December 2022 - Volume 50, Issue 11

Practice Tips: Deck the Halls with DUI Defense Tips! . . . Page 7 Legal Update: Barnes v. State: Dead Men Tell No Tales . . . Page 15

A Monthly Publication of the Knoxville Bar Association | December 2022

U.S. SUPREME COURT SEEMS POISED TO END RACIAL AFFIRMATIVE ACTION IN HIGHER EDUCATION

Photo Ops Barristers Annual Charity Golf Tournament – October 24

Thanks to the generous support of participants and sponsors, $7,500 has been raised for the Barristers’ charitable activities of the Hunger & Poverty Relief Committee. The Barristers Athletics Committee would like to thank all of the golfers and our sponsors for their support for the tournament at Holston Hills Country Club.

Platinum Sponsors CertaPro Painters LexisNexis Putting Green Sponsor Brown Professional Insurers Liquid Gold Sponsor Eagle Distributing Silver Sponsors Computer Systems Plus Image Matters Hole Sponsors Brandon’s Awards & Engraving Brock|Shipe|Klenk CSpire DFA Solutions Eldridge & Blakney Gary Cobble Construction

CONGRATULATIONS TO OUR WINNERS!

Hodges Doughty & Carson

Teams: 1st Place: Brock, Shipe & Klenk Luke Durham, Wade Orr, John Kizer, Matt Googe

Kramer Rayson LLP Lewis Thomason PrintEdge Regions Private Wealth Management

2nd Place: Lacy, Price & Wagner Chris Cain, Jim Price, Jackson Vaughn, Brad Dye

Swafford Insurance LLC TCV Trust & Wealth Management Woolf, McClane, Bright, Allen & Carpenter, PLLC

3rd Place: Keith Stewart, John Willis, Scott Saidak and Wes Closest to the hole: #4- Sam Winston #8- Brad Dye #11- Trent Kincaid Longest Drive: Wade Orr Putting Contest: Jeff Stoneking

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DICTA

December 2022

In This Issue

Officers of the Knoxville Bar Association

December 2022

COVER STORY 16

U.S. Supreme Court Seems Poised to End Racial Affirmative Action in Higher Education

CRITICAL FOCUS President Jason H. Long

President Elect Loretta G. Cravens

Treasurer Catherine E. Shuck

Secretary Carlos A. Yunsan

Immediate Past President Cheryl G. Rice

KBA Board of Governors Ursula Bailey Mark A. Castleberry Meagan Collver Jonathan D. Cooper

Daniel L. Ellis Magistrate Robin Gunn William A. Mynatt Jr. Vanessa Samano

Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Zachary Walden

The Knoxville Bar Association Staff

5 7 13

15 19

President’s Message

The Celebration Continues

Practice Tips

Deck the Halls with DUI Defense Tips!

Management Counsel

Don’t Just Talk to Me: The Importance of Communication Between In-House Counsel and Human Resources

Legal Update

Barnes v. State: Dead Men Tell No Tales

Schooled in Ethics

New ABA Formal Opinion Addressing the Ethics of “Reply All” in Electronic Communications

WISDOM 6

Marsha S. Watson Executive Director

Tammy Sharpe Director of CLE & Section Programming

Jonathan Guess Database Administrator

9 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

Jason Galvas LRIS Assistant

Dicta

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

Exceptions to this policy must be cleared

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

December 2022

10 11 14 18 21

Volume 50, Issue 11

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.

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Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Brandon Allen Sarah Booher Anita D’Souza Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho

Managing Editor

Cathy Shuck Campbell Cox Melissa B. Carrasco Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Eddy Smith Grant Williamson

Marsha Watson KBA Executive Director

DICTA

25 24 26

27 29 31

What I Learned About Inclusion and Why It Matters

A Call To Prayer: Creating Space for Religious Diversity And Inclusion Within the Legal Profession

Hello My Name Is

Lucas Fishman

Judicial News

J. Scott Griswold - Knox County Clerk And Master

Better

Safekeeping

Attorney Profile

Loretta G. Cravens - 2023 KBA President

Legally Weird

Cut Her Some Slack

Privileged to be a Lawyer

Bridging the Justice Gap

Grammar Grinch

Harold, Help!

Bill & Phil Gadgets

METAVERSE: Super Highway of the Future, or Only a Hi-Tech Dead End?

Of Local Lore & Lawyers

A Cold War Christmas

Well Read

Making the Present Inhabitable: A Review of The World Keeps Ending and the World Goes On

Barrister Bites

Lobster: It’s How We Roll

Mitchell’s Malarkey

Nah, I’m Good

Tell Me A Story

Don’t Say No to Change

COMMON GROUND 4 20 28 28 30

Section Notices/Event Calendar Barrister Bullets/New Members Change of Addresses Bench & Bar in the News Pro Bono Project

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SECTION NOTICES & EVENT CALENDAR

Section Notices

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

Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the annual CLE program “Mediation: Practice & Ethics Update 2022,” scheduled for December 15. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarrett (566-5393) or Betsy Meadows (540-8777).

Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. Save the date for the annual CLE program “Bankruptcy Case Law Update 2022,” scheduled for December 16. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).

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

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition, to in-house and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000), Tim Roberto (6912777) 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 have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law Section for the annual CLE program “TN Family Law Update 2022” on December 13. If you are interested in getting involved, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050).

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

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2020 will automatically be opted-in to the section. If you would like to get involved in planning Section activities next year, please contact Section Chairs Courteney BarnesAnderson (803-341-0196) or Sanjay Raman (607-972-6140).

Senior Section The KBA Senior Section plans to start meeting again in 2023 for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307).

Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Save the date for the CLE program “Marketing in the Age of Social Media” scheduled for December 20. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936), Brittany Nestor (214-7869), or Tripp White (712-0963).

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DICTA

event calendar n n n n n n n n n n n

n n n n n n n n n

December 1 7 8 9 13 13 14 15 16 16 20

Ethics Bowl CLE Barristers Elections & Holiday Party Judicial Committee Annual Meeting & Elections Family Law Section CLE Professionalism Committee Veterans Legal Advice Clinic ADR Section CLE Bankruptcy Section CLE Wellness Committee Solo Small Firm Section CLE

January 3 10 10 11 11 12 25 27 31

Law Office Tech Committee Professionalism Committee Access to Justice Committee Veterans Legal Advice Clinic Barristers Planning Meeting Judicial Committee Board of Governors Meeting Wellness Committee CLE Committee

SAVE THE DATES: Barristers Elections & Holiday Party December 7 KBA Annual Meeting & Elections December 9

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

December 2022

PRESIDENT’S MESSAGE By: Jason H. Long

Lewis Thomason P.C.

THE CELEBRATION CONTINUES At the Annual Meeting last year, I told people that we were going

summary of those accomplishments and the people to thank in the year-

to spend this year in celebration. After nearly two years of enduring a

pandemic that kept people indoors and away from one another, I thought we all needed an opportunity to come together and celebrate. Moreover,

we had cause to celebrate. The pandemic brought uncertainty. It brought massive disruption. Still our bar association weathered the challenges

and, in many ways, grew stronger by necessity. I was content to make

end report, which will be circulated at the Annual Meeting. I hope you

will take a look at it and thank those people who have devoted time and energy into making this an outstanding association. I apologize that I cannot do so here in this space.

Finally, I was the beneficiary of an outstanding bar staff. We try

to say it at every event and every opportunity (or at least if we don’t,

this a year of simply getting back to some

we should), “Thank you to Marsha and her

semblance of normalcy.

wonderful staff.” I cannot express in words

Sometimes, due to timing and

my feelings of gratitude and appreciation to

circumstance, you can get lucky. This

Marsha for her tireless and outstanding work

year I got very lucky. Not only was I the

on behalf of the bar association. For anyone

beneficiary of a return to normalcy, I was

who has worked with Marsha for even a short

also the beneficiary of the hard work of other

period of time, you know you are working

individuals which spanned years but which

with a talented and committed individual who

culminated in events this past year. Our

takes great pride in our bar and enjoys seeing

judicial evaluation efforts in conjunction

it flourish. Just as important, Marsha has

with the elections and the development of a

assembled a remarkable staff which does not

Strategic Initiative Plan by our Diversity and

get mentioned nearly enough. It is possible

Inclusion Committee come to mind. These

to thank them specifically within the confines

were major achievements, envisioned by others several years ago, and

of this article, so I will do so. Tammy Sharpe, Jonathan Guess, Bridgette

course of multiple bar years. This year simply happened to be the year

soul of our bar association and you are appreciated more than you will

put into motion by the work of dedicated volunteers throughout the

Fly, Tracy Chain and Jason Galvas, thank you all. You are the heart and

that all of that hard work came to fruition. In truth, I had absolutely zero involvement in these wonderful projects, but that will not stop me from

bragging that they were accomplished in the year I served as president of the bar.

I am also a beneficiary of the dedication and skill of the many

volunteers in our bar who make this engine go. I attempted to write this

article specifically mentioning each of the 16 committees and 12 sections,

their dedicated members, and their highlighted accomplishments over the past year. The column ended up being over five pages long. It is a good

problem to have when it is no longer possible to list the accomplishments of our bar in a single column. Just thinking about the work of the bar

this year overwhelms me. The aforementioned judicial evaluation process and Strategic Initiative Plan, the return to a live Law Tech Expo, the

first ever Bench/Bar Celebration, a Wellness Conference, fee-dispute

resolution, additions to our membership benefits, DICTA, the abundance of Barrister’s activities (clothing drives, food drives, volunteer breakfast,

mock trial competition, golf tournament for charity, summer parties, just

ever know.

The Annual Meeting will take place on December 9 in the Main

Assembly Room of the City County Building. When I first started

practicing, Charles Swanson and Sarah Sheppeard made it clear to me

that attendance at that meeting was not optional. One of them (I can’t

recall who so I will attribute both) told me that there were two events we, as Knoxville lawyers, had a duty to attend if at all possible: The Supreme Court Dinner (now Bench/Bar Celebration) and the Annual Meeting.

The first because it was in honor of our judiciary and the second

because we should have a voice in the governance of our organization.

In addition, both provided the opportunity to congregate with other

lawyers, which always translated into positive professional development and made being a lawyer a little more enjoyable. I still try to adhere to their directive (I may have added a few others to the must attend list

over the years: Law Day Celebration, the Law Tech Expo, and the KBA Memorial Service come to mind).

I encourage everyone to come out for the Annual Meeting. You

to name a few), Professionalism Committee advocacy, and dozens of new

will be astonished at what your bar has accomplished. You will have

in the past year that I can rattle off the top of my head as I write this

honor and give thanks to those who have worked so hard to advance the

CLE offerings, are just a few of the many projects of our bar association article. I have missed many, and space does really prohibit identifying

the volunteers who made all of this possible. Fortunately, you can find a December 2022

an opportunity to spend time with other lawyers. You will be able to

profession this past year. Most importantly, you will be able to celebrate.

DICTA

5

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

Easter & DeVore

A CALL TO PRAYER: CREATING SPACE FOR RELIGIOUS DIVERSITY AND INCLUSION WITHIN THE LEGAL PROFESSION During my first year in law school, my fellow law students and I were given the opportunity to be mock interviewed by local attorneys.

I immediately jumped at the chance of gaining any insight to a very unpleasant, yet necessary, part of entering the legal profession upon graduation.

One of the attorneys who volunteered their time to interview students sat down with me and provided some great feedback for future interviews. Yet one of their last pieces of advice will always stick with me.

Their parting words were to remove any reference pertaining to my twoyear mission for the Church of Jesus Christ of Latter-day Saints (“LDS Church”) from my resume.1 Why? Because “people think your religion is weird.”

While their overall advice was extremely beneficial, this specific admonition completely gutted me. Postponing my education and leaving loved ones for two years to serve others was a defining period of my life.

So, to be told that this lifechanging experience must be removed because knowledge of my religious beliefs would hurt my chances of being employed was devastating. On top of that, because I was an alumnus of Brigham Young University, a private university affiliated with the LDS Church, attempts to distance myself from my religion would also have to include removing any information about my previous education. A move that would assuredly puzzle potential employers.

I ultimately chose not to follow this well-meaning attorney’s advice.

If my “weird religion” would turn off potential employers, I probably would not be a good fit for them anyway. Thankfully, there were those in the legal community who gave me a chance and saw the attributes gained from my religious background not as a hinderance, but as a strength to their practice. But this experience will always remind me that diversity and inclusion do not only include race, ethnicity, sexuality, and gender.

They also include religious beliefs and practices that are not part of the religious mainstream.

Contrary to popular belief, religious discrimination has a long history in the American consciousness.2 Both President John F. Kennedy

and presidential hopeful Mitt Romney had to assuage concerns from potential voters that their religious beliefs (Catholic and LDS, respectively) would not unduly influence their presidential roles if elected.

This was despite both men being part of Christian denominations who believed the Bible (or in the case of Mitt Romney, the Bible and the Book of Mormon) to be holy scripture. Those of the Islamic faith are still viewed with suspicion, and just now, one does not need to look hard to see reprehensible expressions of antisemitism on the rise. When viewing those who subscribe to religious beliefs that differ from our own, such views often cause us to fall into the trap of defining those persons solely on their religious beliefs. We then, in turn, make assumptions purely based on what we (think) we know about their beliefs.3 Yet each person’s religious background and faith, even if different from our own, can provide insights, experiences, and attributes that can enrich the practice of law. And just like every other form of diversity, religious diversity can help the legal profession be more full, complete, and better equipped to serve each other and our community. To put it another way, an orchestra is not an orchestra if made up of nothing more than the flute section. All faiths, whether they derive from the Bible, Torah, Quran, Book of Mormon, or any other religious text, call upon their adherents to attain the highest attributes of moral conduct, both on a personal and professional level. Such aspirations should be welcomed and supported by all - no matter which religious source they derive from.

1

2

3

The Church of Jesus Christ of Latter-day Saints is commonly referred to as the “Mormon Church,” but in recent years it has made efforts to no longer be referred to by this name. This is due to its derogatory origin in which the term was first coined by early opponents of the LDS faith and to help clear the oftenmisunderstood conception that adherents to the LDS faith do not believe or worship Jesus Christ.

See Tisa Wenger, Religious Freedom: The Contested History of an American Ideal (The University of North Carolina Press, reprint ed. 2017); Spencer W. McBride, Joseph Smith for President: The Prophet, the Assassins, and the Fight for Religious Freedom (Oxford University Press, 1st ed. 2021).

Credit to my friend and colleague Shareef Amer, a practitioner of the Islamic faith, for providing me with this very important insight.

Photo Ops Fall Hike

The Professionalism Committee hosted its annual fall hike on Saturday, November 5 at Seven Islands Birding Park.

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DICTA

December 2022

PRACTICE TIPS By: Arrin “A.Z.” Zadeh Oberman & Rice Law Firm

DECK THE HALLS WITH DUI DEFENSE TIPS! It is hard to believe that 2022 has already reached its final month.

As we all look forward to the holiday season and spending time with friends and family, one thing will always be constant: Holiday Parties.

No matter the scale or size of the gathering, there is an abundance of good cheer and spirits! I can see no better time to gift to my fellow Knoxville Bar Association members some helpful tips when that potential client calls with a pending Driving Under the Influence charge.

My first bit of helpful advice will be to make sure you meet with your new potential client as soon as possible. Upon meeting them for the first time and building that all important relationship of trust with them, I feel it is crucial to make sure you understand their goals in this situation. Most of these potential clients find themselves in a scary situation and, for the first time, having spent some time in jail.

