DICTA June 2023

Legal Update: The Next Fight in the Abortion Wars—FDA-Approved Drugs Used to Terminate Pregnancy . . . Page 15 Schooled in Ethics: ABA Ethics Opinion on “Nonrefundable” Fees Paid in Advance Provides Useful Guidance for Tennessee Lawyers . . . Page 19

A Monthly Publication of the Knoxville Bar Association | June 2023

EXPELLED!

THE LAW AND POLICY OF EXPULSION IN THE TENNESSEE LEGISLATURE

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DICTA

June 2023

In This Issue

Officers of the Knoxville Bar Association

June 2023

COVER STORY 16

Expelled! The Law & Policy of Expulsion in the Tennessee Legislature

CRITICAL FOCUS President Loretta G. Cravens

President Elect Carlos A. Yunsan

Treasurer Jonathan Cooper

Secretary Rachel Park Hurt

Immediate Past President Jason H. Long

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KBA Board of Governors Ursula Bailey Meagan Collver Daniel Ellis Spencer Fair

Luke Ihnen Hon. E. Jerome Melson William A. Mynatt, Jr. T. Mitchell Panter Samantha Parris

Courtney Epps Read Vanessa Samano Charles S.J. Sharrett Hon. Zachary Walden

The Knoxville Bar Association Staff

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President’s Message

Better Late Than Never!

Practice Tips

Changes To The Notice Procedure For The IRS in Non-Judicial Foreclosure Sales

Legal Update

The Next Fight in the Abortion Wars— FDA-Approved Drugs Used to Terminate Pregnancy

Schooled in Ethics

ABA Ethics Opinion on “Nonrefundable” Fees Paid in Advance Provides Useful Guidance for Tennessee Lawyers

Management Counsel

Can A Severance Offer Be Illegal?

The NLRB Says So.

WISDOM 6 Marsha S. Watson Executive Director

Tammy Sharpe Director of CLE & Section Programming

Jonathan Guess Bridgette Fly Database Administrator Programs & Communications Coordinator

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

Volume 51, Issue 6

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).

June 2023

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Jason Galvas LRIS Assistant

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 Anita D’Souza Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho Matthew R. Lyon

Managing Editor

Cathy Shuck Sarah Booher Melissa B. Carrasco Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Eddy Smith Grant Williamson

Marsha Watson KBA Executive Director

DICTA

21 22 23 27 29 31

Well Read

A Sense of Justice: Judge Gilbert S. Merritt and His Times

Hello My Name Is

Amelia Hamilton

Privileged To Be a Lawyer

The Forgotten Population

Top Ten List

Coolest Latin Legal Phrases

What I Learned About Inclusion and Why It Matters

Do Not Avert Your Eyes!

Attorney Profile

2023 Recipient of the Law & Liberty Award: An Example of Leadership

In Limine: Profiling Future JDs

Trinity Sandifer

Simple Things

Home

Of Local Lore & Lawyers

The Great Locomotive Chase: Trials, Tribulations, and Triumphs

Barrister Bites

Sous Vide... or Plan B?

Legally Weird

When Wings Ain’t Wings

Mitchell’s Malarkey

Have Some Self-Respect!

Tell Me A Story

Reducing Bias in Hiring Practices

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. 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. The next Pro Bono Debt Relief Clinic will be held on August 26, and volunteer registration is available at www.knoxbar.org. If you have a CLE 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. Save the date for the “Annual Corporate Counsel Update” extended CLE on August 23. 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. Join the Criminal Justice Section for the upcoming CLE programs “The Heavy Load of Criminal Justice” on June 13 and “The Government is Sliding Into Your DMs” on September 12. 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) or Tim Roberto (6912777).

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. Join the Environmental Law Section for the upcoming CLE program “Evaluating Potential Hazards” on July 20. 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. If you are interested in getting involved or have suggestions for CLE topics, 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 2021 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Kathryn Haaquist (525-0880) or Nicole Turbinton (221-7542).

Senior Section The KBA Senior Section generally meets quarterly for lunch. If you have suggestions for luncheon speakers, please contact Chair Wayne Kline at (292-2307) or Sam Rutherford (659-3833).

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. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936) or Brittany Dykes (214-7869).

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DICTA

event calendar June

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Diversity in the Profession Committee Medicare Basics CLE Judicial Committee Professionalism Committee The Heavy Load of Criminal Justice CLE Barristers Meeting Veterans Legal Advice Clinic Wellness Committee Book Club Discussion Board of Governors Meeting

July

n7 n 11 n 11 n 11 n 12 n 12 n 13 n 14 n 20 n 25 n 27

Diversity in the Profession Committee Legislative Update CLE Professionalism Committee Access to Justice Committee Wellness Committee Veterans Legal Advice Clinic Judicial Committee Barristers Summer Party Environmental Law CLE CLE Committee ChatGPT CLE

SAVE THE DATE: Bench – Bar Celebration September 6

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

June 2023

PRESIDENT’S MESSAGE By: Loretta G. Cravens

Eldridge & Blakney, P.C.

BETTER LATE THAN NEVER! This article is overdue. I do not mean its subject matter is stale or untimely. I mean it was due hours ago, and I sit here this evening, in my living room, just beginning really. I did not intend it to be overdue.

That was not my goal. I try to pick an inspiring or entertaining message to share with you all each month, ideally based on something I have experienced or hope to, or some tidbit of wisdom I have picked up along the way. This time you just get me … me in this moment.

Somewhere along my lifetime, I have heard, and used, the phrase “just keep it between the ditches.” (How very Southern, I know.) Some days that feels like a big ask. I don’t know if it is recent travel, a heavy court schedule, numerous deadlines, emerging client “emergencies,” seasonal allergies, or unsettled weather, but I am tired. Balancing professional obligations, interpersonal relationships, family needs, and self-care is always a challenge, a challenge that I like to think I am better equipped to conquer with age and the passing of time, but today isn’t that day. I have hit the wall. I am at the ditch line.

So, I have decided to just be honest about that and write about it. I admit that I have now scrapped the draft of the hopefully inspiring article I had begun to write but could not manage to finish on time. Instead, I thought I’d share with you my current status and some strategies I use to get past these kinds of days when they visit. Maybe something here will help if you ever have one of these days, as we all do.

has lit up three times in the last hour, as I watch the sun set, hours after the “workday” should be done. I think I have been answering it too frequently lately under similar circumstances. Tonight, I am putting another brick in the wall of my boundaries, and that cell phone is going silent in another room. No need to act, no need to explain. It will wait.

This too shall pass.

A moment is here, and then it is gone. Whether that moment is a happy one, a sad one, or an exhausted one, it is unequivocally just a moment. It cannot be regained and there is no purpose in dwelling on it, another moment is on the horizon. The next moment cannot be chased, it always arrives in its time. The only moment one can exist in is the present one, so I choose to exist in the moment that is, knowing it shall pass and be replaced by the next.

DICTA

Grace.

I am also going to give myself some grace. Dinner tonight will be a chunk of whatever cheese is in the fridge accompanied by whatever cracker awaits in the pantry. No chores are going to be completed. No additional work will be done. I’m just going to finish writing this journal entry to share with my KBA family and sit. If I get really ambitious, I might turn on the television and find something mindless and fun to watch for an hour. I might just cuddle up with my pups and read a bit before bed. I choose to give myself that grace. I’ll start over tomorrow and try to be just a little bit better than I was today.

If you are having one of those days, I hope you recognize it, maybe remember this article, and select a technique that works best for you.

Take the time. Have a rest. Feel the grace. Keep it between the ditches.

Thanks for listening. I feel better and more energized already.

June 2023

DICTA

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

Reinforce boundaries.

This may seem like a strange suggestion, but often when I find myself unduly stressed or exhausted it is because I have allowed my own boundaries to bend. Remember you set boundaries for yourself, not for others, and you are the only one who can stick to them. My cell phone

DICTA is a monthly publication of the Knoxville Bar Association. DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership. This issue represents one of our “super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox County and all of its contiguous counties, Blount, Loudon, Anderson, Union, and Sevier.

DICTA is an important publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars. It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections. If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Watson at 505 Main Avenue, Suite 50, P.O. Box 2027, Knoxville, Tennessee 37901-2027, (865) 522-6522 or access our award-winning website at www.knoxbar.org.

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Get it out!

When I am stressed, tired, or generally feeling low, I have found that it helps me to get whatever it is from inside my head to outside of my brain and body. Sometimes that might mean writing down my thoughts or journaling, or writing an article about it, I suppose. If you are the praying or meditating type, those can help too. Sometimes it means taking a walk, listening to the birds, feeling the breeze, maybe getting a little sun. Sometimes it means selecting a playlist featuring the songs that evoke the mood I want to be in and fully committing, singing loudly and off key at the top of my lungs, having a dance party of one, or both.

Regardless of the method called for in the moment, movement of my feet, the rhythm of my own breath, or the stroke of a pen will make me feel better and release my worries outside myself.

EDITORS’ NOTE:

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WELL READ By: Jason R. Smith

Director of Legal Writing and Assistant Professor of Law LMU Duncan School of Law

A SENSE OF JUSTICE: JUDGE GILBERT S. MERRITT AND HIS TIMES The old saying goes that “a judge is just a lawyer who has a politician for a friend.” Like with any good cliché, there’s at least a kernel of truth to that statement. You can see that kernel and more in A Sense of Justice, Keel Hunt’s new biography of the late Sixth Circuit Court of Appeals Judge Gilbert S. Merritt Jr. Mr. Hunt, whose previous books have chronicled Tennessee’s political history,1 provides a fascinating look at just how politically connected Judge Merritt was prior to taking the bench. What might surprise readers less familiar with Tennessee’s political history is that Judge Merritt was a major player in Tennessee’s Democratic Party in the 1960s and 70s. Mr. Hunt’s book serves as a reminder that Tennessee was not always a deep red state, but a purple state where, until fairly recently, Democrats competed in and often won state-wide elections. Judge Merritt was a New Frontier Democrat involved in several progressive Democratic campaigns until he eventually served as the state finance chairman for Jimmy Carter’s 1976 presidential campaign. The next year, President Carter would appoint Judge Merritt to the Sixth Circuit.

While Judge Merritt’s political connections put him in the right place at the right time to be appointed to a federal judgeship, he was also immensely qualified for the job. Looking at Judge Merritt’s early legal career, he would best be described as a wunderkind. Between graduating from Vanderbilt University Law School in 1960 and his appointment in 1977, Judge Merritt had several stints in private practice in Nashville, served as associate director of the inaugural Department of Law for the then newly formed Metropolitan Government of Nashville and Davidson County, was a law professor, and was appointed the United States Attorney for the Middle District of Tennessee. In all these roles, Judge Merritt worked to open doors for women and Black lawyers at a time when they were systemically kept out of the profession.

As interesting as the portions of the book dealing with Judge Merritt’s political connections and early legal career are, the most intriguing part of the book for attorneys is the discussion of Judge Merritt’s judicial career. Given the cloistered nature of their duties, the inner workings of an appellate judge’s chambers are mysterious even for attorneys. But Mr. Hunt deftly describes how Judge Merritt’s chambers operated. Mr. Hunt gives readers a look at each part of this close-knit community from Judge Merritt’s long-time office manager and his law clerks2 to his fellow Sixth Circuit judges. Mr. Hunt does an excellent job

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of depicting the collegial and collaborative environment of an appellate judge’s chambers, so much so that I found myself nostalgic for my days as a law clerk after reading those chapters.

Judge Merritt’s story is at the center of all the history and all the behind-the-scenes glimpses into political campaigns and judicial chambers in Mr. Hunt’s book. By the end of the book, you can see how Judge Merritt’s background, the heartbreaking personal tragedies he had to overcome, his status as a political insider, his public policy work, and his years on the bench all combined to make him a jurist with a reputation as the model of collegiality and judicial temperament. When I finished Mr. Hunt’s book, I was left regretting that I never had the chance to meet Judge Merritt prior to his death in 2022. And that, I suppose, is the highest praise one can give to a biography.

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Keel Hunt, Crossing the Aisle: How Bipartisanship Brought Tennessee to the Twenty-First Century and Could Save America (2018); Keel Hunt, Coup: The Day the Democrats Ousted Their Governor, Put Republican Lamar Alexander in Office Early, and Stopped a Pardon Scandal (2013).

Many of which have gone on to incredibly successful legal careers of their own in private practice, academia, business, and government.

June 2023

PRACTICE TIPS By: Thomas H. Dickenson Hodges, Doughty & Carson

CHANGES TO THE NOTICE PROCEDURE FOR THE IRS IN NONJUDICIAL FORECLOSURE SALES Now that real property foreclosures1 seem to be back on the table for lenders following the pandemic, it is a good time to review some small changes to IRS procedures for sending notice of a pending foreclosure to the IRS. For those attorneys, like myself, who have been sending foreclosure notices for years to the Internal Revenue Service at its Special Procedures address on Broadway in Nashville, it is time to change that routine. For those of you reading this article who have no idea what I am referring to, it is simple; if you are conducting a foreclosure sale involving an IRS tax lien encumbering the property to be sold, notice to the IRS must be sent so that it is received2 by the IRS at least 25 days3 prior to the date of the foreclosure sale. This applies to tax liens recorded more than 30 days prior to the date of the sale.4 Otherwise, the sale will not extinguish the tax lien. It is important to note that the filing of a Federal Tax Lien in a Register of Deed’s office constitutes notice of a lien held by the IRS that applies to both real property and personal property located in the county of recordation.

In 2022, the IRS updated its publication regarding “Nonjudicial Sales of Property and Application for Consent to Sale” (the “Publication”).5 The Publication is short: only four (4) pages long. With the updated Publication, the IRS also updated its form for “Notice of Nonjudicial Sale of Property.”6 There are only 4 steps to the process: (1) the notice to the IRS must be in writing; (2) the notice must either be submitted to the IRS by registered or certified mail or by the use of a “personal service” such as Federal Express or UPS; (3) the notice must be sent to the correct address; and (4) the notice must contain the information required by the IRS publication.

The first two steps above are self-explanatory and need no further comment other than to state that the date of receipt by the IRS from an overnight delivery service is the actual delivery date, not the date of sending. As to (3) above, the proper address for the notice is in a separate IRS publication.7 The new address to use for the notice is: Internal Revenue Service, Advisory Consolidated Receipts, 7940 Kentucky Drive, Stop 2850F, Florence, KY 41042.

