Management Counsel: The Paycheck Protection Program: Forgivable Loans . . . Page 10 Schooled in Ethics: Legal Ethics in a Time of Pandemic (and Beyond) . . . Page 13
A Monthly Publication of the Knoxville Bar Association | May 2020
THE GLOBAL PANDEMIC AND THE KNOXVILLE PRACTICE OF LAW
MEMBER DIRECTORY
The KBA Attorneys’ Directory is published just once a year. Now is the time to verify your listing! Read by over 2,200+ attorneys, judges and law students, the KBA Attorneys’ Directory is a frequently used resource in offices throughout the East Tennessee legal community. The printed Attorneys’ Directory is the perfect complement to the Online Attorney Directory included in the members’ only section of the KBA’s website at www.knoxbar.org. The Online Attorney Directory includes contact information, photo, year licensed, areas of practice, BPR #, languages spoken, states where licensed and even social networking sites. Double your chances to get found by confirming that your information is listed accurately. Use the form on the back or verify your contact information online in your “myKBA Profile” or click on https://www.knoxbar.org/directoryupdate to review all of the available options.
AREAS OF PRACTICE
Available in the Online Attorneys Directory, once again you have an option to have your name listed when someone utilizes the Areas of Practice search option. The Areas of Practice search provides the ability to search your listed areas of expertise so that you may be more easily found by those looking for someone with your special knowledge. Make certain that the three “areas of practice” designations you’ve chosen accurately reflect your practice in 2020/2021.
MEDIATOR LISTINGS
FIRM LISTINGS
Are you a Rule 31 or Federal Court mediator? If so, make sure that your name will be included in the Mediators list in the Attorneys’ Directory by updating your myKBA profile on www.knoxbar.org to reflect your mediation certifications. The Knoxville Bar Association offers this Search as a resource for members of the local legal community and the general public.
Don't miss out on a full year of visibility! An online listing under the Law Firm tab at www.knoxbar.org will allow you to target your message to 100,000+ potential clients and a print firm listing in the KBA Attorneys' Directory will help you reach more than 2,000 legal professionals.
Also, make sure to add your Mediator Profile to the KBA website so others will learn of your expertise. Each mediator profile at www.knoxbar.org includes information about training, mediation, certifications, hourly rates and subject hourly rates and subject area experience, so add your listing today to help build your mediation practice. Low annual fee of $100 for KBA members.
New in 2020! Introducing Customizable Profiles for Attorneys in Firms With PREMIUM Firm Listings! Attorneys now have the ability to customize their profiles with practice concentration, payment options and a personalized bio.
Web Stats are Soaring!
The data is in! 880,000 people have visited www.knoxbar.org since its launch in April 2017. The Public Resources & Find a Lawyer pages have been visited over 72,000 times and the law firm search has been visited by over 7,400 people!
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MENTOR FOR THE MOMENT
The Knoxville Bar Association launched the Mentor for the Moment program to pair attorneys who have questions or problems in a particular area of legal expertise with the guidance of a more experienced Mentor attorney. Volunteer mentors serve to create a more cooperative and collegial Knoxville Bar. They know the importance of getting advice from others who have experienced similar problems and frustrations in their law practice. Volunteer today to serve as a mentor on the Mentor for the Moment page in the members’ only section of the KBA website.
Choose the PREMIUM listing to showcase the individual attorneys within your firm, and allow your attorneys to customize their profiles! Complete the firm listing request form at www.knoxbar.org/lawfirms.
COVER PHOTO CONTEST
Enter the KBA’s photo contest for the cover of the 2020 KBA Attorneys’ Directory! Join in the fun and submit your photo. The selected photo will be featured on the cover of the 2020 KBA Attorneys' Directory and acknowledgement of the photographer (you!) will be printed inside the Directory. Send photos by June 5 to mwatson@knoxbar.org.
DICTA
May 2020
In This Issue
Officers of the Knoxville Bar Association
May 2020
COVER STORY 16
The Global Pandemic and the Knoxville Practice of Law
CRITICAL FOCUS President Hanson R. Tipton
President Elect Cheryl G. Rice
Treasurer Jason H. Long
Secretary Loretta G. Cravens
KBA Board of Governors Sherri DeCosta Alley Jamie Ballinger Mark A. Castleberry Hon. Kristi Davis
Elizabeth B. Ford Rachel P. Hurt Allison Jackson Elizabeth (Betsy) Meadows Robert E. Pryor, Jr.
Immediate Past President Wynne du Mariau Caffey-Knight
Michael J. Stanuszek Amanda Tonkin Elizabeth M. Towe Mikel Towe
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President’s Message
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Around the Bar
Taking Care of Yourself in the New “Normal” “Hello Out There in Radioland” Mediating With a Laptop
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Joint Defense Agreements– How to Deal with the Potential for a Conflict of Interest
The Paycheck Protection Program: Forgivable Loans
Legal Ethics in a Time of Pandemic (and Beyond)
Emergency FMLA and Paid Sick Leave– What Employers Need to Know
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The Knoxville Bar Association Staff
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Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Leslie Rowland Programs Administrator
Tracy Chain LRIS Administrator
Rebecca Eshbaugh LRIS Assistant
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Dicta DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho
Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. May 2020
DICTA
Schooled in Ethics Legal Update
Time Out
Life and Voting in the Times Of COVID-19
Courtney Walker
Local Restaurants Creatively Maneuver COVID Crisis
FAKE NEWS: Common Grammar Myths You Should Stop Believing
Union Not Division
Why Did the Lawyer Cross The Road?
John Prine
More Screens Please
Ghost in the Machine: The Coevolution of Connectedness and Spam
Presidential Smackdown!
What I Have Learned
Quarantine Cooking, Part 2
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Volume 48, Issue 5
Management Counsel: Law Practice 101
WISDOM 8
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org
Practice Tips
23 24 25 26 27 29
Hello My Name Is Passing By
Grammar Grinch
The Noblest Profession
Legal Myth Breakers
Outside My Office Window
Bill & Phil Gadget of the Month Well Read
Your Monthly Constitutional Long Winded
Barrister Bites
COMMON GROUND 4 20 22 22 28 30 31
Section Notices/Event Calendar Barrister Bullets Change of Addresses Welcome New Members Bench & Bar in the News Pro Bono Project Last Word
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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 program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. The section plans regular CLE throughout the year. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and 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 would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please 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 would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2018 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Courtney Walker (292-2307) or Chuck Sharrett (637-0203). Senior Section The KBA Senior Section generally meets quarterly for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307) Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).
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DICTA
event calendar n n n n n n n n n n
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May 5 5 12 12 12 13 13 14 19 2
Law Office Tech Committee Cinco de Mayo Social Hour Professionalism Committee Access to Justice Committee Financial Wellness Update Diversity in the Profession Committee Barristers Meeting Judicial Committee CLE Committee Board of Governors
June 2 9 10 10 10 11 12 17
Law Office Tech Committee Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Judicial Committee Chancery Court Bench Bar CLE Board of Governors
Mark Your Calendar
Law Day Luncheon
August 19 Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. May 2020
PRESIDENT’S MESSAGE By: Hanson R. Tipton Watson, Roach, Batson & Lauderback, P.L.C.
TAKING CARE OF YOURSELF IN THE NEW “NORMAL” I had a very busy week planned for the end of March and beginning of April. It was supposed to begin with a three-day jury trial, followed by the Law Practice Today Expo on Thursday and Friday. Then that Saturday my wife, daughter, and I were going to hit the road, heading first to Nashville for the Tennessee Bar Association Leadership Conference and then on to St. Louis where I was planning to take my daughter to see Pearl Jam Saturday night. In different ways I was very much looking forward to all of these events, but every time I saw that week on my calendar, I thought about how exhausted I was going to be after that busy week. I had no idea.
important as the pandemic went on was the section on “Coping.” A disturbing story was published in the local media the last week of March that the suicide rate in Knox County had spiked, with reports of nine suspected suicides in just a 48-hour span. Realizing that our profession is one that unfortunately experiences high rates of depression and substance abuse even in the best of times, Marsha and I wanted to highlight the potential emotional and psychological effects that a situation like this can have on our members and offer resources to help members cope with our strange, new “normal.” The COVID-19 pandemic has consumed nearly every aspect of our lives, personally and professionally. And there is no escaping it – turn on a TV or radio, open an internet browser, or check e-mails and text messages from your friends and family, and the pandemic seems to be all any of us are talking about. Unfortunately, most of the distractions we usually turn to are no longer available. Sporting events, concerts, and movies have been canceled for the foreseeable future. The restaurants and local businesses we love to visit are all closed other than for delivery/takeout. Even houses of worship have switched to online services.
Pearl Jam was the first of these plans to be disrupted by COVID-19. I will always remember that Monday night – March 9th – as my personal “beginning” of the pandemic that would go on to consume nearly every aspect of all of our lives. I had been out and had not checked my phone in a couple of hours. When I got home and logged onto Facebook I had a message from a friend letting me know that Pearl Jam had postponed all dates on their Spring U.S. tour. I remember thinking, “Well, that seems like an over-reaction.” Again, I had no idea. Next came the most heartbreaking cancelation for me personally: Expo. I look forward to the Law Practice Today Expo every year but was particularly excited for this year’s event, as it would be “MY Expo” and I was excited to introduce Mayor Indya Kincannon as the featured speaker at the Judicial Roundtable Luncheon. As always, the Law Office Technology & Management Committee had worked hard all year to put together another outstanding Expo with nationally-renowned speakers and an always-impressive group of vendors in the Exhibit Hall. On March 11th, Marsha e-mailed me about the potential need for Expo contingency plans. With the national conversation turning to the postponement and cancellation of many events and meetings around the world, Marsha and I started to wonder if we would need to make a similar decision about Expo. On the morning of March 12th, Marsha called to tell me that the decision had been made for us: the UT Conference Center was canceling all events scheduled between March 16th and April 5th, including Expo. Soon other beloved Spring KBA events like the Law Day Luncheon and Past Presidents’ Dinner would follow. And of course my trial was continued in the wake of the Tennessee Supreme Court’s COVID-19 Order on March 13. As we all remember, pandemic-related news and cancelations came fast and furious that week and afterward. Marsha and the KBA staff quickly mobilized their office and began working from home. We set up a dedicated section of the KBA website for court updates and it soon grew to include a number of other resources for attorneys, including Zoom tutorials, help for solo practitioners and small firms, prevention methods, and a new series of virtual meetings called “Take Care Tuesdays.”
One section of the KBA COVID-19 site that became particularly
May 2020
All of this can seem overwhelming. That’s because all of this IS overwhelming. It is always important to pay attention to your mental and emotional health, but it is especially important now. It is also especially important for us to look out for each other’s well-being. Check in on your colleagues and even your courtroom adversaries. At various times since mid-March I have found myself feeling sad, scared, or confused by the endless parade of obstacles and bad news, in my home life, my work life, and as KBA president. Canceling beloved events that are so important to the life of our bar has been necessary but difficult. In addition to the fear we all naturally feel in the face of a deadly pandemic, we are also feeling grief for the things we have already lost. This is all natural, but it is also unfamiliar to us. So please take care of yourself. And take care of each other. Check in with your friends, family, and colleagues. Remember that we are all dealing with something extra right now, some more than others. Show a little extra grace and kindness to your neighbor. Make calls. Send texts. Get together via videoconferencing. Attend our “Take Care Tuesday” virtual events. Take advantage of the resources available in the “Coping” section of the KBA COVID-19 website. There you will find links to a variety of helpful information, including TLAP resources, wellness programs and CLE, and many other mental health tools from a plethora of sources. We are going to get through this. And we are going to get through it TOGETHER. I am very proud of the work the KBA has already done to bring people together while we have all been required to stay so far apart physically. I look forward to continuing that work with all of you. And I really look forward to seeing you in person once we are able to do so again.
DICTA
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TIME OUT By: Ann Short The Bosch Law Firm
LIFE AND VOTING IN THE TIMES OF COVID-19 Timing makes a difference, and what a difference a few weeks has made. My last article about being homebound in January with the flu seems like a lifetime ago. I offered a lighthearted take on staying at home and convalescing. The isolation was a respite from everyday struggles and stresses. Now, the isolation is a psychological and financial anchor. The narratives and stories of others are far more poignant, elegant, and powerful than I could ever hope to emulate. My emotions regularly cycle through gratitude, anger, boredom, anxiety, frustration, and helplessness. Occasional moments of humor lighten the day and prompt sharing on social media. Putting aside my personal travails, every day I strive to remind myself that I am privileged. I am white. I am well educated and blessed with gifts beyond anything I have done to deserve. My hardships pale in comparison to those less privileged who are struggling in every way, every day. I am overwhelmed and inspired by the courage and tireless efforts of our better angels who daily bring us kindness, generosity, healing, respect, empowerment, community, joy, and service. I hold with those who advocate (as a starting point) student loan forgiveness for our frontline medical heroes who have sacrificed everything, including their lives. I salute our legal warriors who have pushed and pushed and pushed and pushed for immediate and meaningful relief and care for the incarcerated and the accused and who have demanded essential accommodations and workarounds to customary yet cumbersome legal procedures and rules. I salute judicial leadership, particularly by our Tennessee Supreme Court. And, I salute the KBA’s essential, uplifting work of messaging and passing on crucial information – shout-out to Marsha Watson and the KBA team! I pray for tolerance, understanding, and kindness. I am not a scientist; I am not an economist; I am not an expert in international diplomacy. But I am a registered voter. Much needed attention is being focused on how to protect and preserve the sanctity of our democratic voting system. People should not have to risk their lives to stand in lines to vote. A crescendo of urgent voices for absentee voting by mail is heard throughout our country. The prospect of national reform is uncertain. Even so, Tennessee has meaningful mechanisms already in place to facilitate 14 categories of absentee voting by mail. Go to the Tennessee Secretary of State website: sos.tn.gov. Click the tab for elections. Click the tab for voter information. Scroll down, click the topic, “Absentee Voting,” and scroll down. The Secretary of State advises: To vote by mail, a registered voter must fall under one of the following categories: 1. The voter will be outside the county of registration during the early voting period and all day on election day; 2. The voter or the voter’s spouse is enrolled as a full-time student in an accredited college or university outside the county of registration; 3. The voter’s licensed physician has filed a statement with the county election commission stating that, in the physician’s judgment, the voter is medically unable to vote in person. The statement must be filed not less than seven (7) days before the election and signed under the penalty of perjury;
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4. The voter resides in a licensed facility providing relatively permanent domiciliary care, other than a penal institution, outside the voter’s county of residence; 5. The voter will be unable to vote in person due to service as a juror for a federal or state court; 6. The voter is sixty (60) years of age or older; 7. The voter has a physical disability and an inaccessible polling place; 8. The voter is hospitalized, ill, or physically disabled and because of such condition, cannot vote in person; 9. The voter is a caretaker of a person who is hospitalized, ill, or disabled; 10. The voter is a candidate for office in the election; 11. The voter serves as an election day official or as a member or employee of the election commission; 12. The voter’s observance of a religious holiday prevents him or her from voting in person during the early voting period and on election day; 13. The voter or the voter’s spouse possesses a valid commercial drivers license (CDL) or the voter possesses a valid Transportation Worker Identification Credential (TWIC) card and certifies that he or she will be working outside the state or county of registration during the open hours of early voting and Election Day, and has no specific out-of-county or out-of-state address to which mail may be sent or received during such time. 14. The voter is a member of the military or is an overseas citizen. Space does not permit a discussion of all the categories, but please pay attention to category 6: “The voter is sixty (60) years of age or older.” Age is the only qualification. The website further advises that a registered voter may request an “application” for by-mail ballot no earlier than ninety (90) days before the election and no later than seven (7) days before the election. To be processed for the next election, the application must be received by the election commission no later than seven (7) days before the election. The application is a one-page form that can be downloaded at: https://sos-tn-gov-files.s3.amazonaws.com/5%20Request%20for%20 Absentee%20Ballot.pdf. Print and fill out. The “application” can be returned by mail, fax, or email to your county election commission. For Knox County mail: Knox County Election Commission, 300 W Main Street, Knox County Courthouse, Room 218, Knoxville, TN 379021850; fax: 865.215.4239; email: election.central@knoxcounty.org. Now, for the rub. After you receive the ballot and complete it, the by-mail ballot must be received by the county election commission office through the postal mail. Various news sources are reporting that the U.S. Postal Service is on track to run out of money by June. Allegedly (I haven’t read the stimulus package myself ), the stimulus package recently signed into law allows the post office to borrow up to $10 billion from the U.S. Treasury, but did not provide emergency funding or debt relief.