Listen to them patiently and make sure you are on the same page as they are with potential “realistic” outcomes. In other words, I would suggest not assuring them that the case will go away. I find that most clients appreciate and value an honest evaluation of the case and facts during that initial conversation. You will work hard for them, but being completely forthright with a potential client normally results in a client trusting you.

After this potential client hires you (congrats on the new case!), my second tip will be for you to read the relevant statutes associated with the alleged criminal offense. This tip goes beyond just DUI offenses. It should be second nature to any lawyer (as well as being my second piece of advice). Always read the statute and perform a quick review of case law. You will be surprised at what bits of poorly written code you have missed or simply forgotten. It will not only help you in preparing your defenses, but you may find an affirmative defense to help your client.

Along these lines, always review bond requirements for DUI offenders.

As recently modified, Tennessee legislators amended bond requirements on DUI Offenders to mandate an Ignition Interlock Device on their vehicle under certain circumstances. Being able to inform your client about changes in law makes you look smart! A lawyer who looks smart is almost as good as a smart lawyer! Almost…

Focusing in on my tip mentioned above, please make sure to review the Implied Consent statute every 6 months (at a minimum). As most DUI defense lawyers know, this statute seems to change a lot. These changes were not only by our legislatures but also by the courts. So, along with this third piece of advice (reviewing the statute) please make sure to take a look at the actual Implied Consent Acknowledgment document that is prepared by the officer during the DUI arrest. If you can keep the blood or breath test out of evidence (either by improper advisement or execution of the consent form) you will have achieved a major step towards a positive outcome for your client.

In most DUI arrests, law enforcement agencies will have some sort of dash camera or body camera that should record most, if not all, of the encounter with your client. Additionally, arrest reports and alcohol influence reports are usually completed in conjunction with the arrest.

December 2022

Obtaining these materials is crucial in ascertaining what happened during the incident. Of course, you will not be able to “smell” your client via video but, the video evidence will help you confirm or dispel other allegations made by the officer (e.g., driving behavior, speech patterns, your client’s gait, etc.). It is very important to not skip this step and get all the relevant materials as soon as you are able.

Perhaps the most important piece of advice I can give is something that every lawyer should partake in, but it makes the biggest difference in your representation. Always communicate clearly and timely with your client. DUI defense seems to be getting more and more expensive. I am sure we have all seen the billboards that state something like “A DUI will cost you 10K”. Aside from the defense lawyer fees (your fee!) your client will potentially face additional thousands of dollars in court costs, fines, potential insurance increases, and driver’s license reinstatement fees. Therefore, you must speak with your client and make sure they are aware that they are not just a fee for you or a file number to the court system. I know we are all busy, but so is Santa Claus and he still delivers to every child in the world (so long as they have been good!). If a client hires you, they are on the good list. Make sure you talk with them and keep them in the loop. If you do not, it will be more than coal you are getting as a holiday gift (more like a letter from the Board of Professional Responsibility).

Even though this is a very magical time of the year, there is no one “tip” I could provide to help you be fully prepared in a DUI case as a defense lawyer. What I can tell you is that if you are fully prepared, completely upfront with your client about what their goals may be, and properly investigate the case you should be in the best possible position to obtain a favorable result. As always, I am happy to answer any questions you may have about your DUI case. Please feel free to call me at (865) 249-7200 or email me at az@tndui.com.

All of us from the Oberman & Rice Law Firm wish everyone a Happy Holiday season!

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DICTA

7

HELLO MY NAME IS By: Jennifer Franklyn Realty Trust Group, LLC

LUCAS FISHMAN This month’s “Hello, My Name Is…” column features Lucas Fishman. Lucas is an Associate Attorney at Kramer Rayson LLP, where he has a broad transactional practice including general business consulting, corporate, mergers and acquisitions, commercial, real estate, health care, and estate planning. Lucas is a 2020 graduate of the University of Tennessee College of Law, and he also holds undergraduate degrees in Finance/Economics and Business Administration (Management Emphasis) from Carson-Newman University. Although he is relatively early in his legal career, Lucas is already active in his community, as a member of the KBA, TBA, and ABA, Carson-Newman Alumni Board, Young Professionals of Knoxville, and Board of Directors for Lakeway Publishers, Inc.

What advice would you give to a new law student?

Take advantage of all the resources available to you and explore the many different options a J.D. has to offer. Of course, with the stresses and time restraints of school, this is much easier said than done. However, law school is the time to do it. Once you get out of school, you will be focused on your job, and you cannot easily bounce from one job to the next like you can with internships/externships. While in law school, I had the chance to intern in private practice, the public sector, and the general counsel’s office for a large company. These internships exposed me to diverse, real-world experiences and confirmed what I wanted to do with my law degree.

What do you enjoy doing in your spare time?

What do you enjoy most about your job?

I most enjoy the fulfillment I get when I have been able to help a client in a positive way, and they show true appreciation for my services. As an attorney, I do not think there is a better reward than knowing you have made a positive impact on a person’s life.

What was your first job, and what did you learn from it?

When I was in high school, my friend and I started a lawn care/ landscaping business. Although it was a small-scale operation, it taught me the responsibility associated with running a business, including everything from cold calling customers, managing finances, and providing quality services. Looking back, these lessons were formative in teaching me how to take ownership and pride in the work I do.

What is the best way to describe how you approach challenges in your life?

There are many ways to say it — if you strike out, get back in the batter’s box and keep swinging, when you get knocked down, get back up, etc. — in other words, be persistent and never quit. It’s a simple adage, but this attitude has served me well in life.

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It seems like my wife, Madison, and I never have a dull moment. We take the “work hard, play hard” approach to life. During our spare time, we enjoy tailgating and attending Tennessee football games (especially this year), getting out on the lake, and going to concerts. Over the past few years, we have also enjoyed traveling. We love new experiences and new places!

What’s your favorite restaurant in Knoxville?

I love Italian food, so it is a toss-up between Savelli’s and Altruda’s.

DICTA

December 2022

JUDICIAL NEWS By: Matthew T. McDonald

Bernstein, Stair & McAdams LL{P

J. SCOTT GRISWOLD - KNOX COUNTY CLERK AND MASTER Appointment of Clerk and Master Knoxville, Tenn., Oct. 1, 1955 Mr. W.T. Hennings: Having full confidence in your ability, integrity, and diligence, I hereby appoint you Clerk and Master of the Chancery Court of Knox County for the full term of six years.

Respectfully,

CHARLES E. DAWSON, Chancellor1 Clerk and Master Hennings’ personal copy of the Fifth Edition of Gibson’s Suits in Chancery, from which this quotation is taken, still sits on the bookshelf in the Clerk and Master’s office. His name is inscribed in the inside front cover, and both volumes are falling apart from sufficient use. Our county is fortunate to have had a succession of capable officeholders in this critical position. On September 1, 2022, J. Scott Griswold was sworn in as the next Clerk and Master of the Chancery Court for Knox County, Tennessee, successor in office to Howard G. Hogan, who retired after diligent service to the Chancery Court for twenty-four years. I recently had the pleasure of sitting down with the recently appointed Clerk and Master to discuss his experience thus far in this constitutionally created office, which is largely an enigma to the general public.

J. Scott Griswold is a self-professed “first-born, type-A, rule-follower,” the son of an accountant and a police officer. His undergraduate studies included accounting and political science, and he was encouraged to apply for law school. While at UT Law, one of his mentors, Professor Penny White, encouraged him to apply to be a judicial clerk for Chief Justice Barker of the Tennessee Supreme Court, for which he was selected by the former Chief Justice himself, serving as his last law clerk. During this early mentorship, he established a foundation for interpretation of the law as jurist and the need to perform such duties with impartiality and practicality.

Mr. Griswold’s background in accounting and business, combined with his affinity for textual interpretation, drew him to trust and estate litigation at Paine, Tarwater & Bickers, LLP, where his early mentors, such as Dwight E. Tarwater, helped shape his view of litigation and greatly influenced both his personal and professional growth. Other associations reenforced this path of trust and estate practice. While his time at Paine, Tarwater & Bickers served as his “litigation bootcamp,” his time spent at Holbrook Peterson Smith LLP served as an “estate planning bootcamp,” which provided for a more well-rounded view of his chosen practice area. Mr. Griswold’s private practice has mainly been centered on Chancery matters, where he spent much of his time practicing before the Clerk and Master.

After being asked by the Chancellors whether he would consider the appointment as Clerk and Master, Mr. Griswold admits that, after very brief moment of personal pride, an adrenaline crash followed upon December 2022

contemplating the expansive duties of the office. After careful consideration with his family and law partners, he concluded that it was a good fit at this juncture in his career. After fifteen years of private practice, the offer presented itself as an opportunity to serve the public and as a new personal challenge he felt compelled and ready to undertake.

We discussed the more immediate challenges for the office. There have recently been several retirements by senior deputy clerks, and there is a need to hire qualified staff to be trained in Chancery practice and procedure. Additionally, and in support of the Chancery staff, the need for updates in technology are also on the new Clerk and Master’s radar. In particular, the probate office is in the early stages of digitizing the Will Books and other probate records, which will allow remote access to probate records via an online platform. Other technological advances will include the addition of monitors and cameras in the probate courtroom to allow for videoconference hearings in the appropriate circumstances.

Of special note is the upcoming delinquent property tax sale, set for January 5, 2023. He has already met with the Trustee’s office to establish the upcoming sale, which will likely be the largest sale in Knox County history. The Clerk and Master’s office is instrumental in this process.

The Clerk and Master serves as the auctioneer at the sale, and the office provides accounting for incoming funds and the distribution of such funds and participates in post-tax sale hearings.

Mr. Griswold emphasized his dedication to advancing efficiency within the office. He noted: “people expect a responsive government, an efficient government, and technology is a big way to get there. And the other way is with our deputy clerks — to make sure they have the infrastructure and the training they need.” To this end, he is in the process of hiring several new staff members in both the Probate and Chancery Divisions, including a law clerk to ensure the forms and manuals continue to be updated pursuant to new law and procedure.

Another recent addition is a Chief Deputy with a background in accounting and technology, who comes to the position with decades of experience managing law offices of all sizes. Mr. Griswold further emphasized the need for continued cross-training among the deputy clerks to be able to work together to build a system of excellence that the public and the bar have come to expect from the Clerk and Master’s office.

Mr. Griswold has had little opportunity to engage in his hobbies, especially woodworking. His grandfather, also a woodworker, handcrafted the desk Mr. Griswold uses in his Chancery office. A lesser known tidbit about the new Clerk and Master: as a teenager he was invited to try-out for the Olympics as a trap-shooter.

Mr. Griswold stated he will continue to have an open-door policy and looks forward to this opportunity for public service. Both the bench and the bar are fortunate to have the new Clerk and Master in office.

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Henry R. Gibson, Gibson’s Suits in Chancery, § 1205 (Arthur Crownover, Jr., ed., 5th ed., 1956).

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BETTER By: Melissa B. Carrasco

Egerton, McAfee, Armistead & Davis, P.C.

SAFEKEEPING In January, this column began with the sound of hammer and chisel, the cries of stonemasons and carpenters, and the toiling of two groups of people—the Parisii and the Gola—who labored tirelessly and gave sacrificially to build structures that would stand as monuments to their faith and history for centuries. There was another sound—the sound of weeping.

The Gola were rebuilding the Beit haMikdash—the temple that was destroyed by Nebuchadnezzar and the Chaldean army some 70 years earlier.1 The ones who remembered the original Beit haMikdash wept as the new foundation was laid because the new building seemed insignificant by comparison to the original.2 They were faced with a choice: dwell on what was lost or get to work rebuilding. That was the admonition of the prophet Haggai: “Take courage, all you people of the land . . . and get to work. . . . The glory of this new house will surpass that of the old.”3 And so, the exiles—the Gola—got to work.

It took over twenty years to complete what became known as Zerubbabel’s Temple or the Second Temple.4 Sheshbazzar started the project. Cyrus, King of Persia, entrusted Sheshbazzar with transporting the surviving artifacts from the Beit haMikdash and leading the first group of the Gola as they returned to the land of Israel.5 Sheshbazzar is credited with laying the foundation of the Second Temple, but then building stopped due to interference from the people who had moved into the ruins of Jerusalem during the diaspora.6 Also, it was more than a little difficult to convince people to work on a building project when they were trying to rebuild their own lives.

Zerubbabel took over.7 He saw the unfinished building and understood what its completion would mean to the rebuilding nation, and he got to work.8 But, unlike Sheshbazzar, Zerubbabel had help—the religious leader Joshua ben Jehozadak, Ezra and Nehemiah, who took up construction as a second career and led the rebuild of the Second Temple and reconstruction of the walls surrounding the city of Jerusalem, and Haggai and Zechariah, whose strong voices motivated professionals and laypeople alike to join the building efforts.9 Within 5 years, the Second Temple—the Beit haMikdash hasSeni (“Second House of the Sanctum”)—was completed.10 It stood in place for the next 420 years and was essential to preserving the nation’s cultural uniqueness and history.11 The completion of the Beit haMikdash hasSeni was not the end. It never is. Anything worth building is also worth preserving. That is the next chapter.

About 340 years after the Second Temple was completed, it found itself under attack. By then, the Persian Empire had been conquered by the Greeks, and Antiochus IV Epiphanes was in charge of a very large, and very powerful, army.12 Antiochus IV Epiphanes was a person with an unrelenting commitment to instilling Hellenistic culture and beliefs wherever the Greek empire expanded, including Palestine.13 To Antiochus IV Epiphanes, that meant forbidding the Jewish people from practicing their religion and then publicly desecrating the Second Temple that had been the center of Jewish faith and culture for centuries.14 It meant extinguishing the fire that had been burning on the Menorah standing inside the temple for centuries.15 It was not long before the people resisted—led by Mattathias and his five sons.16 When Mattathias died a year later, his son, Judah Maccabee (“the Hammer”) took charge, and after two years, Judah and his followers managed to take back Jerusalem and restore the Second Temple.17 Most are familiar with this story as it is part of the origin of the celebration of Hanukkah.

It is a celebration of a miracle—a miracle in which the Menorah was re-lit and then remained lit for 8 days, even though there was only enough oil for 1 day. It is also a celebration of the preservation of the building that was rebuilt by the Gola centuries ago and the history and culture that continues to be built even to this day—even under the most

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dire of circumstances.

By the time of Jesus almost 2 centuries later, it was called the Feast of Dedication, and it was celebrated, despite Roman occupation at the time.18 During the Holocaust, some fashioned Menorahs out of scraps of wood and bullet cartridges which they found in the concentration camps.19 At the Bergen-Belsen concentration camp, some made candles out of the scraps of what little food they had and wicks from their threadbare clothes.20 They whispered the Hanukkah blessings and gave thanks even in the darkest circumstances.21 Some things are worth preserving and passing on.

This year, my Firm turned 90 years old. Our origin story is not quite as dramatic as that of the Beit haMikdash hasSeni or the celebration of Hanukkah, but it too is a story of rebuilding and preservation. Our Firm was founded by two lawyers, Mr. M.W. Egerton, Sr. and Mr. Joseph A. McAfee, during very dark times—the early years of the Great Depression.

At the time, Mr. Egerton and Mr. McAfee had one focus: reorganizing the East Tennessee National Bank, one of the thousands of banks that failed after the stock market crash of 1929. Whether you are rebuilding a city or rebuilding a bank, you cannot do it from afar.

Presence matters. Mr. Egerton and Mr. McAfee understood this and set up the Firm an office in the bank’s building. Then, they got to work.

Soon, the bank’s charter was reinstated, and Park National Bank emerged as the largest bank in Knoxville. That foundation was laid 90 years ago, and dozens of attorneys have built upon that foundation and preserved this legacy for the next generation of lawyers. That is our Firm’s story.