The final step (4 above) details the information required to be contained in the notice (or attached to the notice) to the IRS. There are five (5) requirements listed in the Publication. Those are as follows: (1) the name, address, phone and facsimile numbers of the person submitting the notice; (2) a copy of the recorded Notice of Tax Lien8 or, alternatively, you are allowed to provide the information that is contained in the Notice of Tax Lien – the name of the IRS District Office where the notice was prepared and signed, the name and address of the taxpayer and the date and place where the notice was filed; (3) a detailed description, including the physical address and location of the property to be sold (and, if available, a copy of an abstract of title); (4) the date, time, place and terms of the sale of the property; and (5) the approximate amount of the principal obligation, including interest due, and a complete description of any expenses associated with the sale (legal expenses, June 2023

publication expenses, selling costs, maintenance costs, etc.).

With each of the requirements detailed in the preceding paragraph, there are also optional pieces of information that can be included in your notice. An example of an optional provision relating to the Notice of Tax Lien would be to provide the social security number of the taxpayer with the first 5 digits shown by xxx-xx-1234 (although this seems unnecessary since this same information will be shown on the face of the Federal Tax Lien).

There is yet another form to use if you seek to have the IRS consent to the sale of property free of a federal tax lien.9 If a notice to the IRS is inadequate, the District Director is required to provide written notice to the foreclosing party more than five days prior to the date of the foreclosure sale.10 It is also important to note the IRS lien in the actual foreclosure notice that goes to the newspaper for publication and you must remember to prepare your Trustee’s Deed to include the IRS right of redemption when there is a tax lien on the property being sold at a foreclosure sale.

While this article covers only non-judicial sales of real property, these requirements are also applicable with respect to the sale of personal property and there are additional requirements if the sale involves personal property, including specific requirements relating to sales of perishable personal property.

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Tennessee is a non-judicial foreclosure state.

Receipt is the key; not the date of your mailing to the IRS. 26 U.S.C. § 7425(c)(1).

26 U.S.C. § 7425(b).

Publication 786.

Form 14497.

Publication 4235.

Form 668(Y)(c).

Form 14498.

Glasgow Realty, Inc. v. Withington, 345 F. Supp.2d 1025 (E.D. Mo. 2004).

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

AMELIA HAMILTON We hope you enjoy this month’s opportunity to get to know Amelia Hamilton, Assistant District Attorney General with the Sixth Judicial District. Amelia describes her primary role as a “table DA” in Knox County Criminal Court Division II, where she takes on cases that have not been assigned to a specialized unit.

She is a December 2021 graduate from the Lincoln Memorial University Duncan School of Law and also holds the following degrees: Northern Arizona University, Bachelor of Arts in French; Defense Language Institute Foreign Language Center, Associate of Arts in Korean; and Austin Peay State University, Bachelor of Science in Criminal Justice with a focus in Homeland Security. In addition, Amelia is a U.S. Army veteran, and we thank her for her service.

Why did you decide to go to law school?

Before law school, I was an officer with the Knox County Sheriff ’s Office. One of my assignments was in the City County Building as a Court Services Officer. My various duties included sitting in court and managing the flow of inmates and new arrestees to and from the various courtrooms. During this time, I had the opportunity to speak with attorneys about their jobs and to watch the many stages of the criminal court system. After moving to another unit within the Sheriff ’s Office, I eventually came to the decision that I wanted to do something more challenging but stay somewhat within the same field of work, which led me to law school.

What energizes and motivates you at work?

Bringing equal justice to all, even if that means working with opposing counsel to solve a drug dependency or mental health issue over sending someone to prison. It is really rewarding to see someone come back to court looking healthy and succeeding in life, when just a few months or a few years ago they were lost within their addiction.

concerts in the community throughout the year, including at the Rossini Festival and at the Clayton Center of the Arts during Christmastime.

I am also a member of a group called Irreverent Warriors, an organization with the Mission “to bring veterans together using humor and camaraderie to improve mental health and prevent veteran suicide.” I enjoy going to get-togethers with fellow vets, assisting with fundraisers for the organization and the local Knoxville branch, and bringing awareness to the community about Veteran Suicide. We spend time together so that we are not alone with our own thoughts. I personally like to organize events that include getting out into nature and taking in fresh air.

What do you think it is most important for lawyers early in their career to know about work-life balance?

YOU MUST DO THIS!! I was lucky to learn work-life balance early on in law school, albeit coming at the expense of my own health.

Set goals, look at your schedule far in advance, make time for yourself, and write things down. I deal with so many cases on a daily basis that if I don’t make notes right then and there I will forget, which means time wasted later trying to re-figure things out. And don’t be afraid to ask for help. I go to my coworkers, secretaries, coordinators, officers, clerks, and former professors all the time for advice. In the future, I hope that I can be that source of information for someone else. I’ll even guide my defense attorney friends from law school if there is something I can help them with. The system works when we all work together.

What is your favorite movie?

What About Bob? with Bill Murray. It brightens my day every time I watch it. Bob shows me that a mere change in perspective can change your whole life.

Where are you from?

I was born and raised in Homer, Alaska. After high school, I moved to Idaho and then to Arizona for my first undergrad degree (including a year in France). After graduation, I joined the Army as a Cryptologic Linguist (Korean) where I served on active duty for five years. In the Army, I bounced around from Missouri to California to Texas, then Korea, followed by Hawaii, from which I deployed to Eastern Afghanistan. I ended up in Knoxville after leaving the Army in 2012, and I have been here ever since.

What are your hobbies?

My hobbies focus on music and veteran’s-related issues. I am a member of the Knoxville Community Band (KCB), and when needed, I volunteer as a trombone tutor with the Joy of Music School, which provides music lessons free of cost to children. KCB puts on free

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June 2023

PRIVILEGED TO BE A LAWYER By: Miranda Goodwin, J.D.

THE FORGOTTEN POPULATION Growing up you never think about who is taking care of your grandparents. Children don’t wonder if they are getting their bills paid, getting all the benefits they qualify for, or getting their medication on time. You just enjoy the time that you get to spend with them. You get used to ignoring that someday, you will be in their position. Thinking about health decline, disability, or dying is not pleasant. It often is human nature to avoid or delay dealing with unpleasant issues. Which means that many families will find themselves in an emergency situation with their loved ones and realizing they desperately need the advice of a lawyer. It wasn’t until I went to law school and learned about elder law that I realized there is a lot of behind-the-scenes work, either by family and/or a facility, that goes into taking care of our elderly population. An elder law attorney can help a family explore their options for their loved one’s current situation and explain what the road ahead might look like.

During my time in law school, I was privileged to learn as much as I could about elder law. What I quickly came to realize was how often the older generation is forgotten about. They seem to be out-of-sight, out-ofmind to those not in a career that focuses on elders. Many folks do not realize that isolation, whether self-compelled or imposed, leaves a person vulnerable to abuse, exploitation, and loneliness. Not only do nursing home residents all too often rarely have visitors, mainstream culture in the U.S. generally has evolved to keep our seniors and elders separate and alone. Social isolation is a risk for those living at home as well as in memory care or nursing home environments.

I believe most people would prefer to remain completely ignorant to the aging process because it is never easy to see ourselves or our loved ones in decline. If we don’t think about it, then it won’t happen. Before I started practicing in this field, I was guilty of the same. Thinking about death and dying was an incredibly emotional topic for me. I preferred to remain ignorant. As little as five years ago, I knew nothing about assisted living, nursing homes, or home healthcare. I did not know anything about conservatorships or the legal process involved with stepping up to assist individuals who are no longer capable of managing their own lives. Like most people, I had always assumed there was one government program that helped everyone with these kinds of situations. Instead, there is a complex network of private and public agencies who may assist depending on multiple factors, including age and assets, and what limited public resources we do have available simply are overwhelmed with everexpanding demand.

And what happens to those that don’t qualify financially or otherwise for public assistance and have no one in their life who is capable or willing to help them? Frequently, elderly folks, especially those with hoarding tendencies, will get injured somehow and get sent to the hospital. If admitted at the hospital, the doctors have a duty to release them only if it is safe to return to their homes. Hospitals vary in how that standard is interpreted depending on staff involved, management, insurance pressures, and overwhelming healthcare demands. But in many cases, individuals may get stuck in the hospital. The hospital cannot transfer them to a rehab or long-term care facility, and the hospital cannot in good conscience let them leave to go back home. Elders in these types of situations need a personal connection or professional to step in as fiduciary or conservator to develop a safety plan and provide informed consent to be transferred to a facility where they can get the care that they need. It is a privilege to help elders in need, but it also is June 2023

hard work for relatives, friends, and professionals. In my private practice I work with another local attorney, Sarah Malia, and it seems that more and more the primary focus of our work is in serving as a professional fiduciary. And to say that professional fiduciaries have a negative perception in the public eye is an understatement. We walk delicate lines daily in order to consider our clients’ best interests while limited by their varying available resources. Sadly, it is becoming all too common for someone to no longer be able to take care of themselves and have no one in their life realistically who is willing or able to take on that responsibility. Candid conversations with loved ones of people in these types of situations about what the future might look like are hard. Even after having a few years of experience in this area, I still struggle with how to approach those types of conversations.

One of the greatest privileges I have as a lawyer is being able to tell my clients and their families that they don’t have to go through difficult times alone. I am there for them as a resource and, if needed, to handle some of the more difficult tasks that can be delegated. As a professional fiduciary, I can step in and handle stressful and emotionally wrenching financial or healthcare decisions in order to allow the family to focus on spending time with their loved one. While this is a difficult job for someone who is an empath as I am, if I can take even a small amount of families’ grief or stress off their shoulders, I consider that a successful day.

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TOP TEN LIST By: Jason Long Lewis Thomason, P.C.

COOLEST LATIN LEGAL PHRASES I can remember a week of depositions about 15 years ago in the basement of Bill Vines’ law firm. It was a large medical malpractice action with five different sets of defendants and about eight lawyers sitting around the table. We had been going on for about two days deposing family members of the injured Plaintiff and were finishing up with her father, who had been under examination for about 6 hours. The poor guy was exhausted. He did not know if he was coming or going and had gotten to the point of giving clearly contradictory answers within the span of fifteen minutes of each other. It wasn’t his fault. He was tired; we all were.

What was memorable about the deposition was the fact that with every other answer he gave, the husband had to look back at his wife to confirm the information and make sure he was not speaking out of line.

It was a breach of protocol, but none of us really cared. We just wanted to get through the damn deposition. I had finished my questioning and was grousing that we needed to wrap things up because Carol Anne and I were celebrating (A birthday? Anniversary? I really can’t remember, but we had dinner reservations and woe be unto me if I was the reason we had to cancel). About that time, one of the other defense attorneys (I won’t say who, but his name rhymes with Ned Kite) leaned over to me and wrote on my legal pad a single word: uxorious. In the moment, I had no idea what that meant, but I was sure it was some friendly insult.

The deposition concluded, I went home, had dinner with my wife, and then looked up the meaning of uxorious. Sure enough, it means to be excessively submissive to a wife. While I couldn’t disagree with the description, I was indignant to have been so blatantly insulted and in such a manner that I was forced to do research to understand the insult. The following day, I drafted a two-sentence letter to Ned Kite condemning him for his tactless affront to me, while at the same time acknowledging his astuteness. He called me two days later, laughing, to say that his note was referring to the witness and not to me. Lessons learned.

On that note, I present the Top Ten Coolest Latin Phrases/Words I have learned since becoming a lawyer: 10. Writ of Certiorari – This was the first legal phrase I learned in law school, from my Civil Procedure I professor, the infamous Fred LeClerq. Professor LeClerq’s South Carolina drawl was impossible to reproduce and, since that day, I struggle to correctly pronounce “certiorari.”

9. Coram Nobis - Meaning literally “before us,” I always thought a Writ of Coram Nobis sounded regal and impossibly erudite. Not so much.

8. Res Judicata - It rolls trippingly off the tongue and, for us defense counsel, it is a sneaky cool way to win a lawsuit, or at least give our adversary a headache attempting to argue around it.

7. In Pari Delicto - It simply means “in equal fault,” but for years I though it meant partially delicious. My pizza was “in pari delicto,” but I had to pick off the mushrooms.

6. Quantum Meruit – Wasn’t there a television show in the late 80s where a guy time travelled to solve crimes? Or am I just imagining that. I feel like I watched a few dozen episodes of Quantum Meruit

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when I should have been studying calculus.

In Loco Parentis - Yes, I originally thought this phrase meant “crazy parents.” In the few years that I practiced domestic relations law, I ran into quite a few in loco parentis.

Habeus Corpus – Possibly the first legal latin phrase we are all introduced to. Technically, I knew this one before coming to law school. I like how authoritative and strong it makes me sound: “Habeus corpus! Produce the body!!” Of course, I’ve never had occasion to actually use the phrase, but it is on my bucket list.

Ipso Facto – I like this one because it is an easy way of ending an argument. If someone disagrees with me, I simply exclaim “ipso facto” and usually they are so bewildered they stop talking long enough to make an escape.

Pro Se – Simple, elegant and I feel like when I see an opposing party acting pro se, I have at least a 50/50 chance of outlawyering them.

Res Ipsa Loquitur – The grand champion of legal phrases. If you want someone to know you are a lawyer, throw out a “res ipsa loquitur” or two in casual conversation. They will immediately walk away or begin seeking legal advice.

June 2023

WHAT I LEARNED ABOUT INCLUSION AND WHY IT MATTERS By: Sherri Alley

Pinnacle Financial Partners, Inc.

DO NOT AVERT YOUR EYES! In high school and college, I became very passionate about issues of diversity and inclusion, but for about fifteen years following law school, as my personal life became consumed with my career, marriage, children, and then divorce, I rarely thought about these issues beyond training my own children and contradicting the rare family member or acquaintance who was bold enough to utter a blatantly racist remark in my presence. As a white, able-bodied, cis-gender, heterosexual, middleclass woman living in Farragut in the 21st century, I lived relatively free from experiencing bias or prejudice – for years. I only recall one episode of discriminatory maltreatment during those years – by a white male lawyer about twenty years older than me. During a contested probate hearing, in the midst of my argument, with his face flushed with anger, opposing counsel leapt to his feet, and screamed, “You are a liar!” I am still unsure whether it was my gender or my youthfulness - or both - that allowed him to believe that behavior was appropriate. As the judge barely responded, I was stunned and humiliated, but the impact on my life was fleeting; the only casualty was my respect for that lawyer, to whom I had previously referred some business.

