was going Then something remarkable happened. The bully backed down. down. He became imminently reasonable and, in fact, somewhat pleasant. So it was that, on a Monday morning in the fall of 1976, my dad We were able to finish the deposition and the backhanded insults and dropped me off just outside of my classroom and waited, watching to see threats stopped altogether. I had punched Peanut in the mouth, and he how the “Thrilla in Knoxvilla” was going to play out. As he described it didn’t bother me anymore. later, I got out of the car shaking. My whole body was tense with fear I am all in favor of aggressive representation and zealous advocacy. and anxiety over the task in front of me. Nonetheless, I dutifully walked When it goes beyond that, I think we do a disservice to our profession up to the teacher, who was greeting kids outside the classroom as they and our clients. We contribute to the generally low perception of entered, and demanded “Where’s Peanut!” My teacher smiled at me and lawyers. It only took me 42 years to truly stand up to a bully. I have to said “I’m sorry sweetie, but Peanut’s family moved to Ohio. Friday was admit, it felt pretty good. his last day of school.” At that moment, as the story goes, the tension visibly released from my body, I got a big smile on my face, waved at my dad, and ran inside my classroom, ready to start the day.
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I often wonder how my life may have been different if I had popped Peanut in the mouth that day, instead of getting a reprieve. After that day, I got very good at identifying bullies and steering clear of confrontation with them. I developed a reputation as a peacemaker September 2018
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BARRISTER BITES By: Angelia M. Nystrom, JD, LLM Executive Director of Specialty Programs Office of Institutional Advancement, University of Tennessee Institute of Agriculture
MAKING GOOD FOOD AND BETTER MEMORIES My favorite Saturday mornings are spent on the sofa in my family room with the dog on my lap, drinking coffee, and scanning Facebook. I always look forward to seeing how my friends spent Friday night, what their children are doing, or who has taken a really cool trip. My favorite posts, though, are usually courtesy of Chad Tindell. For those of you who don’t do Facebook or who haven’t yet “friended” Chad, you are missing out. His Facebook posts look like something that you would see in the food sections of Southern Living or Garden & Gun. Without fail, his posts include a description and photos of some delicious concoction that he has created that morning. I asked Chad about his posts and what inspires him to create such delicious-looking meals. “Cooking is therapeutic for me,” says Chad. “I like to get up early in the morning on the weekends and make breakfast, some fresh bread or fire up the smoker. Sometimes at night, after a hard day at work, I will make cookies or prep supper for the following day. All those give me quiet time to reflect.” “But, most of all,” Chad continues, “I like cooking because it’s doing something for others. I rarely cook for me. I have worked for more than 25 years with many local charities, civic groups and my church. Doing for others is what I love. And, that carries over to cooking. My wife, Melissa, is the primary beneficiary (and sometimes guinea pig tester). My office and Melissa’s office (at Christian Academy of Knoxville) get a regular delivery of cookies, sometimes biscuits and other treats. My neighbors, church small group and sick friends also get a share. Melissa also says I’m not good at doing nothing, so ‘piddling’ around the kitchen (as I put it) gives me something to do.” I wondered what inspired Chad to take up cooking. “I grew up with a single mother and was an only child. So, when I was very young, I stayed with my Papaw, as he was known to me. Papaw was a farmer, and I would get dropped off at his house early in the morning. And, we would fix breakfast. Sometimes that was ‘light bread’ with peanut butter and Karo syrup. I think that was how I learned to make something out of whatever I have in the kitchen. But, sometimes, breakfast was sausage, gravy and biscuits. I learned to make gravy when I was barely big enough to see over the stove. My grandfather left me when I was 12, far too young with so much more to learn from him. The gravy I make might be good, but it’s the memories of my grandfather that make it special.” Chad also relates, “And, I have to give credit to my mother. Mom often worked late, so, I started helping ‘cook’ before she got home when I was fairly young. My mother loves to cook, also mostly for others. I definitely get that from her. We are both fiercely independent, but have managed to ‘team cook’ for some holidays and friends.”