But, that very well could be the story of any lawyer because our profession builds upon the foundations laid by other lawyers. 2022 is almost over, but it is not too late to do something to make the legal profession just a little bit better.

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AICE, The Jewish Temples: The Babylonian Exile (597-538 BCE), https://www. jewishvirtuallibrary.org/the-babylonian-exile; see also AICE, The Jewish Temples: The First Temple – Solomon’s Temple, https://www.jewishvirtuallibrary.org/the-firsttemple-solomon-s-temple.

Ezra 3:12-13 (CJB).

Haggai 2:4, 9 (CJB).

Lawrence H. Schiffman, Ancient Israel: Building the Second Temple, https://www. myjewishlearning.com/article/second-temple/, last visited Nov. 9, 2022.

Id.; see also Emil G. Hirsch, Schulim Ochser, Sheshbazzar Jewish Encyclopedia, https://www.jewishencyclopedia.com/articles/13567-sheshbazzar, last visited Nov. 9, 2022.

Chabad.org, Tisha B’Av and the 3 Weeks, The Second Temple is Built, https://www. chabad.org/library/article_cdo/aid/144773/jewish/The-Second-Temple-is-Built.htm, last visited Nov. 9, 2022.

Lawrence H. Schiffman, Palestine under Persian Rule II, My Jewish Learning, https://www.myjewishlearning.com/article/palestine-under-persian-rule-ii/, last visited Nov. 9, 2022.

Id. Id.; see also Chabad.org, supra n.6.

Schiffman, supra n. 4.

Chabad.org, supra n.6.

Hans Volkman, Antiochus IV Epiphanes, Encyclopedia Britannica, available at https://www.britannica.com/biography/Antiochus-IV-Epiphanes.

Id. Id. Id. History.com, Hanukkah, https://www.britannica.com/biography/Antiochus-IVEpiphanes, last visited Nov. 9, 2022.

Id. See John 10:22-23.

Natasha Frost, Amid the Holocaust’s Horrors, Many Jews Found Ways to Mark Hanukkah, History.com (Dec. 20, 2019), https://www.history.com/news/holocausthanukkah-concentration-camps-jews, last visited Nov. 9, 2022.

Id. Id.

December 2022

AT TO R N E Y P R O F I L E By: Zachary R. Walden Criminal Court Judge Eighth Judicial District

LORETTA G. CRAVENS – 2023 KBA PRESIDENT Loretta G. Cravens will soon take the gavel as President of the Knoxville Bar Association. I first met Loretta when I joined Eldridge & Blakney in 2016. At that time, the newest theatrical adaptation of Wonder Woman was being advertised, and while Gal Gadot played the role, Loretta embraced the spirit of the character and is ready to be Wonder Woman for the KBA. Loretta grew up on the Cumberland Plateau in Fentress County, Tennessee, and attended Tennessee Technological University. She lives in North Knoxville with her husband, Jody Mullins, and their loveable rescue dogs, Phoenix and Audie—named after World War II hero Audie Murphy. Outside of work, you can always catch Loretta at a Knoxville Ice Bears game, where she has served as the Boosters President.

As told by Wonder Woman, the Amazon’s sacred duty is to defend the world—and defending the accused has been Loretta’s passion. Loretta graduated from the University of Tennessee College of Law in 2004, and joined Eldridge & Blakney shortly thereafter. In 2017, she formed her own firm, Cravens Legal. In her storied career, Loretta has represented defendants admirably in some of Knoxville’s most high-profile cases in both state and federal court. She was recognized by the National Trial Lawyers Top 40 Under 40 every year from 2012-2016.

In the Wonder Woman movie, Steve Trevor told Wonder Woman, “If you see something wrong happening in the world, you can either do nothing, or you can do something.” Loretta’s commitment to service shows that she is someone who does something. Loretta has served our bar as Co-Chair of the Membership Committee and the Barristers Law Week Committee. She has also been a member of the KBA’s Diversity in the Profession Committee, Access to Justice Committee, Nominating Committee, Governor’s Award Committee, and the Barristers’ Hunger and Poverty Relief Committee. Additionally, she has served as President of East Tennessee Lawyer’s Association for Women and Co-Chair of the TBA’s Leadership Law program.

I would be remiss if I didn’t take a moment to emphasize the importance of bar leadership. Loretta and I both began our legal careers at Eldridge & Blakney, which was founded by two former KBA Presidents—David Eldridge and Tasha Blakney—who prioritized bar service within our firm. David, who served as KBA President in 2005, says, “Loretta is a wonder to watch practice law and lead in our bar at both the state and local level. She has taken the life lessons she learned early growing up in Fentress county with her grandparents and honed them over the years to become a remarkable person and lawyer. She listens thoroughly, cares deeply, and leads effectively. She truly embodies what it means to be a servant leader. I am very pleased and proud that she will be our next KBA President.”

Tasha, who served as KBA President in 2015 and is currently serving as TBA President, says, “When you interact with Loretta, you get December 2022

an almost immediate sense of who she really is. She is both authentic and genuine, and she treats each person she meets with the same measure of kindness and respect. Over the many years I have known her, I have come to deeply value her wisdom and her compassion. She will leave the KBA—and all of us---better for her leadership.”

Loretta and I were both fortunate to have David and Tasha as mentors, and I know that Loretta is a firm believer in serving as a mentor to other young lawyers. She currently teaches as an adjunct professor at LMU’s Duncan School of Law. When Loretta takes office, she will continue to support the KBA’s long tradition of providing unmatched service and benefits to membership and support the organization’s efforts to continue to evolve to meet the demands of the ever-changing practice of law.

Congratulations, Loretta, and I know we all can’t wait to see all the ways the KBA excels under your leadership. You will be the KBA’s Wonder Woman!

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December 2022

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Heather Shubert Summit Medical Group

DON’T JUST TALK TO ME: THE IMPORTANCE OF COMMUNICATION BETWEEN IN-HOUSE COUNSEL AND HUMAN RESOURCES Communication between attorney and client is the key to a successful relationship. As in-house counsel for Summit Medical Group, I have approximately 2000 clients who can call at any time with any number of issues. Physicians, advanced practitioners, office managers and staff have access to the legal department whenever they need us.

In addition to those clients, I am available to the C Suite, operations, customer relations and most importantly, human resources. The relationship with human resources is the foundation of all other client relationships. If we don’t communicate, the entire system can fail costing the company employees, time, and money, so let’s communicate.

Within the human resources department are many people that I interact with daily. I work with recruiting to offer letters of intent to new providers and begin the contracting process. When recruiting has a potential new provider, our initial contact with that person sets the tone for their future with our company. Often, I am the second person from the company to have contact with the new provider. Recruiting puts together the details of the letter of intent for me to send out securing a commitment to Summit. If we misstep on this initial letter, it gives the appearance of a lack of communication which conveys an unfavorable impression of our company. We must ensure the details are written as the provider expected from negotiations and communication is the key to making this happen.

Human Resources provides information needed for amendments to employment agreements for salary and benefits.

Contracted employees require an amendment to make changes to the original agreement and no salary changes will be made until the fully executed document is delivered to payroll. Human Resources works with the office managers to ensure the accurate salary, bonus change or benefits adjustments are relayed to legal to write the amendment and send for electronic signature. Communication in a timely manner with accurate information is important in employee satisfaction and retention.

Our benefits coordinator assists me in providing much needed information for new employees with questions about their insurance and other provided benefits. Each employee who joins either an existing Summit office or comes into our company via acquisition must be informed of the benefits Summit offers. Being the person who sends out new contracts, I am often asked about those benefits. Having a great relationship with our benefits coordinator allows me to pass along basic information or forward them to her to get all the details.

The director of human resources works with the C suite and the legal department on higher level issues concerning companywide changes.

Policy changes can be as simple as dress code and visible tattoos or as complex as handling social media, nepotism, or disciplinary step changes.

Termination of higher-level employees demands communication and confidentiality between human resources and the legal department. Our director stated her communication with legal and the C suite is very different. She can say things to me, be more candid and blow off steam about issues that are difficult to deal with, whereas the approach with the C suite must be more professional and straightforward. If we don’t laugh over the craziness, we won’t make it out of this in one piece. This open communication between she and I is critical and cathartic at the same time. We have to talk, and we know that.

There is a group in human resources that must work closely with legal, the compliance division. We have two compliance specialists who handle internal investigations, dive into anonymous compliance line reports, and meet with staff to understand issues arising at their location. The specialist will do an initial assessment of a situation and determine if legal should request the investigation to protect attorney client privilege and attorney work product should they feel it could have legal implications at some point. Of all the divisions within human resources, this one requires the most communication with legal. If we do not protect an investigation, everything will be discoverable, the good the bad and the ugly. As much as we want our employees to always do the right thing, it is not possible for that to happen in a company of this size or any size. Communication is essential to protect the company from future litigation or employment related complaints to the EEOC or THRC. It is our nature as attorneys to talk, to clients and colleagues alike, but how well do we communicate? Talking is the uttering of words or phrases to get a message across. Communicating takes that a step further by listening and understanding what is being said. Developing a relationship with another department involving trust and reliability requires communication. We do have to talk, we talk every day, but we communicate as well. Could we do better at communicating between our departments, always. We can work to develop both our talking and communicating skills to protect the company and our employees. So don’t just talk to me, let’s communicate.

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646.

December 2022

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

CUT HER SOME SLACK, MAN! I don’t know when it happened, but at some point, I have become one of those lawyers who tell stories about the way it was when I started practicing. I really don’t feel old or seasoned (except when I try to read stupid fine print without stupid reading glasses), but a fair amount of time has passed since I passed the bar and became a lawyer. It does make me feel a bit older when I describe the way things were when I was a brand new associate a.k.a. “baby lawyer:” •

•

•

Our firm had one single email address for the entirety of the firm, and some people also used that email address for personal use. And yes, I am pretty sure that it was an AOL email address.

We received telephone messages on small pieces of paper filled out by the receptionist and picked them up from our slots on the front desk when we returned from court or lunch. This was the only way we received messages. We debated getting a “voice mail” system. A bit controversial, but we ended up adopting it.

Women (at least women lawyers) did not wear pants to court. At least that was what I was universally told – it is possible that a fellow lady lawyer defied these social constructs and covered her legs, in spite of the possible consequences, before my time.

There is no question but that many of the female lawyers who blazed trails for the rest of us had to put up with much more than the requirement of skirts in the courtroom, but this was the particular bee in my particular bonnet back in 1997.

Obviously a suit with pants was equally as professional as a suit with a skirt; what was the justification? These were also the days (here I go again) when almost everyone wore pantyhose or tights in skirt or dress situations, and that is a whole other element of annoyance – I shed those (for the most part) years ago and have not looked back.

Locally, the anti-climactic end to this saga is that within a very short period of time after I became a lawyer, it was okay to wear pants to court. I was not the first, and I don’t remember who was (see above regarding “old” and “seasoned”), but I hope she steps forward so she can be celebrated! We can name a holiday in her honor! Or, I will buy her a drink!

I am going to be honest with you. (The only reason I begin this paragraph in this way is to make the point that anyone who begins their

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confession of candor to me in this way always makes me wonder, “Why do you need to preface whatever you are going to say like this? Are you typically not honest with me? Otherwise, why not just say what you are going to say?”). I usually do not wear pants to court. This is because suits in general are often annoying to me, and I would rather wear a dress, with or without a jacket, and any of these options are suitably (see what I did there?) professional and acceptable. However, the choice is what is important. And, if I can ever turn back time and look like I did when I was in my 20s (see above regarding “old” and “seasoned”), I may again embrace the pantsuit.

Here is what I did not know in 1997: Helen Hulick had already blazed this trail in Los Angeles, almost forty years before that. Hulick was a 28-year-old kindergarten teacher called to testify at trial against two burglary suspects. She was incredibly controversial, though. She wore pants to court. Judge Arthur S. Guerin rescheduled her testimony and ordered her to wear a skirt next time. Hulick told the Los Angeles Times, “You tell the judge I will stand on my rights. If he orders me to change into a dress I won’t do it. I like slacks. They’re comfortable.”

Five days later, she returned to court, in slacks. Judge Guerin admonished her: “Today you come back dressed in pants and openly defying the court and its duties to conduct judicial proceedings in an orderly manner. It’s time a decision was reached on this matter and on the power the court has to maintain what it considers orderly conduct.

The court hereby orders and directs you to return tomorrow in accepted dress.

If you insist on wearing slacks again you will be prevented from testifying because that would hinder the administration of justice. But be prepared to be punished according to law for contempt of court.”

Hulick, commenting on the judge’s rulings to the Times, said “Listen, I’ve worn slacks since I was 15. I don’t own a dress except a formal. If he wants me to appear in a formal gown that’s okay with me. I’ll come back in slacks and if he puts me in jail I hope it will help to free women forever of antislackism.”

Hulick showed up the next day to testify, in pants. She was held in contempt and sentenced to five days in jail, where she was given a prison denim dress to wear. She was released on her own recognizance, and her contempt citation was overturned by the appellate court, freeing her to wear slacks to court.

Hulick returned to court to testify a few months later. She wore a dress.

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December 2022

L E G A L U P DAT E By: Allison R. Cyrus-Walker, Esq. Law Office of Sheridan Randolph

BARNES v. STATE: DEAD MEN TELL NO TALES On September 30, 2022, the Tennessee Court of Criminal Appeals issued an opinion affirming the summary dismissal of Rhynuia L. Barnes’s petition for post-conviction relief.1 Barnes was convicted of first degree murder following a jury trial in 1999.2 Barnes’s requested relief was somewhat unique in its nature. Rhynuia Barnes submitted a motion pro se on December 13, 2021, seeking to have his dead father’s body exhumed for the purposes of obtaining a palm print to compare with an unidentified latent palm print on the murder weapon.3 Barnes’s father died in October 2002, almost twenty years prior.4 Barnes maintained, however, that if the unidentified palm print could be matched to his father, his innocence would be proven.5 The post-conviction court dismissed Barnes’s request for exhumation, citing that no basis had been established to demonstrate that exhuming his father’s body was requisite for the administration of justice.

Barnes had filed three prior failed coram nobis petitions, and the postconviction court further noted that “overwhelming proof ” was presented at trial of Barnes’s guilt.6 On February 16, 2022, Barnes filed another petition under the Post-Conviction Fingerprint Analysis Act of 2021, seeking fingerprint testing from his deceased father.7 It was this petition that led to the Court of Criminal Appeals’ recent opinion.