During those self-absorbed years, as I watched the news, I kept seeing stories of black men killed by police or alleged “concerned citizens,” and there were so many: Trayvon Martin, Freddie Gray, Philando Castile, Ahmaud Arbery, and then, George Floyd.1 On Facebook, I saw post after post from friends with brown or black skin anguishing about having to admonish their teens about how a traffic stop could be a life and death encounter and how the teens should behave in such situations. I saw a candidate for President of the United States mocking disabled people and making blatantly racist comments about

June 2023

Mexicans as a large crowds cheered. I felt like racism was suddenly becoming more ordinary and blatant. Then, in the midst of a pandemic, when the world slowed a bit and the news seemed overwhelmingly negative every day, it hit me like a ton of bricks: America’s “race problems” had been here (and throughout the U.S.) the whole time, but I had turned away. Since law school, my local community – the people with whom I interacted on a regular basis, both professionally and personally – had shrunk and become extremely homogeneous. I had unconsciously become segregated from diverse perspectives and experiences and insulated from the microaggressions, disadvantages and oppression that people with darker skin cannot escape because American society (as a whole) sees the color of their skin before recognizing their humanity. I vowed to change course and again work to make a difference on these issues, even if I felt alone and powerless.

Real societal change – to the point where each human has value for simply being a human - will require all of us who claim to be decent, hard-working, proud Americans to show up, work together, keep listening and learning and continue speaking up and pressing on - even when the conversations are tough, or we feel uncomfortable, hopeless, burned out, or vulnerable. And I mean ALL OF US! Together, we are stronger than we imagine, but we must look at (not beyond) cruelty and acknowledge injustice, both in our past and our present, to drive such vices from American culture and keep doing so.

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This is not an exhaustive list of casualties who have suffered such a fate. These are merely the names I still recall today from those television news stories, but there were others during that period and since.

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June 2023

ATTORNEY PROFILE By: Christine Knott

Knott Law

2023 RECIPIENT OF THE LAW & LIBERTY AWARD: AN EXAMPLE OF LEADERSHIP The Law and Liberty Award is an accolade given to a legal professional who strives to foster and maintain good relationships between the legal profession and community. Someone who works to advance the understanding of the law and legal processes in the non-legal community. Someone who sets an example of good citizenship and gives time for volunteer work. Someone who exemplifies high professional standards and expresses concern for the safeguard of personal, political, civil, and religious liberties.

The 2023 recipient for the Law and Liberty Award is Christina Magráns-Tillery.

A graduate from the University of Tennessee College of Law, Christina Magráns-Tillery has made an immense impact on our community.

Her impact began during law school when she clerked with the Legal Aid Society of Middle Tennessee and the Cumberlands in Oak Ridge where she helped provide legal advice under the direction of licensed attorneys to low-income and underprivileged members of her community.

Christina Magráns-Tillery began her professional career by serving as the Pro Bono Coordinator for the Supreme Court Access to Justice Commission, working to bring legal resources to low-income families across the state.1 In 2014, she went on to work as a staff attorney for Legal Aid of East Tennessee. At Legal Aid, she focused on housing matters including discrimination under the federal Fair Housing Act, the state Human Rights Act, and the Violence Against Women Act.2 Christina Magráns-Tillery ultimately received the Tennessee Alliance for Legal Services New Advocate of the Year Award in 2017 for her work at Legal Aid.3 Between 2015 and 2018, Christina Magráns-Tillery served as the “John L.” attorney for the Mountain View Youth Development Center in Dandridge, Tennessee where she “advised the youth population on a variety of matters including civil rights, due process, and sentencing issues.”4 In 2018, Christina Magráns-Tillery joined the City of Knoxville as an Assistant City Attorney. Her work focuses on legislative drafting, land use issues, property litigation, and contract drafting. 5 She advises multiple departments and boards including the Plans Review and Building Inspections Department, the Board of Zoning Appeals, the Downtown Design Review Board, the Historic Zoning Commission, and the Office of Redevelopment.6 Christina Magráns-Tillery has given a multitude of presentations on housing law to a variety of groups, to include, the Knoxville Community Development Corporation, the City of Knoxville, the Blount County Bar Association, the Sevier County Bar Association, the local chapter of the NAACP, the East Tennessee Law Association for Women, the Tennessee Valey Coalition for the Homeless, the Maryville Housing Authority, and many more.7 Christina Magráns-Tillery’s most recent and notable June 2023

accomplishment is the creation of the Knoxville Latino Bar Association (KLBA). The KLBA was “founded to nurture and empower a community of Latino attorneys, judges, law professors, and law students in East Tennessee.”8 The need to bridge the gap between our underprivileged community with legal resources is vast and KLBA is one step towards the closing of that gap.

According to the governing body of law school admissions, the LSAC, “law school and the profession do not currently reflect the vibrant and expanding racial and ethnic population of our society.”9 According to the 2020 American Bar Association Profile of the Legal Profession, “Hispanics are underrepresented among lawyers compared with their share of the U.S. population.”10 Nationally, approximately 4% of all lawyers are Hispanic, and 18% of the population is Hispanic. 11 These numbers are the very reason Hispanics and Latinos need more visibility in the legal profession. Christina Magráns-Tillery and the KLBA will advance the understanding of, and access to, our justice system among the non-law Latino community.12 On March 10, 2023, the KLBA hosted an opening ceremony to honor Tennessee’s first Latino judge, Hon. Hector Sanchez of Knox County Criminal Court. Members of KLBA and the legal community joined together to honor the induction of the KLBA, and to present Judge Sanchez with expressions of gratitude and personal stories of hope from Knoxville’s Latino law students.13 Ms. Magráns-Tillery is also a member of the Equality Coalition for Housing Opportunities (ECHO) board, a member of the Knoxville Bar Association and its Diversity Committee, Corporate Compliance Chair for the East Tennessee Lawyers’ Association for Women, Adjunct Professor of Law at Lincoln Memorial University’s Duncan School of Law, and co-chair of the Barrister’s Diversity Committee.14 In her decade as a legal professional, Christina Magráns-Tillery has achieved far more than can be included in one article and the impact she has made and will continue to make far exceeds that.

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Blog: City Blog (knoxvilletn.gov) Id. Id. Id. May it Please the Council: Effective Advocacy Before Local Government Bodies | (knoxbar.org) Id. Id. Press release (Professional design) Racially/Ethnically Diverse Applicants | The Law School Admission Council (lsac.org) ABA Profile of the Legal Profession 2022 (americanbar.org) What percentage of US lawyers are Hispanic? (legalknowledgebase.com) Allison Starnes-Anglea Knoxville Latino Bar Association celebrates Sanchez (wate.com) City of Knox

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June 2023

LEGAL UPDATE By: Regina Koho

Attorney, Tennessee Valley Authority Office of the General Counsel

THE NEXT FIGHT IN THE ABORTION WARS: FDA-APPROVED DRUGS USED TO TERMINATE PREGNANCY In 2000, the Food and Drug Administration (FDA) approved mifepristone as part of a two-drug protocol used to terminate pregnancies. This regimen accounts for over half the abortions in the United States,1 and mifepristone is generally viewed by the medical community as safe and effective.2 Less than a year after the Supreme Court overturned Roe v. Wade, abortion opponents lodged a challenge to the FDA’s approval and regulation of mifepristone. Although in its beginning stages, this litigation may ultimately result in further limits on abortion access, even in states where it remains legal.

Background When the FDA approved mifepristone over twenty years ago, it did so under what are known as Subpart H regulations, which “accelerate[] approval of drugs ‘that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit to patients over existing treatments . . . .’”3 As a part of this process, the FDA required certain post-approval safety measures for mifepristone’s use, including limiting the drug for use through 49 days gestation; requiring three in-person office visits; requiring the supervision of a qualified physician; and requiring the reporting of all adverse events.4 Since that time, the FDA has made several changes to mifepristone’s conditions of use. In 2016, the agency increased the maximum gestational age for use from 49 to 70 days; reduced the number of required inperson office visits from three to one; allowed non-doctors to prescribe and administer the drug; and eliminated the reporting requirement.5 And with the onset of the COVID-19 pandemic, the FDA approved mail delivery for mifepristone, a modification that has since become permanent.6 District Court Litigation In November 2022, a group of anti-abortion physicians and medical associations filed suit in federal district court in Amarillo, Texas, challenging the FDA’s original approval of mifepristone, as well as its subsequent changes to the drug’s conditions of use.7 As a general matter, plaintiffs sought a preliminary injunction ordering the FDA to withdraw or suspend its 2000 approval of mifepristone, which would remove it from the list of Approved Drugs.8 The only district court judge in Amarillo is Matthew Kacsmaryk, a Trump appointee who has become well known for ruling in favor of conservative litigants, including in reproductive-rights cases.9 Critics assert that conservative groups have engaged in improper forum shopping in order to have their causes heard by judges, such as Kacsmaryk, to whom the mifepristone litigation was predictably assigned.10 On April 7, 2023, Judge Kacsmaryk issued a 67-page opinion granting plaintiffs’ requested preliminary injunction, ruling that they were likely to succeed on their claim that mifepristone’s approval resulted in an unsafe drug’s entry onto the market.11 In particular, he concluded that the FDA’s approval violated the Subpart H regulations because (1) pregnancy is not a “serious or life-threatening illness” as contemplated by the regulations, but rather “a normal physiological state most women experience one or more times during their childbearing years,”12 and (2) mifepristone did not provide a “meaningful therapeutic benefit” over surgical abortion because of alleged higher rates of adverse events, such “hemorrhaging, incomplete abortion, and unplanned surgical June 2023

evacuation,”13 as well as mental health issues stemming from “the mother seeing the aborted human[, which] appears to be a difficult aspect of the . . . process [that] can be distressing . . . .”14 The court also held that plaintiffs would likely succeed on their claim that the FDA’s post-2016 modifications to mifepristone’s conditions of use were contrary to law, including its elimination of the in-person dispensing requirement. The district court found this change would likely violate the Comstock Act,15 a rarely enforced statute enacted in 1873 that classifies as nonmailable every “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.”16 Emergency Appeals to the Fifth Circuit and the Supreme Court Judge Kacsmaryk put his ruling on hold through April 14, 2023, to allow the federal government to pursue an emergency appeal,17 which it and Danco Labs, the company that distributes mifepristone, did. The Fifth Circuit granted, in part, defendants’ requested stay of the district court’s ruling pending appeal.18 The court agreed with defendants’ contention that certain of plaintiffs’ claims were likely time-barred (e.g., their challenge to the drug’s original approval).19 But because the court determined that plaintiffs were likely to succeed on the merits of their challenges to the FDA’s post-2016 actions, including allowing mailaccess to the drug, it concluded that a stay of these parts of the lower court’s ruling was not warranted.20 The next stop for defendants was obviously the Supreme Court.

Justice Alito, who handles emergency requests from the Fifth Circuit, initially issued an administrative stay on Judge Kacsmaryk’s ruling on April 14, 2023, and then extended it a second time.21 On April 21, 2023, at 6:30 p.m., the Court, in an unsigned order with no substantive analysis, placed the district court’s decision on hold and sent the matter back to the Fifth Circuit.22 This means that the FDA’s current mifepristone policies will remain in effect while the case is litigated in the Fifth Circuit and, most likely, the Supreme Court itself.23 Conclusion The Court’s order constitutes a very temporary victory for the Biden administration on this issue, as oral argument has already been scheduled in the Fifth Circuit for May 17, 2023. It is unlikely that the Fifth Circuit’s views will change substantially following argument,24 and thus we can expect to see another appeal to the Supreme Court. And there are many issues on which the case could turn, apart from the merits, once it reaches the Court—e.g., plaintiffs’ standing, the timeliness of their claims, and the reviewability of FDA’s drug-approval process, among others. Although the ultimate outcome remains to be seen, there is no doubt that the decision could have sweeping ramifications for “abortion access nationwide amid a legal landscape that has been upended since the Supreme Court reversed Roe.”25 1

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Erwin Chemerinsky, Opinion: Why one judge in Amarillo got to decide whether any American could use the abortion pill, Los Angeles Times (Apr. 25, 2023 3:01 PM), https://www.latimes.com/opinion/story/2023-04-25/supreme-court-mifepristoneruling-abortion-judges.

Nina Totenberg, Supreme Court blocks lower court decision in case on FDA approval of abortion pill, NPR, (Apr. 21, 2023 6:59 PM), https://www.npr. org/2023/04/21/1170742958/u-s-supreme-court-blocks-lower-court-decision-

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EXPELLED! THE LAW & POLICY OF EXPULSION IN THE TENNESSEE LEGISLATURE Introduction Recent events have focused the Nation’s attention on the Tennessee Legislature’s discretionary power to discipline its members for perceived acts of misconduct. Specifically, on April 6, 2023, the Tennessee House of Representatives, exercising its power of expulsion, moved to expel three of its members, to wit, Representatives Justin Jones, Justin J. Pearson, and Gloria Johnson, for “knowingly and intentionally bringing disorder and dishonor to the House of Representatives through their individual and collective actions.” 1 Representatives Jones and Pearson were expelled, while Representative Johnson survived expulsion by a vote of 65-30, one vote shy of the sixty-six votes required for expulsion. 2 The purpose of this piece is to explore the Tennessee House’s disciplinary powers and authority, not to be an apologist for, or a critic of, the Tennessee Legislature.

Tennessee’s Expulsion Laws & Rules Black’s Law Dictionary defines expulsion to mean, “A putting or driving out. The act of depriving a member of a corporation, legislative body, assembly, society, commercial organization, etc., of his membership in the same, by a legal vote of the body itself, for breach of duty, Improper conduct, or other sufficient cause.” 3 The “expulsion clause” of the Tennessee Constitution gives both the Senate and the House of Representatives the authority to expel a member for “disorderly behavior.” As a bicameral body, each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds of its membership, expel a member, albeit not a second time for the same offense. Further, both the House and the Senate enjoy all other powers necessary for a branch of the Legislature of a free State. 4 In order to effect the expulsion of Representatives Pearson and Jones, the House passed House Resolutions 63 and 65 respectively, and House Resolution 64 to expel Representative Johnson. All three Resolutions alleged that the aforementioned, inter alia, “shouted, pounded on the podium, led chants with citizens in the gallery, and generally engaged in disorderly and disruptive conduct, including refusing to leave the well, sitting on the podium, and utilizing a sign displaying a political message.” Representatives Pearson and Jones were additionally accused of using “a bullhorn to amplify their protestations.”