DICTA
Let’s keep this on our collective legal radar. May 2020
AROUND THE BAR By: William D. Vines, III Butler, Vines and Babb, PLLC
“HELLO OUT IN RADIO LAND” – MEDIATING WITH A LAPTOP “The virus” has caused a significant change in the way we mediate. In-person mediation may be hazardous to your health! As mediators, we are now helping to settle using some form of the Zoom platform. Participants are in their offices or at home. Does it work? How can we best prepare for a successful internet-based mediation? I have now done a number of mediations using this method. Here are my ideas.
opening statements by the parties…depending on the case and personalities. With internet mediation, openings are not impactful. The parties may be only seeing the other parties on a 2-inch by 2-inch picture. Forget doing a lengthy opening. Displaying exhibits is very difficult. So, during the mediation, what is best to represent your client? A. Something should be said by each party even if it is only a name. Some “community” should be established.
It Works Is it as satisfactory as in-person? No. Good mediators get a “feeling” as to the direction of discussion best suited to resolve a dispute… including direct conversation and body language. This is an important aspect of the talents of a mediator. Many mediators have those talents. This ability is muted by internet mediation. Is it Satisfactory? Yes, with some reservation. Will “The Virus” Have an Effect on Settlement Amounts? It is an issue. Before the virus, parties argued for a settlement based upon the amount of time to get to a trial and the finality of any verdict. Until we have virtual trials (yuck!) who would be willing to sit on a jury? Is it the Wave of the Future? Probably. Why? The process goes more quickly (many in one-half of the “normal time”). Further, the parties do not need to travel. So, the process cuts expenses. All parties will like this fact, especially real parties in interest. How Does it Work? Generally, there is a joint session where all participants are together and can communicate if desired. The “host” mediator then can put parties into the same “rooms” or different rooms. If in the same room, the parties can communicate just like they were in person…even though they may be at different physical locations. The mediator host then moves from room to room (and can even put all back together if needed) – pretty neat, really! Special Preparations Needed for this New Procedure First, be sure the technical aspects do not interfere with the mediation. The process is simple for the parties. They receive an “invitation” and click on a free application. On the day of the mediation, they simply “join” with a computer/laptop, smartphone (iPhone or Android), a tablet, or even a landline telephone (but it will be audio only). What works best? A laptop. Virtually all laptops have cameras. A smartphone is acceptable, but the video “boxes” are really small, and sound is not great. If someone uses a smartphone, they may have to mute when they are not talking.
B. If an opening statement is made, make it short and to the point… no more than four or five points in bullet fashion. Try to address the crucial claims/defenses head-on. If you start out by saying “I’m going to give you some significant background,” you may get muted! Communicate Before the Mediation Supplying all needed material for evaluation in plenty of time before the mediation is important with any form of mediation. However, it is vital in “internet mediation.” Swapping new exhibits using the internet is cumbersome. It is not impactful. Most mediators see time and again parties presenting new information at a mediation. It often rankles the other party. Importantly, many real parties in interest (insurance companies, etc.) have evaluation procedures which take time. So plan ahead. Submit a position paper with exhibits well ahead (weeks if possible). Warn the other side if there is expected to be late arrival of some information. My observation is both plaintiffs and defendants are best served by submitting a position paper to the other side(s) before mediation. What to Supply to the Mediator There really is no change here. The most important thing to submit to a mediator ahead of time is a concise mediation statement. Even in complex litigation, the issues can generally be stated compactly in a position paper. Most mediators respect brevity and especially respect candid discussion of strengths and weaknesses. Submitting depositions or pleadings may only increase the cost of the mediation and may not be needed (depending upon the case).
See you on the ‘net!
Do a Dry Run Most mediators will have support staff (we have 3) who can walk the parties through the process days or even weeks before the mediation. It is worthwhile…especially for a lay person who may be unfamiliar. Limited Opening When doing in-person mediations, the writer generally favors
May 2020
DICTA
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HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan
COURTNEY WALKER This month’s “Hello, My Name Is…” column shines a spotlight on a Barrister who is already active and tremendously valuable in the KBA community, Courtney Walker. Courtney graduated from the Duncan School of Law at Lincoln Memorial University in May of 2018. She is an Associate Attorney at Hodges, Doughty, and Carson, PLLC, where she practices primarily in the areas of financial institution representation, bankruptcy, and creditor’s rights litigation, and she is also a member of the KBA, TBA, ABA, and ETLAW. Lastly (but certainly not least), Courtney is the Co-Chair of the Barrister’s Membership Committee and Co-Chair of the KBA New Lawyers Section.
Who would you describe as your hero? My parents are my heroes for different reasons, but at this stage in my life, my mom really sticks out to me. I think one of the most interesting things about being a parent is that you gain a new appreciation for your parents. My mom is truly a rockstar who had (and still has) big dreams for her children. I am amazed by what she sacrificed to ensure that my brother Westlee and I succeeded. Tell me about your spouse. My husband, Bob Dziewulski, is also an attorney in Knoxville. We were study partners in law school and started dating during our 2L year. Our story is absolutely disgustingly cute, but it is my favorite story to tell. He
Where are you from? I am originally from Speedwell, which is a small, unincorporated town about an hour north of Knoxville. really is my best friend.
From the photos you sent me, you have an incredibly adorable daughter. Yes, I have a five-year-old daughter that I am blessed to co-parent with her mom, Cat, and my husband, Bob, and one little guy on the way. Congratulations! Do you have any pets? We have what we believe is a Labrador/Poodle mix that we adopted last November. His name is Cash. He has tons of energy, loves to be outside, and thinks he is a very small lapdog despite his size. Thank you for your time, Courtney. If you haven’t met Courtney yet, I hope you get a chance to chat with her at a future event! What university or college did you go to for undergrad? Tennessee Technological University, where I majored in Agribusiness Management. What brought you to Knoxville? Growing up, we came to Knoxville to celebrate. Events like graduations, birthdays, good grades, etc., led to us all loading up and making the drive to the “big city.” I vividly remember being awestruck by the apartments directly behind East Town Mall on one of these trips. I proudly proclaimed that I would live in those apartments one day so that I could go to this mall anytime I wanted. Oh, how things have changed! To me, Knoxville has been and always will be a symbol of celebration and happiness. What do you enjoy most about your job? Working alongside those at my firm is the best part of my job. I feel really lucky; we are all family.
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DICTA
May 2020
PRACTICE TIPS By: David M. Eldridge Eldridge & Blakney, P.C.
JOINT DEFENSE AGREEMENTS– HOW TO DEAL WITH THE POTENTIAL FOR A CONFLICT OF INTEREST Introduction I cannot remember a time when I was NOT participating in a joint defense agreement ( JDA) with other lawyers on behalf of one of my clients. JDAs are a very useful tool to share information, work product, legal theories, and defense strategies, knowing that this information cannot be disclosed outside the group without my and my client’s consent. I have been fortunate never to have had to litigate such questions as whether a joint defense agreement actually exists, what it protects, or whether I could be disqualified from representing my client because a former member of a joint defense group is now cooperating against my client and I am going to have to cross examine that former ally. Yet, these nightmare scenarios have occurred around the country. 1This article will address measures to help minimize these dangers. The Legal Basics of the Joint Defense Privilege We are all of course familiar with the attorney-client privilege and that it extends to “(c)onfidential disclosures by a client to an attorney made in order to obtain legal assistance.” 2 A joint defense extension of the attorney-client privilege has been applied to confidential communications shared between codefendants that are “part of an ongoing and joint effort to set up a common defense strategy.”3 If contested, the burden of establishing the applicability of the privilege is upon those seeking to claim the privilege. 4 The privilege may apply outside the context of actual litigation and therefore the “joint defense” privilege” is sometimes also referred to as the “common interest privilege.”5 The privilege extends only to exchanges of information among persons with the shared interest.6 Participation in such an agreement does not require the disclosure of information to the other participants, it simply protects from disclosure what is shared by other participants without their consent. Any participant remains free to disclose his or her own communications.7 A JDA doesn’t have to in writing to be valid.8 The question whether an oral or written JDA is preferable is much debated and one I discuss with other counsel in every case in which a JDA is appropriate. That question often turns on whether it is a case where I know and trust the lawyers representing other potential targets of an investigation or co-defendants and the sensitivity of the client’s information we are sharing. For example, I have been involved in cases where after operating under an oral JDA for a number of months, the counsel involved elected to memorialize it in writing as we prepared for a mock trial in which several of the defendants were going to do a short video-taped direct examination. Preventing Disqualification if A Member of the JDA Withdraws and Cooperates Against Your Client Because the joint defense privilege is an extension of the attorney client privilege, to avoid the prospect of being disqualified if a JDA member later becomes a witness against your client, it is important that all participants understand that participating in a JDA does not create an attorney client relationship with other lawyers participating in the JDA. It is also important that the clients waive any conflict that could arguably be created as a result of participation in the JDA. Whether written or oral, that understanding needs to be clearly communicated to the clients participating in the JDA. The following paragraph from a JDA we have used makes these points clearly.
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Client Representation. The undersigned agree that each has an obligation to zealously represent his or her own client to the exclusion of all other interests. Thus, before the conclusion of this litigation, each attorney may need to and is free to take action which may be contrary to the other signatories to this Agreement. These actions include but are not limited to: (1) generating and disclosing evidence or information to third parties (apart from information protected by this agreement), and/or (2) cross-examining other clients subject to this Agreement at trial or other proceedings, should such clients testify. Each client agrees that the other clients and attorneys involved in this Agreement may take those actions without any client seeking disqualification of the attorney involved on the basis of any information shared under this Agreement or any claim of a conflict of interest or duty of loyalty or client confidences arising from this Agreement. Further, nothing in this paragraph shall restrict the right of any counsel to use or disclose in any examination or cross-examination of any witnesses (including the parties below) any joint defense information or material provided under this Agreement by such party itself, unless such information or material also contains or references joint defense information or material provided by another party. Conclusion The above quoted excerpt contains the prophylactic points all clients participating in a JDA need to understand to mitigate the disqualification issue. JDAs are an invaluable tool in effectively representing your client in multi-defendant cases – both civil and criminal. Use them but use them wisely to make sure you can continue to represent your client to the conclusion of the matter.
See for example, United States v. Weissman, 1996 WL 737042 (SDNY Dec 26, 1996) (finding evidence insufficient to establish that an oral JDA protected Weissman’s incriminating statements to his employer’s counsel in the presence of his lawyer. Weissman’s lawyer testified that the company counsel agreed that their meeting would be under a JDA, and company counsel testified otherwise); United States v. Henke, 222 F3d 633 (9th Cir. 2000) (Henke’s conviction reversed because his counsel refused to cross examine former member of JDA with this client turned cooperating witness about contradictory statements made while witness was a part of the JDA. Court found that his counsel’s conflict of interest impaired Henke’s Sixth Amendment right to cross examine the witnesses against him); United States v. Stepney, 246 F.Supp. 2d 1069 (N.D. Cal 2003) (to avoid conflicts developing during trial resulting in the disqualification of co-defendant’s counsel, the District Court ordered, sua sponte, counsel to submit a written proposed JDA to the court and directed how it should be revised). 2 United States v. Moss, 9 F.3d 543, 550 (6th Cir. 1993) (quoting Haines v. Liggett Group, Inc. 975 F.2d 81, 94 (3d Cir. 1992) (quoting Fisher v. United States, 425 U.S. 391, 403 (1976))). 3 Id. 4 See id. 5 John B. v. Goetz, 879 F. Supp. 2d 787, 898 (M.D.TN 2010) (quoting In re Grand Jury Subpoena, 274 F.3d 563, 572 (1st Cir. 2001) (citing United States v. Schwimmer, 892 F.2d. 237, 243 (2d Cir. 1989)). 6 Id. (citing In re Santa Fe Intern. Corp., 272 F.3d 705, 712 (5th Cir. 2001); In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990); United States v. Duke Energy Corp., 214 F.R.D 383, 388 (M.D.N.C. 2003)). 7 Id. (citing In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910,922 (8th Cir. 1997)). 8 Id (citing In re Grand Jury Subpoena, A Nameless Lawyer, 274 F.3d 563, 569-70 (1st Cir. 2001)). 1
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MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Shannon van Tol Vice President and General Counsel Apex Bank
THE PAYCHECK PROTECTION PROGRAM: FORGIVABLE LOANS In its recent battle to salvage the economy and businesses during the Coronavirus pandemic, the federal government enacted the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) on March 27, 2020. The CARES Act contains many measures that offer financial relief and assistance to individuals, families, businesses, the health care system and other distressed sectors of the economy. The focus of this article is the new Small Business Administration (“SBA”) loan program called the Paycheck Protection Program (“PPP”). For businesses that qualify, the PPP offers no fee, low-interest loans with repayment deferred for six months and the potential to have amounts spent during an eightweek period on payroll costs, mortgage interest, rent, and utility expenses completely forgiven. Expanded Eligibility Requirements Unlike other SBA loan programs, the PPP does not limit eligibility on gross receipts or assets – only number of employees.1 The PPP also does not require that the borrower establish an inability to obtain credit elsewhere and does not require personal guarantees or collateral.2 Any business concern, sole proprietor, eligible self-employed individual, independent contractor, nonprofit organization under 501(c) (3) of the Internal Revenue Code, veterans organization under 501(c) (19) of the Internal Revenue Code, or tribal business that employs 500 or fewer employees is eligible to apply for a PPP loan.3 In some limited circumstances, businesses with more than 500 employees may qualify.4 For businesses in the hospitality and food industries, eligibility can be determined by store location.5 As long as a hospitality or food business does not employ more than 500 employees per physical location, each location may be eligible for the loan. To be eligible, borrowers must have been in operation on February 15, 2020, and paid employee salaries and payroll taxes or paid independent contractors.6 Borrowers must also apply no later than June 30, 2020, before the $349 Billion allocated for the program is depleted,7 and make the following good faith certifications: I.