The Underlying Case Barnes arrived at the victim’s home on September 2, 1997, brandishing a gun, and seeking to confront the victim over an alleged jewelry theft.8 Upon seeing the gun in Barnes’s hand, the victim fled to the rear area of the inside of the home. Testimony from the victim’s mother indicated that it wasn’t until after Barnes had run around to the back of the house, gun in hand, in pursuit of the victim that the older man (Barnes’s father) approached the front door.9 A neighbor testified to this as well, and both witnesses stated that they never saw the older man with a gun; only Barnes was carrying a gun.10 While the elder Barnes was at the front door, gun shots were heard from the back of the home where the younger Barnes had pursued the victim.11 The victim’s mother subsequently identified the gun she saw in Rhynuia Barnes’s hand as the murder weapon.12 When police officers initially encountered Barnes and his father after the shooting, the younger Barnes ran to a parked car from a house across the street from where the murder occurred.13 In the area that Barnes was witnessed by officers running from, investigating officers found a gun in a plastic bag with clothing, hidden in a pile of garbage.14 The gun recovered was a .38 revolver. The medical examiner testified that the victim died due to three gunshot wounds.15 Interestingly, Rhynuia’s father, James Barnes, had a bleeding cut on one of his hands when he was detained along with Rhynuia.16 Moreover, an officer found three live .38 shells in James Barnes’s pocket.17 Although the elder Barnes and his son were both suspects early on in the investigation, detectives stated that they did not fingerprint James Barnes because of his hand being bandaged.18 Once the charges against the father were dropped at his preliminary hearing, “it became impossible to obtain his prints.”19 December 2022

The only print obtained from the murder weapon was the latent palm print that did not match the younger Barnes’s prints, and since the elder Barnes’s prints were not obtained in the initial investigation, they were never compared.20 At the police station following his arrest, Rhynuia Barnes confessed to the murder of Da’Shon Martin, telling police that his father had nothing to do with the shooting.21 When Barnes subsequently appealed his first degree murder conviction, he maintained that he confessed because he felt threatened by his father, and that his father was in fact the murderer.22 The Court of Criminal Appeals’ Analysis Under the Fingerprint Act The Barnes case is one of a handful of cases that have come before Tennessee’s Criminal Court of Appeals seeking post-conviction relief under the Post-Conviction Fingerprint Analysis Act of 2021 (hereinafter, Fingerprint Act). A petition pursuant to the Fingerprint Act may seek performance of fingerprint analysis on any evidence in the possession of law enforcement, courts, or prosecution (among other state entities) “that is related to the investigation or prosecution that resulted in a judgment of conviction and that may contain fingerprint evidence.”23 Four elements under the statute must be satisfied for a court to order fingerprint analysis, including: (1) a showing of reasonable probability that the petitioner would not have been convicted if exculpating results had been procured through fingerprint analysis; (2) the evidence sought to be tested is still in existence and in a condition allowing fingerprint testing to be conducted; (3) either the evidence was not previously submitted for fingerprint analysis or was not subject to the analysis requested which could resolve a previously unresolved issue, or analysis that is significantly more probative than any previous analysis is being sought based on the availability of new technology or methods.24 The fourth element required is that the application for such relief be made for purposes of proving innocence only and not to delay the administration of justice.25 As demonstrated in Barnes, failure to meet any one of the four elements is fatal to an award of post-conviction relief under the Fingerprint Act.26 The Court of Criminal Appeals observed that elements one and two were the most problematic for Barnes’s petition.27 A latent fingerprint specialist had explained in detail at trial that the absence of the petitioner’s palm print on the murder weapon was not dispositive of the petitioner never handling the weapon, but that there were a number of reasons that explained how the younger Barnes could have handled the weapon without leaving a latent print.28 The most fatal issue in Barnes’s petition, however, was the fact that, even if the weapon was still in the state’s custody, there was absolutely no possibility of obtaining usable prints from James Barnes’s remains that had been decaying for over twenty years.29 The facts of cases like Barnes inevitably raise the specter of “what if…”, particularly in light of the vast forensic advancements over the last twenty years. Such cases involving pro se litigants like Barnes raise some especially vexing policy questions in view of the complex nature of postconviction relief under statutes like the Fingerprint Act. In the meantime,

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U.S. SUPREME COURT SEEMS POISED TO END RACIAL AFFIRMATIVE ACTION IN HIGHER EDUCATION The U.S. Supreme Court, in Students for Fair Admissions, Inc. v.

President and Fellows of Harvard College1 and Students for Fair Admissions, Inc. v. North Carolina,2 is poised to invalidate race-based admissions in higher education under Title VI of the Civil Rights Act of 19643 and the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment.4 The decision would mean that colleges and universities will no longer be able to use race as a factor in student admissions or in hiring faculty and staff.5 The Court’s conservative majority will likely end affirmative action for two reasons.6 The first is that the universities’ use of race in admissions is not narrowly tailored. This is because the universities might have considered other alternatives such as ending the mandatory preference for legacy applicants, faculty children and student-athletes, and considered use of other metrics such as first-generation and low-household wealth status in the admissions process to diversify their student body. The Court will also likely conclude that higher education diversity is not a compelling enough interest to justify discriminatory treatment based on race, because use of race to confer benefits is always scrutinized in a country with pronounced racial divisions.7 The Court’s three liberal leaning justices will likely dispute this characterization by arguing affirmative action is necessary to maintain Black and Hispanic enrollment at elite universities in view of the pronounced racial achievement gap between under-represented minorities as compared to Asians and whites.8 They will likely argue that Black and Hispanic admission to elite schools provides them access to leadership roles, which is necessary in a country that will be majority-minority in the near future.9 Behind the Arguments The cases allege that Harvard and UNC-Chapel Hill illegally use race in their admissions processes to discriminate against Asian applicants.10 The universities maintain that their use of race is narrowly tailored to achieve a racially diverse student body, which the Court, first in Regents of the University of California v. Bakke,11 and subsequently, in Grutter v. Bollinger,12 concluded was consistent with the requirements of the Fourteenth Amendment’s Equal Protection Clause.13 Harvard’s Use of Race in the Admissions Process Harvard’s entry classes have been demographically stable based on greatly divergent admissions standards based on race.14 Harvard claims this was because it considers factors beyond race such as leadership skills and character, to explain why it admits so many fewer Asian candidates than would be the case using entrance credentials alone. Petitioner alleges that use of non-objective metrics is a convenient way to artificially depress the number of Asian students.15 The trial court concluded there was no discrimination by Harvard against Asians.16 Rather, its use of race as one of several factors in the admissions process, was deemed narrowly tailored to achieve a compelling interest of higher education diversity, and therefore consistent with equal protection.17 The trial court decision was affirmed by the First Circuit Court of Appeals, which concluded that Harvard’s admissions requirements satisfied requirements of Title VI as elucidated by Bakke and Grutter.18 UNC-Chapel Hill’s Use of Race in the Admissions Process UNC-Chapel Hill conceded it uses race as one of many factors in the admission process to achieve a diverse student body.19 Like with Harvard,

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petitioner alleges use of non-objective metrics are dishonestly applied to artificially depress the number of Asian students. For both in-staters (who are given priority), and out-of-staters, it is, based on objective criteria alone, far easier for Black and Hispanic students to gain admission than for whites and Asians.20 After the trial court concluded that its use of race, as one of several factors in the admissions process, was narrowly tailored to serve a compelling interest in higher education diversity, petitioner timely appealed the matter to the Fourth Circuit Court of Appeals.21 The U.S. Supreme Court granted certiorari before judgment to hear the matter and consolidated it with the Harvard case.22 A Short Primer on Equal Protection in Education For nearly a century after the Fourteenth Amendment was adopted, the United States operated under the chimera that government-mandated separation of the races satisfied the amendment’s Equal Protection Clause.23 In Brown v. Board of Education,24 the Supreme Court finally concluded segregated public schooling violated equal protection, but, in Brown II,25 the Court facilitated delayed integration by allowing school districts to desegregate with “all deliberate speed.”26 Although by 1972-3, 91.3% of Southern schools were desegregated, this is misleading because desegregation is not synonymous with integration.27 Following public opinion, the Court went so far as to disallow inter-district desegregation plans such that minority schoolchildren remain relegated to underfunded majority-minority schools and even concluded that unequal funding of public schools is consistent with equal protection.28 As of 2018, high wealth school districts receive roughly $23 billion more in aggregate funding than lower wealth districts.29 In-spite of these hurdles, the racial achievement gap between Black and White schoolchildren was reduced to its lowest level by the late 1980s.30 However, the effect of the Reagan tax cuts, in conjunction with the effects of deindustrialization and globalization, led to a growing wealth gap between white and Black Americans that has corresponded with worsening racial polarization and imbalance.31 In 2007, the Court concluded that school districts cannot combat this trend by using race as a factor in assigning students to public schools for integration purposes.32 Higher education only seriously began to be integrated with passage of and enforcement of Title VI of the Civil Rights Act, prohibiting discrimination.33 However, integrated higher education has been elusive because of continued discrimination in access to K-12 education. This explains why only 5% of lawyers are Black, only 2.1% of Black law school graduates obtain federal judicial clerkships, and only 1.8% of multi-tier law firm partners are Black.34 Although much of our focus is placed on admissions to highly selective universities such as Harvard and UNCChapel Hill, only 0.8% of America’s higher education students enroll in highly selective schools and the bulk of enrollment is in unselective community colleges.35 Relevant Law on Affirmative Action In City of Richmond v. J.A. Croson Co.,36 the Court concluded that affirmative action programs designed to benefit minorities are subject to the same strict scrutiny as invidious discrimination. The Court, however, sustained diversity-based policies that gave preferential treatment to Black and Hispanic higher education applicants in Bakke, Grutter and, most recently, Fisher v. University of Texas,37 because use of race, as one of many

DICTA

December 2022

COVER STORY By: M. Akram Faizer LMU Law School

admissions factors, is deemed a narrowly tailored means of achieving higher education diversity. Many highly regarded Black American public servants and public intellectuals, such as Justice Clarence Thomas and John McWhorter, dispute its ostensible benefits, arguing that affirmative action regressively reinforces stereotypes about underrepresented minorities and depresses achievement by displacing Black and Hispanic students into elite schools where they disproportionately occupy the bottom of the class rankings.38 This theory is supported by evidence from California, where, after affirmative action to state universities and colleges was prohibited by a 1996 statewide ballot initiative, Black enrollment in the U.C. system was reallocated away from California’s flagship campus, U.C. Berkeley, in favor of U.C’s less prestigious sites.39 Even affirmative action’s defenders, moreover, often stipulate that it’s offensive and wrong to assume any person a beneficiary.

The Likely End to Racial Affirmative Action in Higher Education Ending racial affirmative action in higher education will most dramatically reduce the number of Black Americans and Hispanics at elite schools.40 Law schools will have to spend significantly more resources to diversify without directly considering race as a factor in admissions and employment because the ABA’s accreditation requirements currently provide that “any constitutional provision or statute that purports to disallow consideration of race is not a justification for non-compliance” with its racial diversity requirement.41 Over time, though, ending racial affirmative action might improve admissions and employment of under-represented minorities at less elite schools where underrepresented minority students are provided more academic support.42 It may also force the country’s elite institutions to confront the issue of unequal schooling and socioeconomic exclusion that explains why affirmative action is used as a shortcut to diversity.

This still overlooks discrimination against Asian candidates at elite universities. The Asian designation conveniently disregards vast differences in socioeconomic status among billions of people spread across dozens of countries.43 It also, by implication, assumes that Asians are the children of professional class immigrants with social advantage and disregards the country’s lamentable history of racial discrimination against Asians. It took a full thirty years after enactment of the Fourteenth Amendment for the Supreme Court, in Wok Kim Ark v. United States,44 to finally enforce Asian birthright citizenship. As late as 1944, the Court, in Korematsu v. United States,45 concluded that the racial internment of all persons of Japanese ancestry, regardless of citizenship, was consistent with equal protection. The fact that universities feel comfortable to systematically rate Asian applicants lower in terms of character and leadership skills to artificially lower their likelihood of admission evidences an elite consensus that problematically disfavors Asians. This bias must be addressed if for no other reason than because Asians are expected to surpass Hispanics as the country’s largest minority group by 2055.46 The Court’s decision is expected in June 2023.

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Docket No. 20-1199.

Docket No. 21-707.

Section 601 of Title VI of the Civil Rights Act of 1964 provides that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Harvard is subject to Title VI because it, like all college and universities, received federal financial assistance.

Section 1 of the Fourteenth Amendment provides, in relevant part, “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” UNCChapel Hill is subject to the Fourteenth Amendment because it is a state public university.

This is by logical inference because Title VI disallows discrimination by all entities receiving federal financial aid.

The Court’s conservatives include Chief Justice Roberts and, by seniority, Justices

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Thomas, Alito, Gorsuch, Kavanaugh and Coney Barrett.

For equal protection purposes, race discrimination can only be justified if narrowly tailored to achieve a compelling state interest. Justices Thomas and Alito made the point about reinforcing harmful stereotypes during the October 31, 2022 oral argument in this matter. Justice Thomas also made this argument in his dissent in Fisher v. University of Texas, 579 U.S. 365 (2016) (Thomas, J. dissent).

The Court’s three liberals are, by seniority, Justices Sotomayor, Kagan and Brown Jackson. https://www.brookings.edu/research/new-census-data-shows-the-nation-isdiversifying-even-faster-than-predicted/ The parties agree that Title VI of the Civil Rights Act to imposes the same requirements equal protection requirements upon private colleges and universities that accept federal funds that the Equal Protection Clause imposes upon public universities. The use of Asian ethnicity is problematic as it includes people from the Indian Subcontinent, including India, Pakistan, Nepal, Bhutan, Bangladesh and Sri Lanka, East Asia, including China, Japan and Korea, Southeast Asia, including Vietnam, Laos, Cambodia, Thailand, the Philippines, Indonesia, Malaysia, Singapore, Hong Kong and Macau. It also includes Mongolia and other states in Central Asia.

This comprises the vast bulk of humanity’s 8 billion people, yet arbitrarily excludes Asian countries such as Iran, the Arab states of the Middle East, Israel, the vast bulk of the Russian Federation’s territorial landmass, Turkey, Armenia, Georgia and Azerbaijan from inclusion.

438 U.S. 265 (1978).

539 U.S. 306 (2003).

The parties agree that Section 601 of Title VI of the Civil Rights Act to imposes the same requirements equal protection requirements upon private colleges and universities that accept federal funds that the Equal Protection Clause imposes upon public universities.”

Enrollment at Harvard is consistently between 10-12% Black, 8-12% Hispanic and 18- 20% Asian. White applicants, who scored in Harvard’s top academic decile as measured by test scores and GPA, had a 15.3% chance of admission, Asians had a 12.7% chance, African Americans had a 56.1% likelihood of admission and Hispanics stood a 31.3% chance. African American applicants in the fourth academic decile from the bottom stand a better chance of admission than Asian students in the top decile (12.8% v. 12.7%). By contrast, Asian students in the fourth academic decile from the bottom stand almost no chance at admission (0.9%) By this, it alleges that Black and Hispanic candidates were receiving artificially inflated grades for leadership potential and character, while the opposite was happening to Asians.

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 397 F. Supp.3d 126 (D.Mass. 2019).

Id. Both Bakke and Grutter applied the Equal Protection Clause in adjudicating the legality of UC Berkeley and the University of Michigan Law School’s affirmative action policies. This is because both schools were public entities. Because Harvard is a private university, the Fourteenth Amendment does not apply to it. Rather, its admissions policies must satisfy Section 601 of Title VI of the Civil Rights Act of 1964 or 42 U.S.C. 2000d, which applies the requirement of equal protection to any program receiving federal financial assistance. See Weser v. Glen, 190 F. Supp. 2d 394 (E.D.N.Y. 2002).

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 980 F.3d 157 (1st Cir. 2020).

See Petition for Writ of Certiorari, Index No. 21-707.

The UNC-Chapel Hill, the bottom decile of candidates is only 6.5% Asian and 5.2% white, as compared with 16.9% Hispanic and 32.7% Black students. Moreover, 31% of Hispanics and 53% of Black students are from the bottom two deciles. With respect to out-of-state candidates, the share of Asian and white candidates in the bottom decile is only 4.4% and 6.8%, respectively, whereas 13.1% of Hispanics and 39.2% of Black students are admitted from the bottom decile. Over 58% of African American out-of-state students are from the bottom two deciles with respect to entrance credentials, whereas only 2% of African Americans are in the top decile, compared with 17% for Asians and 9.4% for whites.

Students for Fair Admissions, Inc. v. University of North Carolina, 567 F. Supp. 3d 580 (M.D.N.C. 2021).