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Says Chad, “I am not a ‘chef ’. I do not make much fancy food. But, I hope I make good food that people enjoy.” I asked Chad about some of his best food memories. “I have so many great food memories. I think that’s because food is a lot about people and places. Where food comes from and why. I like to read about food. For southerners, get a copy of Victuals by Ronni Lundi. Or, Soulfood by Adrian Miller. I was fortunate to meet Ms. Lundi at a Southern food conference and be at her table at Blackberry Farm for dinner. Adrian is from Colorado. I made a point to meet him when he was in town. He ended up going to church with me and to Jackie’s Dream for a long Sunday afternoon supper.” “I like local restaurants and ‘dives’. I have many favorites. Knoxville is my hometown, and I love it! I also ride motorcycles and, over the 12 states I’ve travelled to, have a lot of great food memories. Again, it’s more than eating. It’s the people and history, along with the food.” “Finally, as for cooking, I will always remember some of the first meals I cooked for Melissa. The first supper was: appetizers – dates stuffed with blue cheese and wrapped with bacon, entrée – grilled steelhead trout, with roasted Brussels sprouts and pound cake and strawberries for dessert.” Chad also relates, “I remember the failures too, things that just didn’t turn out just right. A recent pizza off the egg grill comes to mind. You have to laugh and try again. I’m fortunate to have an adventurous wife who overlooks those failures (and others) and has learned that travel means me dragging her to out-of-the way places to find great food, at places with history or a ‘story’.” I asked Chad about his favorite food story. He shared this with me: “Prince’s Hot Chicken in Nashville (who was making hot chicken long before hot chicken was cool) was a frequent stop when I had to be in court in Nashville. You have to wait, as the chicken is cooked to order. You order through a square hole looking into the kitchen. Most of the tables are large picnic style tables…inside. It is a definite ‘dive’. After court one day, I went to Prince’s for lunch before heading back to Knoxville. I had my usual suit, tie, starched shirt, French cuffs. The man in line in front of me was a custodian from a local school, in blue coveralls. We could not have looked more different. But, as is often with food, we obviously had something in common. At that time, Prince’s had a little black and white TV behind the counter, with a rabbit ears antenna. The custodian and I sat behind the counter for a half hour, laughing and playing The Price is Right on TV. The chicken was fabulous as always, but that’s not the memory.”
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September 2018
BENCH AND BAR IN THE NEWS
How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. LAW SCHOOL SCHOLARSHIP CREATED TO HONOR CHIEF JUSTICE ANDERSON The Tennessee Judicial Conference Foundation (TJCF) has created a legacy scholarship to honor the life of former Chief Justice Riley Anderson and his contributions to the legal profession. Justice Anderson died earlier this month. Created by the Judicial Conference in 1996, the Foundation awards 22 need-based scholarships annually to students at Tennessee’s colleges of law. Gifts in memory of Justice Anderson can be made to the TJCF, Attn: Suzanne Keith, Treasurer, 629 Woodland Street, Nashville, TN 37206. The TJCF earlier honored Chief Justice Frank Drowota, who died in April. The group had created a scholarship at Vanderbilt Law School in Drowota’s name. FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates. Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource. MCMURTRY LECTURE AT LMU DSOL SAVE THE DATE! On Friday, October 26, beginning at 9:30 a.m., the Abraham Lincoln Institute for the Study of Leadership and Public Policy will present its annual Gerald R. McMurtry Lecture at LMU’s law school in downtown Knoxville. This year, noted Lincoln scholar Brian Dirck of Anderson University will present The Frame and the Apple: Toward an Understanding of Lincoln’s Ethical relationship with the Law. According to Professor Dirck, “Lincoln’s legal practice, his quarter-century at the bar, was more than simply his bread-and-butter way of earning a living. It was itself an important component of his overall worldview.” Join us for a half-day celebration of Abraham’s ethics and legal practice. For more information, please email Hesper.Capps@ lmunet.edu, or call her at 865.545.5345. September 2018
VOLS FOR VETERANS – GEN. CLIFTON CATES LEADERSHIP SCHOLARSHIP DINNER he 1st Annual Gen. Clifton Cates Leadership Scholarship Dinner on Thursday, October 11th will raise money for a student scholarship fund at The UT College of Law and will honor the memory of a true Tennessee Volunteer hero, General Clifton B. Cates, USMC. The dinner will be held at Cherokee Country Club. For more information and tickets, please visit our Facebook and Instagram page @volsforvets. MEMORIAL SCHOLARSHIP The Spenser F. Powell Memorial Law Scholarship was established by family and friends of Spenser after his unexpected passing on May 29, 2018. Spenser excelled academically at the UT College of Law and was named Outstanding Graduate of the Class of 2017. He served as an Executive Editor of the Tennessee Law Review and Vice-Chair of the Moot Court Executive Board. After graduation, Spenser began his clerkship with Chief Judge Thomas A. Varlan for the US District Court for the Eastern District of Tennessee. To continue Spenser’s legacy of academic excellence and exceptional character, his family and friends have established the Spenser F. Powell Memorial Law Scholarship through the East Tennessee Foundation, a 501(c)(3) organization. The scholarship will be awarded to an incoming first-year student at the UT College of Law who exemplifies Spenser’s academic and social values. Further information about the scholarship’s structure and goals may be found online at: http://spenserfpowell.org/. The scholarship is accepting contributions online and through the East Tennessee Foundation. PARALEGAL ASSOCIATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, September 13, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Stephen Ross Johnson, Esq., with Ritchie, Dillard, Davies & Johnson, P.C., will be presenting White Collar Crime Defense. A lunch buffet is available at the cost of $12/ person with reservations. Please contact Caroline Sudlow, ACP, at president@smparalegal.org or 865-215-3676 for additional information and/or lunch reservations. LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and
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other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.