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Loan Terms The initial term for PPP loans is 2 years and the initial interest rate set by the SBA is 1% with the rate never to exceed 4% under the CARES Act.11 Payments on the loan are deferred for six months, and employers who use the loan proceeds as required and maintain their workforce qualify for 100% forgiveness of the loan.12 Forgiven amounts are not taxable as income.13 All of the usual SBA loan initiation fees are waived (with lenders to receive reimbursement for processing fees from the government).14 Under the CARES Act, the maximum loan amount for a borrower under the program is the lesser of $10 million dollars or two and a half time the borrower’s average monthly15 payroll costs16 plus the amount of any Economic Injury Disaster Loan (“EIDL”) the borrower received on or after January 31, 2020, that was for payroll costs and is being refinanced under the program less any advance received on the EIDL loan.17 The Act specifies that payroll costs “shall not include . . . the compensation of an individual employee in excess of an annual salary of $100,000, as prorated for the covered period,” so $100,000 is the maximum annual salary for an individual employee that can be included in the payroll costs calculation.18 The Act also requires that compensation for employees who principally reside outside the United States be excluded from the payroll costs calculation.19 During the covered period, the loan must be used for: payroll costs; “costs related to the continuation of group health care benefits during periods of paid sick, medical or family leave and insurance premiums,” “salaries, commissions or similar compensations,” “payments of interest on any mortgage obligation (which shall not include any prepayment of or payment of principal on a mortgage obligation),” rent, utilities, and “interest on any other debt obligations that were incurred before the covered period.”20 II.
that the uncertainty of the current economic conditions makes necessary the loan request to support ongoing operations; that funds will be used to retain workers and maintain payroll or make mortgage payments, lease payments and utility payments; that the borrower does not have another application pending for a PPP loan for the same purpose; and that the borrower has not received a previous PPP loan for the same purpose.8
Household employers (of housekeepers or nannies) are not considered businesses so are not eligible.9 Businesses engaged in illegal activities, or owned by persons who are incarcerated or on probation or parole or charged with crimes or convicted of felonies within the last five years are not eligible. Businesses owned or controlled by persons who have ever defaulted on an SBA loan or who have defaulted on any other federally backed loan within the last seven years also are not eligible.10
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the amount the employees earned during the most recent full quarter of employment before the loan.27 The forgiveness amount will be reduced by the amount of any employee salary and wage reduction in excess of 25% during the covered period.28 However, employers can avoid reduction of the forgiveness amount based on decreases in employee salaries or wages that occurred between the dates of February 15, 2020 and April 26, 2020, by increasing employee salaries and wages to prior levels to eliminate the reduction before June 30, 2020.29 IV. How to Apply PPP loans can be obtained through SBA approved lenders or other participating federally insured banks, credit unions, or farm credit institutions. The application is simple, but applicants must still provide documentation to verify the number of full-time equivalent employees on payroll, payroll costs, mortgage interest, rent, and utility payments and attest to the accuracy of the information submitted.
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III. Forgiveness All loan proceeds used for payroll costs, rent, utilities and mortgage interest within the eight-week period following the loan are eligible to be forgiven.21 However, in light of the expected high demand for the loans and the core purpose for the loans (to keep workers employed), the SBA has determined that “no more than 25 percent of the loan forgiveness amount may be attributable to non-payroll costs.”22 The CARES Act also provides that the amount forgiven shall be reduced in the event workforce is reduced or if there is more than a twenty-five percent (25%) decrease in salaries and wages for employees making less than $100,000 per year during the eight-week “covered period” following origination of the loan.23 Importantly, borrowers can avoid reductions of the forgiveness amount based on reductions in workforce or salaries and wages that occurred during the period from February 15, 2020, through April 26, 2020, by re-hiring or increasing salaries and wages to prior levels on or before June 30, 2020.24 With respect to workforce reductions, the CARES Act requires that the amount forgiven be reduced by the same percentage that the borrower’s average full-time equivalent employees per month was reduced during the covered period as compared to either the average monthly workforce calculated using January and February, 2020, or the average monthly workforce calculated using the period of February 15, 2019, to June 30, 2019, at the borrower’s option.25 Again, employers can avoid having the forgiveness amount decreased based on any reduction in workforce that occurred between February 15 and April 26, 2020, by quickly rehiring employees so that the workforce reduction is eliminated before June 30, 2020.26 The CARES Act also provides that the forgiveness amount shall be reduced in the event salaries or wages of employees making less than $100,000 annually are reduced by more than twenty-five percent (25%) of
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116 P.L. 136 at §1102(a)(2)(36)(D). Id. at §1102(a)(2)(36)(I) and (J). Id. at §1102(a)(2)(36)(D)(i) and (ii). Businesses in industries with an SBA-established size standard that exceeds 500 employees are eligible so long as they do not employ more than allowed under the size standard. Id. at §1102(a)(2)(36)(D)(i)(II); see 13 C.F.R. §121.201for SBA employee size standards. Id. at §1102(a)(2)(36)(D)(iii). Id. at §1102(a)(2)(36)(F)(ii)(II). Id. at §1102(a)(36)(A)(iii) and (D); §1107(a)(1). Id. at §1102(a)(2)(36)(G). Payroll Protection Program Interim Final Rule, SBA Docket No. SBA 2020-01, Apr. 2, 2020, www.sba.gov/document/policy-guidance---ppp-interim -final-rule (“PPP Interim Final Rule”) at 7, Sec. III.2.b.ii. Id. at Sec. III.2.b.i., iii., and iv. Id.; 116 P.L. 136 at §1102(a)(2)(36)(L). 116 P.L. 136 at §1102(a)(2)(36)(M) and §1106. 116 P.L. 136 at §1106(i). 116 P.L. 136 at §1102(a)(2)(36)(H) and (P). The average monthly payroll costs are determined using the monthly payroll costs incurred during the one-year period before the loan. 116 P.L. 136 at §1102(a)(2) (36)(E)(i)(I). Alternatively, if the borrower was not in business between February and June, 2019, payroll costs for January and February, 2020 will be used to determine the average monthly payroll costs. Id. at §1102(a)(2)(36)(E)(i)(II). Payroll costs are defined to include payment for the following: “salary, wage, commission, or similar compensation; . . . cash tip[s] or equivalent; . . . vacation, parental, family medical, or sick leave; . . . allowance for dismissal or separation; . . . the provision of group health care benefits, including insurance premiums; . . . any retirement benefit; or . . . State or local tax assessed on the compensation of employees.” Id. at §1102(a)(2)(36)(A)(viii)(I). Payroll costs do not include taxes imposed or withheld under the Internal Revenue Code during the covered period nor qualified leave benefits for which a credit is permitted under the Families First Coronavirus Response Act. Id. at 1102(a)(2)(36)(A)(viii)(II)(bb), (dd) and (ee). Id. at §1102 (a)(2)(36)(E). If the EIDL was used for payroll costs, it must be refinanced as part of the PPP loan. If the EIDL was not used for payroll, the same purposes of the PPP loan, the EIDL loan will not affect eligibility. PPP Interim Final Rule at 15-16, Sec. III.2.r.vii. 116 P.L. 136 at §1102(a)(2)(36)(A)(viii)(II)(aa). Id. at §1102(a)(2)(36)(A)(viii)(II)(cc). Id. at §1102(a)(1)(F). Id. at § 1106(b). PPP Interim Final Rule at 13-14, Sec. III.2.o. 116 P.L. 136 at §1106(d)(2) and (d)(3). Id. at §1106 (d)(5). Id. at §1106(d)(2)(A). Id. at §1106 (d)(5). Id. at §1106(d)(3). Id. Id. at §1106 (d)(5).
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. May 2020
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TAKE CARE TUESDAY Virtual Wellness Series
The KBA understands the difficult decisions members are making every day during the COVID-19 crisis. To assist members during this time, the KBA is offering several special programs as part of a virtual series called Take Care Tuesday. These events will be conducted through Zoom, which is free to use, but due to security precautions, members must register through www.knoxbar.org if they wish to participate.
www.knoxbar.org/taketaketuesday
Take Care Tuesday programs are FREE except CLE courses are available to members for $20 per course. Town Hall with The Honorable Sharon G. Lee, Tennessee Supreme Court Friday, May 1 @ 12 ‐1 pm A special LAW DAY edi�on of Take Care Tuesday will be a Town Hall with Jus�ce Sharon Lee of the Tennessee Supreme Court. This live Zoom webinar will be held on Friday, May 1, 2020, from 12‐1 p.m., and will feature Jus�ce Lee discussing recent Supreme Court orders in addi�on to providing an update about court opera�ons during the COVID‐19 pandemic.
Estate Planning Attorneys Need Right Now
This CLE Webinar program has been approved for one hour of General "Distance Learning" CLE Credit.
Tuesday, May 5 @ 12‐1 pm Featuring: Donald J. Farinato, Hodges, Doughty & Carson
As a�orneys, we focus on mee�ng the needs of our client. But have we taken care of ourselves? The current COVID‐19 pandemic has illustrated the uncertainty of life, and the wide‐reaching impact that an unexpected event can have. It is important for a�orneys to have their own estate plan in order. This seminar will conduct an overview of estate planning topics, with an emphasis on items of importance for a�orneys and their loved ones.
Cinco de Mayo Virtual Social Hour Tuesday, May 5 @ 5‐6 pm Nacho ordinary Social Hour! Celebrate Cinco de Mayo with the KBA during a virtual social hour on Tuesday, May 5, at 5 p.m. as part of our Take Care Tuesday series. This is an informal gathering on Zoom that will allow members to connect virtually with other colleagues in the legal community.
Financial Wellness Update with The Trust Company Tuesday, May 12 @ 12‐1 pm A�end this session for an update on the markets, the impact on your investment accounts, and things you should and shouldn’t do at this �me. Ma� Prince, a representa�ve from The Trust Company, will offer nancial planning �ps and informa�on about the CARES Act provisions for 401k par�cipants and IRA investors.
Planning for Positive Change: Strategies for Self-Care Tuesday, May 12 @ 4 ‐5 pm Featuring Booth Andrews, Knoxville aƩorney
This CLE Webinar program has been approved for one hour of General "Distance Learning" CLE Credit.
Got serenity? Being a lawyer is stressful, and striking a balance between home and work is par�cularly tricky now. You've read about the stats. And you know your stress level is off the charts. Now what? Healthy strategies for managing that stress are out there and easier and more accessible than they may seem. Knoxville a�orney Booth Andrews will share her personal success story for learning to recover from and deal with stress; including �ps and tools you can use any �me of the day when you are feeling anxious or overwhelmed, together with suggested rou�nes for keeping your body and mind healthy so you can bring your best to life and work.
Register at www.knoxbar.org/TakeCareTuesday 12
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SCHOOLED IN ETHICS By: Alex B. Long Williford Gragg Distinguished Professor of Law U.T. College of Law
LEGAL ETHICS IN A TIME OF PANDEMIC (AND BEYOND) The COVID-19 outbreak has obviously generated a slew of advice and articles concerning how lawyers can adjust to the challenges presented by the pandemic. The situation also raises a host of potential legal ethics issues that some lawyers may be confronting. But while COVID-19 presents some new ethical challenges, the outbreak may also serves as a reminder to lawyers about some well-established ethical duties: Planning for a lawyer’s illness: Lawyers have a duty to diligently represent their client’s interests. This ordinarily means carrying out the representation until its conclusion, despite inconvenience to the lawyer. See TRPC R. 1.3 cmt. [4]. But where a lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent a client, a lawyer must withdraw from the representation. See TRPC R 1.16(a)(2). Most states explicitly provide in their rules of professional conduct that in the case of solo practitioners, the duty of diligent representation requires a lawyer to develop a succession plan for another competent lawyer to assume responsibility for the lawyer’s representation of clients in the event the first lawyer is no longer able to represent a client. See ABA Model R. 1.3 cmt. [5]. Surprisingly, Tennessee’s Rules of Professional Conduct do not contain such language. Despite this omission, it should be beyond dispute that every lawyer– and in particular a solo practitioner - has an ethical responsibility to have a plan in place that, at a minimum, designates another lawyer to review client files and notify clients accordingly in the event a lawyer becomes incapacitated to the point that the lawyer can no longer represent a client. Obviously, the need to have such a plan in place takes on particular importance in the midst of a pandemic. But hopefully the pandemic will serve as a reminder to lawyers that they need to have such a plan in place even in the best of times. The need for a disaster plan more generally: According to a 2019 ABA survey, only 41% of lawyers reported that their firms had plans for disaster recovery or business continuity.11. While such plans are common in BigLaw, less than half of lawyers responding from firms with fewer than 50 lawyers had such a plan. Only 21% of solo practitioners reported the existence of such a plan. As firms scrambled to cobble together a plan at the outset of the COVID-19 outbreak to keep operations running, the practical benefits of having such a plan have probably became apparent to more lawyers. While a lawyer may not have an ethical obligation to have a pandemic plan in place, there is a strong argument that a lawyer’s duties of competence and diligence require a lawyer to plan ahead for other disasters that might impact client representation in the future. Confidentiality and Zoom shortcomings: By now, many lawyers have gone through a crash course in Zoom, Skype, or other video conferencing services (with varying degrees of success). This experience has perhaps illustrated why a lawyer’s duty of competence requires that a lawyer “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” TRPC R. 1.1 cmt. [8]. But beyond demonstrating to lawyers how they may be able to effectively communicate with clients, judges, and other lawyers through these types of services, the recent experience with video conferencing also highlights some of the potential confidentiality risks posed by such technology. Following the explosion in Zoom usage stemming from the COVID-19 outbreak, there were numerous reports concerning the phenomenon of “Zoom bombing,” in which hackers were able to invade live Zoom meetings. Other stories reported that some Zoom meeting videos were posted online without the participants’ consent due to a security vulnerability involving how the videos are saved to a participant’s computer. (Zoom has since worked to tighten up its security and there are simple steps that lawyers and others using Zoom can take to limit access to hackers.22) Finally, there is the much-simpler-to-understand potential problem created by the fact that everything that is said or typed in a Zoom meeting can be recorded, thus making the content of Zoom meetings potentially accessible to hackers.
Rule 1.6(d) of the Tennessee Rules of Professional Conduct requires that a lawyer “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Now that some of the potential security issues involving Zoom are public knowledge, lawyers should be expected as part of their ethical obligations to adopt the reasonable precautions necessary to protect client information. But the Great Zoom Experiment should also once again bring home to lawyers the importance of taking cybersecurity seriously and revisiting the security measures law offices have in place to protect client information (even in the absence of a pandemic). On April 10, 2020, the Pennsylvania Bar Association issued a formal opinion that addresses many of these same issues and provides potentially useful guidance for lawyers.33 Supervision of subordinate lawyers and non-lawyer assistants: Finally, in that same 2019 ABA study, some lawyers reported that their firms had policies prohibiting lawyers from telecommuting. But the majority of lawyers said that they telecommute at least some of the time and that 88% of those that telecommute do so from home.44 That number probably reached close to 100% during the recent outbreak. The recent pandemic has most likely presented firms with the challenge of making sure that all lawyers within a firm remain connected and that junior lawyers and non-lawyers in particular are receiving the appropriate level of supervision as they engage in social distancing. TRPC Rules 5.1 and 5.3 speak specifically to the responsibilities of law firm partners and those with similar authority when it comes to supervising subordinate lawyers and non-lawyer assistants. The need for firm partners and those with similar authority to remain accessible to subordinate lawyers and non-lawyer assistants may be particularly acute during this time. But the recent outbreak once again should serve as a reminder of the important role that this ethical obligation plays in terms of providing competent representation to clients. ***** On an somewhat related note, I wanted to publicly thank some members of the Knoxville Bar Association for helping out law students during the COVID-19 outbreak. As everyone probably knows, law schools had to switch to online teaching beginning in March. While I was pleased with how well my students responded to the change, the change definitely posed challenges in terms of keeping students focused in a virtual setting while they worried about the pandemic. I taught Employment Law this semester, and in an effort to keep my students engaged (particularly the third-year students who are getting ready to graduate), I reached out to some members of the KBA who practice in the area to help provide my students with some practical insight into their practices. These folks were willing to take some time out of their schedules and record some short videos that my students watched and commented on. So, I just wanted to publicly thank those lawyers who helped out, including Brandon Morrow, Paul Wehmeier, Jennifer Morton, Garrett Franklyn, Melissa Carrasco, Allison Jackson, Ashley Trotto, and Al Holifield.