Students for Fair Admissions, Inc. v. University of North Carolina, 142 S.Ct. 896 (2022).

See Plessy v. Ferguson, 163 U.S. 537 (1896) (concluding that segregated Jim Crow railcars satisfied equal protection. This, in turn, led the courts to countenance racially segregated education in the entire South and much of the rest of the country that implemented racially monographic school districts both formally and informally).

347 U.S. 483 (1954).

349 U.S. 294 (1955).

continued on page 24

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PRIVILEGED TO BE A LAWYER By: Zachary Arnold Legal Aid of East Tennessee

BRIDGING THE JUSTICE GAP While many people are aware of the unfortunate reality that is poverty in our community – 13.1% of Knox County children live below the line – not many are aware of the legal challenges that can quickly exacerbate the problem. An otherwise financially secure family is often one unaddressed legal matter from losing their housing or their means of transportation or their income. And the loss of one of those can suddenly result in financial insecurity or even poverty due to a snowball effect.

Take for example an individual who relies on their vehicle to get to work each day.

A single surprise medical expense leading to a missed car payment can result in repossession, and without good public transportation, they have no way to get to their job – not to mention other important places. Now lacking the ability to earn income, they can no longer pay their rent either and they soon receive an eviction notice and a detainer warrant and are facing homelessness. This constant threat of one financial issue derailing their entire life is the unfortunate reality for thousands of our neighbors in this community.

But now, think of all the potential legal issues involved in the scenario above. Maybe the creditor did not give proper notice regarding the sale of the repossessed vehicle or perhaps there was a surplus after the sale which they did not return to the debtor. Maybe the landlord did not give enough notice for the eviction or would have been willing to negotiate an agreement allowing them to stay. The law provides these types of protections for debtors and tenants, but so often these rights are not enforced because no one is there to raise them. On any given day in court, there is one thing that is certain: every financial institution and real estate group will have an attorney and nearly every debtor and tenant will not.

I am very privileged that I get to be part of the reason I used the word “nearly” above. My colleagues and I at Legal Aid of East Tennessee have the fortune of being able to make a career out of representing those who otherwise would not have access to an attorney. In my time at Legal Aid, I have assisted or advised on over 1500 individual legal issues.

These include obtaining orders of protection and divorces for victims of domestic violence, enforcing fair housing rights in the face of discrimination, protecting debtors from garnishment, stopping the repossession of vehicles, and keeping families in their homes. Each one of these results directly made someone else’s life better, and knowing that each day I will get the chance to help someone else is, in my opinion, the greatest privilege in my career.

The opportunity to use your skills and your knowledge to help in this way is available to everyone reading this, as well. Legal Aid is always seeking pro bono attorneys to help us meet the need for our services, whether that be direct representation of clients or just attending clinics and providing advice. Not only do these opportunities provide the chance to help out our neighbors and our community, but they also allow attorneys to learn and practice new areas of the law that they otherwise may

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have never been exposed to. For anyone interested in our corner of the legal profession, I would direct you to our pro bono manager Caitlin Torney’s monthly article in this same publication.

Finally, I would like to thank all my colleagues and coworkers at Legal Aid of East Tennessee, all of the attorneys who take pro bono cases for our organization and attend our clinics, all the support staff for those attorneys who make it possible for them to assist us, and all the law students and other volunteers who give their time to us. This excellent group of people ensures daily that access to high quality legal assistance is not only for those who can afford it and ensures that I am able to continue to work for an organization that has such an immense impact on our community. Knowing that your skill and your knowledge is being used to get someone out of a tough situation or simply make someone else’s life better is the ultimate privilege of this profession.

DICTA

Creating Value Through Trust

Trust & Estate Services Asset Management Tax-Managed Investing IRA Rollovers Financial Planning In Knoxville, contact:

John Billings Vice President - Client Administration

(865) 297-4070

tcvwealth.com

A Tennessee State-Chartered Independent Trust Company December 2022

SCHOOLED IN ETHICS By: Paula Schaefer

Associate Dean for Academic Affairs & Art Stolnitz Professor of Law UT College of Law

NEW ABA FORMAL OPINION ADDRESSING THE ETHICS OF “REPLY ALL” IN ELECTRONIC COMMUNICATIONS In last month’s Schooled in Ethics Column, Alex Long said that on its face, Tennessee’s Rule of Professional Conduct 4.2 “seems pretty simple.”1 Rule 4.2 provides that while representing a client, a lawyer is prohibited from communicating about the subject of the representation with a person known to be represented by another attorney in the matter unless the lawyer has the other attorney’s consent or is authorized by law or court order to do so.2 Professor Long explained that despite its seeming simplicity, Rule 4.2 actually encompasses a number of subtleties, one of which is addressed in ABA Formal Opinion 502 (issued on September 28, 2022). That ethics opinion addresses whether a pro se lawyer would violate the rule by communicating with a person represented by another attorney in the matter without the other attorney’s consent. The opinion concludes that the conduct would violate the rule because the pro se lawyer represents herself in the matter, and thus is covered by the rule’s prohibition. Professor Long concludes that attorneys in Tennessee “would be well-advised to follow the guidance” provided by Formal Opinion 502.3 Just a month later, the ABA has opined about another of the rule’s subtleties. ABA Formal Opinion 503, issued on November 2, 2022, addresses whether a lawyer representing a client in a matter may ethically “reply all” to an electronic message (email or text) from another lawyer in the matter who copied his or her client on the electronic communication.

This is the scenario: Via email, Attorney sends a draft settlement agreement to Opposing Counsel, sending a cc of the message to Attorney’s own client. Without asking Attorney’s permission to do so, Opposing Counsel sends a reply all response—thus communicating with Attorney and Attorney’s client— explaining Opposing Counsel’s position on the settlement offer.

Should Opposing Counsel face discipline for violating Rule 4.2 in this scenario? The answer depends on whether the sending attorney impliedly consented to the “reply all” response. Some ethics authorities have concluded that without additional facts suggesting consent, the sole act of copying one’s client on an electronic communication to opposing counsel is not implied consent to a reply all response.4 In Formal Opinion 503, the ABA comes to the opposite conclusion, finding implied consent in the act of copying the client on the original communication.

The Opinion notes factors that support its interpretation. First, the Opinion finds that the act of copying a client on an electronic communication is similar to including a client in a videoconference, telephone call, or in-person meeting with opposing counsel—all scenarios in which the invited lawyer would expect to communicate with everyone in the meeting. The Opinion reasons that copying the client on an electronic message is the same: it gives the impression that replying to all “is permissible and perhaps even encouraged.” The opinion concludes that replying to all in that situation does not amount to overreaching or prying into the confidential relationship—the purpose of prohibition in Rule 4.2. Opinion 503 reasons that replying to all “flows from the inclusive nature and norms of the group electronic communications at issue.”

Second, the Opinion states that placing the burden on the sending

lawyer is the fairer and more efficient way to allocate the burdens. The receiving lawyer may not recognize that a represented party has been copied on an electronic message. In contrast, the sending lawyer made the choice to include the client and should be responsible for that decision.

The sending lawyer can avoid the risk by not copying the client on such a message. The opinion notes that the added benefit of not including the client is that the client will not have the opportunity to reply all “hastily or with compromising information.” The better practice, the opinion concludes, is not to copy the client on electronic communications to opposing counsel.

Formal Opinion 503 notes that the implied consent to reply all extends only to the topic of the original email. Thus, the receiving lawyer does not have implied consent to reply all and discuss topics unrelated to that first message. Returning to our hypothetical scenario, the lawyer in receipt of a message about a draft settlement agreement may not reply all and discuss matters unrelated to the draft settlement.

It is consistent with the Opinion’s analysis that the implied consent does not extend to a one-on-one conversation with the represented individual. This is not stated explicitly in Formal Opinion 503, but follows from its analysis. In our hypothetical, the lawyer in receipt of the settlement offer may not respond only to the represented person who was copied on the message. The implied consent is to a conversation with everyone from the original electronic message.

Formal Opinion 503 concludes by explaining that the presumption of implied consent is not absolute. An attorney can expressly convey that there is no consent to reply all. If a lawyer wishes to do this, the Opinion encourages the lawyer to do it in a prominent writing (and not, for example, in a boilerplate list of disclaimers under the lawyer’s email signature). The Opinion then notes that the reply all consent is unique to electronic communications, and does not extend to written communications. This is because implied consent depends on the circumstances, including the norms of electronic communication. The Opinion explains, “There is no prevailing custom indicating that by copying a client on a traditional paper letter, the sending lawyer has impliedly consented to the receiving counsel sending a copy of the responsive letter to the sending lawyer’s client.”5 Because it does not appear that this issue has been addressed in Tennessee—in an ethics opinion or court decision—the more conservative approach for a lawyer recipient of such an email would be to not reply all. But, Formal Opinion 503 is certainly well-reasoned and could be adopted in Tennessee. It also provides some important advice for the sending lawyer, including encouragement to consider not copying a client on an electronic message to opposing counsel.

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Alex. B. Long, New ABA Ethics Opinion on Communication with a Represented Person by a Pro Se Lawyer, DICTA, p. 19, November 2022.

Tenn. RPC 4.2.

Id. ABA Formal Opinion 503, n. 5, citing Wa. State Bar Ass’n Advisory Op. 202201 (2022); S.C. Bar Advisory Op. 18-04 (2018); Cal. Standing Comm. on Prof’l Responsibility & Conduct Formal Op. 2011-181 (2011).

Id. at p. 4.

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

December 2022

DICTA

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BARRISTERS ELECTIONS & HOLIDAY PARTY To celebrate the holidays and elect our new Executive Committee Officers, the Barristers will be hosting a holiday party and elections on Wednesday, December 7, from 5-7 pm at The High Court, the rooftop at The Tribute. The Tribute is a new apartment complex at 625 Cumberland Avenue that formerly housed the Tennessee Supreme Court. We ask that everyone who plans to attend please pre-register at www.knoxbar.org.

Nominees include:

WELCOME NEW MEMBERS

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

Vice President: Chuck Sharrett, Kay Griffin PLLC

Jodie Marie Bush

Secretary/Treasurer: Jimmy Snodgrass, Kramer Rayson LLP.

Iris McKay DeVault U.S. District Court

Cydney N. Carter

Members-at-Large: Jordan Houser, Lincoln Memorial University - Duncan School of Law Matt Knable, Knable Law Isaac Westling, The Law Offices of James A.H. Bell, P.C. Hon. Zack Walden will become Barristers President at the conclusion of the meeting, and the candidate elected Vice President will serve as Barristers President in 2024.

Kayla L. Long Christopher Meadows Federal Defender Services Piero Gonzalo Postigo-Beltran Victoria R. Rome Great West Casualty Company

VETERANS LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on December 14. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.

BARRISTERS HUNGER AND POVERTY RELIEF COMMITTEE The Barristers Hunger and Poverty Relief Committee are collecting toiletries and small care items for the YWCA’s Freedom Inside and Keys of Hope programs. Please bring donations to the Barristers Elections & Holiday Party or deliver them to KBA Office by December 9. All types of items are needed for women, children, and infants.

Rhett Alec Sexton Merchant & Gould P.C. Daisey A. Smith Mark E. Tillery Guy E. Tustin, III Baker, Donelson, Bearman, Caldwell & Berkowitz Shelby R. Ward Tennessee Department of Environment and Conservation Adam Weiland Luedeka Neely Group, P.C. Samuel Cole Wheeler Esperanza Yanez

NEW LAW STUDENT MEMBERS

Wishlist Items: Giftcards: Walmart, Kroger, Food City Socks Hair Accessories Body wash Shampoo & Conditioner Deodorant Toothbrushes, Toothpaste, & Mouthwash Bath Towels Feminine Hygiene Products Blankets VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor.

The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact either Matt Knable at (865) 360-5044 or Laura Wyrick at (865) 297-5511 with any questions and/or about volunteering.

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Sarah A. Hawk Charitable Solutions, LLC

DICTA

Madison L. Campbell Colleen Dietz Alura D. Endres Jordan L. Franklin Caitlin Y. Hodges Sabrina M. Huston Megan L. Hutchens Briana Lay Caroline G. McCarter John C. Nichols Breanna Riley Matty Roth Alanah M. Smithson Alyssa R. Ward

December 2022

GRAMMAR GRINCH By: Sarah M. Booher SMB Law

(with Harold Pinkley, Jr. University of Tennessee)

HAROLD, HELP! Evidently, I wandered into good territory with my last Grammar Grinch article on homophones, near homophones, and just generally confusing words. The feedback I received from you lovely readers is that we all struggle with them. Harold Pinkley, Jr. was even kind enough to send me a list he’s been keeping over the years – and some were news to me!1 So in the spirit of keeping our language crisp and brilliant, before I retire this column, I bring you some of Mr. Pinkley’s inspired notes.2 Comprise—Compose Comprise means to contain or include. Compose means to combine or make up. So according to dictionary.com, a pie comprises 8 slices, but 8 slices composes a pie. Well, right off the bat, it’s safe to safe I’ve been using that one wrong. Anyone else?

Meritorious—Meretricious Yikes. Here’s a situation where you definitely don’t want to use the incorrect word. Meritorious is deserving of reward and praise. On the other hand, meretricious could not be more different, defined as deceptive and without value.

Emolument—Emollient We love emolument. It’s a noun that indicates tips, salaries, or other profits made from employment. Emollient, again, is not even remotely the same. As a noun and verb, it pertains to an object or the act of moisturizing or relieving dryness. In a figurative sense, it is something that eased a process that had stalled, according to wordsmith Kathleen W. Curry.

Perspicuous—Perspicacious “As adjectives, the difference between perspicuous and perspicacious is that perspicuous is clearly expressed, easy to understand; lucid. Perspicacious is (figuratively) of acute discernment; having keen insight; mentally perceptive.”3 I get it, but I can’t say I’m going to be speaking either of these words out loud anytime soon!

Eminent—Imminent—Immanent Eminent: Someone or something that stands out above the others.

Imminent: something that is happening soon. Immanent: Being within the limits of possible experience or knowledge. None of which should be confused with Eminem, recent Rock & Roll Hall of Fame inductee.

Pore—Pour We all know pour, whether it’s our child’s bottle of milk or our bottle of wine. Pore, however, is to gaze intently or to meditate/reflect steadily.

Such as said child poring over the Amazon toy catalog?

Flout—Flaunt To flout is (1) to show contempt for or to scorn, or (2) to contemptuously ignore (especially rules or conventions). To flaunt is to exhibit or parade (something) in an ostentatious manner.4 I feel like a goose flouts and a peacock flaunts.

Assent—Ascent Ascent is a noun meaning the act of rising upward. Think of it like the c in ascent is symbolic for climbing. Assent is a verb meaning to agree with or approve of something after careful consideration.

Broach—Brooch Broach (verb) is to introduce a new subject into discussion. A brooch is a piece of jewelry help with a pin or clasp (often associated with your grandma5). After the will is ready, perhaps don’t immediately broach the December 2022

subject of the brooch.

Complacent—Complaisant Complacent is smug and self-satisfied. Complaisant is willing to do something to please another. However, they both derive from the Latin word complacere, meaning to please.

Defuse—Diffuse Defuse is quite literal. It’s to remove the fuse from something. Diffuse, as both noun and verb, relates to the spreading of something or making it less concentrated. The SWAT teams diffuses the situation by defusing the bomb.

Disinterested—Uninterested Disinterested is important to us lawyers. It means without a vested interest. Uninterested, however, is not showing interest.

Allude—Elude If you allude, you indirectly reference something. But to elude, you evade, or escape perception or understanding.

Allusion—Illusion Both come from the Latin word ludere – to play. Allusion, as above.

