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 fi- 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.

SCHOOLED

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

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

NHLS/88000437_text.

continued from page 21 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.

3 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.

4 Form 10-900, supra n. 2.

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

6 Form 10-900, supra n.2.

7 Id.

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

9 Form 10-900, supra n.2.

10 Black Then, supra n.3.

11 Id.

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

13 Id.

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

15 Id.

16 Id.

17 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/.

18 Missouri Encyclopedia, supra n. 14.

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

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

3 Id. at 2-3.

4 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).

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

6 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.”).

7 Id. at 4.

8 Id. at 4-5.

9 Id. at 7-8.

10 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)).

11 Id. at 6.

12 Id. at 5.

13 Id. at 8-12.

14 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).

15 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.

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

17 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).

18 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.”).

19 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.”).

20 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).

19 Id.

20 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.

21 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.

22 Id.

23 Id.

24 See generally, Shelley, 334 U.S. at 1.

25 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.

26 Id.

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

28 Id. at 20-21.

29 Id.

30 Form 10-900, supra n. 2.

31 Id.

32 Missouri Encyclopedia, supra n. 14.

By: Howard B. Jackson Wimberly Lawson Wright Daves & Jones, PLLC