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Despite Coronavirus, Most Law Firms Lack Disaster Plans, ABA Journal (March 23, 2020), https://www.americanbar.org/news/abanews/aba-news-archives/2020/03/ coronavirus-and-disaster-response/. Jefferson Graham, Use Zoom? These 5 safety tips can keep the ‘Zoombombing’ hackers away, USA Today (April 2, 2020), https://www.usatoday.com/story/ tech/2020/04/02/how-to-keep-zoombombing-hackers-away-zoom-safetytips/5113080002/ ). https://www.lawsitesblog.com/wp-content/uploads/sites/509/2020/04/PBAFormal-Opinion-2020-300-Ethical-Considerations-for-Attorneys-Working-Remotely. pdf. Despite Coronavirus, Most Law Firms Lack Disaster Plans, ABA Journal (March 23, 2020), https://www.americanbar.org/news/abanews/aba-news-archives/2020/03/ coronavirus-and-disaster-response/.
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. May 2020
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PA S S I N G B Y By: Katie Ogle McDonald, Levy & Taylor, PLLC
By: Nate Ogle
Knox County District Attorney General’s Office
LOCAL RESTAURANTS CREATIVELY MANEUVER COVID CRISIS You may now truly understand the meaning of the term “cabin fever” if you have been fortunate enough, as I am, to find yourself working from home with two anxious toddlers and a geriatric dog that wants everyone gone so he can continue with his daily nap schedule. In this situation, it is best to find a reliable way to ease the household tension. My solution, of course, is to use those hard-earned funds to stimulate the economy with comfort food take out from some of our favorite local restaurants. While we find ourselves in unusual circumstances at the moment, several of our beloved local eateries and holes-in-the-wall have trudged forward ingeniously to ensure our self-imposed quarantine doesn’t prevent us from staying fat and happy. This month’s article is a celebration of some of the creative ways local restaurants have served customers in order to continue to thrive and keep us from reaching our own wits-end in the time of social distancing. Gus’s Good Times Deli, a University of Tennessee campus staple on Melrose Place off Cumberland Avenue, has exhibited immense creativity in its attempt to make sure the doors stay open for a fortieth year. The place is legendary for its burgers, steamed sandwiches, hot fries, and the awesome collection of local sports memorabilia. The post-game atmosphere, not to mention the weekend late-night people watching, has always been unparalleled on the strip. Despite its status, only days ago, the restaurant posted via Twitter it was struggling due to the loss of the student population on campus and the forced closure of its doors during the crisis. The eatery asked for community support during these difficult times. It posted pictures of its t-shirts, koozies, available gift certificates, and big, bold photographs of its memorable menu with a variety of hangover-prevention comfort classics. According to that same Twitter account, within twenty-four hours, it nearly ran out of fries due to the outpouring of support from the community. Even t-shirts became a hard-to-come-by item. Once again, this community of volunteers came out in droves to make sure this local favorite would continue to be there for another year of fall fun for the next generation of students.
opportunity to load up in the car for a mid-day or evening break with the kids. Speaking from experience, our family was recently very impressed with the smoked ribs and fantastic sides from the take-out family pack offered at the curbside food truck from the friendly staff. Some of our favorite Mexican eateries have, on top of offering food-to-go, are also currently providing margaritas and other happy hour favorites in takeout containers. Soccer Taco, Casa Don Gallo, Chez Guevara, and Cancun are just a few of the places friends in the community have been able to pick up their favorite drinks that make home isolation a bit more bearable. Several of our community eateries have also gone above and beyond by supporting local first responders who are still out working to make sure we remain safe and have access to emergency services. Waffle House, a southern highway staple, and Archer’s BBQ, a local chain known for its excellent take on classic Memphis smoked BBQ, recently served officers with the Knoxville Police Department. These same officers continue to work their beats and investigate crimes in our area despite the threat COVID-19 poses to their health during these interactions. If you are lucky enough to have the economic opportunity to continue to support our local establishments, this is a great time to do so. We have enjoyed fellowship and great memories with friends and family over the years at many of our local eateries, and during this time they need our patronage more than ever. I hope you all will join our family in continuing to support neighborhood establishments so that we might enjoy full stomachs and empty glasses together again when this time of social isolation becomes a distant memory.
Calhoun’s, and the rest of the Copper Cellar family of restaurants, has also been particularly creative as of late. At the Calhoun’s Kingston Pike location near Pellissippi Parkway, a giant food truck has been set up in the parking lot to provide easy-to-go BBQ and delicious drink options. It has been very creative with family meal kits available for pick-up to be cooked at home with the full provision of sauces and seasonings you expect for its classic menu items. New lunch combo specials have also been debuted to provide the league of new work-from-home parents an
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L E G A L U P DAT E By: Chad Hatmaker Woolf McClane
EMERGENCY FMLA AND PAID SICK LEAVEWHAT EMPLOYERS NEED TO KNOW On March 18th President Trump signed the Families First Coronavirus Response Act. This new law requires certain employers to provide emergency limited paid and unpaid leave under the FMLA and emergency paid sick leave in certain limited circumstances. Some of the highlights are discussed below. Beginning and End Date: Both the expanded FMLA and the emergency paid sick leave provisions take effect on April 2, 2020 and expire on December 31, 2020.
Is expanded FMLA leave job protected? Yes, the employee must be restored to the same or equivalent position. However, there is an exception for employers with less than 25 employees, if the employee’s position no longer exists due to operational changes related to the public health emergency, such as a reduction in force or restructuring because of a downturn in business. What qualifies for emergency paid sick leave? The inability to work or telework due to any of the following: 1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19; 2. The employee has been advised by a health-care provider to self-quarantine because of COVID-19; 3. The employee is experiencing symptoms of (you guessed it) COVID-19 and is seeking a medical diagnosis; 4. The employee is caring for an individual (NOT limited to a family member) subject to a quarantine or isolation order, or advised to quarantine or isolation; 5. The employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions; or 6. The employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor (a catch-all!).
What Employers Are Covered? Both provisions apply to all employers with fewer than 500 employees, including public agencies. Both allow employers of an employee who is a healthcare provider or an emergency responder to elect to exclude the employee from these two provisions. Both also allow subsequent Department of Labor regulations to exempt small businesses with fewer than 50 employees if applying these provisions would jeopardize the viability of the business. Who Is Eligible? Under the FMLA provision, both full and part-time employees who have been on the employer’s payroll for 30 days are eligible. But the paid sick leave provision applies to all employees, regardless of length of service. What reason qualifies for the FMLA expansion? This is limited to an employee who cannot work or telework due to the need to care for the employee’s minor son or daughter if the minor child’s school or place of childcare has been closed, or the childcare provider is unavailable due to a “public health emergency” with respect to COVID-19 declared by a federal, state or local authority. Basically, it is “caregiver leave.” Is any of this expanded FMLA leave paid? Yes. The first 10 days (two weeks) are unpaid, but an employee can substitute accrued paid leave, including the new emergency paid sick leave. The remaining leave ( a maximum of 10 weeks, as the total available is still 12 weeks) is paid at 2/3 of the employee’s regular rate, for the number of hours the employee would be otherwise scheduled to work. This pay is capped at $200 a day and $10,000 total.
How much emergency paid sick leave is required? 80 hours maximum, but available immediately, so no accrual requirement. Paid at the regular rate of pay for reasons 1-3 above (employee is sick), with a maximum of $511 a day and $5,110 in total. For reasons 4-6 above (caregiver reasons) it is paid at 2/3 the regular rate of pay, with a maximum of $200 a day and $2,000 in total. Can I require employees to use paid leave under an existing policy before using this new emergency paid leave? No. The emergency paid leave is supplemental. Does the unused emergency sick leave carryover? No, the unused leave does not carryover to the next year. It also does not have to be paid upon termination under this law, but your state law might require it to be paid, so check that before you make a final decision. Under current Tennessee law, so long as you state in the policy that it will not be paid upon termination you do not have to pay it. Do I get a tax break? Potentially under both the expanded FMLA and the emergency sick leave provisions. Talk with a tax lawyer, or your accountant. Of course, you cannot retaliate against an employee for exercising his or her rights under these new laws. You will also have to post a Notice detailing these laws. The one-page poster for private employers is available on the Department of Labor’s website. There are a lot of issues and open questions with these sweeping changes. Hopefully, this guidance will help you navigate these uncharted waters.
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THE GLOBAL PANDEMIC AND THE KNOXVILLE PRACTICE OF LAW Over the last weeks, the world as we have known it has changed. Since the COVID-19 pandemic first broke, we have been bombarded with daily news of closures, discontinued services, and the dangers of social interaction. “Social distancing,” a phrase previously unknown, has become not only a functional part of the conversation, but the new norm defining acceptable human interaction. In this maze of new restrictions, cautions, and fears, attorneys remain a necessary and even “essential service.” Perhaps in such dark times, lawyers are needed even more than usual to stand guard and protect the interests and secrets of our clients with which we are entrusted. In the shadow of the pandemic, the Knoxville practice of law continues. OPERATIONAL CONTINUITY As a threshold matter, to serve our clients, especially in these challenging days, law firms must maintain a functional continuity of operations. Even for firms that have Emergency Operations Plans that anticipate events such as bad weather or power outages, the pandemic presented issues that are beyond the scope of any such plan; the events and restrictions of the pandemic have raised unimaginable challenges.
A recent Executive Order issued by Governor Bill Lee provides a solution to the quandary of obtaining notarized signatures on legal documents by authorizing state notaries to authenticate the identity and signatures of signatories remotely.2 This Order essentially allows the signatory to present proof of identity and execute documents before the notary via video conferencing, and the notary the authority to notarize that signature as if it had been witnessed in person. Such adaptation of notaries’ power significantly promotes the normalcy of handling such things as business transactions, real estate closings, and civil settlements. Through the use of mobile technology, lawyers now have the capability of essentially transporting their office to wherever they might be. Paper files have largely been replaced by digital filing systems that afford counsel access to their file cabinets from the screen of their laptop computer. Word processing capabilities allow for routine document creation, editing, and sharing from any location, and integrated software can reroute client calls to counsel’s remote location through their computer, thereby maintaining seamless communications between attorney and client. Such innovations facilitate the continued practice of law.
Either out of an abundance of caution, or because of the shelter at home order, most Knoxville firms have limited the option of attorneys and staff reporting to the office for work. Most have transitioned to a model of working remotely. While this is a new concept to the Knoxville market, there have been “cloud based” law firms in larger metropolitan areas for some time. Because of the pandemic, Tennessee state and federal courts have adopted various policies that support the national effort to curb the spread of the COVID-19 virus, while continuing to maintain some measure of case flow. Such adaptations by the courts include the use of video conferencing in certain matters and adjustments of trial dockets.1 As the challenges to the practice of law due to the pandemic continue, they must be tempered with the need to keep litigation matters progressing. While such things as factual investigations, filing of pleadings, and the exchange of written discovery can be accomplished without much change, mediations and depositions present unique challenges. Having participated in many mediations, both as an advocate and as a neutral, there is tremendous value to the personal interaction and dynamics that take place during a mediation conference. The same is true for taking deposition testimony; the opportunity to observe the witness during questioning is extremely valuable. Now, however, counsel is faced with the dilemma of whether to stay the action while waiting for the pandemic to end, or to opt for technological substitutes, such as tele-
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phonic mediations and video depositions, in the interest of moving cases forward.
COMMUNICATIONS One significant concern in the virtual law practice is communications – conferencing with colleagues, making work assignments, discussing questions, and being available to clients. Internal communications and generally staying connected to co-workers is essential. Instituting a practice of periodic check-ins or video meetings is a solution that reminds employees who have not seen each other for weeks that they are still part of a larger practice. With the presence of technology such as Web Ex or ZOOM, such virtual face to face meetings are now commonplace. Client communications are the lifeblood of any law practice. Particularly in periods of uncertainty, the need to have accessible legal counsel is crucial. During such a period, even if there have been no significant changes in the status of a matter, circumstances present an opportunity to contact clients regardless of the nature of practice, reassuring them that the firm and their lawyers are at work, available, informed as to the daily situational changes, and accessible. For business clients facing the possibility of layoffs, furloughs, or closures in the wake of new federal laws, the pandemic has brought a tsunami of uncertainty. For the criminal
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COVER STORY By: J. Randall Patterson Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
defendant awaiting arraignment or the family court parent with a pending child custody matter, fear abounds. By reaching out, the attorney has the opportunity to make a positive overture, and the client is reminded that their counsel is a resource and is prepared to guide them through day to day challenges caused by the pandemic. ETHICAL CONSIDERATIONS While the situational uniqueness of COVID-19 pandemic raises some ethical issues not considered when working in the seclusion of a dedicated office deep within a firm, the fundamental ethical obligations of an attorney remain unchanged. As a threshold matter, attorney obligations under the Tennessee Rules of Professional Conduct remain constant. While the pandemic challenges the accustomed routine, counsel cannot ethically ignore the mandates of Rule 1.3 to “act with reasonable diligence and promptness in representing a client” nor those of Rule 1.4 to promptly and meaningfully communicate with the client.3 There are some issues, however, that are unique to working remotely. While working within the firm, we are surrounded by colleagues and staff, who are also bound by ethics and duties to protect client information.4 This safeguarded environment, however, is not the same when working remotely. Even in a dedicated home office, a spouse or child might wander through and observe confidential documents or overhear a privileged conversation. Additionally, home automation devices that function on voice prompts, such as ALEXA, should be muted or turned off in areas where privileged communications or client calls might take place. With such concerns, a home office or work space should be in a dedicated area where access can be controlled, and files secured. Another issue unique to the current situation is the ethical obligations if counsel should be exposed to, or become ill with, COVID-19. Remember that the Rules of Professional Conduct are not suspended in such circumstances, and it is incumbent on every member of the bar to consider the “what if ” of illness and to have a plan in place for the transition of responsibilities to another attorney, subject to client consent until health is regained.