Illusion may be defined as a misleading image presented to the vision, a perception of something objectively existing in such a way as to cause misinterpretation of its actual nature, or the state or fact of being intellectually deceived or misled.

Stationary—Stationery Stationary is not moving or changing. Stationery helps us with that ‘e’ instead of ‘a’, meaning writing materials – think l‘e’tter.

Waiver—Waver Waiver is another ever-so-important legal word. (1) intentional relinquishment of a right or privilege, (2) a dispensation, and (3) a deferment.

Waver is less exciting. (1) to move unsteadily back and forth, (2) to vacillate, or (3) to tremble in sound. Don’t let your client waver about the waiver.

Censor—Censure To censor means to remove, block, or interfere with the communication of another. However, censure is a word that gives everyone with a law license pause. To censure is to find fault with and criticize as blameworthy.

As we know, it’s sometimes done publicly. Another yikes.

Fortuitous—Fortunate Fortuitous is by chance or accident. Fortunate is lucky. But let’s be honest – fortuitous is more fun to say.

Duplicative—Duplicitous Duplicative means repetitive or the same thing, again. Duplicitous, on the other hand, refers to being two-faced or deceptive.

My many thanks to Harold for his great list. Also, if you are a gin drinker, he has a great recipe for a real treat that I believe is called an Oxford Comma. I’ll let him share the recipe.

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I’ll let you try these from his notes on your own: continual/continuous/constant, formulaic/formulistic/formalistic, and virulent/virile.

All definitions from mirriam-webster.com unless otherwise noted. https://wikidiff.com/perspicuous/perspicacious. https://grammarist.com/usage/flaunt-flout/ For the record, when you google brooch, 1001 photos of Queen Elizabeth come up, so maybe more associated with her than your grandma.

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

By: Phil Hampton

METAVERSE: SUPER HIGHWAY OF THE FUTURE, OR ONLY A HI-TECH DEAD END? For those of you who have attended this year’s Bill & Phil Show (and I know there aren’t many of you), we have been speaking about the Metaverse all year because the topic is so “trendy.” In fact, the theme of this year’s Bill & Phil presentation was entitled “Are You Ready for the Metaverse?” It has been a very fun topic for us, but we are not sure where this whole Metaverse thing is going. We have been following the progress of the Metaverse (or lack thereof ) all year. At this point, we are still not sure what impact, if any, the Metaverse will have on society in general, or, more specifically, on the practice of law . . . at least in the foreseeable future.

Consequently, we thought that, at this time, we should provide our view of the present and future impact of the Metaverse on the practice of law. So here it is . . .

What Exactly is the Metaverse?

Wikipedia describes the term “Metaverse” as follows: “In futurism and science fiction, the Metaverse is a hypothetical iteration of the Internet as a single, universal and immersive virtual world that is facilitated by the use of virtual reality and augmented reality headsets. In colloquial use, a Metaverse is a network of 3D virtual worlds focused on social connection.” (That is so simple and clear, isn’t it?) Wikipedia goes on to point out that the term actually originated in a 1992 science fiction novel written by Neal Stephenson entitled “Snow Crash.” Matthew Ball, a tech author and thought leader, has been a leading voice on the emergence of the Metaverse and has written extensively on the subject on his eponymous website matthewball.vc and in a recently released book, “The Metaverse And How It Will Revolutionize Everything.”

Recent interest in Metaverse development is influenced by a concept called “Web3,” which is supposed to become a decentralized iteration of the Internet. If you will remember, so far, we have had basically Internet version one (or Web1), which was nothing more than a development

by ARPA (Advanced Research Projects Agency) of the Department of Defense in the 1960s. The technology continued to develop into the 1960s and into the early 1980s. Then, in 1989, an English computer scientist, Tim Berners-Lee at CERN (the European Organization for Nuclear Research) developed a prototype of the World Wide Web, which was initially visioned as a document management system. Beginning in 1981, however, the technology was released outside of CERN, and it began to spread beginning late in 1991. In fact, the technology spread like wildfire and developed into what we now know as the World Wide Web and really, what we know of today, as the Internet. Today’s Web is referred to in a shorthand way as “Web2”, being distinguished by dynamic sites with user-created content, such as social media sites, videosharing apps, etc. Many view the Metaverse as the natural progression from Web1 to Web2 to Web3.

Nevertheless, the concept of Web3 or the Metaverse still seems very vague and ill-defined. In its present incarnation, the Metaverse is primarily a space for online video games, entertainment, and marketing.

Multiplayer online games such as “World of Warcraft,” “Minecraft,” “Fortnite,” and the game creation platform “Roblox” are presently the

22

major players in the “Metaverse” as it presently exists. In addition, superstars like Travis Scott, Justin Bieber, and Ariana Grande have held virtual events on the Metaverse with significant success. For example, Travis Scott’s appearance on Fortnite has been attended by nearly 28 million people. In fact, Nashville’s own Soccer Mommy has recently promoted her new album by hosting three days of events and a concert on Roblox. And, the Brooklyn Nets, an NBA team, has created the “Netaverse” that has provided a virtual broadcast of their games, so you could watch it as if you were at the court.

Of course, as most of you know, some of the biggest players in the tech world are becoming involved with the Metaverse. The most extreme example is Facebook. Facebook has now changed its name to “Meta” (short for “Meta Platforms, Inc.”) with Mark Zuckerberg asserting that the Metaverse is the future of technology and the future for his company. Unfortunately, it is not working out so well for Meta so far.

Last year, Facebook had a market cap of over one trillion dollars, and now the company is worth $560 billion. Meta CEO Zuckerberg has warned that the technology necessary to enable the Metaverse is still 5 to 10 years away. Stockholders may not be that patient. Microsoft is also dabbling in the Metaverse. It acquired Activision Blizzard, which has technology that is the cutting-edge development platform for interactive and entertainment products that are the foundation of the Metaverse.

Microsoft paid $70 billion for the company earlier this year, not a small purchase. Apple is also dipping its toe into the Metaverse, but in typical Apple fashion, it is being much more cautious and deliberate in its involvement. Apple is rumored to be developing its own proprietary set of goggles or glasses that can be used to interact in the 3D world of the Metaverse. It remains to be seen how far Apple will venture into this wild, wild virtual wilderness.

Suffice it to say, the Metaverse is still being built and will remain “under construction” for some time in the future. Currently there are several “worlds” in the Metaverse such as Otherside, Decentraland, the Sandbox, and so on. To date, 1.9 billion dollars’ worth of “land” has been sold in the Metaverse (and remember, this is all “virtual real estate”).

There are night clubs, mini-golf facilities, shopping malls, poker lounges, and even a Sotheby’s Auction House. Other businesses include: Google, Facebook, Microsoft, Amazon, Apple, IBM, Chase Manhattan Bank, Adidas, Nike, and the list goes on and on.

Clearly, there is a lot of money and capital being poured into the Metaverse; but what effect will all this “virtual development” have on the practice of law?

Present and Future Impact of the Metaverse on the Practice of Law As might be expected, in an effort not to be outdone, many large law firms (and some smaller ones) are buying “office space” in the Metaverse.

ArentFox Schiff is in the Metaverse as are the DLA Piper Global Law Firm, Kirkland & Ellis, and several others. Morgan & Morgan even has a television spot seeking clients who have been injured in the Metaverse.

Many legal pundits assert that law firms should be investing in the Metaverse. Some argue that by having an office in the Metaverse, lawyers

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B I L L & P H I L ’ S G A D G E T O F T H E M O N T H , continued

will have a chance to increase their exposure to potential clients and reach them in new ways. They will have an advantage in handling Metaverserelated legal issues; and it’s a chance for a law firm to look really cool and cutting edge.

Migration into the Metaverse may take quite some time, however.

Traditionally, the law and law firms have always lagged a step or two behind developing technology. Law firms and the law typically react to tech changes rather than getting out in front of them. There are many issues to be raised about transacting business and operating in the Metaverse. There is almost no established law relating to the Metaverse; and, in fact, there is little known about how the Metaverse works, and how it will work in the future.

Still, there are many opportunities for law firms such as creating so-called “smart contracts” that are self-executing contracts based on certain established parameters. There are opportunities for decentralized autonomous organizations (DAO). These are emerging corporate-type entities that do not have a central governing body. In fact, Tennessee has just legalized the creation of such entities in this State.

Lawyers that become familiar with the Metaverse, its technology and operation, can provide legal advice to those that are interested in purchasing space in the Metaverse, and how to protect digital assets, digital intellectual property, and other such transactional-type work for those that are participants in the Metaverse.

There are many opportunities for using the Metaverse in the litigation world as well. For example, an attorney can meet with a potential witness in the Metaverse in a way that is very realistic and looks like the potential witness and the lawyer are together in the same space. There can be virtual office meetings between and among attorneys preparing for trial in the Metaverse that will make it much more interactive and realistic. Depositions, expert witness testimony, and so forth all can be much more realistic and interactive even though the participants will be in remote locations.

The proof in trials, especially in criminal cases and accident cases, can be much more realistic. The jurors can be taken to a virtual world

where the parties recreate their concepts of what events took place in a much more realistic manner. In fact, a Florida attorney (who is representing a person accused of attempted murder using a Dodge Viper to attack someone) filed a motion with the court to put “jurors in the driver’s seat through the use of the latest technology—virtual reality goggles.” The proof would be put on by requiring the jurors to wear virtual reality goggles while considering the expert testimony of an accident deconstructionist. (What would Jim Neal and Jack Norman think of this?)

In the Future, will Lawyers be Required to Participate in the Metaverse?

No pun intended, but “the jury is still out” on the Metaverse itself, much less the use of the Metaverse in the practice of law . . . much less lawyers’ involvement with it. Theoretically, the Metaverse would be a great place to interview witnesses and prepare for trial. It would be a great place to recreate reality for a trial. It would be a great place to have new and exciting areas and modes of practice.

However, as is evidenced from the discussion above, the Metaverse is not “ready for primetime.” It certainly is reliant upon large amounts of error-prone technology. And, the legal rules in the Metaverse are very ambiguous. Normal rules may not apply. It is very, very complicated, and there is not that much opportunity for a law practice in the Metaverse at this time.

Moreover, the practice of law has always relied on true, human interaction . . . empathy for one’s client; direct confrontation of adversaries; and skillful, in-person advocacy. It is hard to see how any of those things can be present in the Metaverse absent the creation of some sort of new virtual presence technology. This technology is still in its embryonic stages, and there is no prediction regarding whether it will live up to all of the hype it is presently receiving. Certainly, Meta (formerly Facebook) has had experience in its efforts in the Metaverse that has almost been devasting. Only time will tell whether the future holds a place in the Metaverse for the practice of law on a daily basis.

L E G A L U P D A T E , continued from page 15 forensic technology continues to advance, and accordingly, the avenues of post-conviction relief will continue to evolve.

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1

² 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Barnes v. State, No. M2022-00367-CCA-R3-PC, LEXIS 438 (Tenn. Crim. App. Sep. 30, 2022).

Id. at *1.

Id. at *7.

Id. Id. Id. Id. (citing Tenn. Code Ann. §§ 40–30–401 through –413).

Id. at 2-3.

Id. Id. at 2-3.

Id. Id. at 2.

Id. at 3.

Id. at 4.

Id. Id. at 3.

Id. at 4.

Id. Id.

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Id. Id. at 5.

Id. at 6.

Id. (quoting Tenn. Code Ann. § 40–30–403).

Id. at 8-9 (quoting Tenn. Code Ann. § 40–30–404).

Id. Id. at 9.

Id. at 9-10.

Id. at 10.

Id.

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OF LOCAL LORE & LAWYERS By: Joe Jarret, J.D., Ph.D.

University of Tennessee

A COLD WAR CHRISTMAS For many years, until age got the better of it, there was situated squarely in the middle of our Christmas tree a rough-hewn, but delicate ornament that clearly clashed with the more refined, store-bought ones.

This one, a Christmas tree in miniature, was lovingly carved out of a single piece of pine by an elderly German man. He was a man whose tired eyes had witnessed the horrors of World War II brought to his homeland and the Russian occupation of his village upon the war’s end.

Struck with polio at an early age, he was considered useless to the Nazi war effort as well as to the Russian occupation forces that confiscated his family farm and impressed his brothers and sisters into a work camp or gulag. He was left to fend for himself. When American occupation forces camped nearby, he went to them for refuge and found this group of victors kind, compassionate, and forgiving of his people. They also provided him with food, shelter, and a job working in the mess tent (mobile soldier feeding station), and allowed him to stay with the unit as it moved around the region.

I crossed paths with this gentleman on Christmas Eve, 1985 while serving outside of the German village of Bad Hersfeld as a United States Army, Armored Cavalry Officer. I was commanding a group of soldiers tasked with the security and defense of a remote stretch of the then East German/West German Border. Back then, a scant 12 kilometers from my outpost dubbed ”Observation Post Alpha,” lay a Soviet fighting force that outnumbered my little unit 10-1 in soldiers, main battle tanks, and other armored fighting vehicles. The physical border we patrolled no longer exists since the reunification of East and West Germany in 1990, but my memory of my time spent there will forever be with me.

On that Christmas Eve night, one of my forward observers called me on the radio and reported that there was “movement” along the narrow road that led up to the front gate of our outpost. I immediately went to investigate, taking with me a squad of six heavily armed soldiers.

Walking slowly toward us on the frozen winter’s night was a group of 15 or so German civilians from the village. Holding lit candles, flashlights and gifts, the men, women, and children greeted us, in unison, with a hearty ““Frohe Weihnachten!” or Merry Christmas. In a mixture of German and halting English, the designated speaker, an elderly gentleman on crutches, said, “You and your boys so far away from home.

We bring Christmas to you, Ja? Needless to say, our regulations didn’t provide for allowing civilians access to our outpost. However, it was my call to make, and on that Christmas night, I gave the order to open the gate and let them in. We then ushered our well-wishers to the mess hall where we served up hot coffee, cocoa, and shared with our new friends, anything we could find, including coveted treats from loved ones back in the States, I then rotated my soldiers in and out of the celebration, and watched in delight as they feasted on an amazing array of breads, sausages, cheeses, sweets, and other delights. They also brought gifts. We responded the best we could. The children were delightfully satisfied with uniform patches and insignia, and anything American. The adults, with our beaming faces, friendship and gratitude.

After we sang a series of Christmas carols, some in English, some in German, all off-key, we loaded our Heaven-sent visitors in heated jeeps to spare them the five mile walk back to the village. As I was helping the elderly gentleman on crutches to his seat, he pressed into my hand the Christmas ornament I mentioned at the beginning of this story. With a broad smile he said, “Wir wissen, warum Sie hier sind!” meaning, “We know why you’re here.” Our German Christmas ambassadors left as quietly as they had come, leaving in their wake the beaming faces of a group of young men who, for a fleeting moment, forgot that they were so far away from home.

C O V E R S T O R Y, continued from page 17 26

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Id. As late as 1964, a full decade after Brown, just 1.2% of Black schoolchildren were attending school with Whites. In South Carolina, Alabama, and Mississippi, not one Black child attended a public school with a White child in the 1962-63 school year. See Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7, 9 (1994).

Rather, a school is desegregated and the federal courts are disempowered from mandating further integration, if the demographics of students in the schools reflects the local attendance zone. As such, desegregation was actually facilitated

by White flight from urban school districts See Board of Education v. Dowell, 498 U.S. 237 (1991).

Milliken v. Bradley 418 U.S. 717 (1974). See also San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) (concluding that grossly unequal funding of public schools based on local assessments was consistent with the Fourteenth Amendment’s Equal Protection Clause).