OFFICE SPACE AVAILABLE: •
Class A office space for rent in Bearden! The office is a total of 1342sq feet which includes six offices, two conference rooms, a kitchen, three storage areas, and a reception area. The space can be rented as a whole, or by the individual office. Utilities are included, however phone and internet would be the responsibility of the tenant. Contact Meghan Bodie at 865-539-3515 or meghankinglaw@gmail.com for more information.
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Fully Furnished office space available at Bank of America Building; 2 window offices available; 3 interior offices available with cubicle space attached to each interior office; Accessibility to two large conference rooms, full kitchen, and patio area overlooking the TN river; Full lobby area with a receptionist to greet clients; Aggressively priced, 2 parking cards may be available. Call Lance Baker if interested. Office number is 865-200-4117 and cell phone is 865-310-0997.
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Shared office space available for one to two attorneys in Farragut. Convenient location right off Kingston Pike. A small office space for support staff is available, as well as a shared file room, conference and reception areas. Contact Jerry Martin at 777-2700.
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3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865-525-6806 for information. Contact Frank Graffeo at 525-6806.
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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 SPOTLIGHT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee
Want to Volunteer? Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFS
VETERANS LEGAL ADVICE CLINIC On September 7, 2016, the first free Veterans Legal Advice Clinic took place at the Knox County Public Defender’s Community Law Office on Liberty Street. This clinic has been going strong on a monthly basis ever since then and has become one of the most recognized collaborations between Legal Aid of East Tennessee (LAET) and the Knoxville Bar Association (KBA). The proposal for the Veterans Legal Advice Clinic came from Buck Lewis of Baker Donelson and Spencer Fair of London & Amburn. Lewis was familiar with a similar clinic held in Memphis and wanted to see it replicated in Knoxville. Fair, a member of the KBA Barristers Access to Justice Committee, volunteered to take the lead in figuring out how to create a similar project in Knoxville. After speaking with the Memphis clinic organizers and getting members of LAET, the KBA, the veterans services community, and the Public Defender’s office together to discuss implantation plans, the first clinic was advertised. Attendance at the first clinic by both veterans and Pro Bono attorneys showed that there was enough interest to continue the program on at least a temporary basis. Now, two years later, the program is considered a “self-sustaining clinic.” This means that although the KBA and LAET still recruit volunteers each month and flyers advertising the clinic are sent out to community partners each month, we all know that there will be volunteers and there will be clients. We know that word has gotten out and that the people will be there. Each month, the Veterans Legal Advice Clinic provides free legal advice to between 10 and 30 veterans from our community. While most of these veterans live in Knox County, others have traveled from Blount, Loudon, Sevier, Anderson, Union, and Jefferson counties to have the opportunity to speak with an attorney about their legal issues. As is the case with most of the legal advice clinics held by Legal Aid of East Tennessee, most of the veterans who attend this clinic don’t need full legal representation in a matter. They simply need someone to listen, someone to give them advice, and someone to explain to them how to navigate the legal system for their issue.There are dozens more attorneys in our local bar who donate their time to assist LAET’s Pro Bono Project clients every month and, although they may each have a different reason for donating their time, each and every one of them makes a difference for those they assist. The bottom line is that doing Pro Bono work is a personal decision that will pay off both for your clients, but also for yourself. Thank you for all of the great work you all continue to do for members of our community who most need your assistance. Many of the attorneys who volunteer for this clinic come several times a year, some come to as many as ten of the clinics each year! These attorneys have realized that they feel a sense of pride in helping veterans each month. Devin DeVore, who has been a regular volunteer at the clinics since they started, says that he “love[s] and enjoy[s] providing assistance to veterans any way [he] can.” He said, “they volunteered their time to help our country, so the least I can do is volunteer two hours a month to help them with their legal needs.