May 2020
MENTAL AND EMOTIONAL BALANCE Most successful attorneys enjoy their profession and are driven by an exacting and focused personality. While that intensity may serve well in the board room, or courthouse, after several weeks of isolation and remote work, maintaining mental or emotional equilibrium will likely become an issue. Just as important as maintaining continuous client service during this pandemic, is sustaining personal balance. To reasonably accomplish this, refrain from becoming a compulsive media consumer. Stay informed, particularly on changes which may impact your clients, but temper the news with common sense. Make efforts to step away from the laptop and engage in some form of physical exercise. Although the national parks and public gyms are closed, the sidewalks are not; go for a walk, run, or bike ride. Although when the pandemic will end is uncertain, as the weather warms Knoxville has abundant opportunities for water sports and activities; get outside. A little sweat is good for the sanity. CONCLUSION History is filled with stories of difficult challenges, and the COVID-19 pandemic of 2020 will ultimately join those chapters. As Knoxville attorneys our goal must be to stay focused on client service, ethically safeguard the confidences entrusted, and strive to provide a continuity of law practice. We have the technology, the resources, and the opportunity to do the remarkable.
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United States District Court for the Eastern District of Tennessee Standing Order No. 20-08 (effective March 30, 2020); Fourth Judicial District of Tennessee Standing Order No. 2020-01 (effective March 30, 2020); Sixth Judicial District of Tennessee General Order (effective March 20, 2020). The KBA has assembled relevant COVID orders/guidance: https://www.knoxbar.org/index.cfm?pg=CourtUpdates.
2 Tenn. Exec. Order No. 26 (April 9, 2020), https://publications.tnsosfiles.com/pub/ execorders/exec-orders-lee26.pdf.
Tenn. Sup. Ct. R. 8, RPC 1.3.
Tenn. Sup. Ct. R. 8, RPC 5.1(b) and 5.3(b)-(c).
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GRAMMAR GRINCH By: Sarah M. Booher OEB Law, PLLC
FAKE NEWS: COMMON GRAMMAR MYTHS YOU SHOULD STOP BELIEVING As we are inundated today with countless Facebook shares and retweeted stories, separating the fools’ gold assertions of the “truth” and “facts” from the real and trustworthy nuggets of the real thing, so must we also sift through the lesser-life altering, albeit still important, alleged rules of our English language.
clarity, variety, and emphasis to our communication. We are not taught this rule as young children in school because it is correct. We are taught it because for the developing mind learning structure and composition, it is very easy to become confused and create sentence fragments with because instead of complete thoughts.
In short, some of these rules are nothing more than shiny objects. They look nice, but they have no real value or function. Generally, these costume jewelry rules are rooted in one of two fallacies. First, they assume that every Latin rule must also translate to the English language. Wrong. Second, they assume that formal English is the only standard, completely ignoring every day, conversational English. Piffle. Let’s get down to it.
MYTH 1: Never End a Sentence with a Preposition. We’ve been taught since we were tiny tots that we can’t end our thoughts in prepositions like on, for, from, by, above, and over. This rule came from a Latin-obsessed, seventeenth-century English writer named John Dryden. In Latin grammar, prepositions always come before the object, but the same is not necessarily true of English. The only preposition at the end of a sentence that the English language cannot abide is one that is superfluous and doesn’t change the meaning of the statement. For example, it is proper to say Where are you?, not Where are you at? because at is unnecessary to convey the meaning of the question and adds no value to the question. We simply do not need to do awkward mental and verbal gymnastics in our effort to avoid prepositions at the end of a sentence, when the entire purpose of a language is to effectively communicate with others! MYTH 2: No Split Infinitives. In short, a split infinitive occurs when an author or speaker separates the word to from its verb with an adverb or an adverbial phrase. Another result of thinking English always follows Latin, most authorities, including the Chicago Manual of Style, Elements of Style, Fowler’s Modern English Usage, and American Heritage Guide, believe some infinitives seem to improve when split. Likewise, split infinitives reduce artificiality and are preferable to jamming an adverb between two verbs. Almost all grammarians use the famous phrase from Star Trek as a shining example of the beauty of the split infinitive. To boldly go where no man has gone before is so much more compelling than To go boldly where no man has gone before because it creates a greater emphasis for the hearer.
Nine out of nine Supreme Court Justices can’t be wrong.
MYTH 4: Like Cannot Be Used to Introduce Examples or to Introduce a Clause. While I wasn’t around then, rumor has it that R.J. Reynolds created a grammatical scandal in 1954 when it rolled out an advertisement that said, “Winton tastes good, like a cigarette should.” Linguistic pearls were clutched and purist brows were patted. Some argued that like is a preposition, not a conjunction, and thus the proper word to use was as. But according to Harvard professor Steven Pinker, like can service as a preposition or a “clausal complement.” In fact, it has been used both ways for over six hundred years by writers such as William Shakespeare and Mark Twain. MYTH 5: Use ‘a’ Before Words that Begin with a Vowel and ‘an’ Before Words that Begin with a Consonant. This rule is not exactly inaccurate so much as it is misleading. The rule actually applies to the sound of the following word more than the first letter of the word. Use a before words that begin with consonant sounds and an before words that begin with vowel sounds. While most sounds or letters are self-evident, others can be more confusing. For example, university begins with a vowel, but has a consonant sound like a y, so it requires a instead of an. Additionally, some words beginning with an h, such as hour, actually have a vowel sound, and so are proceeded by an instead of a. Stay well, gentle readers, and remember that the rules of our communication and language adapt and evolve to suit the ever-changing needs of the world around us. “More gold has been mined from the thoughts of men than has been taken from the earth.” – Napoleon Hill
MYTH 3: Do Not Begin a Sentence with FANBOYS. No, we aren’t talking about comic book nerds. We are talking about the conjunctions for, and, nor, but, or, yet, and so. This rule has no historical foundation, they’ve been used to begin sentences for centuries, even conservative grammarians utilize them, and most grammarians are quick to point out that as many as ten percent of the “sentences in firstrate writing begin with conjunctions.” In a related myth, we are also told not to begin our sentences with because. Again, there is nothing wrong with starting at because. It can lend
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THE NOBLEST PROFESSION By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
UNION NOT DIVISION In December 1939, Fred took a road trip to see his brother-in-law Frank. It took four days for Fred to make the 1,500-mile drive from his home forty miles north of Sacramento, California to Frank’s home in the Texas panhandle town of Spur. But Fred was glad to make the trip. Times had been tough for Frank, and he needed some help. For the past ten years, Frank and millions of people like him had done everything they could to keep body and soul together through the Great Depression.1 At its highest point, unemployment rates exceeded 20%, and industrial production declined 47% in the U.S. alone.2 The Great Depression was bad, but there was something even more insidious heading towards Frank and the inhabitants of the Texas panhandle. The months following Black Thursday were really dry and extremely hot. By 1930, every farmland from Nebraska to Texas was wasting away in the drought.3 Then, in 1931, the winds came, and with them came the “black blizzards,” huge dust storms up to 8,000 feet high that would blacken the skies for days.4 Wearing our shade hats, with handkerchiefs tied over our faces and Vaseline in our nostrils, we have been trying to rescue our home from the accumulations of wind-blown dust which penetrates wherever air can go. It is an almost hopeless task, for there is rarely a day when at some time the dust clouds do not roll over. “Visibility” approaches zero and everything is covered again with a silt-like deposit which may vary in depth from a film to actual ripples on the kitchen floor. I keep oiled cloths on the window sills and between the upper and lower sashes. They help just a little to retard or collect the dust. Some seal the windows with the gummed-paper strips used in wrapping parcels, but no method is fully effective. We buy what appears to be red cedar sawdust with oil added to use in sweeping our floors and do our best to avoid inhaling the irritating dust.5
isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders. . . [I]n the words of Mr. Justice Cardozo: “The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.”23 California’s law (and other state-laws like it) placed an unconstitutional burden on interstate commerce, and therefore Fred’s conviction was reversed. As this column is being written, we too are facing “grave and perplexing social and economic dislocation” of thousands of people whose lives have been turned upside down by a virus: lost health, lost income, lost loved ones. But, as we seek solutions, we must be careful to not lose the connection that holds us all together. As Samuel Slaff, Justice Byrnes, and Justice Cardozo remind us, “in the long run, prosperity and salvation are in union and not division.”
Richard H. Pells, Christina D. Romer, Great Depression, Encyclopedia Britannica, https://www.britannica.com/event/Great-Depression, last visited Apr. 11, 2020. 2 Id. 3 History.com, Dust Bowl (Feb. 21, 2020), https://www.history.com/topics/greatdepression/dust-bowl, last visited Apr. 11, 2020. 4 Id.; see also Donald Worster, Dust Bowl, Texas State Historical Association, https:// tshaonline.org/handbook/online/articles/ydd01, last visited Apr. 11, 2020. 5 Ltr. from Mrs. Caroline A. Henderson, published in The Atlantic (May 1936), available at https://www.theatlantic.com/magazine/archive/1936/05/letters-from-the-dustbowl/308897/. 6 History.com, Dust Bowl, supra n.3. 7 Matthew Weber, Today in History: Huge Dust Storm Disrupts the United States (1934), History Collection, https://historycollection.co/today-history-huge-duststorm-disrupts-united-states-1934/, last visited Apr. 11, 2020. 8 Id. 9 History.com, Dust Bowl, supra n.3. 10 Edwards v. California, 314 U.S 160 (1941). 11 Id. at 171; see also National Defense Migration: Hearings before the Select Committee Investigating National Defense Migration, U.S. House of Representatives, 77th Congress, 10053 (1941), available at https://books.google.com/ books?id=li3RAAAAMAAJ&pg=PA10053&lpg=PA10053&dq=frank+duncan+farm+ security+administration&source=bl&ots=l4EUUNd7A6&sig= ACfU3U0xI9sIK9hpiBhXI3JUynyuWirOJw&hl=en&ppis=_e&sa=X&ved= 2ahUKEwiDoZvcuOHoAhWiUt8KHRSdCHAQ6AEwA3oECAsQKQ#v=onepage&q= frank%20duncan%20farm%20security%20administration&f=false. 12 Id. 13 National Defense Migration Hearings, supra n.11. 14 CA Welfare & Inst. Code § 2615 (1940). 15 National Defense Migration Hearings, supra n.11. 16 Id. at 10204. 17 Edwards, 314 U.S. at 160. 18 U.S. Census, Samuel Slaff (1940), available at https://www.ancestry.com/1940census/usa/New-York/Samuel-Slaff_cygnc. 19 Journal, U.S. Supreme Court (Jan. 13, 1937), available at https://books.google.com/ books?id=uDWc8xSFSUIC&pg=PA119&lpg=PA119&dq=samuel+slaff+attorney+ne w+york+city&source=bl&ots=D-whTETrUO&sig=ACfU3U1BigDWGiKS54hDPT1pblE 2FRWcQQ&hl=en&ppis=_e&sa=X&ved= 2ahUKEwjqsfrU2OHoAhUjheAKHfmpCZcQ6AEwCHoECAsQPw#v=onepage&q= samuel%20slaff%20attorney%20new%20york%20city&f=false. 20 See Oral Argument of the Hon. John H. Tolan, as amicus curiae before the U.S. Supreme Court, in Edwards v. California, available at National Defense Migration, 10215, supra n.11. 21 Edwards, 314 U.S. at 166. 22 Id. 23 Id. at 167 (quoting Baldwin v. Seelig, 294 U.S. 511, 523 (1935)). 1
By 1934, 125 million acres of farmland were completely useless.6 The dust storms began dumping millions of pounds of dust on major cities such as Chicago, Boston, and New York City—making the sky so dark that the Statue of Liberty was hidden from view.7 Thousands died from “dust pneumonia” and historians estimate 500,000 people or more were left homeless and displaced.8 In 1939, the rains started to return, but by then, the entire region— particularly the Oklahoma panhandle and western Texas—were devastated.9 That is exactly where Frank lived.10 Of course, in December 1939, Frank had no way of knowing that the United States was starting to pull out of the Great Depression. He had no way of knowing that the rains were going to return, and the dust was starting to settle—both literally and figuratively. All Frank knew was that he had $20 to his name. His wife was pregnant and due any day. The only work he could find was through one of Roosevelt’s many, government-sponsored relief programs, the Works Progress Administration.11 He also knew that there were jobs in northern California, and that is where his wife’s sister and her minister husband, Fred lived.12 And so, in December 1939, Fred made the 3,000 mile round-trip to pick up Frank and his wife. About six days after they arrived in California, Frank and his wife applied for assistance through the Farm Security Administration, a federal agency establish to help farmers dislocated by the Dust Bowl. They were approved, and Mrs. Duncan received prenatal care and hospitalization for the birth of their baby two weeks after they arrived in California.13 That is when Fred was arrested. His crime? Violation of Welfare and Institutions Code of California: “Every person, firm or corporation, or officer or agent thereof that brings or assists in bringing into the State any indigent person who is not a resident of the State, knowing him to be an indigent person, is guilty of a misdemeanor.”14 Fred was convicted. After all, he admitted to driving to Texas for the express purpose of bringing Frank and his wife to California, knowing that Frank was unemployed at the time.15 He was given a 6-month jail sentence, suspended.16 His case came to the attention of the ACLU, who defended him, and eventually, the case made it to the U.S. Supreme Court.17 That is when Samuel Slaff showed up. Samuel was only 36 when he argued Edwards v. California before the Supreme Court.18 He had been admitted to practice before the Supreme Court only three years before, and this may be his first case.19 Twenty-eight states had enacted “Okie” laws similar to the one in California—prohibiting May 2020
or severely restricting the ability of “indigent” people to enter the state, and Samuel argued these laws were all unconstitutional.20 The Court agreed. The Court recognized that the States were facing the “grave and perplexing social and economic dislocation” of large segments of the population whose lives were upended by the Great Depression and the Dust Bowl.21 The Court reaffirmed that it was entirely appropriate for the States to craft and legislate solutions to address these issues within their borders .22 However, Justice Byrnes, writing for the Court, was clear: the States’ authority to address these issues was not absolute. The one thing a State cannot do is
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barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. The May 13 meeting will be held at 5 p.m. through Zoom. There are many opportunities to get involved, and you are encouraged to contact Barristers President Allison Jackson (ajackson@emlaw.com) or Vice President Amanda Tonkin (Amanda.Tonkin@ssa.gov) for more information. LAW & LIBERTY AWARD NOMINATIONS- DEADLINE EXTENDED: JULY 31, 2020 The Barristers Constitution and School Outreach Committee is seeking nominations for the Law & Liberty Award. The deadline to submit a nomination is July 31, 2020. The recipient should be visible to the legal profession and local bar association, but nominees do not have to be attorneys to qualify for the Law and Liberty Award. The recipient should strive to foster and to maintain good relationships between the legal profession and the community, work to advance the understanding of the law and legal processes in the non-legal community, set an example of good citizenship, make time for volunteer work within the legal profession and otherwise, evidence high professional standards, express concern for the safeguard of personal, political, civil, and religious liberties, and be someone whose work is not normally recognized. Consider those in your firm, local civic and religious organizations, or the community who have worked to improve our legal system and protect civil liberties. Please contact the committee’s co-chairs, Zack Walden (zwalden@eblaw.us) or Mikel Towe (mtowe@ lewisthomason.com) with nominations or questions.
details. Contact Membership Committee co-chairs, Bob Dziewulski (bob@clinchriverlaw.com) or Courtney Walker (CWalker@hdclaw. com), with questions about how to get involved. DIVERSITY SMALL GROUP LUNCHEONS POSTPONED The Diversity small group luncheons and planning sessions have been postponed, and may be moved to virtual meetings, depending on how long quarantine continues. Please watch for updates from the Diversity Committee via email and on the KBA online Calendar or contact committee co-chairs, Soojin Kim (Skim@emlaw.com) or Jessica Jernigan-Johnson ( JJerniganJohnson@londonamburn.com), for more information.