Kimberly Jenkins Robinson, Introduction: The Essential Questions Regarding a Federal Right to Education, in A FEDERAL RIGHT TO EDUCATION 9 (Kimberly Jenkins Robinson ed., 2019).

Elise C. Boddie & Dennis D. Parker, Opinion, Linda Brown and the Unfinished Work of School Integration, N.Y. TIMES (Mar. 30, 2018), https://www.ny-times. com/2018/03/30/opinion/linda-brown-school-integration.html.

M. Akram Faizer, Revitalizing American Democracy through Education Reform, 52 U. Mem. L. Rev. 95 (2021). A 2012 study found that nationwide, 43% of Hispanic and 38% of Black schoolchildren attend schools where fewer than 10% of their classmates are white and more than one in seven Hispanic and Black schoolchildren attend schools where fewer than 1% of their classmates are white. See Erwin Chemerinsky, Constitutional Law, p.765 6th Edition (Aspen 2020). Polarization is most pronounced in non-Southern cities with citywide school districts, e.g. Boston public schools are 12% white, Chicago is 8.8% white, Dallas is 4.8% white, Los Angeles is 9.2% white and Washington D.C. is 11% white. See National Center for Education Statistics, Characteristics of the 100 Largest Public Elementary and Secondary Schools in the United States, 2012-13, nces.ed.gov.

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S.

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36 37 38

39 40 41

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701 (2007), ( The Court’s rationale was that achieving racially diverse public schools was not a sufficiently compelling interest to allow for use of race in assigning students consistent with the Fourteenth Amendment’s Equal Protection Clause).

Sweatt v. Painter, 339 U.S. 629 (1950) (concluding that separate but equal satisfied equal protection in higher education) see also 42 U.S.C. 2000d (disallowing racial discrimination by organizations receiving federal funds).

National Association of Law Placement (December 2017).

By contrast, 5.8 million of the country’s 10.8 million undergraduates enroll in unselective community colleges. See Faizer, supra.

488 U.S. 469 (1989).

579 U.S. 365 (2016).

See e.g. https://www.theatlantic.com/national/archive/2012/10/the-painful-truthabout-affirmative-action/263122/ https://www.thecrimson.com/article/2022/5/26/post-sffa-harvard-commencement/ https://www.thecrimson.com/article/2022/5/26/post-sffa-harvard-commencement/ https://www.americanbar.org/content/dam/aba/administrative/legal_education_ and_admissions_to_the_bar/standards/2022-2023/22-23-standard-ch2.pdf https://www.thecrimson.com/article/2022/5/26/post-sffa-harvard-commencement/ What I mean here is that a lot of evidence exists that racial affirmative action displaces Black and Hispanic students into elite universities from which they are graduated at or near the bottom of the class and this not only reinforces stereotypes but harms career growth. See e.g. https://www.theatlantic.com/ national/archive/2012/10/the-painful-truth-about-affirmative-action/263122/ Hmong Cambodians in metropolitan Minneapolis-St. Paul and Burmese Americans suffer significant socioeconomic disadvantage as compared Indians and Chinese.

See https://www.pewresearch.org/fact-tank/2021/04/29/key-facts-about-asianamericans/ 169 U.S. 649 (1898).

323 U.S. 214 (1944).

Id.

December 2022

2022

Annual Meeting & Elections Notice The Annual Membership Meeting will be held on Friday, December 9, 2022, at 8:30 a.m. at the Main Assembly Room of the City County Building. At the end of the meeting, Loretta G. Cravens will be sworn in as KBA President.

The Nominating Committee for the Officers and Board of Governors of the Knoxville Bar Association for the upcoming year is comprised of Loretta Cravens, Chair, Ursula Bailey, Magistrate Robin Gunn, Ian Hennessey, Sarah Keith, Jason Lambert, and James Stovall.

The Committee, having met, recommends that the following, all of whom are members of the Knoxville Bar Association, be placed in nomination at the Annual Meeting: President‐Elect: Treasurer: Secretary:

Carlos A. Yunsan Jonathan D. Cooper Rachel Park Hurt

There are four open positions on the Board of Governors. Three of the Board of Governor positions will be for three‐ year terms. The fourth is the one‐year term government/public sector position. Nominations to fill the open positions on the Board of Governors are the following: BOARD MEMBER: Three‐Year Terms (VOTE FOR THREE) Jacob Spencer Fair Chelsea C. Moore T. Mitchell Panter

Samantha Parris Justin W. Pruitt Courtney Epps Read

BOARD MEMBER: Government/Public Sector Position: One‐Year Term: Hon. E. Jerome Melson, Knox Co. Circuit Court, Division I According to Article VI, Section 1, of the KBA By‐Laws: "Nominations may also be made from the floor during the Annual Meeting by any member in good standing."

To participate in the Annual Meeting, members should register on the KBA website before 5 p.m. on December 8. To register, click on December 9 in the event calendar at www.knoxbar.org. Candidate bios may be viewed online.

Pursuant to the Bylaws change approved at the Annual Meeting in 1996, members are permitted to vote by absentee ballot.

ABSENTEE BALLOTS ‐ VOTING IN THE KBA ELECTIONS

Any member in good standing who personally comes to the offices of the Knoxville Bar Association during regular business hours on any of the ten (10) working days immediately preceding the day of the Annual Meeting will be permitted to vote. The member must first file a written form making oath that he or she will not be in town or otherwise be unable to attend the Annual Meeting. Then the member will be permitted to cast an absentee ballot for such officer or board positions as may be contested.

KBA Office Regular Business Hours: Monday ‐ Friday 9:00 a.m. ‐ 5:00 p.m.

10 Working Days Prior to the Annual Meeting: November 23 ‐ December 8, 2022 Knoxville Bar Association | 865-522-6522 | www.knoxbar.org

Physical Address: 505 Main Street, Suite 50, Knoxville TN 37902 | Mailing Address: PO Box 2027, Knoxville, TN 37901-2027

December 2022

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WELL READ By: Luke P. Ihnen

Assistant Federal Defender

MAKING THE PRESENT INHABITABLE: A REVIEW OF THE WORLD KEEPS ENDING AND THE WORLD GOES ON On August 9, 1945, the United States dropped an atomic bomb on the city of Nagasaki, Japan. The plutonium bomb, which was heavier than the bomb dropped on Hiroshima,1 leveled an area of approximately five square miles. Estimates of death are between 75,000 and 80,000 people.

The bombing sparked Japan’s surrender in World War II. It was also the beginning of the end of Japanese colonial rule.

The apocalyptic moment marked the end of the world we knew and the beginning of the world we know. In poet Franny Choi’s new book, The World Keeps Ending and the World Goes On, she uses poetry to tell the stories of times in history when a new world emerged from an apocalypse. Choi, who is Korean, traces her lineage to Japanese colonial rule over the Korean peninsula. In her eyes, the bombing meant something completely different to her family than it did to the people of Nagasaki (and maybe the world): the end of suffering from the Japanese empire, and the beginning of their new world.

The collection is difficult to read at times. In the opening poem, borrowing from the book’s title, Choi lays out the premise of her work: Before the apocalypse, there was the apocalypse of boats: boats of prisoners, boats cracking under sky-iron, boats making corpses bloom like algae on the shore. . . the apocalypse began when Columbus praised God and lowered his anchor. It began when a continent was drawn into cutlets. It began when Kublai Khan told Marco, Begin at the beginning. By the time the apocalypse began, the world had already ended. It ended every day for a century or two. It ended, and another ending world spun in its place. . . .2

All that these transformations [of the world] have in common is that they begin in the imagination, in hope. To hope is to gamble. It’s to bet on your future, on your desires, on the possibility that an open heart and uncertainty is better than gloom and safety. To hope is dangerous, and yet it is the opposite of fear, for to live is to risk.6 After reading Choi’s collection, I reflected about the apocalypses in my own life—which pale in comparison to those faced by marginalized communities since the beginning of our history. Nevertheless, I imagine we can all point to similar events in our lives: the loss of loved ones, marital strife, financial insecurity, the loss of a job, an election where our preferred candidate loses, and COVID-19.7 In the moment, these events may seem “un-survivable.”8 But there is something to be said for having enduring hope after the apocalypse.

As Solnit writes: “Hope just means another world might be possible, not promised, not guaranteed. Hope calls for action; action is impossible without hope. . . To hope is to give yourself to the future, and that commitment to the future makes the present inhabitable.”9 We have nothing if we do not have hope.

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2 3 4

5 6

7

In another, titled “Protest Poem” and written during the protests in the summer of 2020 after the murder of George Floyd, Choi writes: The air’s so thick with fury it shakes the window. Nothing cuts through walls like rage and its promises: No peace. . . .3

8 9

The development of the atomic bomb was part of the “Manhattan Project.” Several Manhattan Project facilities were in Oak Ridge, Tennessee and enriched the uranium used in the atomic bomb dropped on Hiroshima on August 6, 1945. For more information, visit: https://www.nps.gov/mapr/planyourvisit/oak-ridge.htm.

Franny Choi, The World Keeps Ending and the World Goes On, 1–2 (2022).

Id. at 123.

Franny Choi’s latest poetry finds hope for the future in our past apocalypses (Nat’l Pub. Radio, Morning Edition: Author Interview Nov. 3, 2022).

Id. Rebecca Solnit, Hope in the Dark: Untold Histories, Wild Possibilities, 5 (2d ed.

2016).

Perhaps our bar association faces its own apocalypses: coming out of the pandemic; recruiting and retaining diverse lawyers; creating an inclusive and affirming bar.

Supra note 4.

Solnit, supra note 6 at 5–6.

Choi’s collection covers dark themes in both human history and in current events, like slavery, police brutality, the struggle for gay rights, and climate change. Throughout the collection, Choi seeks to center marginalized communities and the various apocalypses and dystopias they have endured.

And yet the collection is also about hope. Hope for what comes after the apocalypse. It it is easy to imagine the world ending but harder to imagine that a world might go on after an apocalypse.4 In Hope in the Dark, a collection of essays by author Rebecca Solnit (whom Choi cites as inspiration for The World Keeps Ending and the World Goes On),5 Solnit writes about hope:

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December 2022

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

LOBSTER: IT’S HOW WE ROLL Growing up, extra special occasions were celebrated at “the fish place,” also known as the Red Lobster. I was always a shrimp and cheddar biscuit kind of girl, but I am also a sucker for good marketing. When I was around 10 years old, I decided to be brave and order the Lobster Extravaganza that was prominently advertised on television and was featured, front-and-center, on the menu. With the first bite, I was hooked.

My favorite at the time was the lobster tail. I loved the sweetness of the lobster paired with the drawn butter. At the time, I didn’t know what drawn butter was—I just knew that it tasted a little bit like Crayola crayons (which, sadly, I knew from firsthand experience) or candle wax. However, eating lobster dipped in drawn butter made me feel like a grown-up, which every 10 year old wants.

For me, lobster has always been a special occasion food—something to be consumed at a fancy restaurant to commemorate a really special event. That changed about twelve years ago. Hugh, Trace and I were visiting Boston for an ABA Conference, and we purchased tickets for a Boston Red Sox game. The concierge at the hotel said that we needed to try the lobster roll at the game. Lobster at a baseball game? Who knew?!?

The lobster roll at Fenway was absolutely amazing, and I have been in search of great lobster rolls ever since.

I was pretty excited to see the lobster roll on the menu at Neyland stadium early in the football season this year. While it was not the Fenway lobster roll, it was quite good. It was loaded with plenty of lobster and was not overly-heavy on the mayonnaise.

In October, Hugh and I decided to venture to the Northeast.

We flew into Boston, rented a car, and drove up the coast to Maine. As a part of our adventure, we booked at trip on a lobster boat. I wanted to trap lobsters, cook them and learn how to make the perfect lobster roll.

While we were able to trap lobsters, we were not allowed to keep them.

I did, however, try the lobster roll every time I saw it on a menu. I had the lobster roll at the Sea Glass restaurant at our hotel, at Luke’s Lobsters in Portland (note: they will ship lobster to your house), at the Harraseeket Inn in Freeport, and at a small restaurant on the coast called The Lobster Shack. The lobster roll at each restaurant was different… but all were fantastic. The lobster roll at the Sea Glass was huge and had very little mayonnaise; the lobster roll at Luke’s was heavy on the herbs; the lobster roll at the Harraseeket Inn had more mayonnaise than the others but was still great; and the lobster roll at The Lobster Shack was just lobster steamed with Old Bay – and included a dollop of mayonnaise dusted with Old Bay on top. While each were different, all of them had lots of flavorful lobster, and all of them had a perfectly toasted, buttered bun.

For many Maine-lovers, a heap of sweet lobster meat piled onto a soft, buttery bun is one of life’s great pleasures—especially when eaten with a beautiful coastal view. I could easily see why. There are a lot of ways to make a lobster roll, and in Maine, it is a point of much debate.

Too many flavors and too much mayonnaise can overwhelm the subtle flavor of the lobster.

I made it my mission to replicate the best of the lobster rolls that I tried. This recipe comes pretty close.

This lobster roll recipe is straightforward, so you really taste the fresh lobster. You need the following ingredients: 2 pounds cooked December 2022

lobster meat (roughly chopped), 3 TBS chopped parsley, 3 TBS chopped celery leaves, about ¾ cup mayonnaise, 2 TBS unsalted butter, 6 New England-style hot dog buns, and 6 pieces Boston (bibb) lettuce.

In a medium bowl, combine the lobster meat, parsley, and celery leaves. Add half the mayonnaise and taste; the mixture should have just enough mayonnaise to hold the ingredients together, but the lobster should be the predominant flavor. Add more mayonnaise if necessary.

Generously butter the buns on all sides.

(I like the brioche hot dog buns from Kroger. True Maine lobster rolls are served on New England rolls, which have flat sides that can be buttered and then grilled or toasted. I get that same effect by trimming the top layer off the brioche bun.) In a medium saute pan over medium-high heat, brown the rolls on both sides. Lay 1 piece of lettuce in each bun and evenly divide the lobster mixture among the hot dog rolls. Serve with crispy French fries.

If you love lobster, I would encourage you to try the lobster roll at home. While I always considered lobster a “special occasion” food, a wise tour guide at Chandon in Napa once said that every day that you wake up is a special occasion. So, enjoy lobster every chance you get!

Start your New Year with LRIS

DICTA

Want a better 2023?

LRIS offers an excellent return for your marketing dollar. In the last two years, panel attorneys earned over $2.2M from LRIS-referred cases.

Contact Tracy Chain, LRIS Administrator, at (865)522-6522, email tchain@knoxbar.org, or visit www.knoxbar.org/joinLRIS. Join for 1/2 off the annual membership fee for referrals through June 30.

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

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

CHAMBLISS LAW WELCOMES DREW ELLIS Chambliss, Bahner & Stophel, P.C. is pleased to announce the addition of Drew Ellis, an attorney who will support the firm’s intellectual property section. Through his past work as a mechanical engineer and designer in various patent-heavy industries, Ellis developed a deep understanding of the innovation cycle, the creation and development of patentable ideas, and the process of bringing those ideas to fruition. Now, with Chambliss, Ellis uses his design background in working with innovators and entrepreneurs of all sizes to protect their intellectual property in a practical and cost-effective way. Ellis attended the University of Tennessee College of Law, where he graduated cum laude. He also holds a bachelor’s degree in mechanical engineering from the University of Tennessee, Knoxville. Ellis is licensed to practice in Tennessee and is a member of the Tennessee and Knoxville Bar Associations.