Since helping to get the clinic started, Spencer Fair has also attended nearly all of them. He has also gone on to become co-chair of the Barristers Access to Justice Committee after seeing the impact Pro Bono activities like this clinic can have on members of our community. When asked why he continues to volunteer at the clinic, Fair said, “I volunteer because I want to help veterans who have made significant sacrifices for my family and me.” Other attorneys who have volunteered at the clinic over the past two years include Joe Jarrett, Stephen Byrd, Douglas Dunn, Tim Grandchamp, David Noel, Kevin Newton, Patrick Noel, David Rexrode, Ed Holt, Daniel Ellis, Katherine Young, Brett Mayes, Ashley Roberts, Heather Banks, Allison Starnes-Anglea, Katy Hutcherson, Monica Cacace, Wesley Stone, Dave Beck, Chris Fields, Will Parz, Betsy Meadows, Dave Yoder, John Lockridge, John Newton, and Carl Goins (as well as some who I have inevitably missed – sorry!). All of them have had a positive impact on the lives of the veterans they have assisted. In addition to Pro Bono attorneys, this clinic also regularly draws students from both the University of Tennessee College of Law and the Lincoln Memorial University Duncan School of Law. One student from UT who has volunteered at several of the clinic is Campbell Cox. Cox said that one of the things he likes best about volunteering at the Veterans Legal Advice Clinics is that it provides him with “a wide range of experience and the opportunity to meet with clients who have a lot of different issues.” Cox also said that “being able to help veterans through whatever legal issues they are facing is rewarding.” Finally, Cox stated, “I feel like I’m using the skills I’m learning in law school – applying them to real life. And, I think that volunteering for these clinics is great for 1Ls and 2Ls because it helps them to learn how to speak with clients, how to spot issues in real life, and to become more personable with their clients.” If you are interested in volunteering for the Veterans Legal Advice Clinic, keep your eye on the KBA calendar, or contact me directly. We are always looking for attorneys interested in helping out some of these deserving members of our community.
Get Your Tickets Now Forging Justice Pro Bono Celebration October 19, 2018 - Ironwood Studios https://app.etapestry.com/onlineforms/ LegalAidOfTennessee/2018ForgingJustice.html Contact Kathryn Ellis for information about sponsorship opportunities.
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 2018
Q: A:
THE LAST WORD By:
Jack H. (Nick) McCall
David, would you tell DICTA’s readers about your summer high adventure trip going down the Colorado River through the Grand Canyon?