SEEKING SPONSORS FOR CHARITY GOLF TOURNAMENT The Athletics Committee is currently seeking sponsors for this year’s charity golf tournament, which will take place at Holston Hills Country Club on October 26, 2020. If you or someone you know is interested in sponsoring, please contact the Athletics Committee cochairs, Luke Durham (ldurham@tcflattorneys.com) or James Parker (jparker@hdclaw.com).
PROFESSIONAL CLOTHING DRIVE POSTPONED The Spring Professional Clothing Drive organized by the Hunger & Poverty Relief Committee that was scheduled for April 6-20 was postponed; however, new dates will be available on the KBA website soon. Please contact the committee co-chairs , Chuck Sharrett (Csharrett@ londonamburn.com) or Meagan Collver (MDavisCollver@londonamburn.com) with questions or to learn more about how you can help. VOLUNTEER TO STAFF THE 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 County 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. We serve approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next two (2) clinics, which will be held on June 10 and July 8 from 12:00 to 2:00 p.m. at the Knox County Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on June 10 or July 8 on the Event Calendar at www.knoxbar.org. SAVE THE DATE FOR THE 2020 BARRISTERS SUMMER PARTY The Annual Barristers Summer Party will be held on July 24, 2020 at Central Collective, located at 923 North Central Street, Knoxville, TN 37917. Please continue to check the KBA online calendar for further
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May 2020
LEGAL MYTH BREAKERS By: Brad Fraser and Jennifer Franklyn Leitner Williams, Dooley Napolitan, PLLC
WHY DID THE LAWYER CROSS THE ROAD? In Hannah Lowe’s excellent cover story in the April edition of DICTA,1 we learned the Tennessee Supreme Court set forth significant precedent upholding the constitutionality of Tennessee’s statutory cap on noneconomic damages in McClay v. Airport Management Services.2 In this month’s “Legal Mythbreakers,” we contrast Tennessee state law in McClay with an earlier opinion of the Sixth Circuit Court of Appeals holding that the statutory cap on punitive damages is unconstitutional. Hannah’s overview of McClay was quite comprehensive, so there is no need to repeat it here. Suffice it to say, in a sharply divided 3-2 opinion, the Court upheld the challenged constitutionality of a statutory cap on noneconomic damages as codified in the Tennessee Civil Justice Act of 2011.3 Justice Kirby, in her tie-breaking concurrence, agreed entirely with the majority that the caps did not violate the separation of powers or equal protection clauses of the Tennessee Constitution, but stated it was a “much closer question” whether the caps violated the right to jury trial.4 Ultimately, Justice Kirby sided with the majority.5 Justices Clark and Lee both dissented, opining the caps invaded the province of the jury and thus violated Article I, Section 6 of the Tennessee Constitution, which mandates that “the right of trial by jury shall remain inviolate.”6 Justice Clark pointed out that every version of the Tennessee Constitution has contained this phrase.7 “Inviolate” is defined as “free from substantial impairment”8 or “free from violation; not broken, infringed or impaired.”9 In addition, the right to a jury trial is centuries-old and can be traced back to the Magna Carta.10 Although the majority opinion in McClay discusses the history of the right of a jury trial,11 it does not delve into whether noneconomic (or hedonic) damages were available at the time of the establishment of the Tennessee Constitution in 1796. This type of history-focused analysis has been employed by other courts considering related issues. For example, in a similar constitutional analysis “across the road,”12 the federal court reached an entirely different conclusion. In late 2018, the Sixth Circuit Court of Appeals held that the statutory cap on punitive damages violated the right to trial by jury.13 The underlying facts in Lindenberg v. Jackson National Life Insurance Company involve a life insurance policy and a dispute as to whom the death benefit should be paid.14 The District Court ordered the Defendant to pay the policy value to the Plaintiff, and the litigation continued to a jury trial on the issues of breach of contract, statutory bad faith, and punitive damages.15 The jury returned a verdict for breach of contract damages of $350,000, bad faith damages of $87,500, and punitive damages of $3,000,000.16 The trial court reduced the punitive damages portion of the award to $700,000 pursuant to the punitive damages cap in Tenn. Code Ann. § 29-39-104.17 Reversing the trial court, the Sixth Circuit found that the damages cap violated the right of trial by jury, stating that it amounted to “legislatively reversing a jury’s assessment of the amount of damages necessary to deter a defendant from future wrongful conduct.”18 District courts have applied Lindenberg in other contexts as well. My friend Greg Grisham prevailed on an argument that the Tennessee Human Rights Act’s prohibition against punitive damages19 in employment claims is constitutional.20 The District Court noted Lindenberg but followed Tennessee May 2020
precedent finding the THRA specifically precludes punitive damages.21 On their face, the holdings of McClay and Lindenberg are at odds. While one might argue that McClay overruled Lindenberg, the majority opinion in McClay specifically states that the Court “express[es] no opinion” as to the constitutionality of the statutory cap on punitive damages.22 In reaching its decision, the Lindenberg Court conducted an analysis of Tennessee law regarding the availability of punitive damages in North Carolina at the time the first Tennessee Constitution was drafted and found that “the practice continued uninterrupted in Tennessee thereafter.”23 Should this issue reach the Tennessee Supreme Court, the reasoning in McClay could result in finding the statutory cap on punitive damages is constitutional as well. What remains unanswered is how federal courts will rule in the meantime. Federal courts are required to follow controlling decisions of state law,24 but the Tennessee Supreme Court in McClay has declared that Lindenberg remains undisturbed… for the moment.25 Much like in the years between Byrd, Hannan, and Rye, when litigants—not to mention trial courts—awaited clarification as to the summary judgment standard in Tennessee, only time will tell what difference, if any, lawyers will find when they cross the road to the federal courthouse.
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DICTA
DICTA, Vol. 48, Issue 4 (Apr. 2020), p. 16-18. McClay v. Airport Mgmt. Servs., LLC, --- S.W.3d ----, No. M2019-00511-SC-R23- CV, 2020 WL 915980 (Tenn. Feb. 26, 2020). Tenn. Code Ann. § 29-39-102(a)(2). McClay, 2020 WL 915980, at *16 (Kirby, J., concurring). Id. at *19 (Kirby, J., concurring). Id. at *6 (Clark, J., dissenting), *10 (Lee, J., dissenting). Id. at *6 n.1 (Clark, J., dissenting) (citing Tenn. Const. art. XI, § 6 (1796); Tenn. Const. art. I, § 6 (1834); Tenn. Const. art. I, § 6 (1870)). Black’s Law Dictionary 826 (6th ed. 1990) Black’s Law Dictionary 832 (7th ed. 1999); Black’s Law Dictionary (11th ed. 2019), available on WestLaw. Magna Carta § 38. McClay, 2020 WL 915980 at *2. Admittedly, Cincinnati, where the Sixth Circuit holds court, is not “across the road.” Lindenberg v. Jackson Nat’l Life Ins. Co., 912 F.3d 348 (6th Cir. 2018). Id. at 353-54. Id. at 354-55. Id. Id. at 355. Id. at 369-70. Tenn. Code Ann. § 29–39–104(a)(5). Rhodes v. Bates Rubber, Inc., No. 1:19-cv-01030-STA-jay, 2019 WL 2720212 (W.D. Tenn. June 27, 2019). Id. at *5, noting that the THRA permits recovery of punitive damages only for discriminatory housing practices and malicious harassment (citing Forbes v. Wilson County Emergency Dist. 911 Bd., 966 W.W.2d 417 (Tenn. 1998); Carver v. Citizen Utilities Co., 954, S.W.2d 34 (Tenn. 1997)). McClay, 2020 WL 915980 at *4 n.6. Lindenberg, 912 F.3d at 364. Id. (“Faithful application of a state’s law requires us to ‘anticipate how the relevant state’s highest court would rule in the case,’ and in doing so we are ‘bound by controlling decisions of that court.’ In re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir. 2005).”) McClay, --- S.W.3d ---, 2020 WL 915980 at *4 n.6; see also id. at *14 (Lee, J., dissenting) (discussing the holdings of Lindenberg as applied to McClay).
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Address Changes WELCOME NEW MEMBERS
Please note the following changes in your KBA Attorneys’ Directory and other office records:
THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS
NEW LAW STUDENT MEMBERS
Julie A. Birdwell
Richard D. Haygood Jenna E. Headrick Haylee M. Kennedy Emma Knapp Christine Knott Abigail L. Lydens Samuel R. Rule Zachary Simons Thomas B. Wahl
John W. Cleveland, Jr. Diverse Concepts, LLC Christopher C. Cowart Knoxville Leadership Foundation Campbell D. Cox Cassandra Ferguson M. Chadwell Mediation, PLLC
Julie D. Eisenhower BPR #: 027777 TriAmicus Law, PLLC 217 S. Peters Road Knoxville, TN 37923 Ph: (865) 217-1154 julie@triamicuslaw.com Brittany L. Nestor BPR #: 035268 Nestor Law, PLLC 800 S. Gay St. Suite 700 Knoxville, TN 37929 Ph: (865) 214-7869 brittany@nestorlawpllc.com Katherine A. Young BPR #: 017178 Young Law Office, P.C. 9041 Executive Park Drive, Suite 121 Knoxville, TN 37923 Ph: (865) 474-1284 katherine@younglawknoxville.com
Lauren Fisher A. Scott McCulley Jackson Whetsel Knox County Public Defender’s Community Law Office
Now Accepting Nominations for the
rd erty Awa
Law & Lib
Law & Liberty Award Nominee Qualifications: - Strive to foster and to maintain good relationships between the legal profession and the community. - Work to advance the understanding of the law and legal processes in the non‐ legal community. - Set an example of good citizenship. - Give time for volunteer work, both within the legal profession and otherwise. - Evidence high professional standards in his or her occupation. - Express concern for the safeguard of personal, political, civil, and religious liberties and should be someone whose work is not normally recognized. - Nominees do not have to be attorneys to qualify for the Law and Liberty Award.
Nomination Deadline: July 31st
Please email all nominations to Zack Walden (zwalden@eblaw.us) or Mikel Towe (mtowe@lewisthomason.com). The Law & Liberty Award will be presented at the Law Day Luncheon on August 19, 2020. The recipient is chosen by the Barristers Executive Committee.
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DICTA
May 2020
OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber robertpryorjr.blogspot.com
JOHN PRINE I hate graveyards and old pawn shops For they always bring me tears I can’t forgive the way they robbed me of my childhood Souvenirs
I don’t believe I will ever forgive this virus.
It started by delaying a trial that I’d been preparing for. An inconvenience. Then, it slowly began impeding our freedoms - six feet followed by sheltering. Then, masks and gloves. I began to worry about clients, my business, and my employees. This escalated to spending nights contemplating my parents’ health and the safety of my baby girl out in Washington. Ultimately, I began to wonder about our American way of life. Nothing makes you appreciate something like its absence. We shake hands, we hug, we lean against each other and dance at music venues, and high five at football games. We are an affectionate and friendly culture. It is a great place to live. Six feet is a lot to ask. It is a lot to get used to. Gay Street is quiet. Store fronts are dark. “Closed” signs are in the windows. I worry about things like Jocelyn and Ryan’s business. They own Tern Club, a bar across the street from me in the 100 block of Gay Street. They are from Portland and traveled the country looking for the place to open their dream business. I met them at a “Block Party” just before they opened. I don’t even know their last name, but when you live downtown you come to know everyone. When they unlocked the doors and welcomed people this past December, their bar was an instant hit. On the nights before the advance of the pandemic, the windows fogged from the warmth of bodies and jovial spirit inside, while people lined the sidewalk outside, waiting in the cold, just to get a taste of the famous Mai Tai. The windows were dark this past Saturday evening, as they were for most of our beloved town and Market Square. The decorated roofs of Scruffy City Hall and Preservation Pub were alight, but not a soul looked down onto the Square. The silence of the spring night was deafening. The Square, a living breathing thing, patiently slumbers, awaiting the declining side of scientific graphs and charts - no Farmer’s Market, no hula hoops or dogs. The music that daily spills out onto the streets has been silenced. No violins or Caribbean Steel Drums. The old man who plays a 1940 Martin, the girl who plays a keyboard in business doorways, and the fellow who plays a saw - yes, a saw - have taken up “Safer at Home.” Then, just a block away, the doors are locked at Kilwins. It is the secret to my very own existence. I must go on without their ice cream and my beloved lemon drops until this thing is over. I cannot believe the Governor failed to include it as “essential business.” Damn the COVID.
Then, it stole John Prine. I was introduced to John while Jake Reeves and I were sharing a bottle of Early Times at Lake Terrace Apartments on the campus of the University of Tennessee. It was 1990. I was approaching graduation and marriage. Jake sang along to the words coming from the speakers. The room was full of our buddies, but Mr. Prine’s finger-picking style and lyrics covered me up like a blanket, and I knew immediately that I must own everything he recorded. John didn’t know it when he took his last breath, but he has been my friend since I was 21 years of age. Though we never met, I’ve listened to him when the sun was setting out on the Gulf and while sitting on my back porch with Nancy. His music has been there - on the golf course, in the car, by the pool and in the office. The rhythm of his acoustic guitar and the stories in his lyrics have accompanied and comforted me in some of the darkest and brightest days of my life. He’s never failed me. To this day, this very moment really, his words bleed into the room when I write and work. And, his music seems to speak to me more as I age. That is one advantage of aging, it help you to see the wisdom in the words of poets. I can imagine John had a lot of unknown friends like me. Why? Because he was genuine. He was humble, never truly understanding his talent or the secret to his success, and seemingly uninterested in its origin. He was almost apologetic for his greatness. He just always seemed like a friend talking to you, delivering his craft with a unique playing style that I’ve spent a number of years worshiping and trying to emulate. My personal favorite of his songs is Souvenirs. I learned to play it on my Martin acoustic. Nancy has heard its intro so many times that it is burned into her soul. When I first executed it, I felt as though Superman stopped by to let me borrow his cape. It’s my “go to” riff whenever I pick up a guitar and want to know how the instrument sounds. Today is my youngest child’s twenty-first birthday. Just the immediate family will gather to celebrate. I wish I could take him across the street to the Tern Club for a Mai Tai. Instead, we’ll sit on the porch. We’ll talk of the Daltons and our concern for the family. His mother and I will stress the importance of washing hands. Then, although he has heard plenty of John Prine while growing up in my house, I’ll take the time to tell him to pay a little more attention to John Prine, to listen to the words. It is important to know who your friends are. Rest in Peace Mr. Prine. Thank you for the Souvenirs.