Although Tennessee’s expulsion clause has remained unchanged

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since its inclusion in the original Tennessee Constitution of 1796, Tennessee courts have yet to construe the meaning of “disorderly behavior” or the scope of the expulsion clause more generally. Although the Tennessee Senate has never exercised its power to expel a member, until recently, the Tennessee House of Representatives has used its power to expel only three times.

Specifically, in 1866, six lawmakers were expelled for blocking the ratification of the 14th Amendment. 5 In 1980, a House member was expelled for seeking a bribe in exchange for scuttling a piece of legislation. And then in 2016, a representative was expelled amid state and federal investigations for sexual misconduct after a state attorney general report found that he had engaged in inappropriate sexual conduct with at least 22 women.

To date, Tennessee courts have not specifically opined on the breadth and scope of Tennessee’s expulsion clause.

The Tennessee Court of Appeals has opined that, generally under the Tennessee Constitution 6 each chamber has the right to make its own rules and is the sole judge of its rules, but cautioned that even that broad power of the legislature is always limited “by the Constitution of the state and of the United States.” 7 However, it stands to reason that such an extraordinary remedy should be used sparingly. In an opinion issued by the Tennessee Attorney General in response to a question regarding the General Assembly’s expulsion powers the Attorney General opined: Historical practice, sound policy considerations, and constitutional restraints counsel against, but do not absolutely prohibit, the exercise of the legislature’s expulsion power to oust a member … Given those considerations, the expulsion power is best exercised only in extreme circumstances and with extreme caution.8 Censure Along with the power to expel a member, the House may avail itself of a less extreme measure of discipline for inappropriate conduct: they can publicly censure their member. 9 Relying once again on Black’s Law Dictionary, we find that censure is defined as “an official reprimand or condemnation; an authoritative expression of disapproval or blame.”

10 The term “censure,” unlike the term “expel,” does not appear in the Tennessee Constitution, although the authority is derived from the same

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June 2023

COVER STORY By: Joe Jarret, J.D., Ph.D. Attorney, University of Tennessee

clause—Article II, Section 12, concerning the authority of each house of the Legislature to “punish its Members for disorderly behavior.” Censure, reprimand, or admonition are traditional ways in which legislative bodies have disciplined their members and maintained order and dignity in their proceedings. 11 For instance, an errant member may be deprived of a chairpersonship or membership on legislative committees.

In a legislative context, a censure, like an expulsion is usually preceded by the passage of a resolution that publicly condemns the member’s conduct. Although considerably less harsh than expulsion, censure is not a disciplinary tool without its critics. While it is often used to condemn problematic behavior that doesn’t rise to the level of expulsion, nevertheless it is susceptible to becoming weaponized, thereby serving to cause dissension, rather than promote unity in the Legislative ranks. 12 It is interesting to note that there exists no specific punishment or express consequence provided in the Tennessee House Rules after a Member has been “censured.”

The Federal Perspective The United States House of Representatives—in the same manner as the United States Senate—is expressly authorized within the United States Constitution 13 to discipline or “punish” its own Members providing that “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour [sic], and, with the Concurrence of two thirds, expel a Member.” 14 The most common forms of discipline in the House are public censure, or private reprimand.

However, the House may also discipline its Members in other ways, including fines or monetary restitution, loss of seniority, and suspension or loss of certain privileges.

When the most severe sanction of expulsion has been employed in the House, the underlying conduct deemed to have merited removal from office has historically involved either disloyalty to the United States, or the violation of a criminal law involving the abuse of one’s official position, such as bribery. Reflecting on the House’s ability to remove its members, the United States Supreme Court in United States v. Brewster noted: The process of disciplining a Member in the Congress is not without countervailing risks of abuse since it is not surrounded with the panoply of protective shields that are present in a criminal case.

An accused Member is judged by no specifically articulated standards and is at the mercy of an almost unbridled discretion of the charging body that functions at once as accuser, prosecutor, judge, and jury from whose decision there is no established right to review. 15

Aftermath Since the expulsion of Representatives Jones and Pearson, and the attempted expulsion of Representative Johnson, civil rights groups and many media outlets have dubbed them “The Tennessee Three,” and have excoriated those who voted for expulsion, many claiming that the actions taken were motivated by race, gender, and partisan politics. Proponents of the House’s actions have opined with equal fervor that a failure to resort to swift and severe action would allow future meetings to precipitate into chaos, disrupting the legislative process, thus preventing anything from getting done.

Public service is a difficult and venerable calling. Like many self-governing entities, the Tennessee Legislature is empowered to create and amend its own rules. Some would argue that the Legislature’s own vision of itself is embodied in the rules of what constitutes decorum and acceptable member conduct.

Because the Legislature deals so much with the principles of public service, legislators are presumed to be principled, and as such know right from wrong. But, legislators and legislative bodies are not infallible; they are vulnerable to making mistakes the same as anybody else. The debate as to whether the House did in fact make a mistake by exercising the extreme punishment of expulsion over the less punitive option of censure may continue to be debated for some time. It’s ultimately up to the voters to determine whether their representatives are serving within the ethical and moral boundaries of their service to the people of Tennessee.

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Tenn. Gen. Assemb. HB 63. Reg. Sess. 2023.

Tenn. Const. art. II, § 12 requires the concurrence of two-thirds of its membership before a member may be expelled.

Expulsion Definition, Black’s Law Dictionary (11th ed. 2019).

Tenn. Const. art. II, § 12.

Passed by Congress June 13, 1866, and ratified July 9, 1868, the 14th Amendment extended liberties and rights granted by the Bill of Rights to formerly enslaved people.

Tenn. Const. art. II, § 12.

See Mayhew v. Wilder, 46 S.W.3d 760, 774 (Tenn. Ct. App. 2001), perm. app. den.

(2001) (citing Bank of Commerce & Trust Co. v. Senter, 260 S.W. 144 (Tenn. 1924); see also Lynn v. Polk, 76 Tenn. 121, 130 (1881) (explaining that the legislature, like the other two branches of government, derives its power and authority from the Constitution and must, therefore subordinate itself to the requirements of the Constitution).

Tenn. Op. Att’y Gen. 19-20.

Tenn. Gen Assembly Permanent Rule of Order 19, Reg Sess. 2023.

Censure Definition, Black’s Law Dictionary (11th ed. 2019).

Maskell, J. (2002, April). Expulsion, censure, reprimand, and fine: legislative discipline in the house of representatives. Congressional Research Service, the Library of Congress.

Marshall, A. (2022). Just Because You Can, Doesn’t Mean You Should: A New Framework for Local Government Censures. Municipal Lawyer, Vol. 63, No. 4, 1014.

U.S. Constitution. Art. I, § 5, cl. 2.

Id. United States v. Brewster, 408 U.S. 501, 519, (1972).

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IN LIMINE: PROFILING FUTURE JDS By: Carol Anne Long Interim Director, Career Center University of Tennessee College of Law

TRINITY SANDIFER

UNIVERSITY OF TENNESSEE COLLEGE OF LAW, CLASS OF 2025 2022 was a good year for imports from Georgia to the University of Tennessee College of Law. Most all of DICTA’s readers are aware that UT made the excellent decision to hire the University of Georgia School of Law’s Associate Dean Lonnie Brown to serve as our new Dean.

Along with Dean Brown, the College of Law was pleased to welcome to our ranks several new law students from the state of Georgia, and today, I want to introduce you to one of those outstanding students: rising 2L, Trinity Sandifer.

Trinity hails from Snellville, just outside Atlanta. As a young child, Trinity had quite the “inclination to debate” her family members, prompting them to often remark that she would make a good lawyer.

These comments stuck with Trinity, piquing her interest in becoming an attorney, and while in high school, she attended a pre-law summer workshop which further solidified her desire to pursue a career in law.

After high school, Trinity attended Georgia Southern University in Savannah, where she distinguished herself in a number of ways. She was a member of the Southern Leaders organization for three years, where she developed valuable leadership skills and put those skills to use through service on various campus committees. She volunteered on the Student Activity Budget Committee, serving as a student voice to vote on campus committee budgets alongside university professors and the Dean of Student Affairs. And she worked as both a group fitness instructor and fitness supervisor at the campus Recreation and Intramurals facility for two years. Despite this busy schedule, Trinity found ample time to study, graduating summa cum laude in 2022 with a degree in Political Science, concentrating in Law and Politics, and a minor in English.

Knowing that law school had long been her calling, Trinity selected the University of Tennessee College of Law in large part because of the College’s dual degree programs. Trinity was particularly intrigued by the joint J.D./Master of Public Policy and Administration (MPAA).

In making her selection, Trinity was also seeking a large university experience to contrast with the small academic institutions she had attended for college and for her primary/secondary schooling. Moving to Knoxville was not without some concerns: she would be living in a new state for the first time in her life, and she knew no one in Knoxville. Her concerns were quickly allayed, however, when she was embraced by the law school community.

Trinity wasted no time getting involved with the College of Law. During her first semester, she was elected as the 1L Representative for both the Student Bar Association (“SBA”) and the Black Law Students Association (“BLSA”). Those roles gave her the chance to serve as the voice of her class in Executive Board Meetings, in addition to coordinating events and introducing her classmates to unique and helpful opportunities within the College of Law. In the spring semester, Trinity’s service in both of these organizations led to her election, for the upcoming school year, as Secretary and Academic Success Chair of BLSA and 2L Representative for the SBA. In addition, Trinity serves on the Public Interest Fellow Service Committee, has participated in the College’s Pro Bono Virtual Legal Aid Clinic, and was recently hired as

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the student assistant in the College of Law Career Center.

In addition to her work in the College of Law Career Center, Trinity will spend the summer interning for the Honorable William T. Ailor on the Knox County Circuit Court. Trinity came to law school with an interest in real estate law, but over the course of this first year, she discovered that she is open to many more practice areas and is looking forward to the exposure to the variety of areas of civil practice that she will receive through her judicial internship. Her geographical preferences for post-law school opportunities currently include Tennessee, Georgia, and Mississippi, and she is particularly excited to spend this summer working in Knoxville to lay the foundation for her legal career.

In Trinity’s sparse free time, she enjoys participating in group fitness training and exercise, and she loves watching – and rewatching1 – movies (particularly Marvel and Disney movies). She enjoys listening to audiobooks (a welcome break from the significant amount of reading required during your 1L year), and when asked, she recommended Daring Greatly by Brené Brown.

Trinity is also devoted to her family and friends, with whom she loves spending time and who serve as a constant source of motivation.

When asked what she would want future employers to know about her, Trinity responded that she is “highly disciplined and dedicated” and that “failure is never an option” for her. Rather than see a setback as an obstacle to overcome, she views it as an opportunity for growth. This growth mindset has instilled in her a great deal of confidence in herself and her abilities, knowing that she can succeed at whatever she puts her mind to.

She is also an incredibly reliable and efficient team-player who focuses on ensuring that those around her “feel valued.”

Trinity’s strengths of compassion, diligence, and industriousness would be major assets in a number of careers. So why law? Trinity responded thusly: I want to be an advocate. As an attorney, I will have the unique opportunity to educate and help the people around me develop their ideas and reach resolutions. I have observed many missed opportunities from the people around me simply because of discomfort and lack of knowledge about the law. I deeply desire to bridge the gap for those I can help so their growth will never be stifled by a lack of legal understanding.

With skills and ideals like these, we are fortunate that Georgianative Trinity decided to come to Tennessee for law school. Now, we just need to convince her to stay. *Hiring Footnote* “Are you hiring?” Chances are, you have received an email or phone call from a student or attorney asking this question – and it’s possible that the interested party has attempted to locate the proper hiring contact for you and has been unable to find it. If your firm or entity has a website, find a prominent place on the site to include information on who applicants should contact regarding job inquiries.

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Rewatching movies is a pastime that really resonates with me; in my opinion, a good movie only improves with repeated rewatching!

June 2023

SCHOOLED IN ETHICS By: Paula Schaefer Associate Dean for Academic Affairs & Art Stolnitz Professor of Law University of Tennessee College of Law

ABA ETHICS OPINION ON “NONREFUNDABLE” FEES PAID IN ADVANCE PROVIDES USEFUL GUIDANCE FOR TENNESSEE LAWYERS The ABA’s May 3, 2023 Formal Opinion 505 on “fees paid in advance for contemplated services” provides useful guidance for Tennessee attorneys.1 This is so even though Tennessee’s professional conduct rules in this area differ from the Model Rules in permitting nonrefundable advance fees in some circumstances.

Formal Opinion 505 provides a useful review of often confusing terminology in this space, discusses the ethical obligations of handling client fees paid in advance, and—most significantly—takes on the question of whether there is any such thing as a “nonrefundable” advance fee. In this column, I will review the major points made in Formal Opinion 505, discuss differences found in Tennessee authorities, and address key takeaways for Tennessee lawyers.

Terminology: General Retainers, Advance Fees, Flat Fees. The opinion notes that lawyers regrettably often use the term “retainer” loosely to mean any money paid at the outset of a representation. Because the purpose of the fee is significant in determining how it must be handled, the opinion does not use the generic “retainer” and instead differentiates between general retainers and advance fees, and then explains where flat fees fit into the puzzle.

A general retainer2 is paid to assure the lawyer’s availability to handle the client’s legal matters. It is earned upon receipt in exchange for the lawyer’s promise to be available. As such, it is deposited in the lawyer’s operating account. The opinion emphasizes the general retainer is neither a flat fee for the lawyer’s services nor a fund from which the lawyer’s future bills will be paid. The discussion concludes by noting general retainers are rare, benefit few clients, and “must be explained clearly and in detail” when utilized.3 An advance fee4 is paid to the lawyer for legal work to be performed in the future. An advance fee is not owned by the lawyer; it is possessed by the lawyer to secure payment of the future services. As such, it must be deposited in a trust account and not the attorney’s operating account.5 Wrapping up the terminology discussion, the opinion addresses “flat fees”6 for legal services—such as a fee of $10,000 for a divorce or $5,000 for a will. A flat fee need not be paid in advance, of course. But if payment of the flat fee is required in advance of the performance of the services, then that, too, is an “advance fee” that should be deposited in a trust account.7 The opinion notes that the lawyer and client might agree that portions of the flat fee could be withdrawn as earned at defined milestones in the matter.8 When Must a Fee that was Paid in Advance be Returned to the Client?

