October 2022 - Volume 50, Issue 9

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What I Learned about Inclusion and Why It Matters: The Necessity of Inclusion in the Legal Profession . . . Page 6 Schooled in Ethics: How Far Should You Trust Your Client . . . Page 18 A Monthly Publication of the Knoxville Bar Association | October 2022 THE FOUR PROPOSED AMENDMENTS TO THE TENNESSEE CONSTITUTION

Photo OpsPhoto Ops

Swearing-In Ceremony on August 31

Incumbent and newly-elected Knox County judges and chancellors were among judicial officials sworn in on August 31. KBA President Jason H. Long presided over the 6th Judicial District event. Supreme Court Justice Sharon G. Lee swore in thirteen of the judges, Public Defender Eric Lutton, and Court Clerks Charles D. Susano III and Mike Hammond. Chancellor John F. Weaver swore in J. Scott Griswold as the new Clerk & Master and District Attorney General Charme Allen had the oath administered by Judge Steve Sword. Photos were provided by Shooting the Bar. More pictures are available in the photo gallery at www.knoxbar.org.

2 October 2022DICTA

Officers of the Knoxville Bar Association

KBA Board of Governors

Ursula Bailey

Mark A. Castleberry

Meagan Collver

Jonathan D. Cooper

Daniel L. Ellis

Magistrate Robin Gunn

William A. Mynatt Jr. Vanessa Samano

Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Zachary Walden

President’s Message

Flexibility: A Key Ingredient to Success

Practice Tips

Tips On Evaluating Healthcare Liability (HCLA) Cases

Management Counsel

Managing a Hybrid Workforce

Get Ready for The Corporate

Act

How

6

What I Learned About Inclusion and Why It Matters

The Necessity of Inclusion in the Legal Profession

8 Judicial Profile

Chancellor Richard “Bud” Armstrong: Prepared to Serve

Better

A Stamp on History

Around the Bar

Chair Chat

Knoxville Bar Association

505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522

Fax: 865-523-5662 www.knoxbar.org

Volume 50, Issue 9 Dicta is the official publication of the Knoxville Bar Association

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).

Publications Committee

Executive Editor Cathy Shuck

Executive Editor Campbell Cox

Executive Editor Melissa B. Carrasco

Brandon Allen Sarah Booher Anita D’Souza

Elizabeth B. Ford

Jennifer Franklyn Joseph G. Jarret

F. Regina Koho

Matthew R. Lyon

Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Eddy Smith Grant Williamson

Managing Editor Marsha Watson KBA Executive Director

11 Around the Community

Knoxville Bar Foundation: Recognizing Distinguished Attorneys And Awarding Grants For Our Community

12 Lessons Learned: Reflections from a Retiring Lawyer

Retirement

Legally Weird

Nevermind

Privileged to be a Lawyer

Accessing Justice

Well Read

Public Image and True Selves

Local Lore & Lawyers

The Silent Sentinel: Knox County’s Spanish-American War Memorial

The Knoxville Bar Association Staff Marsha S. Watson Executive Director Tammy Sharpe Director of CLE & Section Programming Jonathan Guess Database Administrator Tracy Chain LRIS Administrator Jason H. Long Loretta G. Cravens Catherine E. Shuck Carlos A. Yunsan
DICTAOctober 2022 3
In This Issue October 2022 16 The Four Proposed Amendments to the Tennessee Constitution 5
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15 Legal Update
Transparency
18 Schooled in Ethics
Far Should You Trust Your Client
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25 Bill & Phil Gadgets There’s A New Phone In Town (And It Ain’t An iPhone) 27 Barrister Bites Oven Baked Fajitas 29 Mitchell’s Malarkey Big Brother is Watching You 31 Tell Me A Story My Nonlinear Practice of Law 4 Section Notices/Event Calendar 20 Barrister Bullets 28 New Members/Change of Addresses 28 Bench & Bar in the News 30 Pro Bono Project COVER STORY CRITICAL FOCUS WISDOM COMMON GROUND President
President Elect
Treasurer
Secretary
Immediate Past President Cheryl G. Rice

SECTION NOTICES & EVENT CALENDAR

Section Notices

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

Alternative Dispute Resolution Section

The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE programs “Strategies for Conducting a Family Law Mediation” on November 2 and “Mediation: Practice & Ethics Update 2022” on December 15. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarrett (566-5393) or Betsy Meadows (5408777).

Bankruptcy Law Section

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

Corporate Counsel

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

Criminal Justice

The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Save the date for the annual CLE program “Criminal Law Rowdy Roundup 2022” scheduled for November 17. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (931-260-5866).

Employment Law

The Employment Law Section is intended for management and plaintiffs’ counsel, in addition, to in-house and government attorneys. Join the Employment Law Section for the upcoming CLE program “Employment Law Update” on October 6. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000), Tim Roberto (6912777) or Mark C. Travis (252-9123).

Environmental Law

The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section

The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law Section for the upcoming CLE programs “Don’t Do It Alone! Build A Team to Assist You in Handling Family Law Cases” on October 18 and “TN Family Law Update 2022” on December 13. If you are interested in getting involved, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Lawyers Section

The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. Join the Government & Public Service Lawyers Section for the upcoming CLE program “May it Please the Council: Effective Advocacy Before Local Government Bodies” on October 5. If you are interested in getting involved or have suggestions for CLE topics, contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section

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

New Lawyers Section

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

Senior Section

The KBA Senior Section plans to start meeting again in 2022 for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307).

Solo Practitioner & Small Firm Section

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

Law Office Tech Committee

Gov’t Section CLE

Publications Committee

Employment Law Section CLE

Professionalism Committee

Veterans Legal Advice Clinic

Barristers Meeting

Judicial Committee

Family Law Section CLE

Member Appreciation & Welcome New Admittees Reception

Barristers Charity Golf Tournament

Estate Planning CLE

Book Club Discussion

Board of Governors Meeting

Diversity in the Profession Committee

Wellness Committee

Real Estate Extended CLE

4 October 2022DICTA
event calendar Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. October 4
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November 1 Law Office Tech Committee 2 ADR Section CLE 4 Ain’t Behavin’ CLE 7 Swearing In New Admittees 8 Professionalism Committee 9 Veterans Legal Advice Clinic 9 Barristers Meeting 10 Ethics Update CLE 10 New Lawyers Section Program 10 Judicial Committee 16 Board of Governors Meeting 17 Criminal Law Update 18 Juvenile Court CLE 18 Memorial Service n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n n

FLEXIBILITY: A KEY INGREDIENT TO SUCCESS

This month, I take to the bully pulpit of the bar to preach about an issue recently on my mind, due to three recent stories I heard and experienced. They have driven home, for me, the importance of flexibility in achieving success.

The first involves a recent law school graduate, a friend of a friend living in the Research Triangle of North Carolina, waiting to get their license this fall. This person was offered a position at a firm in Charlotte, where they had been clerking over the summer. The offer checked off a number of boxes for this student: They always wanted to work in Charlotte, they wanted to work at a large private firm, and they wanted a competitive pay rate (this offer was top of the market with generous benefits). It seemed like a perfect situation. The only problem for the graduate was that the firm’s need for a new associate was in the labor/ employment law division and this person had their heart set on doing commercial litigation. The graduate fretted over the decision for weeks before ultimately turning the offer down. It was not their dream job, and they were going to hold out. Unfortunately, they had no other offer at the time to fall back on. This graduate, saddled with loans to repay, is now hitting the pavement looking for a job, having turned down an A+ offer out of the gate. Maybe it was the right decision for them, I don’t know, but it seems to me that sometimes holding out for the perfect circumstances can cause you to miss great opportunities along the way.

The second story involves a speaker I heard at the recent KBA CLE “A Panel Discussion on the ‘Untold Story of Emmett Louis Till’ Documentary.” (A side note here, this was an amazing program, and I hope we are lucky enough to be able to offer it again in the future. If we do, do not miss out on the opportunity to attend). I had the opportunity to meet Keith Beauchamp, Producer/Director/Host of Till Freedom Come Productions, LLC, and learn about his amazing journey to awardwinning filmmaker and civil rights activist. Keith was born and raised in Baton Rouge, Louisiana and, early on, became fascinated with the story of Emmett Till and the brutal lynching of the fourteen-year-old boy in 1955 Mississippi. His own experiences with racism and intolerance, along with his continued interest in the Till saga caused him to study criminal justice at Southern University with the avowed intent to go to law school and become a civil rights lawyer. Shortly after graduation from Southern, he moved to New York City to help some friends with a video production company and realized that his ambitions would be better served by using film as his preferred medium, rather than a courtroom. With no formal training whatsoever, he decided to become a documentary filmmaker and began his own investigation into the Till murder, with the intent of bringing the untold elements of the story to the world. Keith has spent the last 27 years investigating, interviewing and documenting the Till case and other cold case civil rights actions and bringing those stories to the world. His efforts were the direct impetus for the FBI to open a cold case file into the Till murder, to bring to justice those who escaped the consequences of their actions over 60 years ago. By any measure, he is an unqualified success, having completed his Till documentary, and several others. In fact, by the time this article goes to print, a feature film entitled “Till” and starring, among others, Whoopi Goldberg, will be in theaters. Beauchamp collaborated on the film, and his documentary was a large part of the reason it was produced. Keith’s pivot from aspiring lawyer to documentary filmmaker was a bold choice and one that continues to pay off.

The final story is a humblebrag about our own Bar Association. For years, we have hosted the Supreme Court Dinner as an opportunity to honor our highest court and enjoy time together with our fellow bar

members. The event predates my entry into the practice of law and, quite honestly, I do not know how far back it goes, but it is a long way. We have always taken great pride in the event, as no other bar across the state did anything similar. Then COVID hit, and we had to cancel it, for the first time in modern memory, two years in a row. We began reimagining what the event could be, out of necessity. How could we keep people properly socially distanced? What type of setting would be best to limit potential spread of the disease? What came out of those discussions was a new event: the Bench-Bar celebration. A cocktail reception, light on speeches and heavy on casual congregation among the attorneys and judges. It became an event to celebrate the entire judiciary, rather than only our Supreme Court. While I am sure some may still prefer a traditional sit-down dinner, I think we can safely say, based upon comments we received, that the new event was an unqualified success. I hope you had the opportunity to attend last month and, if you did, I hope you enjoyed it as much as I did.

The theme running through all these stories is the importance of flexibility, in life and in practice. A perfect opportunity rarely presents itself fully formed. It must be created, over time, through trial and error. We, as attorneys, must take calculated risks, accept less than ideal circumstances, and adapt as necessary to carve out the right and successful path. Our Bar Association continues to do this, for which I am grateful. I am also grateful for those leaders within our community who are never satisfied with the status quo and who are willing to be flexible to succeed.

DICTA is a monthly publication of the Knoxville Bar Association DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership This issue represents one of our “ super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox Count y and all of its contiguous counties, Blount, L oudon, Anderson, Union, and S evier DICTA is an impor tant publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Watson at 505 Main Avenue, S uite 50, P O Box 2027, Knoxville, Tennessee 37901 2027, (865) 522 6522 or access our award winning website at www knoxbar org

PRESIDENT’S MESSAGE
DICTAOctober 2022 5
D I C T A SUPER CIRCULATION ISSUE EDITORS’ NOTE:

WHAT I LEARNED ABOUT INCLUSION AND WHY IT MATTERS

THE NECESSITY OF INCLUSION IN THE LEGAL PROFESSION

When I first became a lawyer, I had a conversation with a friend. He called to congratulate me on passing the bar. He told me that he wanted to be an attorney, but the daughter of an attorney told him he would never make it. He believed her. My friend did not grow up seeing anyone who looked like him in the legal profession. He had a very specific idea of what a lawyer looked, sounded, and acted like. He did not fit that mold so he pursued a different career. When I think about that conversation, I think of what could have happened if he followed his dream and felt like he belonged in the legal profession.

Historically, the legal profession has failed to center inclusion. It is an idea that everyone supports, but very few take action to achieve it.

When I enter the courtroom, I can count on one hand the number of criminal defense attorneys who look like me. I knew when I joined the legal profession that I was entering a space where the majority demographic did not match mine.

As a Black woman in the legal profession, I have a heightened awareness of how I present myself inside of the courtroom. I consider the tone of my voice when interacting with judges and prosecutors. I consider

how I need to be overly prepared with every case I have. I consider how I have to work harder to build trust with my clients. There is a fine line I am forced to walk that my peers do not have to consider.

To me, inclusion is the active practice of making the goal a reality. Small steps incorporated within our everyday lives until the day inclusion is not ideal but a reality and the norm. Inclusion to me is not just a word but a necessity. Inclusion means that people from varying backgrounds and experiences coming together and adding their experiences to improve the legal profession. It is the ability to see and hear people who look like them existing at every level of the courtroom.

Maya Angelou said “in diversity there is beauty and there is strength.” The same can be said about inclusion. By taking active and intentional steps, the legal profession can continue to grow and learn from those with varying perspectives on life, which will strengthen the legal profession. It will inspire others to pursue their dreams because inclusion creates a beacon of hope to those who have traditionally not felt represented.