SAVE THE DATE! 2023 LAW PRACTICE TODAY EXPO MARCH 30 -31 The KBA’s Law Practice Today Expo is the premier opportunity for you to get exposed to dynamic CLE courses from local and national speakers so that you can fast-forward your law office management skills and make new connections. If you are interested in helping plan the Expo, join the Law Office Technology Committee. Contact Marsha Watson, KBA Executive Director, at mwatson@knoxbar.org.

on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. Interviews of Howard Vogel, Judge Curtis Collier, David Black and Hon. Mary Beth Leibowitz have been recently added. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

OFFICE SPACE AVAILABLE: • Great opportunity for fledgling lawyer to share office space with experienced attorney. Available for use is conference room, Internet, reception area, phone system and parking area. Office location within 5 minutes of the Sevier County Courthouse. Call (865) 566-1886 or email ccostnerlaw@gmail.com.

•

Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area, receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 522-4964 for inquires.

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1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!) and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545.

Address Changes

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

ABA YLD SEEKING NOMINATIONS FOR THE “CLASS OF 2023” Each year since 2016, the ABA YLD has honored 40 young lawyers who exemplify leadership, have brought innovation to the profession, or are just broadly ahead of the pack in their contribution to the practice. Nominations are now open as we seek the On the Rise – Top 40 Young Lawyers, Class of 2023! Nominations for another person must be received no later than Feb. 20, 2023, at 11:59 p.m. ET. Self-nominations are extended through Feb. 27 at 11:59 p.m. ET. Both must be submitted via the https:// americanbar.qualtrics.com/jfe/form/SV_b9nhx2ZsRFZFoB8. On the Rise – Top 40 Young Lawyers Honorees will receive national recognition in ABA print publications, online, and via social media.

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

LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives

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Steve Erdely IV BPR #: 018643 Scruffy City Law PLLC 810 W. Clinch Avenue, 7th Floor Knoxville, TN 37902-2812 Ph: (865) 562-2600 steve@scruffycitylawpllc.com

Hugh B. Ward Jr. BPR #: 015071 Lowe Yeager & Brown PLLC 900 S. Gay Street, Suite 2102 Knoxville, TN 37902-1862 Ph: (865) 521-6527 hbw@lyblaw.net

Katherine S. Goodner BPR #: 030499 Long, Ragsdale & Waters, P.C. 1111 N. Northshore Drive, Suite S-700 Knoxville, TN 37919-4097 Ph: (865) 584-4040 kgoodner@lrwlaw.com Hannah S. Lowe BPR #: 029281 Law Offices of Jeffrey R. Kohl Ph: (615) 370-7009 h.lowe@farmersinsurance.com Joshua E. McFarland BPR #: 037959 8th Judicial District Attorney General’s Office P.O. Box 323 Jacksboro, TN 37757-0323 Ph: (423) 562-4991 jemcfarlandtndagc@gmail.com

December 2022

M I T C H E L L’ S M A L A R K E Y By: T. Mitchell Panter

Lewis Thomason, P.C.

NAH, I’M GOOD I have shared in the past that I have several, active group texts with different friend groups—many of whom are lawyers. Generally speaking, these group texts are reserved for light-hearted topics. We share funny Twitter posts and memes and tell stories about our kids. We complain about work. We plan our next get-together so that in true, millennial fashion, we can all cancel last minute. We sometimes talk politics and routinely exchange articles on current events and the like. As friends, our interests are mostly aligned, and we generally agree on the issues—especially the big-picture ones— which makes it easier to keep the text streams flowing.

99.9% of the time, things are pretty kumbaya in these group texts. On occasion, however, a controversial topic slithers into a group text and tempers flare, revealing the fissures of our friendship. Those of you who know me can attest to the fact that I live life on a hair trigger, so I’ll admit that I’m no stranger to “ratcheting up the rhetoric.” I come from a long line of passive-aggressive types. Through years of observation, I found that approach to be ineffective, so I’ve taken on the scorched earth approach to confrontation.

My most recent eruption came during a debate over a very important topic. Which is better: Velveeta Shells & Cheese or Kraft Macaroni and Cheese (a/k/a “boxed vomit”)?

Let me set the scene. It was Halloween night. Everyone in the group text was sharing pictures of their children in their costumes. My child had just finished dinner, which included Velveeta Mac & Cheese.

(Please do not call DCS. Dinner also included a protein (salmon) and vegetables (peas and carrots).)

As most 16-month-olds do, Maxie had plastered cheese sauce all over her clothes, face, and hair. Admittedly, we had already decided not to torture ourselves by trick-or-treating with a toddler, so although she went to school dressed as a cow (she loves to say, “Moo!”), we had long removed the costume by the time these group texts were circulating. To avoid seeming like a Scrooge, I sent a picture of Maxie sitting in my lap, in a diaper, and with wet hair after we tried using handwipes to remove the cheese sauce from her hair.

To provide the text group with context, I followed the picture with a text, explaining that she had eaten Velveeta Shells & Cheese (I used the formal tradename to show my deference to the craftsmen who created such a superior product) and made a mess, which necessitated stripping her down to her diaper. Within seconds, the hateful barrage began.

The first text: “Can’t hide money. My house is still on Kraft blue box.”

My response: “That’s because [your husband] is a toddler.”

From there, things devolved. I demanded a vote, and of the verdict was shocking: three out of four members of that group text preferred Kraft. To pile on, each of the text group members also cast ballots for their spouses. It was nearly unanimous: Kraft won on a vote of 6 to 2.

I was stunned, to say the least. I have lived my entire life believing that Kraft was reserved for institutional settings where diners have no choice: mental institutions, daycares, prisons, nursing homes, etc.

DICTA’s editorial guidelines limit my ability to share the texts that December 2022

followed our vote, but suffice it to say, I did not handle defeat well, and I am not proud of everything that went down.

In the days that followed these texts, I was left wandering. Never in my life was I so sure that my opinion was mainstream only to find that I was in the minority. I tried to resolve the inner conflict the only way I know how: research. I scoured the internet1 and found three objective reviews of these products. The first, which came from a website aptly named “Food Rankers, gave an extensive review of what they considered “the five best boxed macaroni and cheese brands.” Noticeably absent from Food Rankers’ list: Kraft blue box. Rather, the lowest-ranked brand in Food Rankers’ taste test was Kraft Macaroni & Cheese “Deluxe,” which is Kraft’s half-hearted attempt at Velveeta Shells and Cheese. In its review of Kraft’s imposter, Food Rankers describes Kraft’s product as having a “lackluster flavor” with a “weird” taste that “remind[ed the reviewers] of nacho cheese.” Round one: Mitchell.

The next review came from a website called “The Takeout.” Much like the previous review, the Takeout tested four different boxed macaroni and cheeses: Annie’s Homegrown; Kraft blue box; Back to Nature; and, the king, Velveeta Shells and Cheese. The author prepared each and relied on her son to give his honest rating. The verdict: Velveeta Shells & Cheese received a grade of B+ and Kraft Macaroni & Cheese received an A. This proves the importance of a fully formed frontal lobe and confirms why children cannot vote in U.S. elections. Still, round two sadly goes to Kraft.

With the score tied, I had one source left: a website called “the Insider.” Unlike the others, this review tested four single-serve, microwavable options: Velveeta, Annie’s White Cheddar, Annie’s Real Aged Cheddar, and, of course, Kraft Macaroni & Cheese. The review shows multiple pictures of each product at the various stages of preparation. These pictures confirm my primary criticism of Kraft’s product: despite vigorous stirring, it is impossible to prevent that stupid, powdered cheese from clumping. Although the reviewer commended Velveeta for its consistency, he or she ultimately favored Kraft “even though the aftertaste felt artificial.”

As Ernest Hemingway famously wrote in The Old Man and the Sea, “A man can be destroyed but not defeated.” I refuse to let this outcome destroy me. It seems clear that despite my confidence in Velveeta’s superiority, the people have spoken, and Kraft Macaroni and Cheese prevails. Accordingly, I owe an apology to each member of the group text. But more importantly, I owe each of you an apology. By forcing you to read this column, I have now taken five minutes of your life that you will never get back. I am truly sorry. If you think Velveeta Shells & Cheese would ease the pain, give me a call.

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In full disclosure, I did a single Google search using this inartful, natural language search: “Velveeta Shells & Cheese v. Kraft.” And my reporting relies on the three responsive hits from the first page of Google results.

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

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

PRO BONO NIGHT 2022: THURSDAY, Pro Bono Night 2022: Thursday November 3rd at The Standard NOVEMBER 3RD AT THE STANDARD Thank you to everyone who came out to Pro Bono Night 2022! It was a joy to celebrate all the incredible work our area bar and community partners have done to support Legal Aid of East Tennessee and the Pro Bono Project. We are delighted to share pictures from the event, including our wonderful 2022 Pro Bono Award winners and presenters!

Meagan Davis Collver presents Pro Bono Law Student of the Year to LMU 2L Tenaya Winkelman.

Caitlin Torney presents Pro Bono Firm of the Year to Ryan McMillan from Milberg Coleman.

TBA President Tasha Blakney presents Pro Bono Attorney of the Year to Jennifer Egelston.

Debra House presents Pro Bono Community Partner to Dean Lyon for LMU Duncan School of Law.

Carlos Hess accepts the Hall of Fame award on behalf of his mother, Professor Amy Morris Hess, from David Yoder.

Scan the QR Code above to see a video address from Hall of Fame Inductee Professor Amy Morris Hess.

Maha Ayesh, Tenaya Winkleman, Allison Starnes-Anglea, Meagan Davis Collver, KBA President-Elect Loretta Cravens.

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December 2022

TELL ME A STORY By: Meghan Morgan Pilot Company

DON’T SAY NO TO CHANGE Well, being a doctor is not for me. That was the realization I had after shadowing a local physician in a hospital setting. The continuum of care in the medical field was too long for my need to feel like I was making an immediate impact in someone’s life. So where did that leave this junior in college? On the path to a law degree of course. I loved and excelled in school, enjoyed research and writing, and thought law school would be the best way to impact people’s lives.

Enter three years of law school at Washington and Lee University School of Law, interning for Judge Norma Ogle on the Tennessee Court of Criminal Appeals and summer internships with two very highly respected Knoxville firms. After graduation, I hit the ground running.

My career began at Woolf, McClane, Bright, Allen and Carpenter PLLC as a general civil litigator. I worked for WMBAC for six years and then spent the next six at Baker Donelson, also working as a litigator but predominately in the labor and employment field. In October of 2017, I made an abrupt change and moved in-house at Pilot Flying J, where I’ve worked in a number of roles, none involving litigation.

Looking back at my career, I can say I am the product of: (1) incredible mentorship and support by a strong network cultivated over years of relationship building; (2) trusting others when they saw skills and qualities in me that I did not see in myself; and (3) leaning into the uncomfortable. These three things have led me to where I am in my career today.

Mentorship and Networking No one succeeds on their own. I have been very lucky to have had incredible mentors at every phase of my career. When I started in private practice, my first secretary, Liz Loy, taught me more than three years of law school about the practice of law. Liz stuck with me as I learned the hard way to keep up with my time and write it down EVERY DAY, and then rolled her eyes when she found me scrambling to sort through my stack of post-it notes to input missed time entries at the end of the month. She helped me learn to articulate and speak slowly. She explained certified mail and certificates of service, how to figure out court fees and where to find information on judges and clerks. She was a mentor in the practice of law. My other assistants, Robin and Amy and my paralegal Debbie at Baker Donelson, were equally as impactful on my development.

I was also lucky enough to start at a firm with unbelievably accomplished attorneys. I had the privilege of working closely with Mike King, Tony Dalton, Chad Hatmaker, Ford Little, Luis Bustamante, Robert Noell and Nic Arning (among others) for years. These attorneys taught me not only how to draft pleadings, research and write effectively, take depositions, and how to advocate in court, but also taught me to have confidence in my skills as an advocate and to be proud of my work ethic and work product. I was able to see them navigate their families, caseloads, and civic involvement daily. I admire all of them tremendously.

WMBAC also encouraged me to be active in the KBA Barristers and in the community. Through networking opportunities, I was able to meet and connect with lawyers recently out of law school as well as more experienced attorneys. This was critical. I attribute whatever career success I have, in part, to a strong network of attorneys, law school classmates, community leaders, clients, and friends who have taught me the hard and soft skills needed for a successful career. Everyone you meet can teach you something, and you never know when someone may need a lawyer.

I always tell law students to value and cultivate their networks early. It’s career advice I wish I had been given earlier.

When I transitioned to Baker Donelson, I felt extremely lucky that I December 2022

got to work very closely with Tim McConnell and Eddy Pratt, and made very solid connections across its footprint with strong female litigators.

At Baker, I transitioned from general civil litigation to mostly commercial and labor and employment. Eddy and Tim were truly partners, mentors, and friends during this transition. Baker saw me go from a single associate, to a newlywed and new mom, to a divorced mother of two small boys and supported me with every life transition.

I would be remiss if I did not mention Latisha Stubblefield. Latisha is younger than me but has had a profound effect on my legal career.

We worked together at WMBAC, Baker, and now at Pilot. She is an amazingly smart, dedicated, and committed attorney. She’s my version of a legal “ride or die” and has been a mentor and friend almost my entire career. Everyone needs a Latisha to bounce ideas off of, complain to, and build up.

At Pilot, I am lucky enough to work with Kristin Seabrook, my first female boss and the Chief Legal Counsel of a multi-billion dollar company with a nationwide footprint, as well as a team of the most talented and selfless commercial attorneys that exist. In this role, I do not litigate at all. I took a leap of faith and trusted others that thought I could excel here in a different sort of legal role, and five years later I continue to lean in and learn about different aspects of Pilot’s business and the laws and regulations that impact our commercial success.

Trusting Others One of the more difficult paths to success in my career has been trusting others who saw things in me I may not have seen in myself.

When I doubted myself, I trusted my mentors. WMBAC saw me as a litigator when I saw myself as a quiet transactional attorney. They encouraged me to develop my litigation skills, trusted me to go to court early, and take ownership of cases. At Baker, Tim saw an associate with an affinity towards relationships and people, and brought me into the practice of labor and employment. He saw my desire to connect with people and put me in a position to provide counsel as well as advocacy.

When I interviewed at Pilot, Kristin saw my work ethic and dedication and trusted that I could transition my practice into a more transactional role, stressing the importance of the relationship skills I had developed to help bring trust and buy-in from our business units. She set me on the path to be Pilot’s Head of Privacy and Legal Retail Operations. She encouraged me to take ownership of new and expanding areas of law, to think commercially, and trusted me to lead a team to strengthen and enhance Pilot’s privacy practices. I think that much of my career path could be attributable to listening to others who had my best interests at heart and trusting that they could objectively give me guidance when my own doubts crept in.

Leaning into the uncomfortable My career has taken the twists and turns it has because I have leaned into the uncomfortable. To step into a new area of law or transition firms is wrought with anxiety. We question our decisions, our competency and our sanity. However, I will say that leaning into change has always resulted in positive outcomes for me professionally. Take on a new project. Raise your hand in meetings. Offer your advice. Figure out ways to manage anxiety and reduce stress, but don’t say no to change.

Looking at the last 18 years, I can say I am proud of my professional and personal growth, and I can’t wait to see what the next half of my legal journey entails. My story is still unfolding, and I look forward to the lessons I learn in the future.

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Prsrt Std US POSTAGE

P.O. Box 2027 Knoxville, TN 37901

Barristers New Admittees Welcome Reception The KBA and Knoxville Barristers sponsored a Member Appreciation and Welcome New Bar Admittees Celebration on Thursday, October 20 at the Friendship Pavilion at UT Gardens. The event would not have been possible without the generous financial support of First Horizon Bank.

PAID

KNOXVILLE, TN PERMIT NO. 3 0 9