DAVID GALL
I am from a family of nine, with four brothers; there’s a wide range in our ages. One of my brothers, Tom lives in Oregon; he is very highly trained in outdoor skills, has fought forest fires and has been a paramedic. He’s worked for a city fire department in the Columbia River Gorge area, and Tom is a vertical-rescue expert, among other things. He’s a really good mountain climber and has been a rafter since college. He is the perfect guy to go in the woods or on the river with, and he has rafted all across the West. The Grand Canyon, though, is a very special case: because it is a goal of many people to raft the Canyon, there is a lottery system to raft it, and you have to be very lucky to win a place. One of his rafting buddies won the lottery and invited Tom, and Tom wanted all of his brothers to join him. Our group was fifteen people: my brothers; Tom’s two adult daughters, both great girls; Tom’s buddy Phil, who is Scottish, and a bunch of Scots who Phil brought with him. We had a great and fun group of people; it was mainly a group of Oregonians and Scots, with several Ohioans, and then me from Tennessee. The Grand Canyon gets five million visitors a year. Out of that five million, maybe one-half of one percent get on the Colorado River; most of them are ferried by commercial rafters. It’s a high-dollar deal. Only a handful of people win the lottery to raft themselves on their own, so we were very lucky. Organization was critical: Tom and Phil did the lion’s share. The Park Service has thirty pages of regulations to follow; everyone was required to watch a video in advance of the trip and confirm they had watched the video and understood the regulations. We rented the boats and most of the gear from an outfitter in Flagstaff. The Park Service checks out all of your equipment and your IDs before you can enter the river. If you were from Scotland, they wanted to see your passport; I brought a life jacket I’d used in Tennessee for years; it was rejected, but fortunately, we had a spare. The rangers were quite meticulous and stringent, but they were professional and very helpful. Some of the logistics are kind of tricky. You can’t use a cell phone; some people get satellite phones, but those are pricey, so we used a textmessage satellite beacon system to communicate. You also have to have something to haul away your “poop” --unlike backpacking, you can’t dig a hole and bury it because there are just such a small number of camp sites along the river’s edge in the Canyon, and these must be kept pristine--so we used Army rocket cans to haul away the human waste. Everyone, men and women, have to go into the river to pee – you can’t hide behind a bush or a tree – and there are biological reasons for that, to keep algae from growing. As for food, you have to use groundcloths and not leave a lot of big bits on the ground when you finish eating. All of this seems kind of picky, but it’s necessary for the environment and other people’s enjoyment.
Then came the fun part: getting on the river. I’m not a big river guy. I paddle around some, but this was really big water; there’s so much volume in that river! What impressed me about the Colorado, besides the scenery, is how hard it is to go downstream. We had five 18-foot rafts for the fifteen of us. Each raft had one set of oars, and it’s a lot of work to work the oars when it’s your turn. I’d thought it’d be mainly steering to avoid rocks--and it is partly that--but there are also crazy currents and big eddies to be avoided; whirlpools, too. You can find that you’re not paying attention and, instead of going downstream, you’ve hit a monstrous, deep eddy, and your raft is now going upstream. Half of our party were young folks in their twenties; most of the rest were middle-aged; and there were a couple of geezers my age. The twenty-somethings made up a tradition when commercial rafters came by in these motorized, schoolbus-sized boats. There’s some friction between the commercial rafters and the private groups. Most people on the river are petty cordial, but there’s some competition, and some arrogance from the commercial rafting companies. So, while the twenty-somethings one morning were doing yoga, as a commercial raft came by, they “mooned” them. It got to be kind of a goofy tradition of sorts. As other commercial rafters later came by, they began asking us: “Are you that Oregon bunch?” Several of the Scottish girls had just incredible singing voices, and it was a treat to listen to them sing. From putting-in to the end of the voyage, it took eighteen days, and we covered 280 miles. I‘d do it again. It was a lot of fun. I’m not a great swimmer or boatman, so it was sometimes a little scary for a guy like me, and some of the big rapids are definitely pretty scary to look at. At one of the scariest sets of rapids, the Granite Rapids, we pulled over, tied up and got on the rocks and scouted it out. At this one, I just didn’t see any way any boat could possibly get through without flipping. I learned new lingo there, like hydraulics, wave trains, and lateral waves. (I almost felt like I could have joined the Navy after that.) But, actually, we made it through the whole trip without flipping a single raft – at 18 feet, and loaded down with cargo, these boats were pretty forgiving and fairly stable. The side canyons were amazing to explore, as well: the cliffs were often enormous, and the views incredible. I also got to eat canned haggis, which Phil and the Scots contingent brought with them. There were a lot of new experiences on this trip. The canned haggis was not too bad, either.
“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 2018 DICTA
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KNOXVILLE, TN PERMIT NO. 3 0 9
P.O. Box 2027 Knoxville, TN 37901
FROM AWARENESS TO COMMITMENT
Our Keynote Speaker: Vicki Clark has devoted the past 30 years of her life to building capacity in organizations and inspiring community and business leaders. Clark is a member of the Peter F. Drucker Foundation’s training and consultation team and a Senior Governance Consultant for BoardSource. Each year she speaks to thousands of community, business and government leaders and has made presentations in 48 of the 50 United States. She attended the University of Missouri, Columbia and is a native of Memphis, TN. EVENT PARTNERS
COST: KBA Members: $30.00; Law Students No Charge; Non KBA Member Attorneys $45.00; Law School Faculty and staff $20 pp. A registration is required. The deadline to sign up for Buddy Match is September 1.