6 October 2022DICTA

PRACTICE TIPS

TIPS ON EVALUATING HEALTHCARE LIABILITY (HCLA) CASES

Practice long enough and eventually you are likely to be asked whether you “handle med mal cases,” or to give your thoughts on a particular case. Whether the inquiry comes from a fellow attorney, friend, or family member, certain basic elements should be considered. If you are in an area of practice that tends to give rise to the question two or three times a year, the initial evaluation will be very helpful in referring the case or making a determination as to whether it is a case in which you might want to become involved. The focus here is from the plaintiff’s perspective. This article does not begin to address undertaking the prosecution of a healthcare case. The sole purpose is to provide food for thought on basic considerations in initial case evaluation.

Critical Questions:

Is it an HCLA case? A review of Tenn. Code Ann. § 29-26-101 indicates this is not a simple determination. Consider whether a medical device broke during a procedure, causing harm. This could be a products case, a medical negligence case, or a combination. Long ago, the general test was whether specialized medical training or licensure was required to perform the act complained of. That “test” no longer applies, and certainly doesn’t answer the question about hybrid type cases. The previously mentioned statute includes “custodial or basic care” as being healthcare services that may fall under a “healthcare liability action.”

Liability: Does it sound plausible? While many cases require early expert input, getting an understanding of who may have been negligent and why is the most basic inquiry. Beware the case where the claim is that multiple providers are alleged to have been negligent. Such matters can require multiple experts in multiple specialties. While many meritorious lawsuits involve such circumstances, the time and expense associated with prosecuting such cases is a significant factor in determining whether to proceed with review by a medical expert.

Damages must be considered as part of your beginning review. It is amazing the number of cases we review on a regular basis that involve someone who has made a full recovery but “could have died” by the claimed actions of a healthcare provider. One mistake during a case review is to focus on the extent of medical bills. Pursuant to T.C.A. § 2926-119, there are many situations where the only medical bills that can be recovered at trial are those which are protected by a subrogation interest. Often, whether the potential client has $30,000 or $1,000,000 in medical bills, there is no net value added to the overall case.

The statute of limitations generally requires suit be filed within one year of the negligence, or within one year of the discovery of such negligence.1

Even if there was a reasonable basis for not recognizing potential negligence, the three-year statute of repose bars most claims against a healthcare provider after three years from the date of claimed negligence.2

Medical Records: Assuming the liability, damages, and time limitation issues seem to pass muster, you will want to review the relevant medical records. Often, these can be obtained by the potential client at no

cost or at minimal cost by using a HITECH request.3 Alternatively, the potential client can create a patient portal to allow records to be obtained quickly. Depending upon the factual issues and your ability to evaluate such records, this is typically when the decision is made as to whether to have a medical expert review the potential case.

Consideration of the expenses necessary to prosecute one of these cases is important. The number and type of experts are a big part of whether a potential case is accepted or declined. Even with what appears to be clear liability with injury, the anticipated expenses themselves may preponderate against proceeding. Consider the hypothetical fact scenario where a patient complains of abdominal pain for three weeks postsurgery. The doctor, using the same abdominal wound location created during the surgery, goes in and discovers a sponge left in the abdominal cavity. The sponge is removed, and the wound is again closed. A full recovery is made. The doctor states, “I am very sorry about that. That is why I have insurance. Do what you have to do.” The cost of getting that case to a jury likely far outweighs any value.

A multitude of unique pitfalls exist in HCLA cases. Unfortunately, the law is everchanging in this area and the pitfalls can be moving targets. If possible, find out if any of the potential tortfeasors were residents or fellows (i.e. a “state employee” as defined by Tenn. Code Ann. § 8-42101(3)) at the time of the claimed acts. This can create requirements for special actions under the Tennessee Claims Commission Act. If a hospital or provider is a potential defendant, it will be critical to determine whether the hospital or provider is a governmental entity/ employee as this can result in statutory defenses, including the applicability of a relatively low financial cap.4

Before an HCLA lawsuit may be filed in Tennessee, a “notice letter” must be mailed. The requirements associated with notice letters are quite strict and could easily be the subject of a lengthier article. Suffice it to say, especially if the case is going to be referred to another lawyer, you can be sure that such lawyer has his/her own method of preparing notice letters and, ultimately, lawsuits. Therefore, if the case is to be referred, most reviewing attorneys would likely prefer you avoid mailing, filing, or serving anything beforehand.

Conclusion:

HCLA cases in Tennessee are challenging. The tips listed are mandatory basics for any attorney planning on bringing such an action, but are helpful if you are simply evaluating a case to determine potential strengths and weaknesses before referring it or seeking to co-counsel with someone who has experience in such matters.

1 T.C.A § 29-26-116.

2 T.C.A § 29-26-116.

3 HITECH (Health Information Technology for Economic and Clinical Health) Act of 2009.

4 T.C.A. § 29-20-310 and 403 (Tennessee Governmental Tort Liability Act).

DICTAOctober 2022 7

JUDICIAL PROFILE

CHANCELLOR RICHARD “BUD”

ARMSTRONG: PREPARED TO SERVE

The Sixth Judicial District has a new Chancellor, the Honorable Richard “Bud” Armstrong. Three candidates competed in the Knox County Republican Party primary for Chancery Court Part II. Bud was successful in the primary and the August general election was uncontested. He was sworn into office on the thirty-first of August.

I was first introduced to our new Chancellor fourteen years ago when he knocked on my hearing room door very late one night. At the time, Bud was about a year into his term on the Knox County Commission, and I was working the overnight shift as a General Sessions Court Magistrate. As we began to talk, he explained the reason for his nocturnal visit. Since the County Commission is the appointing authority for Magistrates, as a Commissioner, Bud, would soon be casting a vote to fill a recent vacancy. Bud understood the importance of preparation, and he dutifully applied himself to learning about a Magistrate’s judicial responsibilities. This midnight meeting left an indelible impression on me. During the eight years I worked nights, he was the only Commissioner that I recall coming to observe the public servants they were responsible for appointing.

Bud and his wife, Patti Jo, are lifelong residents of East Knox County. He was raised in a rural portion of the county, where he attended Skaggston Elementary School and then Carter High School. Although she was a woman of limited financial means, his strong and intellectually curious mother was responsible for the development of his foundational convictions. As a woman of great faith, she continued to be a powerful influence on his life. In her later years, she prepared a devotion which Bud was honored to share during one of his County Commission meetings. Bud is quick to recount by name all the many East-Knox-Countians who invested in him as a young man. One consistent thread throughout his entire life and career is a deep sense of indebtedness to and appreciation for his local community.

At the University of Tennessee, Bud earned both a Bachelor of Arts degree and a Master of Science degree. His local university education paved the way for his first job with the Tennessee Valley Authority. Throughout his career at TVA, he held a variety of positions, each with increasing levels of responsibility. Initially, he served as a Socio-Economic Scientist, later going on to serve as a consultant in environmental compliance, emergency response and education. His work with legislative and regulatory matters sparked an early interest in the study of law.

While working at TVA, Bud earned a Doctor of Education, Education Leadership – Policy; Financial, Institutional Analysis and Management Science from Columbia University. He became significantly involved with research in technical education and workforce development. Through his research, Bud was ultimately designated as codirector of an international research team and served as a congressional consultant. He has taught at the University of Tennessee, Roane State Community College and the University of Michigan. Bud has addressed

the National Press Club and various governmental organizations on both education and legal issues.

An invitation from former Juvenile Court Judge Carey Garrett to, “come help his kids” would be a turning point in his professional life. Continuing to work during the day, Bud began four years of driving to middle Tennessee and then returning at night to complete his legal education at Nashville School of Law. Upon his retirement from TVA, Bud was ready to begin the second act of his career. Following up on a promise that he made to Judge Garrett, Bud began his legal career with much time spent handling all types of cases in Juvenile Court.

From 2008 until 2010 Bud served on the Knox County Commission. While serving on Commission, he became a tireless advocate for building a new elementary school for the children of the Carter community, who had long endured substandard facilities. Fighting for this school was an uphill battle that many viewed as politically ill-advised. Yet for Bud it was personal, harkening back to his childhood and his desire to serve his community. Bud believes that his advocacy on Commission for building a new Carter Elementary School is one of his greatest contributions.

In 2012 Bud was elected Law Director and became responsible for overseeing all the legal matters for Knox County. His legal experience and management background melded well in this new role supervising a large office of brilliant attorneys and support staff. The work was both demanding and rewarding. Bud endeavored to be a good steward of the citizens’ resources. Under his leadership, the office brought in more than twenty million dollars through litigation and recovered over three million dollars in false claims wrongfully taken from the county. One of his most significant administrative accomplishments was insourcing the workers compensation program under the direction of the law department, a move that ultimately saved the county two million dollars in administrative costs. Adding the Board of Education’s workers compensation program saved an additional couple of million dollars, while extending coverage to eight thousand uncovered teachers.

Bud won reelection in 2016 and served until his term limit in 2020. The second act of his career was nicely bookended when he watched his Chief Deputy, David Buuck, succeed him as Law Director. However, he would again hear the call to service.

I visited the Chancellor’s new office during his second week on the bench. The walls were still bare in the spartan room. He was already deep into the work, yet seemingly unphased by the trappings of office. What I discovered was the same sense of preparation that I had encountered years before. His desk was covered in files, and he was eager to demonstrate a new electronic notetaking device. He was clearly excited to discuss the work he was doing, the wonderful court staff and a recent sermon about being available when the Lord has need of you. If past is prologue, then our new Chancellor will be well prepared and hard to outwork.

8 October 2022DICTA

BETTER

A STAMP ON HISTORY

“It isn’t history until you do it.” That is how Lieutenant Colonel Charity Adams Early characterized her time as the Commanding Officer of the 6888th Central Postal Directory Battalion.1 It was December of 1944, and then Major Adams and Captain Abbie Noel Campbell strapped themselves into their bucket seats of a C-54 cargo plane, heading across the Atlantic toward somewhere in Europe, with the rest of their Battalion to follow by ship.2

Captain Campbell’s family was already making history—but nobody knew it at the time. Her father, Thomas Monroe Campbell, was the first Extension Agent appointed by the U.S. government to the Negro Extension Agent Service of Alabama.3 A graduate of Tuskegee Institute and protegee of Booker T. Washington, Mr. Campbell helped to develop a “Movable School” to take the research and education being conducted at Tuskegee Institute on the road. He spent his forty-seven year career, from 1906 to 1953, creating and overseeing the Extension Agents who traveled to the poorest and most rural areas of Alabama to teach AfricanAmerican farmers about agriculture and how to improve their soil, their crops, and their families’ futures.4

When the U.S. entered World War II, one of Captain Campbell’s brothers, William A. “Wild Bill” Campbell, was a member of the U.S. Army Air Force’s, 99th Pursuit Squadron—now known as the Tuskegee Airmen.5 He was later tapped as the Commanding Officer of the 99th and earned two Distinguished Flying Crosses.6 Colonel Campbell later served in the Korean and Vietnam Wars. He is laid to rest in Arlington National Cemetery.7

One of Captain Campbell’s other brothers, Thomas M. Campbell, served as the Battalion Surgeon for the 614th Tank Destroyer Battalion.8 His unit was in France when his sister and Major Adams boarded the C-54 in December 1944.

When they boarded the C-54, Major Adams, Captain Campbell, and the sixteen other service-members on board were handed sealed envelopes. They were all instructed not to open the envelopes until they were in the air. About forty-five minutes into the flight, someone pulled out an envelope. Then, the next person and the next. Finally, everyone had their envelopes out and for the next few minutes, the only sounds were the roar of the C-54 and ripping paper.9

Major Adams and Captain Campbell were headed to London. Night bombings were frequent. Racism was rampant. Some military personnel simply could not believe that African-American WAC officers even existed. Salutes were slow, and stares were frequent.10 Major Adams was reprimanded for accepting an invitation to a white Officers Club.11 But, neither Adams nor Campbell had time to dwell on it. They had to get things ready for the rest of the Battalion.

On February 3, 1945, the 800 women who comprised the rest of the 6888th Central Postal Directory Battalion boarded the Ill de France headed for Europe.12 Keep in mind that this was only months after D-Day. German U-boats actively patrolled the Atlantic. Between 1939 and 1945, they sunk 3,500 Allied merchant ships and 175 Allied warships. Over 72,000 Allied troops lost their lives. Just boarding the Ill de France was courageous.13

But, there on the docks of Glasgow, Scotland were Major Adams and Captain Campbell. “Thanks to seasickness, salt water spray, and the limited personal conveniences, when they arrived after twelve days of sea, the group was a very unhappy looking lot.”14 Nightly air raids, sickness, poor accommodations, racism, and even the death of three members of the battalion in a Jeep accident did not deter them.15

You see, by February 1945, mail from the U.S. to the troops in Europe had reached a standstill. Three, unheated, dimly lit, rat-filled warehouses in Birmingham, England were filled, top to bottom, with stacks of undelivered Christmas packages and mail—stalled by the fierce

fighting in Western Europe in the fall and winter of 1944.16 Major Adams and Captain Campbell had already assessed the site and had a plan. They organized the Battalion into three units, each of which worked eight hours a day, around the clock, seven days a week.17

“No Mail, Low Morale,” was their motto, and the Battalion worked tirelessly. They created over 7,000,000 information cards, one for each service member who received mail, with name, serial number, branch and location. They processed around 65,000 pieces of mail per shift, and within three months, they cleared a backlog of mail that headquarters predicted would take at least six months.18 Millions of soldiers were no longer alone.