Opinion 505 explains that if the lawyer-client relationship is terminated, any fee paid in advance that is unearned must be returned to the client.

This duty is found in Model Rule 1.16(d) which requires the refund of any advance payment of fee or expense that has not been earned or incurred.”9 It is also reflected in the requirement that fees be reasonable, found in Rule 1.5(a).10 The opinion also explains that Model Rule 1.15(a) and (c)’s prohibitions on commingling client and lawyer funds are part of the arsenal of rules aimed at client protection.11 By not allowing the

lawyer to deposit the client’s funds in the lawyer’s operating account before the fees are earned, any unearned funds will be available for return to the client if the relationship ends.

But What if an Attorney Calls an Advance Fee “Nonrefundable” or “Earned Upon Receipt”? Formal Opinion 505 explains that describing an advance fee as “nonrefundable” does not make it so. The opinion provides, “The Model Rules of Professional Conduct do not allow a lawyer to sidestep the ethical obligation to safeguard client funds with an act of legerdemain. . . .” The opinion cites the obligations noted above— found in Rules 1.5, 1.15, and 1.16—as duties that cannot be avoided with a nonrefundable label.12 In short, if the fee is an advance fee, there is an obligation to return it if the services are not performed.

The opinion ends with a discussion of three hypothetical scenarios— involving a nonrefundable retainer, purported general retainer, and a nonrefundable flat fee—and then a subsequent client discharge of the lawyer and request for the return of unearned fees. In each scenario, the labels do not allow the attorney to escape the obligation to return unearned fees paid in advance.13 Tennessee Authorities Concerning Nonrefundable Advance Fees A difference between Tennessee professional conduct rules and the Model Rules is relevant to this discussion. Tennessee rules explicitly permit nonrefundable attorneys’ fees, including advance fees, in defined circumstances. Tennessee RPC 1.5(f ) provides that a nonrefundable fee “shall be agreed to in a writing, signed by the client, that explains the intent of the parties as to the nature and amount of the nonrefundable fee.” Comment 4 to Tennessee RPC 1.5 provides that the obligation to return a fee does not apply to a “reasonable nonrefundable fee.” Comment 4a defines a nonrefundable fee as one that is “paid in advance and earned by the lawyer when paid” and states that it is subject to a reasonableness standard of Tennessee RPC 1.5(a). The comment states that recognized examples of appropriate nonrefundable fees include general retainers (as addressed by Formal Opinion 505) and “where the client agrees to pay to the lawyer at the outset of the representation a reasonable fixed fee for the representation.” (emphasis added). Comment 4a to TRPC 1.5(a) continues, explaining that that for such a nonrefundable fee to be reasonable, the lawyer must “remain[] available to provide the services called for by the retainer or for which the fixed fee was charged.” The Tennessee Supreme Court has explained that because such nonrefundable fees are earned upon receipt, they should not be deposited in the attorney’s trust account.14 Two 1992 formal ethics opinions of the Tennessee Board of Professional Responsibility are instructive.15 Formal Opinion 92-F128 describes limited circumstances when an attorney might receive an “advanced earned fee as an unrefundable retainer.” The examples provided describe general retainers and not advance fee arrangements. A footnote to the opinion states, “It is not clear, however, whether a nonrefundable retainer would be valid.” The note provides an example of a client who would be entitled to the return of a nonrefundable advance fee when an continued on page 24

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

June 2023

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MONTHLY MEETING Plan now to attend the Barristers monthly meeting on Wednesday, June 14, starting at 5:15 pm at the outdoor patio at The Firefly at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm. Register by clicking June 14 on the event calendar at www.knoxbar. org. There will not be a July 12 Barristers meeting, but plan to join us for the Summer Party on July 14 (details below).

able to attend a preview day. Your donation would help alleviate one of the barriers preventing diverse students from being able to visit campuses in Knoxville and see all that its law schools and the Knoxville Bar have to offer. If you have questions, please reach out to Mariel Bough (mariel. bough@verasafe.com) or Grant Williamson (gwilliamson@bradley.com) for more information on how your donation will be used, or for more ways to get involved with the Information on how to donate online can be found on the KBA website on the Barristers Diversity Committee page.

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 June 14, 2023. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.

BARRISTERS SUMMER FUN CLE The Barristers Sumer Fun CLE series begins on Thursday, June 15 at Printshop Beer Co. with a presentation on BUI laws from an officer’s perspective. Throughout the years, there has been an explosion of recreational boaters on TN waters. With larger crowds, increased vessel size, numerous lakeside bars and party coves, boating under the influence has become, to some, part of the lake life. TWRA’s Col. Darren Rider, Lt. Col. Matt Majors, Torrey Grimes (General Counsel), and Daniel Cox (Asst. Gen. Counsel) will speak on how they combat this epidemic as the boating season kicks off. Tickets are $30 for KBA Members / $45 for Non-Members. Registration/Check-In will be held from 4:30 - 5:00 p.m.

This program is approved for 1 hour of General CLE Credit. Everyone who registers will receive one free drink ticket.

JULY 14 SUMMER PARTY Set sail with the Barristers for an evening filled with camaraderie and fun! The Barristers Nautical Summer Party will be held on Friday, July 14, from 6:00 - 9:00 p.m. at Lighthouse Knoxville on 6800 Baum Drive.

The cost is $25 per person before June 30, and after that date, the ticket price will increase to $30 per person. The Summer Party is open to guests, including members from the Knoxville Bar Association, law clerks, and/ or friends and family. Reservations are closed at 5 pm on July 10, so remember to register early by clicking July 14 in the event calendar at www.knoxbar.org.

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) 3605044 or Darrius Dixon at (865) 546-4646 with any questions and/or about volunteering.

DIVERSITY COMMITTEE COLLECTS DONATIONS FOR SCHOLARSHIP FUND The Barristers Diversity Committee has created a scholarship fund to help with travel and lodging costs for diverse students who are invited to attend preview days hosted by the law schools. Members are asked to donate to help ensure that one student, who may not otherwise be able to afford to visit a law school in Knoxville prior to their enrollment, is

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WELCOME NEW MEMBERS

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

NEW ATTORNEYS Heather Bryan Concord Title Spencer G. Frantom Jeremy K. Hanson Hanson & Hanson Tara M. Hanson Hanson & Hanson Mitchell T. Harper Harper Law Office Cofield B. Hilburn, Jr. Colton B. Hobbs Law Office of Daniel Herrera Marshall Andreas Jensen, II Federal Public Defender Middle District of Tennessee Richard A. Johnson Johnson, Murrell & Associates Nicole Schell Klapka Law Firm of Nicole S. Klapka, P.A. Michael Lee Frantz, McConnell & Seymour, LLP Nikol D. Pluess Frantz, McConnell & Seymour, LLP R. Jackson Pope University of Tennessee Joel P. Reeves Kizer & Black, Attorneys, PLLC Steven L. Rimmer Teddy Ryan Whitney P. Trujillo Knox County Public Defender’s Community Law Office Adriannette L. Williams LMU – Duncan School of Law

NEW LAW STUDENT MEMBERS Alexandra N. Allen Sydney L. Cross Charles Highland

Frank Olvey, III Amber Shouse

June 2023

SIMPLE THINGS By: Melissa B. Carrasco

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

HOME It was just a little house, a simple, nondescript, two-story, brick rowhome located in a simple, nondescript neighborhood in St. Louis, Missouri.1 It could house two families—one on the top floor and one on the bottom—just four little rooms on each floor.2 But for J.D. and Ethel, that little house on Labadie Street was everything.

They married when they were quite young. J.D. was a laborer, working in construction, at the local sawmill, for the railroad—any job necessary to provide for Ethel and their rapidly growing family.3 But then, reality hit way too close to home. A young, African-American girl was brutally flogged by a group of white men. The girl was a friend. J.D. and Ethel were African-American. It was 1929 in Starkville, Mississippi.4 J.D. and Ethel knew they had to move to keep their family of six small children safe.

So, J.D. headed to St. Louis to look for work and a place for his young family to live. He found work—making about $17 a week—but housing was a harder problem to solve.5 At the time, the city was highly segregated. In 1916, the city passed an ordinance which prohibited a person from moving to any city block where 75% of the residents were of another race.6 That ordinance was enjoined, so property owners took another route: neighborhood-wide restrictive covenants.7 By the 1930’s, 373 neighborhoods, comprising 559 city blocks were subject to restrictive covenants similar to the following: The said property is hereby restricted to the use and occupancy for the term of Fifty (50) years from this date, so that it shall be a condition all the time and whether recited and referred to as (sic) not in subsequent conveyances and shall attach to the land, as a condition precedent to the sale of the same, that hereafter no part of said property or any portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race.8 These restrictive covenants often covered neighborhoods that bordered areas with predominately African-American residents. Thus, these restrictive covenants effectively kept the African American population of the city crowded into small neighborhoods with little hope of finding housing elsewhere.9 But, J.D. and Ethel didn’t forfeit their dream. They rented apartments, worked multiple jobs, and saved for fifteen years to scrape together $5,700.10 It was just enough to buy the house on Labadie Street, and that is exactly what they did.11 On August 11, 1945, they signed the deed and moved their children into the first place they could truly call home. On October 9, 1945, a process server appeared at their home, and they learned they had been sued.12 A homeowner sued to enforce the restrictive covenant quoted above. Although the restrictive covenant was signed and recorded in 1911, no one told J.D. and Ethel when they bought the house. They did not plan to challenge discriminatory housing practices, but they were not about to leave their little home just because they had been sued.13 When Monroe and Josephine Vaughn’s son was born, the outlook was bleak.14 They were living in Columbus, Kentucky, and although both no longer were enslaved, life was still very hard for the young African American family.15 But, they found a way to send young George to school, and then to Lane College in Jackson, Tennessee.16 Once he graduated, he enrolled in Walden University, the first African-American law school in the South.17 June 2023

By 1905, he was admitted to the St. Louis Bar, but then took a brief, career detour to serve in an artillery unit during World War I.18 By October 9, 1945, George L. Vaughn was fifty years old and well-known as a good lawyer in the St. Louis area.19 When the St. Louis AfricanAmerican Real Estate Broker’s Association approached him about representing J.D. and Ethel, it likely was his most high-profile case yet, but he took it anyways.20 Initially, they won. The trial court held that the restrictive covenant was never effective because it was never signed by all property owners in the covered area.21 The Missouri Supreme Court disagreed. It held that the restrictive covenant was effective and that it did not violate any constitutional right guaranteed by the Fourteenth Amendment.22 Why? Because the people who signed and recorded the restrictive covenant weren’t state actors. In other words, the restrictive covenant was “just” an agreement between private parties, so it didn’t implicate the Fourteenth Amendment.23 George had to find a way around that argument. He appealed the case to the U.S. Supreme Court, and it was consolidated with two other cases raising similar challenges to race-based restrictive covenants.24 Although the other were backed by the NAACP (Thurgood Marshall argued one of them), J.D. and Ethel’s case was not. Certainly, everyone was professional but, “Vaughn was regarded as lacking proper sophistication and skill successfully to handle the intricate legal complexities of the problem.”25 George, J.D., and Ethel received little financial support from the NAACP or any other national organizations that had taken interest in these cases, yet they persevered.26 More importantly, George found a way around the homeowners’ argument that prevailed before the Missouri Supreme Court. The Fourteenth Amendment did not reach private conduct, but it does govern state actions through its courts.27 The Supreme Court agreed.

We hold that in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws and that, therefore, the action of the state courts cannot stand.

We have noted that freedom from discrimination by the States in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of the Fourteenth Amendment. That such discrimination has occurred in these cases is clear. Because of the race or color of these petitioners they have been denied rights of ownership or occupancy enjoyed as a matter of course by other citizens of different race or color.28 Just like that, on May 4, 1948, the judgment of the Supreme Court of Missouri was reversed, and other states had no choice but to take notice that their discriminatory restrictive covenants could not be enforced without running afoul of the Fourteenth Amendment.29 J.D. and Ethel Shelley finished raising their family in that house, living there for another 13 years, until 1961—the year the restrictive covenant was supposed to expire.30 Then they sold it and moved to another home nearby.31 Attorney George L. Vaughn died a little over a year after the Supreme Court ruling,32 but the impact of his simple act of helping a couple retain their simple house remains to this day.

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National Park Service, Missouri: The Shelley House, https://www.nps.gov/places/ missouri-the-shelley-house-l.htm, last visited May 6, 2023.

National Park Service, National Register of Historic Places Registration Form 10900, The Shelley House, available at https://npgallery.nps.gov/NRHP/GetAsset/

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OF LOCAL LORE & LAWYERS By: Joe Jarret, J.D., Ph.D. Attorney, University of Tennessee

THE GREAT LOCOMOTIVE CHASE: TRIALS, TRIBULATIONS, AND TRIUMPHS Introduction In 1863, while Knoxville was occupied by the Army of the Confederacy, twelve Union raiders,1 who were charged with commandeering a train in Georgia in what became the “Great Locomotive Chase,” were put on trial. This, in brief, is their story.

The Chase The Great Locomotive Chase, also known as the Andrews Raid of April 12, 1862, brought the first Union soldiers into north Georgia and led to an exciting locomotive chase, the only one of the Civil War (1861-65). The adventure lasted just seven hours and involved about two dozen men. As a military operation, and from a tactical standpoint, it ended in failure. It was, however, a huge success in terms of boosting the morale of Union soldiers.

In early spring 1862, Northern forces advanced on Huntsville, Alabama, heading for Chattanooga, Tennessee. Union general Ormsby Mitchel accepted the offer of a civilian spy, James J. Andrews, to lead a raiding party behind Confederate lines to Atlanta, steal a locomotive, and race northward, destroying track, telegraph lines, and bridges toward Chattanooga. The raid thus aimed to knock out the Western and Atlantic Railroad, which supplied Confederate forces at Chattanooga, just as Mitchel’s army advanced.