Then there is the real problem - the human tragedy. It has set upon the frail and the firm alike. Patrick Dalton, a healthy 24-year-old, is on a ventilator while his new wife and sweet and loving parents are prevented from visiting. Tony, his father, is a fellow member of the Knoxville Bar Association, a fine lawyer and a friend. Once upon a time, we sat in bleachers and worked concessions together while our boys played sports and grew up. His two boys and my four kids attended the same small high school. It hits home when you know someone who has COVID-19, but it becomes almost paralyzing when you are able to identify, to actually visualize yourself and your family in its grips. I am Tony. Andy is Patrick. The Pryors are the Daltons. I think about them throughout the day, praying for Patrick’s deliverance from illness. May 2020
DICTA
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B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell
By: Phil Hampton Founder and CEO, LogicForce Consulting
MORE SCREENS PLEASE The latest craze in laptops is dual screen displays. We saw many of these new form factors in the coming attractions at CES. Some with two screens connected by a hinge; some with a flexible screen that could be folded in half. We have seen the future; and the future is two or more screens on your laptop. We have also seen that this future is not going to be cheap. Nonetheless, you don’t have to wait until these expensive new laptops hit the market to join the multi-screen craze. And you don’t have to break the bank either. We found an add-on second screen option that can be paired with just about any laptop called Mobile Pixels Duex. The 12.5” second screen is just $250 and is very easy to “install” on your existing laptop. We bought one and used it with a Surface Laptop. The Mobile Pixels Duex is almost a half-inch thick and weighs 1.7 pounds. It can be attached to the back of your laptop screen with the included magnetic metal plates. It connects and receives power via a USB cable that you plug into the host laptop. Basically, we just plugged it in; and it worked. That’s the kind of installation process that we like.
app call Duet Display ($9.99 for a version that requires a cable attached to the computer) (the wireless version costs $19.99 per year). Uncharacteristically Bill chose the cheaper, wired one. With Duet Display, you install the app on your iPad, attach the iPad to your laptop via a USB cable and install a free app on your laptop. Magically, the iPad turns into a second display for your laptop. If you have the larger iPad with the 12.9 inch display, it almost matches the display on a laptop with a 13 inch display. Duet Display allows you to use the touchscreen capabilities of the iPad with zero lag in the movement from the laptop display. Sweet! Finally, if you have a MacBook, there is a built-in app called Sidecar. It works great. You can use the iPad as a touchscreen for your Mac, even though (for some reason) no MacBooks have a touchscreen. Mas segundas pantallas por favor.
The Mobile Pixels Duex slides out from its protective case (attached to the back of your laptop) and can be rotated 270 degrees. We have used it primarily as a second screen on our laptop. So now when we’re on the go and sorely miss having a large monitor like we have back at the office, we can just pull out the Mobile Pixels Duex as a second monitor and not feel cramped. We have also found it to be very useful when sharing content from our laptop (spreadsheet, document, or presentation) on a one-on-one situation with someone sitting across the table. We simply rotate the Mobile Pixels Duex 180 degrees, and it serves as mirror display for the person sitting across from us. While the Mobile Pixels Duex is an economical solution to the need for a mobile second screen for our laptop, it is not necessarily the most aesthetically pleasing solution. The second screen does add some thickness and weight to the laptop when attached. The USB cable also tends to get in the way when rotating the screen around. When we are not using the second screen, it is easy to detach from the laptop because it is held in place by magnetic metal plates that you affix to the back of your laptop display. These metal plates don’t particularly bother us, but they do look sort of out of place when the Mobile Pixels Duex is not attached. However, for the relatively low cost, we can overlook these minor inconveniences in order to add a sexy, trendy second screen to our old hardware. There are other similar solutions, but they are more bulky, such as the Asus ZenScreen touch ($339); the AOC USB Monitor ($150); the Lenovo ThinkVision M14 ($250); and the Asus Zen Screen Go (a more portable monitor at $250) and the HP EliteDisplay (even more portable at $220). The problem is, however, these are all separate monitors and add a lot more bulk. A competitor to the Pixels Deux is the SideTrak Portable Monitor ($300), but the display is dim and the mechanism is clunky. Bill thinks he has the best solution for those who carry a laptop and an iPad. You can turn an iPad into a second screen with a cable and an
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DICTA
May 2020
WELL READ By: Campbell Cox Trammell, Adkins & Ward, P.C.
GHOST IN THE MACHINE: THE COEVOLUTION OF CONNECTEDNESS AND SPAM A review of “Spam: A Shadow History of the Internet,” by Finn Brunton (MIT Press, 2013). In these strange times of quarantining, much of our ability to stay connected with each other has been cemented in the use of technology and the internet. College courses have moved to Zoom, afternoon coffees to Facetime, even oral arguments to video conference. Being in front of my computer all day and night (even more so than usual) ignited my curiosity to investigate the history of how human connection through the internet developed. A friend of mine who works in the I.T. industry suggested I pick up “Spam: A Shadow History of the Internet,” a book that details the development of internet technology, but also its antithesis, spam. As stated by Brunton, This is a book about spam for anyone who wants to understand what spam is, how it works, and what it means, from the earliest computer networks to the present day. To understand spam means understanding what spam is not, because—as you will see—the history of spam is always a history of shifting definitions of what it is that spam harms and the wrong that it produces. The history of spam is the negative shape of the history of people gathering on computer networks, as people are the target of spam’s stratagems. It is defined in opposition to the equally shifting and vague value of “community.”
news, fake accounts, and misinformation on social media. For the legal-minded reader, there is even a little discussion of the “CAN-SPAM” (Controlling the Assault of Non-Solicited Pornography And Marketing) Act of 2003, introduced by senator John McCain and signed into law by George W. Bush. This Act is part of why on unsolicited emails you get from businesses there is a tiny, little “unsubscribe from this list” button on the bottom. As you will see from Brunton’s discussion, the benefit of this is debated and some argue that the CAN-SPAM Act legitimized spamming for businesses. The book reads somewhat like an academic text, which makes sense as Finn Brunton is a professor of Media, Culture, and Communication at NYU and the text of “Spam: A Shadow History of the Internet” had its beginnings as a dissertation piece. I really enjoyed exploring my interest in technology law more deeply through this book and dusting off some of my prior I.T. work knowledge that had long been replaced by bar prep and the Rule Against Perpetuities. At first, the technical language of the book may be difficult for some readers without that type of background knowledge, but Brunton provides plenty of descriptions and metaphors for complex processes that will help any interested reader follow along. Ultimately, in a time where our value of community is almost entirely reliant on the internet, Brunton’s book is a worthwhile read for attorneys to learn about the history and concept of spam, but also to understand the online community by looking at the shadow it casts.
The introduction and first chapter of the book provides a look into the distant past of the internet, a world of wizards (serious), users, “royalists,” and even Monty Python’s Flying Circus. A system of amber or green-colored messages, sometimes paper, sent back and forth across networks and systems slower than the slowest internet-enabled phone you can imagine today. I really enjoyed the way Brunton frames this chapter as a sort of “mythic history” of the geeks who developed the initial systems and used the language and references they were most familiar with to name their creations and themselves. Later on, Brunton offers interesting and detailed explanations of all aspects of the spam “arms race”, both the spam itself and the systems they exploit— from the earliest spam message on ARPANET, to the ever-referenced “Nigerian Prince” scam emails, to the modern day “Botnets” continually infecting systems with malware to enslave them for nefarious schemes like keycracking, clickfraud, identity theft, etc. Brunton even covers some spam-adjacent areas like “content fams,” “linkbait,” and “personality spamming,” all concepts we run into on the internet daily, now more so than ever. Called to mind are familiar titles like “THIS QUIZ WILL TELL YOU WHICH KIND OF ANIMAL YOU ARE,” “WOW! DOCTORS HATE HIM - CLICK HERE TO SEE WHY” and thousands of other similar titles ad nauseum. Exploring these areas in the book felt especially relevant in continuing the conversation about fake May 2020
DICTA
25
YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
PRESIDENTIAL SMACKDOWN! Andrew Jackson versus Donald Trump. Cage match. Who wins? A good question for the next time you’re stuck in an airport bar during a layover. If any bars are open. If any airports are . . . Sorry, I got a little off track there. I blame COVID-19. What day is it? Just a minute . . . let me go put on some pants . . . Okay, seriously, a lot of people across the political spectrum have drawn comparisons between our current president and our seventh. Are these comparisons valid? As I always do when questions arise regarding Tennessee’s most notorious son, I went to the source: Dan Feller, UT historian and Director and Editor of The Papers of Andrew Jackson. I’ve spoken to Dan several times on my public radio show, Your Weekly Constitutional. Back in 2017, shortly after Trump’s inauguration, we did a two-part overview of Jackson’s life. But since then, Dan and I agreed that we needed to talk again. Dan notes that Trump’s supporters, most notably Trump himself, insist that, like Jackson, Trump is a man of the people: someone who represents the little guys in the little towns against the “elites” in the big cities. After all, Trump loves tariffs, which protect domestic industries, and so did Jackson. Trump is critical of the Federal Reserve, our central bank, and Jackson hated the central bank of his time, the Second Bank of the United States. Trump has a portrait of Jackson in his office. He went to Jackson’s home, the Hermitage, in 2017, to celebrate Jackson’s 250th birthday, and said, “I’m just like him.” Trump’s detractors like to say that, yes, Jackson and Trump are the same: both ignorant, both racist, both ill-tempered tyrants. Trump’s anti-immigrant rhetoric echoes Jackson’s attitude toward American Indians. Dan takes issue with both sides. Consider tariffs: Trump calls himself “Tariff Man,” and has declared that “trade wars are easy to win.” Jackson’s views on tariffs are far more nuanced. Jackson came into the presidency as a defender of moderate tariffs on British manufactured goods to protect competing American industries, especially the armaments industry and other industries that would improve American infrastructure. However, within two years, Jackson reversed himself and favored reducing tariffs to the point where they merely generated enough money to cover federal expenditures—tariffs were, in the 1830’s, the primary source of federal revenues. A protective tariff would have generated more money than the national government needed. More fundamentally, Jackson began to doubt the significance of federal tariffs—they weren’t as protective as the Northern industrialists claimed, nor as harmful as the Southern planters insisted. By the end of his presidency, he and his Democratic party became the party of low federal expenditures and low tariffs. So, when Donald Trump declared, at Jackson’s 250th birthday party, that Jackson raised tariffs to protect American workers, Dan and a fellow historian did a double-take. In foreign policy, where Trump has been aggressive with both friend and foe, Jackson was remarkably conciliatory, especially when it came
to Britain, an enemy Jackson had fought as a pre-teen in the American Revolution. Britain had killed much of Jackson’s Irish-American family during that war, so one might expect Jackson to bear a grudge. Perhaps he did, but he did not allow it to affect his foreign policy. Next, consider temperament. Many of Trump’s opponents believe him to be unfit for office, given to temper tantrums and vindictiveness. They say the same about Jackson. Jackson, after all fought fourteen duals, or perhaps, as a piece in Newsweek claimed, a hundred. Dan points out that in fact, Jackson fought exactly one duel. And, indeed, in that dual, Jackson held his fire until his opponent, Charles Dickenson, shot him; only then did Jackson kill Dickenson. (On the other hand, Jackson did once participate in a running gun battle in the streets of Nashville; however, even that comparison fails: Aside from Trump’s comments about shooting someone in the middle of Fifth Avenue, he has not, apparently, done so). Consider bigotry. Trump’s opponents call him a racist, claiming that his immigration policies are directed primarily toward people with brown skins. They say the same about Jackson, especially when it comes to American Indians—Jackson obviously hated them. Dan acknowledges that Jackson was an Indian fighter before his presidency, and that there is good reason to criticize him regarding Indian removal and the Trail of Tears. However, there is no evidence that Jackson hated Indians. He fought them, just as Patton fought the Germans in World War II. But neither general was necessarily motivated by hatred. Consider “elites.” There is no one more “elite” than an Eastern bigcity banker. Trump has clashed with our current central bank, the Federal Reserve, complaining of its independence. He has floated the idea of dismissing or demoting the Chairman of the Federal Reserve Board. Similarly, Jackson opposed the central bank of his time, the Second Bank of the United States. But the reason for his opposition was that it was not independent. It was controlled largely by private banking interests with clear conflicts of interest. So, yes, both Trump and Jackson opposed central bankers, but for opposite reasons. Interestingly, Dan thinks that the politician today who seems most like Andrew Jackson is not Trump, but Elizabeth Warren, who claims that powerful banking interests are corrupting American democracy. One area in which Jackson and Trump are comparable is their common belief in the great power of the presidency, especially the power to fire subordinates. Jackson didn’t hesitate to get rid of people who defied him, notably his Treasury Secretary, who refused Jackson’s order to remove federal funds from the Second Bank of the United States. In 1834, the U.S. Senate censured Jackson for doing so. Jackson didn’t seem to care. As to my initial question—who wins in a cage match between Jackson and Trump? My money’s on Jackson. After all, he’s the only president to have participated in a running gun battle and lived to tell the tale. And, anyway, you just don’t mess with Old Hickory.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
DICTA
May 2020
LONG WINDED By: Jason H. Long London Amburn
WHAT I HAVE LEARNED Life is about learning through new experience. That was the mantra of one of my best friends from college. He used it as an excuse to justify all sorts of stupid things we did when we were young. However, there is truth to the fact that we learn a lot about ourselves when we leave our comfort zone and take on new experiences. To that end, I hope we will all look back on 2020 as a unique learning opportunity: A giant laboratory experiment to see what happens when people engage in self-reflection during a period of isolation and quarantine. I, for one, have come to a number of realizations about myself in the past three weeks. I thought today would be a good opportunity to share what I now know, in no particular order. I have four chins. Not two, not three, but four chins, when viewed through the unflattering angle of a webcam during a Zoom meeting. I am not a vain man and have always understood that I was not the type of person to get by in life on their looks. Even at my best, I was maybe a four (a five if you were into tall guys). With age, I have come to accept the bags under the eyes, the receding hairline, and the unsightly skin tags which occasionally pop up, as a reminder that “thou art dust and to dust thou shalt return.” While I was aware of my many imperfections, I never felt the need to dwell on them and, as a result, have always been fairly comfortable with my looks. Then, the coronavirus pandemic struck and I was forced to sit in front of a computer all day staring at myself during Zoom meetings. It’s hard to focus on the topic of the meeting or getting business done when I am spending half my time adjusting my camera to give a more flattering angle. I look like Alfred Hitchcock, after he had eaten a large bowl of pasta. I know, I should not be as concerned about my vanity as I should be about my general health condition which has led to this situation. Still, when you look at yourself in the computer screen and see four chins all day long, you really only have one thought: “Four is too many chins.” But for watching sports, I think I could have cured cancer or brought peace to the Middle East, or otherwise contributed significantly to humanity. It really is shocking how much of my life has been spent watching everything from football to frisbee golf, a fact I really only appreciated after sports were taken away. As I sit here typing this article, I should be preparing to watch the final round of the Masters. Last week I should have been watching the NCAA championship being played out, with the “One Shining Moment” clip to top it all off. Instead, my schedule has opened up, offering all sorts of possibilities. I can spend more time with my family, dedicate myself to self-improvement (getting rid of those chins would be a nice start), pour myself into the representation of my clients or take on Pro Bono projects to
May 2020
help those who cannot access our justice system easily. All of these are possibilities. But then again, so is catching up on Tiger King. I love my family, but . . . . (Warning: The following may be the most dangerous paragraph I have ever written). I have heard many say that a true silver lining of this pandemic, if there is one, is that it has forced families to stay home and spend time together. In our “go, go, go” society, our self-quarantine has been a needed moment to step back and reflect upon the importance of family and strengthening those bonds. That is absolutely true. This time has afforded an opportunity to connect more closely with those I love the most. Still, four people under one roof 24/7 can’t be a completely healthy thing. The stress of our new normal is going to spill over into our interpersonal relationships. Multigenerational perspectives will conflict and resentment toward gender inequality is bound to bubble up from time to time. All I’m saying is, if these kids leave one more unwashed dish in the sink . . . I always thought I was a good cook. I thought that I had some basic skills in the kitchen and, given the opportunity, could really shine as a cook. Turns out, I only really know three recipes: tacos, grilled cheese and omelets. My family enjoys all of these, but it disappointing to realize how limited I am in the kitchen. I now appreciate, more so than ever before, my wife’s culinary abilities. Technology is remarkable. Can you imagine if we were living through this event even fifteen years ago? Without smartphones? Without Facebook (o.k. Zuckerberg, I have to give you some credit here)? I have often admitted, within the pages of this column, that I am a curmudgeon, a luddite. Truth be told, I marvel at the technological advances that have led us to a point where we can practice “social distancing” as we currently do. I am not saying I like it. I would much prefer the “social” without the “distance.” However, for this time, right here, right now, I will take what I can get and, if we are going to have to live through a pandemic, at least we are well-equipped to do so. Anyway, the self-reflection continues. We will all learn a great deal about ourselves and our society over the next several weeks. When we come out on the other side, life will be different. In some ways, the changes will only be temporary, while some may be permanent. Regardless, what we learn about ourselves now will determine how we handle our recovery. Hope everyone stays safe, and I hope we all see each other soon.