We’ve been up six hours, two hours to go Though we’re doing 200, it seems very slow.

England at last, the tail gunners learn. We think of our buddies who will not return.

* * *

Then, head for your sack at nine or ten.

A letter from home, another from her.

“I love you,” she wrote, then you know you’ve won. A gunner’s day is never done.19

After accomplishing their mission three months ahead of schedule, the 6888 was shipped to Le Havre, France, shortly after V-E Day. Initially, they were tasked with assisting female French civilians and German POW’s. Then, they were assigned to clear out another backlog of mail—this one piling up for 3 years—and they managed to clear the backlog in 6 months.20

The 6888th Battalion was disbanded in February 1946. It was the only African-American women’s unit to serve overseas during WWII.21 Major Adams was the highest-ranking African-American officer in WWII. After her return, she was promoted to Lieutenant Colonel, worked for the Pentagon, and then was honorably discharged in 1946.22 A few years later, she served as the Dean of Student Services at Tennessee State University in Nashville.23

But the Six Triple Eight’s impact was more foundational. Because of the 6888th Battalion’s remarkable service, in December 1945, the Women’s Army Corps. officially updated its training program to provide, “The national security program is the joint responsibility of all Americans irrespective of color or sex.”24 By making things better for millions of servicemembers anxious for a word from home, they also brought about the first, significant policy shift away from sexism and racism. They altered history.

1 Interview with LTC Charity Adams, Oral History, 1990, available at https://www. womenofthe6888th.org/#:~:text=THE%206888TH%20CENTRAL%20POSTAL%20 DIRECTORY%20BATTALION,-On%20May%2015&text=The%206888th%20was%20 the%20first,Henderson.

2 Herb Boyd, Captain Abbie Noel Campbell, One of the First Black Women Officers in the WAC (Amsterdam News, June 10, 2021), available at https://amsterdamnews. com/news/2021/06/10/captain-abbie-noel-campbell-among-first-black-women.

3 Charlie Cooper, Ann Cooper, Tuskegee’s Heroes, p. 98 (MBI Publishing Co. 1996).

4 Auburn Univ., Photographs from the Negro Extension Service, available at https:// www.lib.auburn.edu/archive/aghy/aces/blkaces/nes.htm.

5 Cooper, supra n. 3; Britannica, 99th Pursuit Squadron, available at https://www. britannica.com/topic/99th-Pursuit-Squadron.

6 Cooper, supra n.3.

7 Arlington National Cemetery, William A. Campbell, https://ancexplorer.army.mil/ publicwmv/index.html#/search-all/results/1/CghDYW1wYmVsbBIHV2lsbGlhbQ, last

DICTAOctober 2022 9
continued on page 20

AROUND THE BAR

CHAIR CHAT

In this month’s installment of “Chair Chat,” a periodic feature about the KBA’s many committees and sections, we hear from Employment Law Section co-Chairs Howard Jackson and Mark Travis, and Archives Committee co-Chairs Heidi Barcus and Kim Burnette.1

Employment Law Section

Howard Jackson, of Wimberly Lawson Wright Daves & Jones PLLC, and Mark Travis, of Travis ADR Services LLC, have co-chaired this Section since 2016.

Who should join the Employment Law Section?

Anyone who practices employment law or has an interest and wants to learn more, including in-house counsel who may be called upon to advise on such issues at times.

What is something people might not know about your Section, but should? It is open to anyone who wants to learn about the subject area, regardless of whether they currently practice in the area much or at all. Employment law touches most of us in one way or another, so almost everyone can take away something useful from the Section’s CLEs and other activities.

If the Section were a household appliance, what would it be and why? A mosquito killer.  We help people understand how to keep out things that can bite them.

How did the pandemic affect the Section?  We had, and still have, zoom presentations instead of in person.  We had decent attendance but not to the same level.

What events and/or projects are in the works?   We have a CLE coming up in October.  That is normally the last one for the year.

If the Section could do anything at all, what would it be?  Leap tall buildings in a single bound, and have a good understanding of how we can present topics of interest to help as many KBA members as possible.

Archives Committee

R. Kim Burnette, with Arnett, Draper and Hagood, has Chaired the Committee since 2019. Heidi Barcus, of Lewis Thomason, joined as coChair this year.

Who should join the Archives Committee?

Anyone is interested in helping to preserve (as well as enjoy and learn from) the rich legal history of the KBA. We identify members of the KBA whose stories should be preserved, and then arrange for those folks to be interviewed on camera, normally by a partner, relative or close friend—someone who knows them well. The interviews typically run about an hour.

What is something that people might not know about your Committee, but should?

What an amazing resource and treasure trove these videos are. Seeing and listening to these interviews is not just entertaining, but also a great educational resource. There are currently over 50 videos available, including interviews with such pioneers and greats of the Knoxville Bar as Arline Winchester Guyton, Foster Arnett, and Ed Rayson, just to name a few.

If the Committee were a household appliance, what would it be and why? Although these videos are now available on demand from your desktop, laptop, or phone, let’s go old school and say a VCR, simply because the practices of many of these interviewees go well back in time, even back when Super 8 and Reel-to-Reel were the latest and greatest in video and audio technology.

How did the pandemic affected the committee? It pretty well ground things to a halt. The video interviews are done with the interviewee, interviewer, and a videographer in close proximity. Because most of the interviewees are more senior members of the Bar, concerns for safety and health counseled in favor of putting these projects on hold during the pandemic. We considered doing the interviews remotely or while masked up, but those options were simply not appealing for this type of intimate archival interview.

What events or other projects are in the works?

As things have pretty much returned to “normal” this year, there are at least a dozen interviews in the works. Recently completed videos available on the KBA website are those of Amy Hess, Bill Simms, and Howard Vogel. The next upcoming interview is that of Judge Curtis Collier, scheduled within the next 30 days. We hope to have several others in the can by year end.

If the Committee could do anything at all, what would it be? Wave a magic wand and have interviews completed of those members of the Bar that our Committee has identified for interviews before, heaven forbid, something bad happens that prevents the interview from being done.

Anything else to add?

First, if you know of anyone that would be a good candidate for our Committee to interview, please contact either Kim (kburnette@adhknox. com / 865-546-7000) or Heidi (hbarcus@lewisthomason.com / 865-5464646) and let us know. Otherwise, take advantage of this resource by checking out the videos. Go to the KBA website, knoxbar.org, click on Member Resources, and then click on Legal History Videos. With over 50 video interviews currently available, this is a resource that we highly recommend you take advantage of. You will not be disappointed.

1 Responses have been edited slightly for length and clarity.

10 October 2022DICTA

AROUND THE COMMUNITY

KNOXVILLE BAR FOUNDATION: RECOGNIZING DISTINGUISHED ATTORNEYS AND AWARDING GRANTS FOR OUR COMMUNITY

Established in the early 90’s, the Knoxville Bar Foundation provides grants to support important programs and projects of our community. The funding for the grants comes primarily from the Fellows of the Foundation. The Fellows program publicly honors and recognizes attorneys who have distinguished themselves in the legal profession and in service to the Knoxville legal community. The Foundation is proud to honor and recognize the following members of the 2022 Class of Fellows:

Catherine W. Anglin

George R. Arrants, Jr.

Lisa J. Hall

Raymond G. Lewallen, Jr.

John G. Brock Magistrate Judge Jill E. McCook

William J. Carver

William D. Edwards

Eric J. Morrison

Jennifer B. Morton

Robert B. Frost, Jr. L. Caesar Stair, IV

CASA of East Tennessee for recruiting and training volunteers

Community Mediation Center

Federal Defender Services – Full Circle Re-Entry Program

• Knoxville Bar Association – Legal History Videos

Knoxville - Knox County Community Action Committee Office on Aging in support of its Grandparents as Parents Program

Knox County Juvenile Court in support of the ASIST program for status offenders

Legal Aid of East Tennessee to continue funding the Knoxville Bar Foundation Fellowship for hiring a law student for the Pro Bono Project

Metro Drug Coalition, to pay deposits for indigent individuals to enter sober living housing

• SEEED Inc. to administer the Career Readiness Program and expose students to the justice system

• Tennessee Innocence Project to help fund law student interns and externs

YWCA of Knoxville in support of its Victim Advocacy Program

The total sum of all grants awarded this year is $25,000.00. The Foundation’s goal is to facilitate and support projects and programs that seek to improve the administration of justice, to enhance the public’s understanding of and confidence in the legal system, to support access to the legal system, and serve the legal profession. Since 1997, the Foundation has awarded grants totaling approximately $535,000.00. Each year the Foundation solicits and receives multiple applications for grants. This year the grant requests totaled $65,500.00. Each application was reviewed by the Board of Directors, and a determination was made as to what, if any, sum should be awarded for each application.

The Fellows were selected from an outstanding list of nominees received from the members of the Foundation. This list was narrowed by vote of the Board of Directors due to the limited number of Fellows that may be chosen for each class. The reputation that each new Fellow holds in our legal community reveals that the Class of 2022 exemplifies the highest of ethical and professional standards and consists of individuals who continue to have a positive impact upon our profession.

The Foundation is also proud to announce that it has awarded grants this year to the following entities:

The Foundation’s Board of Directors are Adrienne Anderson, J. William Coley, Wade Davies, John Harber, Reggie Keaton, Wayne R. Kramer, and Charles Swanson.

If you would like to make a financial contribution to help support the work of the Foundation or if you would like to learn more about the Foundation, please feel free to contact me or any other member of the Board of Directors.

Front: Jennifer Morton, Eric Morrison, Hon. Jill McCook, Catherine Anglin, Lisa Hall, Grant Lewallen Back: George Arrants, John Brock, Will Edwards, Rob Frost, Caesar Stair (Not pictured: Will Carver)
DICTAOctober 2022 11

LESSONS LEARNED: REFLECTIONS FROM A RETIRING LAWYER

RETIREMENT

The decision to retire from the practice of law is a most difficult one, and in fact, some lawyers simply do not make the decision. In stead, some lawyers continue to work regardless of their age.

Yes, I am retired. I have kept my law license for the present, but I let my mediation listing lapse and my certification as a specialist in criminal law.

Many considerations go into the decision to retire, but the two most significant are money and ego. Let me explain.

Although I began to think about retiring at age 65, it was not until I turned 73 that I carried through. It is a process. Since I was in private practice, the first step I had to take was to quit taking new cases, which took almost a full year.

The fundamental factor in delaying retirement until I was 73 was money; I could never decide how much money I needed to head into retirement. The truth is that I never decided how much money was enough. I just pulled the cord, embarking on this process of retirement. Ultimately, I decided that regardless of how much money I have salted away, it’s time to enjoy a life without the law before the Grim Reaper appears.

Another significant consideration is your EGO. We lawyers develop a pretty healthy ego as the years go on. We grow dependent on our life as a lawyer to make us feel worthwhile, important, and needed. Being recognized on the street by fellow lawyers and others, knowing that the judges know your name, getting accolades for your successes - all these go into our precious ego. My point is that you have to give

that up when you retire.

I had the wonderful gift of joining Eldridge and Blakney as “Of Counsel” for my last three years of practice after I closed my office. As “of Counsel,” I had all of the perks of being a lawyer but without the headaches of running a full-blown practice. The phone kept ringing, and I kept taking in new clients, impressing them with the firm’s conference room since I did not have a separate office. It was a great way to transition toward retirement, taking fewer cases and easing out slowly. I highly recommend it!

Letting go of all those ego fulfillments from practicing law is not easy, nor quick. It takes time and the realization that I cannot move toward those other things I want to do unless I can give up that ego fulfillment as an attorney. Granted, I still have pangs of needing my ego stroked, but I am finding that the practice of law is not the only ego filler. There are plenty of other ways to feed my ego, and truthfully, the centrality of the need for ego fulfillment tends to dissipate with age.

Friends often ask what I am doing with my extra time. My initial reply is that I seldom get in a hurry anymore. I do not pack so many “todo’s” into a day. The closest I can get to describing retirement is that it is like the feeling you get when you are at the beach, relaxed and not in a hurry. I have been a “doer” all my life, and now I am learning to just “be.”

Consequently, I appreciate people, nature, and my surroundings more. I now take the time to smell the roses. When I once was so busy, I didn’t even know there was a rosebush!

This retirement, I highly recommend it!