On April 7, Andrews chose twenty-two volunteers from three Ohio infantry regiments, plus one civilian. In plain clothes, they slipped through the lines to Chattanooga and made their way to Big Shanty (present-day Kennesaw, Georgia), which was purposely chosen for the train jacking because it had no telegraph. While crew and passengers ate breakfast, the raiders uncoupled most of the cars. At about 6 a.m. they steamed out of Big Shanty aboard a locomotive nicknamed “The General.” 2 Pursuit began immediately, when three railroad workers ran after the locomotive, eventually commandeering a locomotive of their own. Aware they were being chased, Andrews’s men cut the telegraph lines and pried up rails. Ultimately, the General ran out of steam, literally, and the raiders were captured by Confederate troops. 3 The Trials Twelve of the raiders who came to be known as the “Knoxville Dozen” were taken by their captors to Knoxville for trial. It was presumed that they would choose a fellow Union officer to defend them, which was the custom of the day. However, the defendants had other ideas. Instead, they convinced prominent Knoxville Judge Oliver P. Temple and his law partner, John Baxter, to represent them. Judge Temple spent much of the first half of the war providing legal defense for Unionists who

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had been charged with treason by Confederate authorities. John Baxter ultimately served as a United States Circuit Judge of the United States Circuit Courts for the Sixth Circuit from 1877 to 1886. 4 The firm of Temple & Baxter agreed to the engagement for a fee of $150.00 per case, each defendant giving his note for that sum, to be due and payable upon acquittal. The proceedings were convened in the courthouse we currently know as the “Historic Knox County Courthouse” and, according to trial transcripts, were conducted with an air of informality and indifference that would suggest that the outcome was a foregone conclusion. 5 At least one Confederate officer posted in Knoxville would later refer to the proceedings as a “kangaroo court” and as such, refused to serve as a juror. 6 Efforts of defense counsel to consolidate the cases into one trial failed. In terms of trial strategy, one defendant wrote in his diary, “Our plan of defense was to tell just who we were, and what we had done, and to claim that we were United States soldiers, detailed on a military expedition, and therefore entitled to the protection accorded to regular prisoners of war. Our lawyers were delighted with the course we took, and said that it had ‘deranged all the plans of the prosecution, and that they had not a particle of evidence against us and that if we were convicted now, it would be through mere prejudice and perjury on the part of the court.’” Unfortunately, the strategy did not sway the court, and all defendants were treated as spies, found guilty, and sentenced to “be hung by the neck until dead.” 7 Conclusion In the end, eight of the condemned escaped to freedom, ultimately becoming the first soldiers to be awarded the Congressional Medal of Honor by President Lincoln. The General likewise survived the ordeal and is on display at the Southern Museum of Civil War & Locomotive History in Kennesaw, Georgia.

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Union soldiers who specialized in ambushes, surprise raids, and irregular styles of combat.

Built in 1855 by Rogers, Ketchum & Grosvenor in Paterson, New Jersey, The General provided freight and passenger service between Atlanta, Georgia, and Chattanooga, Tennessee, before the Civil War on the Western and Atlantic Railroad of the State of Georgia and later, the Western and Atlantic Railroad Company.

Bonds, R. S. (2007). Stealing the General: The Great Locomotive Chase and the First Medal of Honor. Westholme Pub Llc. Oliver Perry Temple, “Judge John Baxter,” Notable Men of Tennessee (Cosmopolitan Press, 1912), pp. 66-74.

Pittenger, W. (1999). Daring and Suffering: A History of the Andrews Railroad Raid.

Cumberland House Publishing.

Bonds, Russell S. Stealing the General: The Great Locomotive Chase and the First Medal of Honor. Westholme Pub Llc, 2007.

Id. at 77.

June 2023

BARRISTER BITES By: Angelia Morie Nystrom

Long, Ragsdale & Waters, P.C.

SOUS VIDE... OR PLAN B? If you have ever read this column, you know I love to cook. I fancy myself as someone “in the know” when it comes to cooking. What I believe and what is reality are not always the same. Case in point: I had never heard the words “sous vide” until Starbucks came out with their sous vide egg white bites. They had so much flavor, and I often stopped to get them for breakfast… and again for lunch. I had no idea where they got their name, most likely assuming that it was a fancy made-up name by the powers that be at Starbucks.

I heard the term “sous vide” again when I was traveling with a co-worker, who also enjoys food. She told me that she was doing steak sous vide and asked if I had ever tried it. Trying not to sound like a total idiot who was uneducated when it came to cooking and food, I asked her exactly how she planned on preparing them. She explained in detail how she was planning to cook them. She then went on to tell me that most high-end restaurants use sous vide so that their food is not dry and so that it is consistent from day-to-day, mealto-meal. That was my first true introduction to sous vide. I had been eating food prepared that way for years and had no idea!

Sous vide is a cooking technique that heats food with water. Food is placed in a vacuum-sealed bag and cooked in a temperature-regulated water bath. The food cooks evenly because it is surrounded by water—not air. Because the water doesn’t go above a certain temperature, you never have to worry about overcooked food. It simply doesn’t happen when you cook sous vide-style, which translates into “under vacuum” in French. To cook sous vide, you need a vacuum sealer and an immersion circulator or a sous water oven. While the water oven is a stand-alone cooker, the immersion circulator attaches to your pot and heats the water to the chosen temperature.

The supposed-advantage of sous vide cooking is that you theoretically should never overcook your food. Because the water is temperature-regulated, the internal temperature of the food can never rise above a certain level. Because the food is sealed, it also retains its moisture. The downside of sous vide is that it takes food longer to cook. Because the water doesn’t go above a certain temperature, the food needs to be cooked for a longer period of time before it is consumed. Also, if you are cooking meat, you usually need to finish it off in a pan. Though it is fully cooked, there is no crust when you use a water bath. The crust gives good texture and adds flavor.

Last summer, while in Williams-Sonoma to buy a coffee pot, I saw the Anova Precision cooker on sale for half price. They were using the demonstrator to make crème brulee. Hugh and Trace love crème brulee, so I used it as justification to buy the immersion cooker.

Like the Cricut machine that I bought several years ago, though, the cooker never made it out of the box. Last week I finally decided to rectify that situation and try steaks with the sous vide cooker. I bought small fiJune 2023

lets and decided to chop fresh basil, thyme and rosemary to flavor them. I put salt and pepper on the steaks, dropped them in bags, added a sprig of rosemary, vacuum sealed the bags with my food saver, and dropped them in the pot of water. I set the immersion cooker to 137° and was on my way… or so I thought.

As the immersion cooker heated the water, I chopped the remaining herbs and put some small potatoes in the microwave to cook. I worked on the ingredients for a caprese salad and patiently waited for the steaks to finish. When I had almost completed everything else, I noticed that I was not hearing the whir of the cooker. I looked over to that the display screen that shows the temperature was blank. My cooker had died.

Exasperated, I had to improvise. I removed the cooker and turned on the stove to boil the steaks. If sous vide wasn’t going to work the way it was intended, I was going to find a way to improvise. After a few minutes, I removed the steaks (completely unsure as to whether they were rare, medium or mooing).

To finish them, I sauteed a clove of garlic and the fresh herbs in a skillet with olive oil and then added the steaks. Unfortunately for Hugh and Trace, they were closer to medium-well than medium-rare… but they were moist and tasty. I served them with rosemary roasted potatoes and a caprese salad made with heirloom tomatoes, fresh mozzarella, fresh basil, olive oil and balsamic glaze. For dessert, we had fresh raspberries, blueberries and blackberries with homemade whipped cream. Despite the sous vide mishap, we had a wonderful meal.

There is always more to the story. When Hugh arrived home, I complained about the sous vide cooker that broke the very first time I used it.

I was well past the return period and was just going to throw it away. In normal “Hugh fashion,” he said it wasn’t a problem… and that it looked like I had prepared a wonderful meal. After going upstairs to wash his hands, he came back down and said, “You may not want to throw that away. We don’t have internet. I think you blew a circuit.”

Not only had I blown out the outlets on my island and the internet, I had blown out the microwave and wine refrigerator. Hugh tried to reset the circuit breaker in the garage to no avail. I called an electrician, who told me that I had blown the circuit and that we needed to replace it and then add another. Apparently, the immersion cooker uses more power than our large refrigerator and double ovens combined. When I ran the microwave and the cooker at the same time, it blew out everything. All in all, my half-price sous vide immersion cooker ended up costing me an additional $704. To quote Hugh, “Guess it wasn’t much of a bargain, huh?”

I have not been brave enough to try the sous vide cooker again… but I will. While our steaks were not true “sous vide,” they were amazing.

Plan B actually worked.

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S C H O O L E D I N E T H I C S , continued from page 19 unforeseen change in circumstances obviated the need for legal work. The footnote concludes that because nonrefundable retainers chill the client’s right to discharge the lawyer, a discharged lawyer may only be entitled to the reasonable value of services after discharge.16 A subsequent Formal Opinion, 92-F-128(a), was issued on December 11, 1992. In this opinion which is substantially similar to 92-F-128, the footnote is deleted and the examples of appropriate nonrefundable fees is expanded. In addition to general retainers, the list provides that “fees for routine legal services completed and fully delivered to the client within a reasonable period of time may be earned fees.”

Also, the opinion states that “advanced fees or flat fees involving criminal law, domestic or family law, or juvenile law may be earned fees.” The discussion concludes by stating that other legal authority may apply and such fees may have to be refunded in certain circumstances.17 Lessons for Tennessee Attorneys The possibility of a nonrefundable advance fee in Tennessee does not mean it is a good idea. Tennessee lawyers should consider the principles discussed in Formal Opinion 505, as well as Tennessee authorities, in deciding if it is appropriate to ask a client for a nonrefundable advance fee in the first instance. In most cases, Tennessee attorneys should not do so. Among many reasons weighing against nonrefundable fees, the arrangement creates a risky situation involving client funds, chills the client’s right to discharge the lawyer if trust is lost, might encourage poor client service, and ultimately may not be enforceable. Typically, a Tennessee lawyer should treat an advance payment of a fee (whether the fees are fixed/flat or billed at an hourly rate) as the client’s funds. As such, those advance fees should be deposited in the attorney’s trust account and returned if the relationship ends before the funds are earned by the attorney. This approach poses fewer risks for both attorney and client.

A Tennessee attorney who nonetheless wishes to label an advance fee “nonrefundable” should proceed with extreme caution. Initially, the lawyer must determine that such a fee would be reasonable. As discussed above, making this determination is complex. An attorney should be guided by the narrow examples of reasonable nonrefundable advance fees and the cautionary statements included in Comment 4a to TRCP 1.5 and TBPR Formal Ethics Opinions 92-F-128 and 92-F-128(a). Further, a Tennessee attorney must also meet the signed writing requirement of Tennessee RPC 1.5(f ) and should not deposit such a fee into a trust account (because it is considered the attorney’s property).

Even with such an agreement in place, much of the guidance provided in Formal Opinion 505 is still relevant to what may happen if client and Tennessee lawyer part ways. A client who discharges a Tennessee lawyer will have a strong argument for an unearned portion of even a “nonrefundable fee” to be returned. This may be because

the resulting fee is unreasonable given the work actually performed.18 Alternatively or additionally, a refund may be appropriate because the attorney failed to adequately explain the nature of the nonrefundable fee.19 The attorney may also face discipline for professional conduct rules violated.20 Ultimately, a nonrefundable fee agreement may cause more harm than good for a Tennessee lawyer.

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ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 505 (May 3, 2023).

Id. at 2 (explaining that a “general retainer” is also known as a classic retainer, true retainer, availability retainer, or engagement retainer).

Id. at 2-3.

Id. at 2 (noting that an advance fee is sometimes called a special retainer, security retainer, prepaid fees, or some variation on advance fee deposit).

Id. at 2, 6 (citing Model Rules of Prof’l Conduct, R. 1.15(a), (c)).

Id. at 4 (explaining that flat fees or fixed fees are fees that “embrace all work to be done, whether it be relatively simple and of short duration or complex and protracted.”).

Id. at 4.

Id. at 4-5.

Id. at 7-8.

Id. at 10. The opinion also notes that because a lawyer may be required to refund an advance payment of vees, characterizing it as nonrefundable may be a violation of the communication rule (Model Rule 1.4) and the misrepresentation rule (Model Rule 8.4(c)).

Id. at 6.

Id. at 5.

Id. at 8-12.

Bd. of Prof’l Responsibility v. Reguli, 489 S.W.3d 408, 421–22 (Tenn. 2015). See also Tenn. RPC 1.15, cmt. 10 (referring the reader to Comment 4 of RPC 1.5 to for a discussion of two situations when an advance fee should not be deposited in a trust account).

The formal ethics opinions were based in part on Tennessee’s then-current Code of Professional Responsibility. Tennessee’s current Rules of Professional were adopted effective January 1, 2011.

Tenn. Bd. of Prof’l Responsibility Formal Op. 92-F-128, n.1. (June 11, 1992).

Tenn. Bd. of Prof’l Responsibility Formal Op. 92-F-128(a) (Dec. 11, 1992).

Subsequently, the Board issued Formal Ethics Opinion 92-F-128(b). The Board was asked to reconsider 92-F-128(a) and concluded there was no compelling reason to abandon the rule stated in 92-F-128. Tenn. Bd. of Prof’l Responsibility Formal Op. 92-F-128(b) (Sept. 10, 1993).

See, e.g., Whitton v. Hoover, 313 S.W.3d 262 (2009) (determining that a nonrefundable retainer was unreasonable given the legal services rendered by the attorney); Stalls v. Pounders, No. W2003-02933-COA-R3CV, 2005 WL 181687, at *6 (Tenn. Ct. App. Jan. 27, 2005) (remanding for determination of whether nonrefundable retainer was “just and reasonable.”).

See, e.g., Reguli, 489 S.W.3d at 422 (explaining that the fee agreement signed by the client was “inadequate to make it clear that the fee was nonrefundable.”).

See, e.g., Threadgill v. Bd. of Prof’l Resp., 299 S.W.3d 792 (Tenn. 2009) (attorney was suspended following determination of misconduct including improperly refusing to return an advance that attorney had argued was a nonrefundable earned fee in violation of Rules 1.5, 1.15, and 1.16).

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Black Then, J.ED. and Ethel Lee Shelley: Putting a Face on the Struggle for Fair Housing, https://blackthen.com/j-d-and-ethel-lee-shelley-putting-a-face-on-thestruggle-for-fair-housing/, last visited May 6, 2023.

Form 10-900, supra n. 2.

Id.; see also Black Then, supra n. 3.

Form 10-900, supra n.2.

Id. Shelley v. Kraemer, 334 U.S. 1, 5 (1948).

Form 10-900, supra n.2.

Black Then, supra n.3.

Id. Shelley, 334 U.S. at 5-6.

Id. Missouri Encyclopedia, George L. Vaughn (1880 -1949), available at https:// missouriencyclopedia.org/people/vaughn-george-l.