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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. 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. DISCOUNTED CLE! 2020 CLE SEASON PASS The KBA is offering a discounted CLE package exclusively to KBA members licensed within the last ten years. The CLE Season Pass allows you to get all of your required 15 hours of CLE credit for just $300. You are welcome to participate in any program, including monthly Lunch & Learns, extended seminars like the popular Bench-Bar Conference, Ethics Bowl, or the Law Practice Today Expo. Online CLE programs, typically $40/credit hour, are also available as part of your CLE Season Pass. The KBA annually offers 100 Live and 135 Online CLE programs to help members fulfill their CLE requirements, so there are lots of options! KBA seminars focus specifically on the educational needs of East Tennessee attorneys. The KBA offers innovative and timely seminars to satisfy your professional development needs and MCLE requirements using unbeatable local talent and national speakers.See www.knoxbar.org or call 522-6522 for more information.
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LMU DSOL STUDENTS EXCEL AT NATIONAL MOOT COURT COMPETITION Lincoln Memorial University Duncan School of Law (LMU) 3L moot court students Courteney Barnes-Anderson, Adam Brock-Dagnan, Clint Coleman, Miranda Dericco, Barbaraann Holladay, and Emily Morley participated in the ABA National Appellate Advocacy Competition (NAAC) on March 5-7 in Boston. This was the first time a team from LMU participated in this prestigious moot competition, which included 32 teams hailing from top-ranked law schools across the country. The brief writers, Adam and Clint, both scored within the top half, with Adam’s brief in 6th place and Clint’s brief in 16th place. The oral advocates also excelled – notably, Emily and Courtney finished 9th, and their successes included beating Northeastern in a head to head semi-final round. None of this would have been possible without the help of numerous KBA members who tirelessly volunteered their time in 2019 & 2020 to judge the students’ practice moots. OFFICE SPACE AVAILABLE: • Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available. Email jfanduzz@gmail.com for inquiries •
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BARRISTER BITES By: Angelia M. Nystrom University of Tennessee Institute of Agriculture
QUARANTINE COOKING, PART 2 If you read this column last month, you will recall that I was curious as to how I would manage with all of the canned soups, Vienna sausages, beanie weanies, and non-perishable milk that Hugh had purchased in the event we were quarantined because of COVID-19. I thought I was prepared because I grew up eating food from the cookbook, “Best Recipes from the Backs of Boxes, Bottles, Cans, and Jars.” I had no idea that I was about to be tested in truly unimaginable fashion. I had no idea that I would be making my “quarantine recipes” multiple times. I had no idea that I would not be setting foot in a grocery store (or any other store, for that matter) for a very long time. I had no idea that I was going to be at “613 Quarantine” with Hugh and Trace for the foreseeable future. For someone who is usually prepared for most anything, I was not prepared for this. I have not left my house since March 13. For someone accustomed to grocery shopping every day or two and who eats out at least five times a week, this has been interesting. We made the decision early on that our family would do “extreme social distancing.” Trace has mild asthma, and we simply did not want to take a chance on him getting sick. We also knew that we needed to be able to help my mom if she needed it. We have not ventured outside our house, have not had take-out, and have not had pre-made food delivered in over a month. Our only contact with the outside world happens via Zoom. While Hugh did a great job preparing us for a potential quarantine, it has been an adjustment. During the first week, we decided that we would snack early in the day and then eat one good meal in the late afternoon. Had we not done this, I’m certain that none of us would be able to fit in our clothes since most of the meals that we consume would not qualify as “light” or “low-calorie.” A favorite meal happened quite by accident. We ran out of buns and light bread during the second week but still had a package of hot dogs. I found a couple of boxes of Jiffy corn muffin mix in the pantry and used it to make mini corndogs in a mini-muffin pan. That recipe is definitely a “keeper” (although I feel like I am eating like a five-year old when we make them). Another favorite has been cream cheese Easter cookies which a friend posted on Facebook. The recipe calls for sugar, butter, cream cheese, an egg, flour, vanilla extract and sprinkles (which, surprisingly, we had plenty of ). To make the cookies, cream 2 sticks of butter and a block of cream cheese with an electric mixer. Add 1 cup sugar, 1 egg and 1 TBS vanilla extract and beat for one minute. In a separate bowl, whisk together 2 ¾ cups all purpose flour and 2 tsp of baking powder. Mix contents of both bowls together until a soft dough forms. Cover the dough and chill in the refrigerator for an hour. After the dough has May 2020
chilled, use a spoon or cookie scoop to make small dough balls. Roll them until they are smooth and round. Put ½ cup sprinkles in a bowl and roll the dough balls until they are covered. Place the dough balls on cookie sheets lined with parchment paper. Gently press the top of the cookies down to flatten a bit. Bake at 350 for 10 minutes until set. Remove and place on cooling racks. They are an amazing treat. I have run out of ingredients and have had to order some staples. I have tried to order local or semi-local and have had good luck with Benton’s Country Hams (bacon and country ham … www.bentonscountryhams2.com), Sweetwater Valley Farm Cheese (our favorites are smoked habanero, smoked gouda and buttermilk… www.sweetwatervalley.com), and The Old Mill in Pigeon Forge (if you like fried okra, their fried okra batter is AMAZING… www.old-mill.com). The biggest surprise, though, has been Gullah Gourmet out of South Carolina. I was introduced to Gullah Gourmet at Carolina Gourmet at The Hammock Shops in Pawley’s Island. Every year when we make our trek to the beach, I visit Carolina Gourmet. I love all of the kitchen gadgets and cookbooks, but I especially love the food samples that they have (hence the reason I have 11 packages of key lime dip mix in my pantry right now). When I was cleaning the pantry, I found a Gullah Gourmet mix for shrimp and grits and thought I would check out the internet to see what else they might have. I have ordered Beadah’ Lickin’ Brownies, Flippidy Flap Jacks, Geechie Peachie Cobbla, Jus’ Good Ol’ Grits, Mouth Stuffin’ Chocolate Chip Muffins, Nana’s Been a Nut Bread, Ya Mama’s Biscuts, and Yard Bird Batta. All of the mixes can be prepared with water, milk or an egg and require little to no work. Hugh has said that the grits are the best that he has ever had and that our oven-fried chicken made with the Yard Bird Batta rivaled Gus’s (I did add a little cayenne pepper). Trace is a fan of the Beadah’ Lickin’ Brownies and can eat a pan at a single sitting. Bonus: the mixes come in cute little cloth bags with the recipes printed on them and will be great gifts when we can actually get out again. To order, go to www.gullahgourmet.com. You will not be disappointed. It has been a learning experience. I’ve learned that I can “make do” with a lot less than I’m used to. I’ve learned that I am married to a prepper and that I can eat things I normally would not. I’ve also learned that we would be in a “world of hurt” without my mom’s canned foods (like green beans, okra, tomatoes and corn) and that I really need to learn to can and preserve foods myself. Most importantly, I’ve learned that time spent with my family is precious (even in these trying times). Stay safe and healthy, friends. I look forward to breaking bread with you soon.
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee
MAKING PRO BONO LEMONADE We’ve all heard the sayings hundreds of times in our lives. “When by phone (or video) and provide them with the same level of advice life gives you lemons, make lemonade.” “Necessity is the mother of they would receive at an in-person clinic. Legal Aid Society of Middle invention.” “Mama always said life is like a box of chocolates. You never Tennessee & the Cumberlands (LASMTC) started holding phone know what you’re gonna get.” “When the going gets tough, the tough get clinics after the tornadoes in their service area at the beginning of March. going.” If you are interested in volunteering for a Phone Clinic, please complete For the last several weeks you have all been doing your best to make this form (https://www.surveymonkey.com/r/7YDRTWD). lemonade out of lemons, and the staff at Legal Aid of East Tennessee is Third, and finally, Legal Aid of East Tennessee is in the process of no different. developing Pro Bono Matters for our program. Pro Bono Matters is a There is no denying that the COVID-19 pandemic and resulting technology tool that allows Legal Aid agencies to advertise available Pro needs to practice social distancing and to follow stay at home orders has Bono cases in a synopsized form for Pro Bono attorneys to review and affected our Pro Bono services. The last clinic we held in Knoxville was select. Don’t worry though, if you still want me or my law clerk to call the Veterans Advice Clinic on March 11 at the Knox County Public or e-mail you when we have a case we think you would be a good fit for, Defender’s Community Law Office. that will still be happening! Pro Bono Matters is going to be an addiSoon after that clinic, LAET and the KBA, after talking with tion to our Pro Bono Toolbox that we are very excited about! various clinic hosts and volunteers, made the tough decision to cancel all LASMTC launched the program on their website in January 2020 clinics and Saturday Bar dates scheduled from March 16 through May and the program is used by all Legal Aid agencies in Florida. If you 16. And, we left open the possibility that we may have to cancel even want a sneak peak, you can see the LASMTC page here (https://las.org/ more clinics if it would still be a health and safety risk for our volunteers volunteer/pro-bono-matters/). The program will enable you to look for and our clients to attend. Pro Bono opportunities when it is most convenient for you! Through But, now we have new ways to provide LAET’s clients with Pro Pro Bono Matters, you will be able to see information about available Bono advice and services on the cases and let us know what you are horizon! interested in. We think this will Legal Aid of East Tennessee First, I have already reached also be a great tool for getting newer out to many of you about accepting attorneys in your firms involved with expects to launch cases directly from where for the sole Pro Bono service. Pro Bono Matters purpose of giving the client advice. While the current need to have on our website in May 2020. Normally, when I place a case remote Pro Bono opportunities directly with a Pro Bono attorney, it available definitely pushed us is for representation or brief services, towards looking at alternatives such as document production. However, the clients who we normally including remote advice, Phone Clinics, and Pro Bono Matters, we are refer to our clinics are still in need of advice. If you are interested in excited about how these new options will help us to better serve our providing basic advice to LAET clients, you can contact me directly or clients and our volunteers! you can fill out this form online – Volunteer to Give Remote Advice (https://www.surveymonkey.com/r/Q377DH7). Second, we are working to create Phone Clinic opportunities where clients can preregister and then Pro Bono attorneys contact the clients
Interested in
sponsoring this year’s
Forging Justice Pro Bono Celebration? Contact me for details at kellis@laet.org or (865) 251-4951 The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162
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THE LAST WORD By: Jack H. (Nick) McCall
Q:
Christine, what fired your interest in the study and practice of animal law?
A:
CHRISTINE BALL-BLAKELY Environmental Litigation Fellow, Animal Legal Defense Fund1
To explain how I became interested in animal law, I will have to go back—way, way back—to a time when there was no internet, everyone was “investing” in Beanie Babies, and Nancy Kerrigan’s kneecap was still intact. I grew up on a small farm in North Knoxville, complete with a white farmhouse, a sugar maple in the yard, and a big red barn. Our farm was home to many animals throughout the years, including two orange and white cows—named Pumpkin and Tater—who spent their days chomping through the lush green grass and clover that graced the pasture. My little brother and I spent a lot of time running around in that pasture too, climbing trees, making mud pies, and catching lightning bugs. I was about eight years old when Pumpkin and Tater were slaughtered. I believed at first that they had gone to live on another farm, but soon learned that they were on my plate and in my family’s freezer. I am in my thirties now, but I still remember in vivid detail what it was like to realize that my friends had become my food. I tried and failed to understand why I would ever want to eat these personality-filled individuals who I had known and loved. I had no idea who Tom Regan was at the time, but I think eight-year-old me would have agreed with him that “each of us is equal because each of us is equally a somebody, not a something, the subject-of-a-life, not a life without a subject.”2 As a teenager, I learned that Pumpkin and Tater were actually some of the “lucky” ones, relatively speaking. Though they still ended up in the slaughterhouse at a young age, they had good lives while they lived. They had warm stalls, plenty of pasture to roam, all the tasty grass and clover they could eat, and unlimited ear scratches from yours truly.
rates of illness and injury, among other things. On top of all that, they are prevented from engaging in natural behaviors, such as forming familial bonds. Dairy cows, for example, face endless cycles of impregnation, and they cry out for their calves when they are taken from them at birth. In the end, factory farmed animals meet the same fate as Pumpkin and Tater: they are loaded up and transported to the slaughterhouse. It would be accurate to say (in official medical terminology, of course) that this information broke my teenage brain. I scrawled “end factory farming” on my to-do list, where it remains to this day. In college, I studied animal ethics and got a philosophy degree. During law school, I carved out time in my schedule for a graduate-level philosophy class on animal status and cognition. After law school, I took on animal law Pro Bono projects. And now, following a series of unexpected life developments and opportunities, I work for a nonprofit organization making the case that animals are sentient individuals—not resources for human consumption. Like all of us, I spend most of my time indoors these days, listening to R.E.M.’s newly-relevant work3 and fretting about toilet paper. Fretting aside, however, the COVID-194 quarantine has ushered in an eerie, quiet reality filled only with unfamiliar free time and mental space. I often find my mind wandering back to my childhood, and my memories—both good and bad—bring me peace and comfort in these most uncertain of times. I am grateful for the time my brother and I spent in the pasture with Pumpkin and Tater, grateful for the chance to learn early on that I am a part of the natural world, and grateful for my kinship with the other animals who inhabit it.
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4
In stark contrast, most farmed animals in the United States are raised in factory farms. They never feel the grass beneath their feet, and many of them never even see sunlight. They are subject to intense confinement, mutilation (such as debeaking, in the case of birds), and high
Opinions expressed in this article are those of the author and are not attributable to the Animal Legal Defense Fund. Tom Regan, Animal Rights, Human Wrongs: An Introduction to Moral Philosophy 81 (2003). R.E.M., It’s the End of the World as We Know It (And I Feel Fine) (I.R.S. Records 1987). I would be remiss if I failed to mention that some believe COVID-19—like H1N1 and SARS—originated in populations of confined animals raised for human consumption. See, e.g., Gene Bauer, We have no one to blame for the coronavirus but ourselves, The Hill (Apr. 6, 2020), https://thehill.com/opinion/energy-environment/491293-wehave-no-one-to-blame-for-the-coronavirus-but-ourselves.
“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com May 2020
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