12 October 2022DICTA

MANAGING A HYBRID WORKFORCE

Two years ago, the COVID-19 pandemic drastically changed how many of us work. Offices closed, employees were sent home, and wide-scale remote work was suddenly the norm. Now, as the pandemic eases and employers are looking to find their new normal, and offices are reopening, the reality of a hybrid environment is here to stay. Recent studies show that the majority of employees desire flexibility in the form of remote or hybrid work,1 and employers must offer some flexibility to remain competitive.

But the hybrid work environment comes with its own set of unique challenges, and understanding how to manage in a hybrid work environment is critical.

Communication is key

Make sure to establish multiple levels of communication with your employees. When your employees are rarely or never in the same place together, it’s important to have communication methods that account for the variety of schedules and ways that employees prefer to receive information. Email announcements, newsletters, intranet websites, and written policies are all standard forms of communication and remain relevant and necessary. But consider daily or weekly update meetings to communicate crucial, time-sensitive information. Instant messaging, chat programs, and text messaging work well for other less important, but still time-sensitive communications. And picking up the phone and making a call is still often the most effective way to ensure a message gets delivered. Establish clear expectations

Are there certain times when employees are expected to be in the office? Are there core hours during the workday when everyone must be available, or certain types of meetings where being on video is a must? If the answer to any of these questions is yes, it’s critical to clearly set these expectations for your employees.

Don’t assume that your employees know what you expect of them. A former manager of mine once told me it wasn’t necessary to give employees certain explicit instruction because “those employees just know based on how I treat them.” In fact, the exact opposite is true. Employees cannot read your mind. It’s easy to confuse less-than-clear signals in your everyday interactions, and that’s even more true if the majority of your interactions are over the phone or in virtual settings rather than in person. Instead, set clear and concise expectations, in writing, for your employees in those areas where specific expectations exist. If employees are required to attend staff meetings in person, or to be in the office at certain times, put that in writing and explain those circumstances that would justify virtual attendance instead. Providing your employees transparency about your expectations makes it more likely that they will meet them.

Consider creating a “Hybrid Work” policy that sets forth what you expect from your employees: when employees are expected to be in the office; whether there are any core hours during the day when employees must be available (if you allow flexible schedules); when employees are required to be on video in virtual meetings; any connectivity or technology requirements for remote employees (such as internet access or bandwidth speeds); and any limits on where employees can work

based on the need for confidentiality (i.e., no work in public cafes) or cybersecurity concerns (i.e., no using public wifi).

Be intentional in your interactions

Impromptu interactions like the proverbial water cooler chat are less likely, if not impossible to have in a hybrid environment, and thus it is imperative that you intentionally make time to interact with your employees.

Take time to schedule regular one-on-ones with your direct reports, and your skip level employees. Set aside time every week or two to catch up with your team, not only about work-related matters, but also on a personal level. A good practice is to schedule the first 10-15 minutes of your meeting for personal catch-up, the next 10-15 for any matters the employee wants to discuss with you, and the last 10-15 for any matters you’d like to follow-up and discuss. Give your employees discretion over the scheduling, so meetings fit within their schedule and don’t feel like a burden. Also, encourage your employees to set up one-on-ones with their peers, not just their bosses or direct reports, to help them stay engaged with one another.

Get together when it matters

There will always be occasions when it makes sense to bring employees together in person. Identify where in-person attendance will truly create value, and where it won’t. Mentoring and career development, innovation and collaboration, all benefit from employees being together in the same room and able to communicate freely and spontaneously. Consider centering any in-person requirements around these types of activities, rather than arbitrarily selecting certain times for employees to gather without any defined purpose. Requiring all employees to be in the office every Monday doesn’t promote teamwork or collaboration if all of those employees are simply sitting at their desks attending virtual meetings that just as easily could have been attended from home, and may actually create resentment and disengagement. Instead, consider asking employees to come into the office on days when staff meetings are scheduled, or to attend an all-hands meeting or a workshop. These environments make the most of in-person communication and add value to the workplace. Also, ask your employees what types of interactions they think benefit most from being in-person – you might be surprised at how those differ from your own experiences, and consider tailoring your expectations to each employee’s style of engagement. Productivity over facetime

In the past, employees who spent the most time in the office were often viewed as the most productive or valuable – even if that wasn’t actually true. In a hybrid environment, facetime is no longer a measure of an employee’s dedication. Instead, your employees’ productivity and performance should be your focus. Are employees meeting expectations and performing well? Is the work getting done? Are your clients satisfied with the work product and interactions? These are better measures of an employee’s value than how many hours they spend in their cubicle. Also, ask yourself whether a meeting is truly required in order to accomplish a task. Sometimes, it really is true that a meeting could have been an email. Identify those tasks that can be more efficiently accomplished through

on page 26

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

DICTAOctober 2022 13
continued

From time to time, you may wonder, “whatever happened to Spencer Elden?” After all, the last time you saw him was probably when he was just a naked baby in a pool, being enticed by a dollar bill on a fish hook. Spencer Elden’s parents were paid $200 for allowing his photograph to be taken for the iconic album cover of Nirvana’s Nevermind, which was released in 1991 and has sold more than 30 million copies.

Nirvana, L.L.C., the members of Nirvana, and several record companies under 18 U.S.C. § 2255(b). Spencer Elden v. Nirvana, L.L.C., et al., U.S.D.C., C.D. Cal, No. CV 21-6836 FMO (AGRx). He alleged that he had been depicted as a “sex worker,” because he was grabbing for a dollar bill while naked. Alas, the statute of limitations for civil lawsuits under this statute is ten years after the victim discovers the claim or reaches the age of 18. Being too old for the second option, Elden had to argue that he should be able to sue within ten years of discovering any alleged “violation” or “injury,” even if he had been aware of countless other alleged violations or injuries all this time.

As you might imagine, Elden is not presently instantly recognizable as the Nirvana baby. Rather, he has enjoyed the type of pseudo-fame that would require him to explain to someone that he was the baby on the Nirvana cover (“You know, the one in the pool? With the dollar?”) for anyone to know who he is. Perhaps to help with his attempts at recognition, he has “Nevermind” tattooed on his chest. He has recreated the pose as an adult more than once (2001, 2008 and 2016), telling the New York Post in 2016 that it was “cool but weird to be part of something so important that I don’t even remember.” He suggested that they do the pose naked, but the photographer thought that would be weird, so he wore his swim shorts. (Good call, photographer!) The year before that, he told The Guardian he was glad he was chosen to be the Nevermind cover baby, and also glad that his image was not used “for something like a Backstreet Boys album.” He also said, “Sooner or later, I want to create a print of a real-deal re-enactment shot, completely naked. Why not? I think it would be fun.”

The issue came before the court when the defendants filed a Motion to Dismiss Second Amended Complaint. The court held that the statute only applies to someone who was a victim of a violation “while a minor.” The court rejected the argument that Elden had only discovered his “injury” within the last ten years, and even Elden had to admit that “he knew of [alleged] injuries arising from defendants’ activities related to their use of his image on the Nevermind album cover more than ten years before he filed this action.” In light of the fact that he knew or should have known well before 2011 (ten years before filing suit) that no less than thirty million images of his photograph had been part of well-known pop culture for at least three decades, the court dismissed the complaint.

Of course, Elden has appealed. After all, his “true identity and legal name are forever tied to the commercial sexual exploitation he experienced as a minor which has been distributed and sold worldwide from the time he was a baby to the present day.” It begs the question if anyone besides his parents would know the name of the baby on the Nirvana album if he had not filed this lawsuit. We all know that even with the lawsuit, “Spencer Elden” is not going to reach household name status. (I personally had to scroll back to the top of this document to remember his first name. I keep wanting to call him Sheldon). May Sheldon’s imminent return to obsolescence bring him comfort in the days to come.

Despite the tattoo and the multiple recreations of the original photograph, in August of 2021, Elden decided that what actually happened to him was “commercial sexual exploitation,” and he sued

14 October 2022DICTA
LEGALLY WEIRD
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LEGAL UPDATE

GET READY FOR THE CORPORATE TRANSPARENCY ACT

Business lawyers need to be prepared for the Corporate Transparency Act of 20211 (the “CTA”). The CTA’s purpose is to “improve transparency for national security, intelligence, and law enforcement agencies and financial institutions concerning corporate structures and insight into the flow of illicit funds through those structures” and to “discourage the use of shell corporations as a tool to disguise and move illicit funds.”2

The CTA became law in January 2021, but its implementation has been delayed until until the Financial Crimes Enforcement Network (FinCEN)3 issues final regulations. The final regulations could be issued any day – but they are expected to be published closer to the end of 2022 or early in 2023. Upon publication of the final regulations, compliance will immediately become mandatory for all non- exempt entities. Noncompliance may result in severe penalties, as discussed below.

The following is a high-level overview of the CTA and what it means for business entities and business lawyers.

What is required?

The CTA requires non-exempt “reporting companies” (defined below) to file a beneficial ownership information report (“BOI report”) with FinCEN.4 The BOI report shall identify each of the reporting company’s “beneficial owners” and “company applicants,” including each individual’s legal name, date of birth, residential or business address, Social Security number, and an acceptable identification document such as a driver’s license or passport.5 FinCEN will maintain BOI reports for at least five (5) years after the date on which a reporting company terminates.6 The regulations do not address what is meant by “terminates,” nor do they address whether (or when) FinCEN will purge BOI reports from its database. The Secretary of the Treasury (who oversees FinCEN) is required to implement security protocols to protect the information compiled by FinCEN under the CTA.7

What is a “reporting company”?

The CTA limits the definition of “reporting companies” to corporations, LLCs, and other similar entities that are “created by the filing of a document with a secretary of state or a similar office under the law of a State or Indian Tribe” or “registered to do business in the United States by the filing of a document with a secretary of state or a similar office under the laws of a State or Indian Tribe.”8 FinCEN has indicated that “other similar entities” will likely include LPs, LLPs, LLLPs, certain trusts, and other entities afforded limited liability protection under state law.9

What companies are exempt?

The CTA includes several exemptions within the definition of “reporting companies.”10 Some noteworthy exemptions are: companies that are already subject to reporting requirements under other federal laws; public companies issuing securities under §12 of the Securities Exchange Act of 1934; certain venture capital fund advisors; banks; utility companies; pooled investment vehicles; insurance companies; 501(c) tax-exempt entities; and charitable trusts.11 Entities that are owned or controlled by another exempt entity are also exempt.12 Also exempted are “large operating companies,” which: (a) have more than 20 full-time employees in the U.S.; (b) had more than $5,000,000 in gross sales or receipts in the previous year (aggregated with sales or receipts of any entities owned or controlled by such entity, or by any entities

“through which such entity operates”); and (c) have a physical location and operates in the U.S.13 Finally, inactive entities will be exempt if they: (a) have been in existence for more than one (1) year; (b) are not actively transacting business; (c) are not owned by a foreign person; (d) have not, in the past 12 months, had a change of ownership or sent or received more than $1,000; and (e) do not otherwise hold any kind of assets, including an interest in another entity.14

Who are “beneficial owners” and “company applicants”?

A “beneficial owner” is an individual who, with respect to a nonexempt reporting company, directly or indirectly: (a) exercises substantial control over the entity; or (b) owns or controls more than 25% of the entity’s ownership interests.15 Although “substantial control” is not defined, the proposed regulations reference a “facts and circumstances test that looks at the individual’s ability to control or influence the decisions of the company.”16 Indicators of substantial control include: (a) serving as one of the senior officers of the reporting company; (b) having authority to appoint or remove a senior officer or majority of the board of directors; and (c) directing, determining, or making decisions regarding, or exerting substantial influence over the reporting company’s important matters.17 “Beneficial owners” does not include minor children (if the parent’s or guardian’s information is reported), individuals acting as agent for a beneficial owner, individuals acting only in the capacity of employees of a reporting company, individuals whose interest arises as a right of inheritance, or creditors of a reporting company.18

A “company applicant” is a person who files an application to form a domestic reporting company or registers a foreign reporting company to do business in the U.S.19 “Company applicants” also include individuals who “direct or control the filing of such document by another person . . . .”20 Thus, a lawyer (and possibly even the lawyer’s paralegal or legal assistant) who files a formation document for a reporting company is also a “company applicant.”

Here, one can begin to see where it may be difficult to determine the identities of beneficial owners and company applicants.

When must a BOI report be filed?

Non-exempt reporting companies formed after the final regulations are issued will have only fourteen (14) days from the date of formation to file an initial BOI report.21 Non-exempt reporting companies formed before the issuance of the final regulations will have one (1) year to file an initial BOI report.22 If an exempt company loses its exemption, it must file its initial BOI report within thirty (30) days from the date the exemption was no longer satisfied.23 BOI reports must also be updated within thirty (30) days if there is any change in beneficial ownership or the personal information of a beneficial owner, or if the reporting company becomes exempt under the CTA, or when the estate of a deceased beneficial owner settles.24 Lastly, reporting companies will be required to correct inaccuracies within fourteen (14) days after the inaccuracy is discovered or should have been discovered.25

What are the penalties for non-compliance?