Id. Id. Id.; see also Lewis L. Laska, A History of African-American Lawyers in Nashville, Nashville Historical Newsletter, available at https://nashvillehistoricalnewsletter. com/tag/african-american-legislators/.

Missouri Encyclopedia, supra n. 14.

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Id. Notable Kentucky African Americans Database, George L. Vaughn, https://nkaa. uky.edu/nkaa/items/show/1825#:~:text=Shelley%2C%20an%20African%20 American%20who,Vaughn%20to%20fight%20the%20notice, last visited May 6, 2023; see also Shelley, 334 U.S. at 6.

Shelley, 334 U.S. at 6. Four of the properties in the neighborhood were owned by African Americans-one for over sixty years, and they refused to sign the restrictive covenant. Id. Id. Id. See generally, Shelley, 334 U.S. at 1.

Clement E. Vose, NAACP Strategy in the Covenant Cases, Case Western L. Rev. p.

129 (1955), available at https://scholarlycommons.law.case.edu/cgi/viewcontent. cgi?article=3433&context=caselrev.

Id. See Shelley, 334 U.S. at 16.

Id. at 20-21.

Id. Form 10-900, supra n. 2.

Id. Missouri Encyclopedia, supra n. 14.

June 2023

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Howard B. Jackson Wimberly Lawson Wright Daves & Jones, PLLC

CAN A SEVERANCE OFFER BE ILLEGAL? THE NLRB SAYS SO In McLaren Macomb1, issued in February of this year, the National Labor Relations Board (Board) ruled that an employer’s offer of a severance agreement to eleven employees was, in and of itself, an unfair labor practice. How can that be? And what are the practical implications?

Fundamental National Labor Relations Act (Act) Principles Section 7 of the Act provides employees with the right to engage in concerted activity for mutual aid and protection regarding wages, hours and working conditions. These rights exist in all workplaces covered by the Act, not just those that are unionized. In general, employers who conduct more than $50,000 of business in interstate commerce are covered.

Section 8 (a)(1) of the Act provides that it is an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under Section 7 of the Act.” This language has long been interpreted and understood to mean that employers may not threaten adverse consequences based on an employee’s exercise of his or her Section 7 rights.

The McClaren Macomb Setting And Decision The employer operates a hospital in Michigan. During the pandemic the employer decided to lay off certain employees. There were eleven who were temporarily furloughed and then permanently furloughed. Upon the permanent furlough decision they were offered severance agreements that contained both confidentiality and nondisparagement language.

The confidentiality language provided: “The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third party . . .”2, with the exception of spouse, legal or tax advisor or as compelled by law.

The non-disparagement provision stated: “At all times hereafter, the Employee agrees not to make statements to Employer’s employees, or to the general public, which could disparage or harm the image of the Employer, the parent and affiliated entities and their officers, directors, employees, agents and representatives.”3 The agreement further provided for financial and injunctive sanctions in the event the confidentiality or non-disparagement provisions were breached.

The Board held that the broad confidentiality and nondisparagement terms, with the threat of legal sanction upon breach, unlawfully threatened adverse consequences for activities that are protected by Section 7. For example, there was a prohibition against communicating terms to other employees. The Board observed that Section 7 has long protected employee communication with each other about terms and conditions of employment.

The terms prohibited communication with third parties, as well as any communication with others that could even potentially harm the employer’s image. The Board noted that Section 7 has long protected

employee efforts to improve their lot as employees, and that such protected efforts can include communications with third parties such as “administrative, judicial, legislative, and political forums, newspapers, the media, social media, and communications to the public that are part of an ongoing labor dispute.”4 The Board ruled that the broad proscriptions in the confidentiality and non-disparagement terms on their face substantially interfered with and unduly “chilled” employees’ exercise of their Section 7 rights.

Therefore, said the Board, the act of offering an agreement with those terms in it, even in the absence of any attempt at enforcement, was an unfair labor practice.

Practical Implications The decision applies to employees, who have Section 7 rights. It does not apply to supervisors, who do not have Section 7 rights under the Act. The Act contains its own specific definition of the term “supervisor.”

The Board construes the term “supervisor” narrowly because persons in that role do not have Section 7 rights under the Act. In close cases an employer should engage in an analysis of whether the person in question is indeed a member of management under the Act. But where the person who is to be offered severance is clearly in the management ranks, McClaren Macomb does not apply.

Assuming that the persons in question are employees, it is still possible to include some narrowly drawn confidentiality and nondisparagement provisions. For example, employers can protect their trade secret and confidential business information such as manufacturing methods, confidential cost data, marketing plans, and the like.

With respect to non-disparagement, it is more difficult to craft acceptable language. The Act provides protection to communications that relate to a labor dispute so long as it “is not so disloyal, reckless, or maliciously untrue to lose the Act’s protection.”5 An employer who nevertheless wishes to include non-disparagement language in an agreement offered to employees should think carefully about the specific concerns to be addressed by the provision and (with assistance from labor counsel) craft the language accordingly.

Last but not least, including a disclaimer of intent to prohibit or discourage activity protected by the Act is not a silver bullet but is a good idea. In this regard, the Board’s General Counsel published a Guidance Memo on May 23, 2023, for those who may be interested to look further.

The Memo recognized the potential value of disclaimers. That said, the sample language in the Memo is very lengthy and, in all candor, seems to be overkill. More concise but clear and specific language in the way of a disclaimer should be helpful.

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372 NLRB No. 58 Id. at p. 2.

Id. Id. at p. 6 Id.

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.

June 2023

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in-fda-approval-of-abortion-pill-c; Melissa Quinn, Texas federal judge halts FDA approval of abortion pill mifepristone; Biden administration filing appeal, CBS News (Apr. 8, 2023 9:41 PM), https://www.cbsnews.com/news/federal-judge-halts-fdaapproval-of-abortion-pill-mifepristone/ (“The American College of Obstetricians and Gynecologists notes medication abortion has been used by over 3 million women in the U.S. since FDA approval in 2000, and says it is ‘safe and effective.’”).

All. for Hippocratic Med. v. Food & Drug Admin., No. 23-10362, 2023 WL 2913725, at *1 (5th Cir. Apr. 12, 2023) (per curiam) (quoting 21 C.F.R. § 314.500).

Id. at *2.

Id. Id. The procedural history of this case at the administrative level is somewhat complicated and not outlined in detail here, as it is beyond this article’s scope.

However, a helpful breakdown of that history, along with the timeline of the FDA’s actions regarding mifepristone and plaintiffs’ administrative challenges to them, can be found in the Fifth Circuit’s opinion. See id. at *3.

All. for Hippocratic Med. v. U.S. Food & Drug Admin., No. 2:22-CV-223-Z, 2023 WL 2825871, at *3 (N.D. Tex. Apr. 7, 2023).

Chemerinsky, supra note 1 (describing Judge Kacsmaryk’s December 2022 ruling “that it was unconstitutional for clinics receiving federal funds under a law enacted in 1970 to provide contraceptives to minors without parental consent,” which ignored Supreme Court precedent to the contrary).

Id. (describing other district court judges in Texas that conservative litigants have sought out in litigation).

A large portion of the opinion dealt with a variety preliminary legal issues (e.g., plaintiffs’ standing, whether part of their claims were timely, whether part of the FDA’s decision was judicially reviewable, whether plaintiffs failed to administratively exhaust their claims). See generally All. for Hippocratic Med., 2023 WL 2825871, at *3–15. For brevity’s sake, this article highlights the higher profile aspects of the district court’s substantive rulings.

Id. at *19.

Id. at *22.

Id. (internal quotation marks omitted).

Id. at *19.

18 U.S.C. § 1461.

All. for Hippocratic Med., 2023 WL 2825871, at *32.

All. for Hippocratic Med., 2023 WL 2913725, at *3.

Id. at *12 (“Plaintiffs’ right of action against the 2000 Approval . . . first accrued

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on March 29, 2016—the date FDA issued its final decision rejecting their . . .

Petition . . . . But plaintiffs didn’t file suit until November 18, 2022, more than six months beyond the statute of limitations.” (citation omitted)). The district court previously determined that plaintiffs’ challenge was timely because it took the FDA over sixteen years to rule on their petition. See All. for Hippocratic Med., 2023 WL 2825871, at *9–12.

See All. for Hippocratic Med., 2023 WL 2913725, at *17–21.

Amy Howe, Court allows abortion pill to remain widely available while appeals proceed, SCOTUSblog (Apr. 21, 2023, 7:50 PM), https://www.scotusblog. com/2023/04/court-allows-abortion-pill-to-remain-widely-available-while-appealsproceed/.

Justices Thomas and Alito would have denied the defendants’ request. See Howe, supra note 22.

Howe, supra note 22.

Totenberg, supra note 3 (noting that “[t]here is little likelihood that the appeals court will substantially change its view after oral arguments in the case,” and observing that its original order was “based, in part, on the Comstock Act”).

Quinn, supra note 3.

June 2023

LEGALLY WEIRD By: Lisa J. Hall

Hodges, Doughty & Carson, PLLC

WHEN WINGS AIN’T WINGS I have a pet peeve. It is not even in my top 100 pet peeves, but the peeve exists, and the subject of this edition of the legendary “Legally Weird” column addresses the peeve, which is now the target of a class action lawsuit silly enough to warrant discussion here.

Like Aimen Halim of Illinois, I think “boneless chicken wings” are an unnecessary and inappropriate misnomer. They clearly are not wings. Imagine my surprise when I first ordered boneless chicken wings, thinking they would have the taste and texture of chicken wings without the sloppy eating and greasy and/or dirty fingers, only to find out they are merely oblong chicken nuggets or short chicken tenders. They are no more wings than they are a part of the buffalo. What is with these wing vendors? You cannot trust any of them!

When I have a pet peeve, typically I get annoyed, roll my eyes, and think thoughts to myself, unless I am around a friend who knows me well enough to like me in spite of (or because of ?) my pettiness. Not so with Aimen Halim of Illinois. Aimen Halim of Illinois schedules a consultation with a lawyer named Ruhandy Glezakos of Los Angeles.

On behalf of Aimen Halim and all others similarly situated, Ruhandy Glezakos has filed a class action lawsuit against Buffalo Wild Wings, Inc. (“BWW”), alleging: (1) BWW sells products they call “Boneless Wings.” The Complaint abbreviates the Boneless Wings “the Products.”

(2) The name and description of the Products leads “reasonable consumers to believe the Products are actually chicken wings. In other words, that the Products are chicken wings that have simply been deboned, and as such are comprised of entirely chicken wing meat.”

(3) Unbeknownst to all of the consumers similarly situated to Aimen Halim, Boneless Wings are not wings at all! They are “slices of chicken breast meat deep-fried like wings1.

Indeed, the Products are more akin, in composition, to a chicken nugget rather than a chicken wing.”

(4) If BWW wanted to be transparent, they could name the Products “Boneless Chicken” or “Chicken Poppers.”

(5) Had Aimen Halim of Illinois and members of his class known that the Products were not chicken wings, they would have paid less or not purchased them at all. He suffered a “financial injury” as a result of the false and deceptive conduct.

(6) The uncertainty about the future of BWW’s business practices, coupled with Aimen Halim of Illinois’ well-earned desire to purchase the Products in the future, mean that this is an ongoing injury, unless there is an injunction enjoining BWW from calling the Products “Boneless Wings.”

(7) The reason for the misnomer is due to the rising cost of the “once-lowly wing” over what has “long been the gold standard of poultry parts, the skinless boneless chicken breast.”

The offensive menu featuring the Products is included in the body of the Complaint:

likely already opened a file. Also, does BWW not get credit for offering chicken “tenders” as opposed to chicken “fingers”? Perhaps an offset can be claimed.

Shortly after the lawsuit was filed, BWW filed what it would probably call a Boneless Answer (a.k.a. a tweet on Twitter).

The fate of the Product remains to be seen. While I disagree with the means, eliminating the phrase “Boneless Wings” from every single person’s vocabulary forever is a goal I can get behind. I am not a big fan of the bland-sounding “Boneless Chicken,” and “Chicken Poppers” makes no sense – plus it suggests that jalapeno peppers could be involved, and that is just another lawsuit waiting to happen. BWW, I will make you an offer. You may use “Oblong Chicken Nuggets,” for a price. Just call my lawyer, Ruhandy Glezakos.

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I know exactly what you are thinking. Why are we wasting all of this time and money targeting Boneless Wings when the real problem is further down the page? Who are they kidding trying to sell us the wings of a cauliflower? Ruhandy Glezakos has June 2023

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Respectfully, for the record, not all wings are deep fried, and in my opinion the superior wings are not.

JENNIFER MORTON LAW, PLLC IS DELIGHTED TO ANNOUNCE

SUMMER H. MCMILLAN HAS JOINED THE FIRM Summer graduated from UT College of Law magna cum laude in 1999 and practiced civil litigation in Knoxville for 19 years before serving as Senior Judicial Law Clerk to Tennessee Supreme Court Justice Sharon G. Lee for the past five years.

summer@jmortonlaw.com 8217 PICKENS GAP ROAD KNOXVILLE, TENNESSEE 37920 TELEPHONE: (865) 579-0708 • FAX (865) 579-0787 WWW.JMORTONLAW.COM

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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.

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.

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records: Daisey Lovin BPR #: 040322 Legal Aid of East Tennessee, Inc. 607 West Summit Hill Drive Knoxville, TN 37902-2011 Ph: (865) 637-0484 dlovin@laet.org Summer H. McMillan BPR #: 020296 Jennifer Morton Law, PLLC 8217 Pickens Gap Rd. Knoxville, TN 37920-9036 Ph: (865) 579-0708 summer@jmortonlaw.com Meghan J. Treece BPR #: 040358 P.O. Box 2147 New Tazewell, TN 37824-2147 Ph: (865) 585-0644 meg.treece@gmail.com

LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. 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.

Creating Value Through Trust

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June 2023

MITCHELL’S MALARKEY By: T. Mitchell Panter

Lewis Thomason, P.C.

HAVE SOME SELF-RESPECT! In April 2020, my firm went fully remote in an effort to minimize the spread of COVID-19. Obviously, things were stressful and scary during the lockdown, but in many ways, those were a glorious six weeks.

With the apocalypse on the horizon, I had a license to eat my feelings, and I happily met the call. Between my poor diet and the daily happy hours with my wife, which commenced at 4:00 p.m. and meandered sometimes until bedtime, I, like many, put on the “COVID 19” during lockdown.