The CTA provides that it shall be “unlawful for any person to willfully provide or attempt to provide false or fraudulent beneficial ownership information . . . or to willfully fail to report, complete, or update beneficial ownership information to FinCEN . . . .”26 Failure to

DICTAOctober 2022 15
continued on page 25

THE FOUR PROPOSED AMENDMENTS TO THE TENNESSEE CONSTITUTION

On November 8, 2022, Tennesseans will decide whether to adopt four amendments to the state constitution. Each of these amendments has succeeded in the initial stages of the amendment process by receiving a favorable vote in two successive sessions of the General Assembly.1 In the next and final step in the amendment process, Tennessee voters will decide whether to “approve and ratify such … amendments by a majority of all the citizens of the state voting for governor.”2 To clear that hurdle, two conditions must be satisfied: (1) each proposed amendment must receive more “yes” votes than “no” votes; and (2) the number of “yes” votes must exceed one-half of the total votes cast in the gubernatorial race.3 The proposed amendments include a provision related to the rights of workers, employers, and unions; a detailed process for the appointment of an acting governor; a more absolute abolition of slavery; and the removal of a provision purporting to disqualify religious leaders from serving in the General Assembly. As explored in the sections that follow, these proposed amendments implicate a variety of competing policy concerns for voters to consider when they decide whether to adopt these changes to our state’s highest source of law.

Amendment 1: Rights of Workers, Employers, & Unions

Amendment 1 proposes the addition of a new section in article XI of the Tennessee Constitution, to provide as follows: “It is unlawful for any person, corporation, association, or this state or its political subdivisions to deny or attempt to deny employment to any person by reason of the person’s membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization.”4 Notably, Tennessee already has a statute, originally adopted in 1947, with nearly identical language.5 Thus, rather than effectuating a change in the law, Amendment 1 would enshrine existing rights and protections in the state constitution.

Proponents of Amendment 1, such as Governor Bill Lee and former Governor Bill Haslam, contend that so-called “right-to-work” laws protect workers from being “fired based on their choice to join, or not join, a union and pay dues.”6 They also contend that such laws lead to positive economic outcomes, such as higher incomes, increased employment rates, and population growth.7

Opponents of Amendment 1, including many unions and their supporters, characterize it as constitutionalizing the “right to work (for less).”8 Those opposing the measure point out that schemes such as Amendment 1 disincentivize union membership by requiring union contracts to extend to all workers, not just those in unions.9 They also draw upon arguments made by workers’ rights activists who opposed

the adoption of “right-to-work” laws in the mid-twentieth century. A prominent example comes from the workers’ rights advocacy of Dr. Martin Luther King Jr., who addressed the subject in an often-quoted 1961 speech:

In our glorious fight for civil rights, we must guard against being fooled by false slogans, such as “right to work.” It is a law to rob us of our civil rights and job rights. Its purpose is to destroy labor unions and the freedom of collective bargaining by which unions have improved wages and working conditions of everyone.10

Given Tennessee’s existing statutory protections, one question is why there is a need for a constitutional amendment. Proponents of Amendment 1 point to recent state and national legislative efforts to undermine right-to-work laws and augment protections for unions.11 To date, lawmakers have not been able to enact such measures at the state or national level. Of course, the enactment of any such federal law would result in the preemption of any inconsistent provision of state law, including provisions of the state constitution.12

Amendment 2: Appointment of Acting Governor Amendment 2, if adopted, would delineate the process for the appointment of an acting governor.13 In its current form, article III, section 12 of the Tennessee Constitution succinctly addresses the line of succession if the governor dies or is removed from office; the Speaker of the Senate is the first in line to take on the governor’s duties, followed by the Speaker of the House. Amendment 2 would retain the same line of succession, but it would add a detailed process for the temporary exercise of gubernatorial powers by the Speaker of the Senate (or, in his or her absence, the Speaker of the House) upon certification by the governor that he or she is temporarily unable to discharge the duties of the office. The governor would be entitled to resume office upon certification that he or she has regained the ability to discharge the powers and duties of the office. An example of a scenario in which this provision might apply is if a medical condition renders the governor temporarily unable to serve.14

Amendment 2 would also provide for the Speaker of the Senate (or, in his or her absence, the Speaker of the House) to assume the role of acting governor upon the submission of a declaration that the governor is unable to discharge the duties of the office by a majority of the commissioners of administrative departments of the state executive branch. As with the previous provision, the governor would be entitled to resume office upon his or her certification of regaining the ability to

16 October 2022DICTA

COVER STORY

discharge the powers and duties of the office.

Amendment 2 also addresses details such as the salary to be paid to a speaker who is serving as acting governor (they retain their speaker’s salary) and their legislative role (during service as acting governor, a speaker may retain legislative office but may not preside as speaker or vote as a legislator).

Perhaps because of its bureaucratic nature, Amendment 2 has not generated as much controversy as the other amendments.

Amendment 3: An Unequivocal Ban on Slavery

In its current form, article I, section 33 of the Tennessee Constitution provides “[t]hat slavery and involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, are forever prohibited in this state.” Amendment 3 would modify that provision to read as follows: “Slavery and involuntary servitude are forever prohibited. Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”15

Tennessee is one of five states considering the adoption of this type of amendment; the others are Alabama, Louisiana, Oregon, and Vermont. Three other states (Colorado, Nebraska, and Utah) approved similar amendments in recent years.

The purpose of the amendment is to remove language from the state constitution allowing a person convicted of a crime to be subjected to slavery or involuntary servitude as a form of punishment. Proponents of Amendment 3 point to the history of exploitation arising from the exception allowing slavery as form of criminal punishment, including the Black Codes, Jim Crow laws, and chain gangs.16 Representative Joe Towns (D-Memphis), one of the sponsors of the original joint resolution initiating the amendment process, commented as follows: “Today is an historic day as this state has taken a definitive step forward in stripping all forms of slavery from the Tennessee State Constitution. Some Tennesseans may be prisoners, but, by God, they will not be slaves.”17

Amendment 3 has garnered bipartisan support and passed with significant majorities each time legislators voted on it. During its final vote in the most recent legislative session, only six legislators voted against it, expressing the view that slavery is already unlawful in Tennessee and the new measure could confuse voters by suggesting otherwise.18

Amendment 4: Removal of Prohibition on Religious Leaders as Legislators

Article IX, section 1 of the Tennessee Constitution provides as follows: “Whereas ministers of the Gospel are by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no minister of the Gospel, or priest of any denomination whatever, shall be eligible to a seat in either House of the Legislature.” Amendment 4 would delete that provision in its entirety.19

Article IX, section 1 has not been enforced since 1978, when the U.S. Supreme Court held in McDaniel v. Paty that the provision violated the First Amendment to the U.S. Constitution—specifically, the right to the free exercise of religion.20 Since that time, it has become routine for members of the clergy to serve in the General Assembly.

Even though it is well established that article IX, section 1 is invalid, the lawmakers who sponsored Amendment 3 have expressed that it is an important signal of “biblical values.”21 They have also explained that it is beneficial to “clean up” an obsolete provision, especially given that Tennessee is the last state to maintain such a prohibition.22

Notably, immediately following the prohibition on ministers is another disqualification that provides as follows: “No person who denies

the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this state.”23 That provision is also unenforceable because it violates the First Amendment of the U.S. Constitution.24 The decision to remove the prohibition on ministers while leaving intact the equally unconstitutional prohibition on non-believers underscores the stigma that members of the latter group continue to face.25

Conclusion

Although predicting elections is always a dangerous endeavor, experience suggests that proposed amendmenats often pass absent strong opposition. Should these Amendments be adopted in November, they will represent a significant milestone in the continued evolution of the Tennessee Constitution.

1 See Tenn. Const. art. XI, § 3.

2 Id.

3 See George v. Hargett, 879 F.3d 711, 730 (6th Cir. 2018) (upholding Tennessee’s methodology for proposed constitutional amendments).

4 Right to Work Amendment, 111th Tenn. Gen. Assemb., SJR 648 (June 17, 2020); 112th Gen. Assemb., SJR 2 (Apr. 29, 2021).

5 Tenn. Code Ann. § 50-1-201.

6 Vote Yes on 1, https://tnright2work.com/ (last visited Sept. 9, 2022) (quote from embedded video).

7 Id.

8 See Betty Bean, Another Amendment One: The Right to Work (for Less), Knox Scene (Sept. 8, 2022), available at https://www.knoxtntoday.com/another-amendmentone-the-right-to-work-for-less/.

9 See id.

10 Dr. Martin Luther King Jr., 1961 Speech on Workers’ Rights, quoted in Now is the Time, Dr. Martin Luther King Jr. on Labor in the South: The Case for a Coalition (Jan. 1986).

11 See, e.g., Protecting the Right to Organize Act of 2021, 117th Cong., H.R. 842 (Mar. 9, 2021).

12 See U.S. Const. art. VI, cl. 2 (Supremacy Clause); Lake v. Memphis Landsmen, LLC, 405 S.W.3d 47, 55 (Tenn. 2013).

13 Resolution on the Exercise of the Powers and Duties of the Governor During Disability, 111th Tenn. Gen. Assemb., SJR 154 (May 2, 2019); 112th Gen. Assemb., SJR 10 (May 4, 2021).

14 Cf. The West Wing, Twenty Five, Episode 23 of Season Four (NBC May 14, 2003).

15 Resolution to Prohibit Slavery and Involuntary Servitude, 111th Tenn. Gen. Assemb., SJR 159 (Apr. 22, 2019); 112th Gen. Assemb., SJR 80 (May 4, 2021).

16 See, e.g., Dawn R. Harrington & Jan Blair, How Voters Can Abolish Slavery Forever in Tennessee this November, The Tennessean (Aug. 3, 2022).

17 Victoria Antram, Tennessee Voters Will Decide 2022 Amendment to Remove Language that Allows the Use of Slavery and Involuntary Servitude as Criminal Punishment, Ballotpedia News (May 7, 2021).

18

The legislators who voted against Amendment 3 are Representatives Susan Lynn (R-Mt. Juliet) and Chris Todd (R-Madison Cnty.), as well as Senators Janice Bowling (R-Tullahoma), Joey Hensley (R-Hohenwald), Brian Kelsey (R-Germantown), and Frank Niceley (R-Strawberry Plains). See Tennessee General Assembly, SJR 80 (“Votes” tab), https://wapp.capitol.tn.gov/apps/BillInfo/Default. aspx?BillNumber=SJR0080 (last visited Sept. 9, 2022).

19 Resolution Relative to Disqualifications, 111th Tenn. Gen. Assemb., SJR 178 (June 17, 2020); 112th Gen. Assemb., SJR 55 (Apr. 27, 2022).

20 435 U.S. 618, 629 (1978).

21 Daniel Silliman, Why Tennessee Is Just Now Looking at Lifting a Ban on Clergy in the Legislature, Christianity Today (May 10, 2022) (quoting Sen. Mark Pody (R-Lebanon)).

22 Chris O’Brien, Amendment Would Remove Minister Disqualification from Constitution, https://www.wkrn.com/news/tennessee-politics/amendment-wouldremove-minister-disqualification-from-constitution/ (Aug. 13, 2022) (quoting Rep. Mark Love (D-Nashville)).

23 Tenn. Const. art. IX, § 2.

24 See Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (“[N]either a State nor the Federal Government … can constitutionally pass laws or impose requirements which aid all religions as against non-believers.”).

25 See, e.g., Aleem Maqbool, The Stigma of Being an Atheist in the U.S., BBC News (Aug. 4, 2014).

DICTAOctober 2022 17

SCHOOLED IN ETHICS

HOW FAR SHOULD YOU TRUST YOUR CLIENT?

Local lawyers have been discussing one of former President Donald Trump’s lawyers, who recently signed a “certification” relating to the FBI’s search for classified documents at Mar-a-Lago. According to news reports, “The lawyer signed a statement in June that all documents marked as classified and held in boxes in storage at Mar-a-Lago had been given back. The search at the former president’s home on Monday turned up more.”1 Did this lawyer commit an ethical violation?

In response to Trump’s motion to appoint a special master to review the seized documents, the Justice Department reviewed the history of the efforts to retrieve Presidential materials from Trump.2 The Justice Department obtained a grand jury subpoena, “directed to the custodian of records for the Office of Donald J. Trump,” requesting materials with “classification markings” in his “custody or control.”3 The subpoena could be satisfied “by providing from the custodian a ‘sworn certification that the documents represent all responsive records.’”4

Trump’s attorney and the Justice Department agreed that the subpoenaed materials would be turned over at Mar-a-Lago on June 3, 2022. After the documents were turned over, “[t]he individual present as the custodian of records produced and provided a signed certification letter.”5 That letter reads as follows in its entirety:

CERTIFICATION

I hereby certify as follows:

1. I have been designated to serve as Custodian of Records for The Office of Donald J. Trump, for purposes of the testimony and documents subject to subpoena #GJ20222042790054.

2. I understand that this certification is made to comply with the subpoena, in lieu of a personal appearance and testimony.

3. Based upon the information that has been provided to me, I am authorized to certify, on behalf of the Office of Donald J. Trump, the following:

a. A diligent search was conducted of the boxes that were moved from the White House to Florida;

b. This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;

c. Any and all responsive documents accompany this certification; and

d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

I swear or affirm that the above statements are true and correct to the best of my knowledge.

Dated: June 3, 2022

Blacked out______

Blacked out

News reports assert that the Certification was signed by an attorney.6 However, the statement, “Any and all responsive documents accompany this certification” turned out to be false. Upon execution of the search warrant, the FBI found many additional documents responsive to the subpoena.7

This attorney was probably not licensed in Tennessee,8 but let’s examine how the attorney’s conduct would be treated under Tennessee’s Rules of Professional Conduct.9 Clearly, if the attorney knew that the statements in the Certification were false (i.e., no search had been made, there were additional documents that were not turned over), the attorney would have violated Tenn. R. Prof. Cond. 8.4(c), which proscribes “conduct involving dishonesty, fraud, deceit, or misrepresentation.” Although knowledge requires “actual awareness,” “knowledge can be inferred from the circumstances.”10 If there were circumstances justifying issuance of a search warrant, there may well have been circumstances from which the attorney’s knowledge can be inferred. This is true even if the attorney is merely serving as “custodian of records” as opposed to having an attorney-client relationship with Trump, since Rule 8.4 reaches even private conduct.

The more difficult question arises if the attorney did not know that the statements were false when they signed the Certification. The Certification was made “[b]ased upon the information that has been provided to [them],” not on personal knowledge. Similarly, the use of passive voice – “the search was conducted” – suggests that the attorney is acting on information provided by others. Thus, the attorney attempts to negate any personal responsibility for the statements in the Certification. But is that negation effective?

Initially, the duty of competence under Rule 1.1 requires “thoroughness and preparation,” which in turn “includes inquiry into and analysis of the factual and legal elements of the problem.”11 An inquiry might well have turned up circumstances indicating that the statements in the Certification were false. Once the attorney learned that at least one statement in the Certification was false, what were the attorney’s ethical duties? Assuming that there was an attorney-client relationship and that the attorney received the false information from their client. Comment [10] to Tenn. R. Prof. Conduct 1.2(d) provides: A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See RPC 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See RPC 4.1.

Rule 1.16(a) requires withdrawal when “the representation will result in a violation of the Rules of Professional Conduct or other law,” while Rule 4.1 provides, “In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.” And if the client refuses to rectify the crime or fraud, Rule 4.1(c) requires withdrawal and disaffirmance under some circumstances. “If the client refuses or is unable to rectify the crime or fraud, the lawyer shall:

18 October 2022DICTA
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835.

(1) if currently representing the client in the matter, withdraw from the representation and give notice of the withdrawal to any person whom the lawyer knows is aware of the lawyer’s representation of the client in the matter and whose financial or property interests are likely to be injured by the client’s criminal or fraudulent conduct; and

(2) give notice to any such person of the lawyer’s disaffirmance of any written statements, opinions, or other material prepared by the lawyer on behalf of the client and that the lawyer reasonably believes may be used by the client in furtherance of the crime or fraud.

Rule 4.1(c) applies only if the client’s crime or fraud has resulted in damage to the financial or property interests of another person. Arguably, the delay in obtaining additional classified documents would not be viewed as financial or property damage to the United States. On the other hand, since the documents are the property of the U.S. and have been detained, the U.S. may have suffered sufficient injury to trigger the duty to disaffirm.

The lesson here seems clear: Listen to your client but honor your duty of competence by making an inquiry into the circumstances, and if the inference of falsity can be drawn from those circumstances, do not certify your client’s statements as true. If you have already done so, and

both the representation and the matter are ongoing, withdraw and read Rule 4.1 to determine whether you must disaffirm.

1 Maggie Haberman and Glenn Thrush, Trump Lawyer Told Justice Dept. That Classified Material Had Been Returned, N.Y. Times (Aug. 13, 2022), available at https://www.nytimes.com/2022/08/13/us/politics/trump-classified-material-fbi. html

2 United States’ Response to Motion for Judicial Oversight and Additional Relief, Trump v. United States, no. 22-CV-81294-CANNON (S.D. Fla. Aug. 30, 2022), available at https://www.nytimes.com/interactive/2022/08/31/us/doj-trumpspecial-master.html. This site has a link to a downloadable PDF of the Response.

See generally Congressional Research Service, The Mar-a-Lago Search Warrant: A Legal Introduction (Aug. 29, 2022), available at https://crsreports.congress.gov/ product/pdf/LSB/LSB10810

3 United States’ Response, supra note 2, at 8.

4 Id.

5 Id. at 9.

6

Some news reports identify the attorney as Christina Bobb. See, e.g., Guilia Carbonaro, Who Is Christina Bobb? Trump Lawyer Faces Pressure Over Classified Docs, Newsweek (Aug. 31, 2022), available at https://www.newsweek.com/whochristina-bobb-trump-lawyer-pressure-classified-docs-1738360.

7 Jon Wolfe, Donald Trump’s Mar-a-Lago Home Searched by FBI: What to Know (Aug. 30, 2022), available at https://www.wsj.com/articles/donald-trump-search-mar-alago-fbi-11660267417.

8 Christina Bobb is licensed in California. https://apps.calbar.ca.gov/attorney/ Licensee/Detail/259430.

9 The statements were not subject to Tenn. R. Civ. P. 11, since they were not “submitted” to a court.

10 Tenn. R. Prof. Conduct 1.0(f).

11 Tenn. R. Prof. Conduct 1.1 comment [5].

DICTAOctober 2022 19
SCHOOLED IN ETHICS continued Technology you need People you trust COMMERCIAL PRINTING MANAGED PRINT SERVICES OFFICE TECHNOLOGIES 3017 Sutherland Avenue - Knoxville, TN 37919 - 865.212.3600 www.imagemattersinc.com

MONTHLY MEETING

Plan now to attend the Barristers monthly meeting on Wednesday, October 12, starting at 5:15 pm at outdoor patio at The Firefly at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm. Register by clicking October 12 on the event calendar at www. knoxbar.org.

VETERANS LEGAL ADVICE CLINIC

The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on October 12. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS

The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact either Matt Knable at (865)

BETTER, continued from page 9

visited Sept. 10, 2022.

8 Cooper, supra n. 3.

9 Boyd, supra n. 2.

10 Id.

11 Kathleen Fargey, AAMH-FPO, 6888th Central Postal Directory Battalion, U.S. Army Center of Military History (Feb. 14, 2014), available at https://history.army.mil/html/ topics/afam/6888thPBn/index.html

12 Id.; see also Boyd, supra n. 2.

13 Naval History and Heritage Command, Battled of the Atlantic, https://www.history. navy.mil/browse-by-topic/wars-conflicts-and-operations/world-war-ii/1942/ atlantic.html, last visited Sept. 9, 2022.

14 Charity Adams Early, One Woman’s Army: A Black Officer Remembers the WAC (Texas A&M Univ. 1989).

15 The three women, Sgt. Delores Browne, Pfc. Mary Bankston, and Pfc Mary Barlow are buried at Colleville-sur-Mer-Normandy American Cemetery with full military honors. They are three of the only four women who are buried there. Boyd, supra n. 2.

16 Fargey, supra n. 11.

17 Id.

18 Id.

19 Anonymous WWII Soldier, A Gunner’s Day, available at http://world-war-2.info/ poems/poems_38.php.

20 Fargey, supra n. 11.

21 Id.

22

National Museum United States Army, Ltc. Charity Adams Earley, https://www. thenmusa.org/biographies/charity-adams-earley, last visited Sept. 10, 2022.

360-5044 or Laura Wyrick at (865) 297-5511 with any questions and/or about volunteering.

BARRISTERS HUNGER AND POVERTY RELIEF COMMITTEE

The Knoxville Bar Association Barristers Annual Coat Drive will begin on October 7 and run through October 21. The Barristers have partnered with Knox Area Rescue Ministries with the goal of collecting coats for those in need in our area. The Barristers Hunger & Poverty Relief Committee is asking for gently used men’s and women’s jackets and coats, including jackets, coats, parkas, dusters, raincoats, and trench coats. Please do not donate any non-coat or jacket items or items with holes, stains, or rips, as they will not be accepted. The initial donation locations are Bank of America Building, First Horizon Building, Riverview Tower, Knoxville Bar Association Office, LMU Duncan School of Law, UT College of Law in the Commons Area and at Baker Donelson in West Knoxville. If you are willing to volunteer to pick up items from any of the locations and drop them off at the KBA Office during business hours or help sort coats on October 25 at 5 pm, please contact Committee Co-Chair Jordan Houser at jordan.houser@lmunet.edu.

23

Dr. Kelly A. Spring, Charity Adams Early, https://www.womenshistory.org/educationresources/biographies/charity-earley, last visited Sept. 10, 2022.

24 Fargey, supra n. 11.

20 October 2022DICTA
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PRIVILEGED TO BE A LAWYER

ACCESSING JUSTICE

When I was growing up, I cringed at times if someone introduced me as “Dr. Morton’s daughter.” My father, a radiologist, is a good man, but I was concerned about the assumptions people would make about me because of his profession. I wanted people to get to know me without immediately assuming that I was spoiled, or that my family had money, or that I lived on easy street with access to opportunities and advantages that others did not have. I cringed because I did not want anyone to assume that I was “privileged.”

Of course, the irony is that indeed I was privileged. If being privileged means to enjoy some special right, opportunity, good fortune, or advantage that others don’t have, then I have been privileged since the day I was born. I was raised by a doctor and a nurse who are celebrating their 60th wedding anniversary this month. We lived in a suburb with access to wellfunded, excellent schools. My parents were good role models who set high expectations for their four healthy children. My mother’s nickname is “Saint Ann” because, well, she is a saint. Both parents have graduate degrees. My grandmother was a registered pharmacist and earned a B.S. degree in chemistry in 1920 from MIT. Education was important to my parents. For me, securing a college degree was easily attainable, expected, and facilitated by my family’s financial and psychological support. I had the advantage of good health and faced no significant obstacles, like disabilities or discrimination based on my gender or skin color. Unlike my grandmother, who struggled to obtain employment comparable to male scientists, by the time I contemplated law school, the laws and customs in our country allowed better access and opportunities for women to practice law. Not only was my path to becoming a lawyer not littered with obstacles, but I was privileged to enjoy advantages, access, and opportunities that many of my peers did not experience.

Over time, it became more obvious to me that there is something inherently unjust about the unearned advantages and opportunities that I enjoyed from day one compared to many of my peers. I did nothing to deserve living on easy street. It was luck-of-the-draw good fortune compared to the vast numbers of people who are saddled with tremendous burdens due to no fault of their own. Recognition of this inequity contributed to my desire to use my privilege to empower others.

For the past thirty years, I’ve practiced law in Knoxville, litigating employment law and civil rights cases, mostly in federal court, advocating for workers’ rights and mediating disputes between employers and employees. Many of my clients have disabilities or other immutable characteristics that have unfairly created obstacles in their pursuit for equal opportunities in the workplace.

The privileges that I enjoy as a lawyer are somewhat different than the unearned privileges that gave me a head start on my journey to becoming a lawyer. Practicing law may be a privilege, but it is not without obstacles and burdens. Lawyers are not handed law degrees without doing the work to earn the degrees. My practice involves challenging cases usually taken under contingency contracts, which can be a tough way to earn a living. Litigation can be tedious and contentious. Most lawyers understand why the surveys and statistics paint a bleak picture of job satisfaction and emotional wellbeing within the legal profession. We often work long hours with negative impacts on our health due to stress, excessive sitting, lack of exercise, and inadequate sleep. Many of us struggle to find the holy grail of work-life balance. The privilege of accessing justice requires fortitude.

As we slog in the trenches of the daily grind, it is easy to lose sight of the privilege of being a lawyer. Fortunately, as members of the Knoxville Bar Association, we are privileged to enjoy the support and camaraderie from extraordinary colleagues and an active Bar Association. The KBA works tirelessly to fortify its members with education, social events, projects, and

programs to connect us, strengthen us, and make practicing law easier, more enjoyable, and more meaningful. Lately, the KBA has been encouraging us to prioritize our personal wellness so that we are less likely to suffer burnout and more likely to enjoy the privileges of practicing law. As Judge Collier highlighted recently in this series, we should not lose sight of the privilege we share as lawyers filling an essential role in the functioning of a society that is supposed to adhere to the rule of law.

For me, I am grateful for my many unearned privileges that gave me easy access to education and motivated me to use my knowledge of the justice system to empower others. I am privileged to be a lawyer with work that is meaningful to me. I truly enjoy listening to clients’ stories, learning about their workplaces, getting to know them, and giving them a voice in our justice system, whether I am acting as mediator or litigator. It is my sincere privilege, meaning honor and pleasure, to provide my clients with access to justice and opportunities that otherwise might be out of reach.