At first, it didn’t matter. I wore gym shorts and t-shirts all day, and it wasn’t like I was going to be in-person with anyone any time soon.

After six weeks, though, our firm management decided that it was time to begin our slow return to the office, which initially included (among other things) staggering schedules to minimize the number of people in the office, strict masking, and various social distancing requirements.

To entice a quicker and more orderly return, the managing partner of the Knoxville office relaxed the dress code, which had historically been “business casual.” That is, with few exceptions, dress slacks, sportscoats, and dress shirts were the norm. We had always enjoyed casual Fridays (i.e., jeans) and occasionally had themed days where t-shirts were allowed (usually around the start of football season, a holiday, or the commencement of March Madness ). Very few attorneys wore ties unless they had client meetings or court appearances. (I’m convinced that Marshall Stair sleeps in a tie.)

Under the pandemic dress code, we were told that jeans were no longer limited to Fridays and that we were otherwise permitted to wear polos and less formal clothing if we so desired. These changes were well received, but as with any change, people were somewhat cautious about the rules at first. While most felt comfortable wearing jeans, they also held on to dress shirts, and some even adorned themselves with flashy (read “clash-y”) sportscoats.

Over time, however, our collective comfort grew stronger, and people (including myself ) began to test the boundaries of our newfound freedom. Fast forward to today, I would now describe my normal work attire as somewhere between beginner fly fisher and portly craftsman.

If we were to poll a group of fifty strangers and ask them my occupation, lawyer would certainly be toward the bottom of the list, likely before bodybuilder but no doubt after maintenance supervisor. Indeed, I often appear more likely to know what aisle the air filters are one than which volume of the Code addresses subject matter jurisdiction.

I’ll be honest: I’m not proud of how far I’ve fallen. Rather than do the sensible thing and lose weight so that I can fit back into my old clothes, I’ve charted a new, less exhausting course. Specifically, I’ve slowly but severely refreshed my wardrobe so that all of my pants now have expandable waist bands and many of my shirts are vented in places I never knew needed venting.

Without disclosing the exact purveyor of these fine garments, I will say that the store I’ve primarily flocked to is known for its generous sizing, cartoon depictions of their clothing, and ridiculous names for specific items or fits.1 Most of their clothes are made with canvas, and nothing about their branding or their products screams office appropriate.

If society devolves into the world that’s depicted in the Pixar masterpiece Wall-E, this store will be the new J-Crew.

One of my most tragic purchases during my post-pandemic refresh is a quilted navy vest that’s presumably designed for real men who kill things and work with their hands. I do neither of those things, yet I saw this vest and immediately thought: “I can pull that off.” I’m here to tell you, I cannot.

I’ve also invested in multiple pairs of khaki pants from this same store, which has become a subject of great debate with my wife. She June 2023

maintains (without evidence) that these khakis are, in fact, cargo pants. I think I’ve mentioned this in a prior column, but when my wife despises cargo pants (justifiably). When she and I first moved in together, all of my cargo pants and cargo shorts were promptly disposed of along with the matching, deep red, oversized recliners I inherited from my grandparents.

While I do not dispute that my wife was correct in disposing of my cargo pants at the commencement of our cohabitation, I do vehemently dispute that my preferred khakis are even remotely close to cargo pants.

The central feature that gives to our dispute is this: each pair has a side pocket on one leg, which is wide enough for a smartphone. The pocket has no tab or button and rests completely within the lining of the pants themselves. By definition, at least in my opinion, that means these pants are not cargo pants.

I have consulted several members of my firm on the topic. The trustworthy ones, including the ever-stylish Bill Mynatt, agree that they aren’t cargo pants, per se, but none were willing to describe them as “stylish” or even office appropriate. The ultimate wardrobe test in our profession—particularly for litigators—is pretty simple: Can you wear it to court without unwanted attention? Even I’ll admit that my preferred “khakis” would look pretty out of place with a sportscoat and tie.

At the end of the day, however, I’ve gone too far to go back now. So, if any of you have an inroads with HR at Ace Hardware, feel free to share my contact information.

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This reminds me of Amy Schumer’s incredible skit about being an “Old Navy 2.”

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

PRO BONO SPOTLIGHT By: Joy Radice Director of Clinical Programs & Associate Professor of Law University of Tennessee College of Law

WE NEED YOU! JOIN OUR NEW KBA PRO BONO SECOND CHANCE INITIATIVE Criminal records can make it difficult to find a job, secure permanent housing, and reunite with children. A recent client, Thomas, was released from jail in the fall and was determined to live a law-abiding life. Because he was living in a homeless shelter, he applied for public housing. The public housing authority denied his application because of an old, dismissed charge for trespassing on public housing property.

Once the dismissed charge was expunged, Thomas reapplied, and he now lives in a public housing apartment and has a job at a local event venue.

Expunging charges can have a tremendous impact on someone’s life.

Over the last decade, Tennessee’s expungement statute – T.C.A.§ 40-32-101 – has expanded to help remove obstacles created by a criminal record. In 2012, the legislature added section (g) to the statute to allow individuals to expunge an eligible misdemeanor or Class E-felony conviction after a five-year waiting period.1 In 2017, the statute added section (k) to allow up to two eligible convictions to be expunged, and in 2021, the legislature added certain Class C- and D-felonies to the list of eligible offenses with a 10-year waiting period.2 Last July, the newest revision to the expungement statute significantly expanded eligibility for people with convictions. Prior to this amendment, once a criminal record had an ineligible conviction, no convictions were eligible for expungement. The revised section, T.C.A.§ 40-32-101(g)(2)(A)(i), now allows individuals to expunge an eligible conviction, as long as that conviction occurred before a conviction that is ineligible.3 Expungement is a powerful tool: When a charge or conviction is expunged, all public records are destroyed, and expungement “has the legal effect of restoring the petitioner… to the same status occupied before the arrest, indictment, information, trial, or conviction.”4 Once expunged, “the conviction of the expunged offense never occurred, and the person shall not suffer any adverse effects or direct disabilities.”5 As the statute expands to offer more Tennesseans relief, it has become more complicated to interpret. So the need for pro bono attorneys who can offer legal advice has never been greater. Responding to this need, the Reentry Subcommittee of the KBA’s Access to Justice Committee is launching a new Second Chance Initiative to help more people expunge eligible dismissals and convictions.

To engage busy lawyers from a range of practice areas, the KBA Second Chance Initiative has designed three pro bono pathways for lawyers to choose from: Expungement Community Court Pro Bono Volunteers – If you like working one-on-one with clients at a weeknight event, this is the pathway for you! Pro bono lawyers at the Expungement Community Court will be assigned clients to help individually. After reviewing the client’s Knox County criminal history, you will give advice about expunging convictions, help draft and argue motions to waive costs and fees, discuss driver’s license reinstatement and voter restoration, and expunge dismissed cases, diversions, and eligible convictions.

Attorney Expungement Days – If you like working with a group of lawyers to analyze cases and draft documents, this is the pathway for you! LAET Director of Pro Bono Caitlin Torney and her law student interns will conduct intake at local non-profits, pull the client’s criminal records and cost sheets, and work with the court clerk to prepare dismissal expungement petitions. Over pizza one afternoon after work, pro bono lawyers will then get together to analyze these

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records, discuss case strategy, and help clients by preparing conviction expungement petitions, drafting motions to waive costs and fees, and advising clients about civil rights restoration.

The Conviction Expungement Circle – If you want to focus on expunging convictions (as opposed to dismissed cases), this pathway is for you! As the statute expands eligibility each year, it is no simple task to determine if a person is eligible to expunge a conviction, especially for people with more complicated criminal histories. And yet most clients really want advice about removing convictions from their records. Pro bono attorneys in the Conviction Expungement Circle will fill this access to justice gap, taking on client referrals through the UT Legal Clinic at times in the year when you can take on a pro bono case.

All volunteer attorneys will be covered under LAET’s malpractice coverage and receive CLE credit for the time they spend on these cases.

The Second Chance Initiative will prepare pro bono lawyers to do this work. We have developed a free dual-credit expungement CLE to equip pro bono lawyers with the necessary legal knowledge to provide the in-depth legal advice required by each pathway.

The training will occur on zoom this summer and focus on: • Expunging dismissed cases and diversions; • Waiving court costs and expungement fees; • Expunging eligible convictions; • Restoring Voter Rights; • Reinstating a person’s driver’s license; and • Filing Petitions for Certificates of Employability and Civil Rights Restoration.

The training will also offer lawyers access to a Dropbox folder with statutes, templates, and other resources. The training modules will be available to review after the training so pro bono lawyers can rewatch segments that relate to legal issues presented by their pro bono cases.

Volunteer attorneys will have access to mentors to help with questions as questions arise.

To participate in the KBA’s Second Chance Initiative, we ask each volunteer lawyer to take on one case this year or attend one of the two summer expungement clinics.

The latest expansion of the expungement statute has opened the door to expungement for many Tennesseans. To help them, we need you!

If you are interested in signing up for the free CLE or just want to learn more, please fill out this survey linked to the QR code or email Caitlin Torney at ctorney@ laet.org. We will be in touch soon to get you started!

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3 4 5

DICTA

T.C.A. § 40-32-101(g) (2012).

T.C.A. § 40-32-101(g)(2)(B)(ii), (g)(2)(D)-(E) (2021), and T.C.A. § 40-32-101(k) (2017).

T.C.A. § 40-32-101(g)(2)(A)(ii).

Tenn. Code Ann. § 40-32-101(g)(15)(B).

Tenn. Code Ann. § 40-32-101(g)(15)(D).

June 2023

TELL ME A STORY By: Mark E. Stephens

Stephens, Dirado & Caviness, LLP

REDUCING BIAS IN HIRING PRACTICES I’ve read that the Roman author Juvenal famously wrote “Fronti nulla fides” which (I’m told) when translated means, “Never have faith in the front.” Over time, this saying evolved to become one of the world’s more well-known idioms, “Don’t’ judge a book by its cover.” Whatever the saying, forming an opinion on something or someone based on their appearance is a dangerous practice. Biases we don’t even know we have (e.g., gender, name, accent, background, where one is from) influence our decision-making processes.

I had been the Public Defender for only a few years when John Halstead came to interview for a job seeking a position as an assistant public defender. I didn’t know John, but his resume indicated that for the prior dozen years or so he had been a managing attorney for a public defender office in Kentucky. This interview was promising.

Experienced public defenders are hard to find.

During the interview, I learned that John had married a Knoxville girl and had decided that it made more sense for him to move here than for her to relocate to the rural Kentucky community where John was living. Unfortunately, my hopes were quickly dashed as I interviewed John. I don’t know what influenced me, but very quickly I decided John wasn’t the dynamic, persuasive trial lawyer I was looking for. I decided I wouldn’t offer him a job.

Only a couple of years into my new position, I hadn’t yet developed a graceful exit for these kinds of situations. As I tried to figure out how to tell John, “Thanks, but no thanks” in a way that didn’t hurt his feelings, I latched on to the fact that all I had was an entry-level position and John had a dozen years of experience. I told him it just wouldn’t be fair to insult an experienced guy like him with an entry-level salary offer. But John told me he wouldn’t see that as an insult. I remember him telling me all he ever wanted to be was a public defender.

He made it clear if offered, he would accept an entry-level position. I quickly switched to game plan B and told him I’d think about it and get back to him. I’m pretty sure John saw through my BS. John had only been gone a few minutes when my secretary buzzed me and told me I had a call. The woman on the other end, Alison Connolly, was the head Public Defender for the state of Kentucky. She explained to me that she understood I had just interviewed John Halstead.

She acknowledged not knowing me and made it clear it wasn’t her intention to insult me, but she said, “I know exactly what you’re thinking, and you’re dead wrong!” She proceeded to tell me stories of impossibly difficult cases John had successfully handled in Kentucky. She told me that he was a brilliant strategist and a highly effective trial lawyer. This information, while totally inconsistent with my impression of John, was coming from the director of the state system. She wasn’t some local office PD like me, she ran the entire Kentucky Public Defender system. I was impressed by her taking the time to call me and I did what anyone would have done in my position. I hung up and called John and offered him a job. The decision to hire John Halstead at the CLO was one of the best decisions I ever made during my tenure. John was even better than she said he was.

In the early PD days, we were critically short-staffed. When a high-profile case came along (usually a murder case), an overextended APD just didn’t have the capacity to take it on. I decided that I would handle those cases. John came to me and told me that he had some experience in those kinds of cases and would be willing to work with me on them. I took him up on that offer and over the next couple of decades I guess we worked on hundreds of cases together ( John June 2023

remembers them by name and fact pattern).

I can confirm that everything Alison told me about John was true and some. He’s brilliant, dedicated, disciplined, relentless, fearless, hilarious, kind, and empathic. I’ve hired a number of great attorneys in my day, but none better than John Halstead.

In those early years, before anyone knew John, Ken Irvine was in private practice. Ken agreed to work with John and I on a death penalty case we were handling. After a few months of working with us, Ken - very impressed with John - said to me, “he’s the best-kept secret in Knoxville.” Ken was right.

Biases that I possess - that I don’t even know I possess - nearly caused me to make the worst hiring decision of my Public Defender tenure. Over time, John Halstead became the living breathing testament to the frailties of our hiring practices at the CLO. Slowly but surely, we implemented more “best practices” to reduce the impact of our biases in our hiring practices. We took the time to write better job descriptions. We selected candidates for face-to-face interviews after utilizing blind recruiting techniques. We involved other colleagues in the hiring process, and while we didn’t “standardize” our interview questions, we came close.

This July, John retires from the CLO. His work on behalf of his clients was inspirational. His dedication and relentless and effective lawyering as an Assistant Public Defender should serve as the benchmark, we all strive to maintain. Thank God for Alison Connelly. She made sure I didn’t let the biggest catch of my PD career get away.

DICTA

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PAID

KNOXVILLE, TN PERMIT NO. 3 0 9

P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE BAR ASSOCIATION

BENCH & BAR CELEBRATION COCKTAIL RECEPTION

WEDNESDAY, SEPTEMBER 6 6-8 PM KNOXVILLE CONVENTION CENTER CLINCH CONCOURSE, 701 HENLEY ST.

Join us to honor the justices of the Tennessee Supreme Court and celebrate our judiciary at all levels. This year's event will include a special thank you to Justice Sharon Lee for her 19+ years of excellence on the bench and an opportunity to congratulate Dwight Tarwater on his appointment to the Tennessee Supreme Court.