On a final note, I was delighted to learn recently that the UT College of Law’s Advocacy Clinic is expanding into low-wage workers’ rights. As a pilot project, the clinic is looking to represent unemployment insurance claimants with separation issues at the Appeals Tribunal stage.1 Perhaps this project will spur students to consider future careers providing access to justice for low wage workers.

1 Intake for the UT Clinic’s pilot project is very limited as the program is established. Clients need to be income eligible and willing to postpone a hearing to give the law students time to prepare. Selected cases will involve termination/quit issues as opposed to monetary eligibility or other initial determinations.

DICTAOctober 2022 21
22 October 2022DICTA

WELL READ

PUBLIC IMAGE AND TRUE SELVES

Consider any person who is in a visible, public endeavor. Entertainer, athlete, business icon, hero, politician or even “flashy lawyer”, all persons in “public life” have a public persona, which may or may not be consistent with the reality of who they truly are. John Duncan and Bill Haslam have written books. Both Duncan and Haslam’s books allow some insight into their true selves. Let me suggest to you that each of them is consistent when comparing their public image and their true selves. Although I will concede at the outset: I know them, and I am a fan of both.

Congressman Duncan, in “From Batboy to Congressman: Thirty Years in the US House, ” has given us a fun, folksy recitation of events from his experience in the House of Representatives, and from his life. “Every job I ever had, even as a batboy, helped me later in life and certainly helped in my work in Congress by enabling me to relate to people from all walks of life. And, as you will read in this book, every job gave me strange, funny, unusual stories.”1

When I read these stories, I could hear Congressman Duncan’s voice as if he were speaking to the crowd at Lincoln Day Dinner. I’m sure that is because many of the stories have been part of his speeches!

The book is an enjoyable, easy read, but even when dealing with mostly lighthearted anecdotes, actions speak louder than words: the Congressman has signaled his concern about one vote in his career by placing the story on page xix, after the Foreword and before Chapter One. “The Vote”2 is an explanation of a time that Duncan voted according to his convictions and against the demands of party leadership, and against the popular sentiment at the time. Hindsight has vindicated Duncan.

But most of the book is not about difficult, controversial votes. Some of the best anecdotes are recollections of events and people many of us (lawyers) are familiar with: Zane Daniel, Ray Jenkins, Howard Baker, Jake and C. H. Butcher, James Earl Ray and Bob Jolly. And of course, Lynn Duncan, Jimmy’s first wife, is mentioned with great fondness. When Congressman Duncan was unable to give a scheduled speech due to illness, he sent Lynn. “She was very pleased when the Sunday Knoxville News Sentinel ran a little story the next day quoting Senator Baker as saying her speech was the best speech he ever heard me give.”3

John Duncan’s book is enjoyable and often funny and is certainly worth your time. And he would chuckle himself if I point out that it wasn’t long and won’t take much time to read, anyway!

Bill Haslam has taken on a phenomenon that we all have experience with, directly or indirectly: political conversation in this country is increasingly mean spirited and vicious. In “Faithful Presence: The Promise and the Peril of Faith in the Public Square, ” he starts with a painful reality that we all know well: “But we are not only divided; we are mad about it, and we cannot believe that the other side thinks the way they do… one in six Americans had stopped talking to a family member or a close friend because of the 2016 election.”4

Haslam uses the terminology “the public square” to refer to any

civic involvement, whether a person runs for office or informs themselves and votes or engages in political discourse. He advocates for greater involvement in “the public square” by persons of faith, even though he concedes that “…there is increasing resentment from people who feel that religion has too large a role in our public life.”5

Haslam is a Christian who has clearly made efforts to be familiar with the Scriptures. He quotes C. S. Lewis to support the notion that “… God reveals political ends in the Bible, but he is not specific about the means to achieve those ends. We are supposed to feed the hungry, but we are not told how we should provide the meal. We are supposed to pursue justice, provide for widows and orphans, and fight oppression, but we are not told about the best form of government to do all of that.”6

He quotes the prophet Jeremiah to support the idea that people of faith should pray for and positively contribute to the community in which they live and actively “…seek the welfare of the city where I have sent you into exile, and pray to the Lord on its behalf, for in its welfare you will find your welfare.”7

Perhaps the most important aspect of Governor Haslam’s argument that persons of faith should maintain a “faithful presence” in the “public square” is the fact that he is not shy about confronting failures on the part of persons who lay claim to being “Christians.” He spends a good deal of the book calling persons of faith in the public square to do justice, love mercy and walk humbly. And humility requires remembering that we should “do nothing from selfish ambition or conceit… Let each of you look not only to his own interests, but also to the interests of others.”8

Haslam has not taken on a new concept. As early as John Adams’ speech in 1798, and probably before, our founders recognized that a people attempting self-government must be a “…moral and religious people.”9 But he has taken a fresh and relevant look at how our moral failings have made our political discourse so caustic, contentious and unpleasant, and what should happen to make things better.

Both Duncan and Haslam have written books which arguably give us an opportunity to compare their public and actual personas. Give these books your time and see if you share my opinion that there is admirable consistency between the public and private aspect in each of their lives.

1

John J. Duncan, Jr., From Batboy to Congressman: Thirty Years in the US House, xi (The University of Tennessee Press: Knoxville, Tennessee, 2021).

2 Id. at xix.

3 Id. at 47.

4 Bill Haslam, Faithful Presence: The Promise and The Peril of Faith in the Public Square, 3 (Nelson Books: Nashville, Tennessee, 2021).

5 Id. at 5.

6 Id. at 41.

7 Id. at 162, quoting Jeremiah 29:4-7.

8 Id. at 82, quoting Philippians 2:3-4.

9 Id. at 117, quoting The Works of John Adams, vol. 9, p. 229 (Boston: Little, Brown, 1854).

DICTAOctober 2022 23

OF LOCAL LORE & LAWYERS

THE SILENT SENTINEL: KNOX COUNTY’S SPANISH-AMERICAN WAR MEMORIAL

When I first started practicing law in Knox County in 2007, and walked passed the old historic courthouse for the first time, I was delighted to see a seldom seen monument to the Spanish-American War. As an Army Veteran and a history buff, I often wondered how Knox County came to have such a memorial, considering only 50 such sculptures exist in the United States. I finally decided it was time to research the story behind the monument, and present my findings.

As you probably recall from your high school history class, the Spanish-American War was a conflict between the United States and Spain that was fought from April to December, 1898. The Treaty of Paris1 ended the war, with Spain renouncing all claims to Cuba, ceding Guam and Puerto Rico to the United States, and transferring sovereignty over the Philippines to the United States for $20 million. Tennesseans participated in virtually every aspect of the war, and volunteered in record numbers. In fact, over 4,000 men served in Tennessee’s four Volunteer Infantry units. 2

Commander Washburn Maynard (a Knoxville native), who served on the gunboat Nashville, is credited with ordering the firing of the first shot of the war when he gave the order to “Open Fire!” on a Spanish steamer on April 22, 1898. 3 The University of Tennessee’s official records, dated July, 1898, recognized Commander Maynard as an alumni, and further read in pertinent part, “The University of Tennessee is well represented in the Spanish War in both the navy and army, and University men have already received their baptism of fire.” 4 Knoxville also boasted the existence of Camp Bob Taylor, 5 which was the musterin camp for the 6th U.S. Volunteer Infantry, and was located in what is now Chilhowee Park.

A Monument is Born

The Spanish-American War inspired celebrated artist Theodora Alice Ruggles Kitson to create the statue to commemorate the American soldiers who fought in the war. The first version of it was made for the University of Minnesota in 1906. A prolific artist, Kitson was the first woman admitted to the National Sculpture Society. Her work earned praise for her realism and historical accuracy. In 1921, she sold the rights to the statue to the Gortham Manufacturing Company in Rhode Island. Over the next 44 years, Gortham cast at least 52 copies of the statue,

which are installed in parks and cemeteries around the country. She dubbed her work “The Hiker,” when she learned that American soldiers gave themselves the moniker “hikers” because their campaigns often involved long marches over difficult terrain. 6

It’s important to note that Kitson’s sculpture was just one of the many created by the prolific artist. Although she was one of forty artists who contributed art to the Vicksburg National Military Park in Mississippi, she nevertheless completed approximately three times more busts and relief portraits than the other sculptors and, until 2008, was the only woman artist represented in the national park. “Throughout her lifetime, Kitson received honors, awards, commissions, and critical praise, evidence of the complimentary characterization of her ‘genius’.” 7

Knoxville’s statue was dedicated on June 30, 1940, under the auspices of Jack Bernard Camp No. 1, United Spanish War Veterans of Knoxville. An original dedication program on file with the McClung collection maintained by the East Tennessee Historical Society reads, “Dedicatory and Unveiling Ceremonies Spanish War Veterans’ Monument.” Among those present at the dedication was SpanishAmerican War veteran and Knoxville attorney S. J. Thornburgh. The bronze statue, which stands 9 feet tall, stands on a base carved from a boulder taken from the Great Smoky Mountains. The statue is accompanied by an inscription that reads: This monument erected by veterans of the war with Spain and members of their auxiliary as a memorial to their departed comrades of the Army, Navy and Marine Corps – every one of them a volunteer – who served from 1898 to 1902 in Cuba, the Philippines, Porto Rico and China. Their battle cry was “Remember the Maine.” Their reward was duty well done in the cause of freedom, patriotism and humanity. Dedicated June 30, 1940, under the auspices of Jack Bernard Camp, United Spanish War Veterans of Knoxville.

Should you visit Arlington National Cemetery, you’ll come to an information display that reads, “Arlington National Cemetery has more Spanish-American War memorials than any other site in the United States.” Nevertheless, the silent sentinel that graces the front of Knoxville’s historic courthouse is a treasure for our viewing enjoyment that has stood the test of time. Its quality surpasses the need for quantity.

1 The Treaty of Peace between the United States of America and the Kingdom of Spain, commonly known as the Treaty of Paris of 1898, was a treaty signed by Spain and the United States on December 10, 1898, that ended the Spanish–American War.

2 Tennessee Encyclopedia: https://tennesseeencyclopedia.net

3 Id.

4 University of Tennessee, Official Records, August 1, 1898.

5 Camp Bob Taylor was named after beloved former Tennessee Governor Robert Love “Bob” Taylor who served three terms as the 24th governor of Tennessee, from 1887 to 1891, and again from 1897 to 1899.

6 Neal, C. C. (2016). Sculptor Theodora Alice Ruggles Kitson:” A Woman Genius”. Historical Journal of Massachusetts, 44(1), 2.

7 Id. at 2,3.

24 October 2022DICTA

2

THERE’S A NEW PHONE IN TOWN (AND IT AIN’T AN IPHONE)

We love our smartphones. Phil always has the latest Samsung “Ultra” phone and another one. Bill always has the latest iPhone and an Android model. But Bill has found a “new phone in town.”

Bill noticed Phil’s Samsung Galaxy ZFlip phone with a foldable screen. Bill immediately got a bad case of phone envy. So, when Samsung announced the release of the ZFold 4, Bill had to have one because it has a giant screen when it unfolds, much larger than the ZFlip.

Bill immediately began shopping for his ZFold. The retail price for the phone ($1800) gave Bill a temporary case of sticker shock, but he soon discovered he could get $900 off when he traded in his old phone. He bought it and immediately fell in love. Here is why:

The ZFold actually has three screens – a front screen and a foldable inner “double” screen that converts into a 7.6 inch display. It is almost as large as the screen on an iPad Mini. You have to see it to believe it. In one phone, you get a regular smartphone to use, and a nice tablet that doubles as a smartphone. In fact, when you use it as a tablet, it is practically a minicomputer. You can connect it to a keyboard and a mouse, and it serves well as a 7.6 inch Android computer. It even has a taskbar at the bottom of the screen, like a Windows computer or an iPad.

And that is just the beginning. You can open up to three apps simultaneously on the inner screen and copy and paste information from one app to another. You can open an app in “Flex Mode” and fold the upper part of the screen at an angle. Then you can control the app with a trackpad pointer and use the phone as a mini laptop. The large screen is ideal for gaming if you are into that.

The ZFold excels when you are reviewing Word documents, or

LEGAL UPDATE, continued from page 15

timely file a BOI report may result in civil fines up to $500 per day for each day the violation continues.27 Criminal violations may result in fines up to $10,000 and imprisonment up to two (2) years.28 As a safeguard for personally identifiable information, any government employee or third party recipient who unlawfully uses or discloses any beneficial ownership information may be subject to the same civil penalty, but also faces potential fines up to $250,000 and imprisonment up to five (5) years.29

What does the CTA mean for businesses and business lawyers?

The CTA will affect more than 25 million privately held companies doing business in the U.S,30 and it has been estimated that compliance will cost businesses an estimated 131.7 million hours of paperwork at a cost of $5.7 billion over the first ten (10) years.31 Lawyers will also have to contend with the CTA in various contexts: new entity formation, change of ownership, dissolution / termination, mergers and acquisition, securities offerings, and trusts and estate planning, among many others. Lawyers will also need to exercise care in protecting personal information of beneficial owners and company applicants.

The CTA warrants much more in-depth discussion and analysis, but hopefully this article has given you a good overview and a framework for studying its particulars. If nothing else, lawyers will want to monitor the anticipated publication of the final regulations by FinCEN.

1 31 U.S.C. § 5336.

Beneficial Ownership Information Reporting Requirements, 86 Fed. Reg. 69920, 69925 (proposed Dec. 8, 2021) (to be codified at 31 C.F.R. pt. 1010).

3 The Financial Crimes Enforcement Network (“FinCEN”) is a bureau of the U.S. Department of Treasury, and is charged with implementing the CTA.

Excel spreadsheets, or emails. When you are old like Bill and your eyesight is failing, the large screen does wonders for your ability to review complicated documents or lengthy emails. The large, on-screen keyboard makes it easy to respond to emails or to edit documents. You can place the screen at most any angle for your comfort and convenience, but we really like using the screen fully open to take advantage of the large, very bright and sharp OLED screen. There is a “fold” in the center of the screen, but you barely notice it once you began using the ZFold as a tablet.

There have been rumors that the camera is not up to the standard of the cameras on iPhones or the other Samsung Galaxy phones. We have found that not to be the case. The telephoto camera shots were amazing. The front-facing camera on the foldable screen took great pictures and it makes for a great camera to use for Zoom calls. The screen is large enough to accommodate a Zoom session easily. The speakers on the phone are loud enough to provide clear conversations in a Zoom session or a speakerphone call.

There are a few drawbacks. The phone is a bit bulky – certainly thicker and heavier than an iPhone or a regular Samsung Galaxy phone. The outside screen is a bit small, making typing and texting a bit awkward. But all of this is overcome by the cool factor of the large screen when the phone is folded out. Bill walked around to everyone, even strangers on the street and made them stop and watch him fold out the screen and play a YouTube video.

Yes, Bill is in love with “the new phone in town.”

4 31 U.S.C. § 5336(b).

5 31 U.S.C. § 5336(b)(2)(A).

6 31 U.S.C. § 5336(c)(1).

7 31 U.S.C. § 5336(c)(8).

8 Id.

9 Id.

10 31 U.S.C. § 5336(a)(11)(B).

11 31 U.S.C. § 5336(a)(11)(B).

12 31 U.S.C. § 5336(a)(11)(B)(xxii).

13 31 U.S.C. § 5336(a)(11)(B)(xxi).

14 31 U.S.C. § 5336(a)(11)(B)(xxiii)

15 31 U.S.C. § 5336(a)(2).

16 Corporate Transparency Act, FinCEN Report, Corporate Transparency Act beneficial ownership reports | FinCen Report Company, LLC (last visited Jul. 29, 2022).

17 Beneficial Ownership Information Reporting Requirements, supra note 3, at 69971.

18 31 U.S.C. § 5336(a)(3)(B). 19 31 U.S.C. § 5336(a)(2).

20 Beneficial Ownership Information Reporting Requirement, supra note 3, at 69973.

21 Beneficial Ownership Information Reporting Requirements, supra note 3, at 69971.

22 Id. at 69970.

23 Id. 24 Id.

25 Id.

26 31 U.S.C. § 5336(h)(1).

27 31 U.S.C. § 5336(h)(3)(A)(i).

28 31 U.S.C. § 5336(h)(3)(A)(ii).

29 31 U.S.C. § 5336(h)(3)(B).

30 Preparing for the Corporate Transparency Act, ALI CLE, Preparing for the Corporate Transparency Act (ali-cle.org) (last visited Jul. 29, 2022).

31 The Corporate Transparency Act of 2019 Passes US House, Nat’l Fed’n of Indep. Bus., (Oct. 25, 2019), https://www.nfib.com/content/nfib-in-my-state/grassroots/ the-corporate-transparency-act-of-2019-passes-us-house/

DICTAOctober 2022 25

Photo OpsPhoto Ops

KBA Tennis & Pickleball Mixers – August 19

The winner of the Tennis Tournament was Luke Durham and the winner of the Pickleball Tournament was Wayne Wykoff.

email or some other type of asynchronous communication that allows employees to work most efficiently and effectively, rather than spend unnecessary time in yet another meeting.

However, while productivity is key, be wary of burnout. With employees working remotely, it’s easy to blur the line between work and home and to feel “on” 24/7. Empower employees to disconnect when the workday ends, including turning off email notifications. Set the example with your own behavior – if you’re sending emails at all hours of the night, they’ll feel like they should be working too, so make an effort to limit after-hours communications to truly urgent matters. We’re all still learning how to operate in this new hybrid environment. Remain willing to learn and adjust your expectations and hybrid model as you learn through experience what does and doesn’t work for your unique workplace and employees.

1 Research Report, Accenture, The future of work: A hybrid work model (April 30, 2021), https://www.accenture.com/us-en/insights/consulting/future-work

Has the meaning of service changed?

Mergers and high-employee turnover seem to be today’s business status quo. Since 1993, TCV has defined the true meaning of service. We provide genuine personal service by experienced professionals you can actually speak with.

It hasn’t for us.
MANAGEMENT, continued from page 13
26 October 2022DICTA In Knoxville, contact: John L. Billings - Vice President Wealth & IRA Management | Tax-Managed Investing Trust & Estate Services | Financial Planning 865.297.4070 tcvwealth.com

BARRISTER BITES

OVEN-BAKED FAJITAS FROM MY CASA TO YOURS

For a number of years, Hugh called Casa Don Gallo in Rocky Hill “our kitchen.” It was close and convenient. The owners and staff were like family, and the food was always good. Three to four nights a week, you could find the Nystrom family chowing down on chips and salsa and all the other great food on the Casa menu. Quesadilla malinche, pork belly tacos, fried plantains… you name it, we ate it.

In recent years, a number of things have converged to make us rethink the placement of “our kitchen.” First, we were stuck in the middle of a world-wide pandemic that left us shut in our homes for months on end. I learned how to be a little more resourceful, and “our kitchen” was suddenly in our house out of sheer necessity. Second, my son decided to take his swim training very seriously, substituting fat and carbs for lean meats and vegetables. He started giving us the macro breakdown of all of our food, as well as describing the effects of the chemicals in processed food. For a kid that professes to hate all things math and science, he was quite proficient in giving us science lessons. Finally, my love of good Mexican food was causing my waistline to expand past the limits of my wardrobe, which meant that I was faced with a dilemma: either buy all new clothes or lose weight. Hugh was firmly in the “lose weight” category, as he couldn’t stand the thought of paying for a new wardrobe.

Over the last couple of years, we have adjusted our eating so that we eat at home more often and so that our meals are much more healthful than those we consumed during Trace’s younger years. I’ve scoured both my collection of cookbooks and the hundreds of resources available on the internet to find quick – yet healthy and satisfying—meals for our family. While I have been fairly successful in this venture, we have missed one thing: really great Mexican food.

Over the last couple of years, I have tried to make a number of Mexican and Southwestern dishes but have never been able to replicate the Casa dishes that hold such fond memories for us. Recently, however, my friend Melissa gave me a recipe for Oven Baked Chicken Fajitas. She said that her family (with three children close to the age of my own) loved them and that they rivaled the fajitas at a Mexican restaurant.

I was skeptical. Very skeptical. I’ve tried fajitas multiple times but have never been able to replicate the flavor of really good restaurant fajitas. After reading the recipe, I was even more skeptical. It just sounded odd.

A couple of weeks ago, though, I was at a loss for a meal and needed something quick and easy. I recalled that Melissa said this was her “go-to” when her kids had ballgames and that it could be prepared in a matter of minutes. I decided to give it a try.

Suffice it to say, it was a hit…. And the fajitas were truly restaurantquality. Since that time, I have made this meal two more times. It is quick (10 minutes preparation); it is easy (simple ingredients found at any grocery store… and some that can be found pre-prepared); and it has never failed.

To make Oven Baked Chicken Fajitas, preheat oven to 400°. In a

small bowl, combine the following: 4 TBS olive oil, 1 TBS chili powder, 1TBS cumin seed, 1 tsp garlic powder, 1 tsp dried oregano, and ½ tsp salt. Put 2 lbs chicken breast strips in a large mixing bowl and drizzle the spice mixture over the chicken. Stir to coat. Add 2 cans of Rotel with green chiles to chicken and spice mixture. Set aside. (NOTE: I will usually add an extra can of green chiles… my preference is the “hot” version since I love spicy food.)

Thinly slice 1 large white onion and 2 large bell peppers. (I always purchase the Southwest kit at Fresh Market. The peppers and onion are sliced and ready to go.) Spray a 13x9 baking dish with non-stick cooking spray. Line the bottom of the dish with the bell peppers and onion. Pour the chicken mixture over the peppers and onions. Bake uncovered for 25-30 minutes or until the chicken is cooked through and the vegetables are tender.

The recipe says to serve on tortillas with desired fajita toppings. We have tried this, and the fajitas are really good. However, Hugh and Trace prefer to line a bowl with Xochitl No-Salt corn chips, top with the chicken and vegetables, and then add melted Mexican blend cheese to the top. They also like to load the dish up with guacamole and sour cream.

I tend to try to go a little healthier with my meal. Playing on their chip idea, I will generally purchase an extra Southwest kit. In a separate baking dish, I spray the onions and peppers with olive oil and then add a dash of each of the spices. While the chicken mixture is baking, I also bake the vegetables until they are slightly burned. They give me the crunch of chips without the fat and calories. It is a phenomenal meal.

I have now made this recipe three times: twice with chicken breast strips and once with a skirt steak cut into strips. It is great both ways.

While we still occasionally head to Casa Don Gallo for dinner, we are more often found eating at our house. Although the experience is a little different, these oven baked fajitas are a great substitute for restaurant-quality Mexican food. Enjoy, from my casa to yours!

DICTAOctober 2022 27

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.

VIEW THE CURRENT LIST OF KBA VETERANS

The Knoxville Bar Association thanks all of our Veterans for their service and dedication to our country. Review the list of members who have served in the military at www.knoxbar.org/kbaveterans. If your name is not on the flyer and you would like to be added, please contact Jonathan Guess, Mem bership Coordinator, by October 7. An insert is planned in the November DICTA.

KBA MEMBER SHOUT OUTS

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

FREE CLASSIFIEDS AVAILABLE

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

LEGAL HISTORY VIDEOS AVAILABLE

In 2012, the KBA’s Archives Committee began interviewing senior mem bers of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing mile stones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www. knoxbar.org by clicking Member Resources and then Practice Resources.

OFFICE SPACE AVAILABLE:

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

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

WELCOME NEW MEMBERS

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

NEW ATTORNEYS

Lonnie T. Brown, Jr. U.T. College of Law

Andrea K. Ferencei

Consolidated Nuclear Security, LLC

Samuel Henninger

Woolf, McClane, Bright, Allen & Carpenter, PLLC David J. Otten

The Otten Law Firm

Cindy D. Padilla

Tennessee Court of Appeals

Sydney L. Trujillo

NEW LAW STUDENT MEMBERS

Peyton L. Annoni

Jon Branning Davis Capps

Aaron M. Deaver Telesha Felder Edward W. Fitzgerald Austin Gergen

Address Changes

Carolina G. Hughes

Renee M. Pothier

Lauren Pritchett Jennifer A. Rouse Claire L. Temple Larry E. Williams, Jr.

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

Kacie Flinn McRee

BPR #: 028261

Bradley Arant Boult Cummings LLP 2095 Lakeside Centre Way, Suite 110 Knoxville, TN 37922-6647 Ph: (615) 252-3505 kmcree@bradley.com

Mark A. Pienkowski

BPR #: 035651

Gamut Legal Services 7417 Kingston Pike, Suite 105 Knoxville, TN 37919-5616

Ph: (865) 316-6812 mark@gamutlegal.com

Taylor P. Scott

BPR #: 038192

Bradley Arant Boult Cummings LLP 2095 Lakeside Centre Way, Suite 110 Knoxville, TN 37922-6647 Ph: (615) 252-3559 tscott@bradley.com

A. Grace Van Dyke

BPR #: 035667

The Law Office of Autumn Witt Boyd PLLC

240 Forest Ave., Suite 403 Chattanooga, TN 37405-3953 Ph: (865) 361-9123 grace@awbfirm.com

Grant T. Williamson

BPR #: 037944

Bradley Arant Boult Cummings LLP 2095 Lakeside Centre Way, Suite 110 Knoxville, TN 37922-6647

Ph: (678) 634-3169 gwilliamson@bradley.com

28 October 2022DICTA

BIG BROTHER IS WATCHING YOU

“7:47 a.m.: Maxine was wet and had a normal BM in her diaper.” “11:47 a.m.: Maxine started a nap at 11:43.” “2:24 p.m.: Maxine ate all of her snack.” Each of these is a real-life notification that my 15-month-old daughter’s daycare has sent to my cellphone through an app it uses to log her daily activities, called “SproutAbout.”

Before I became a father, it’s safe to say that my day was free of these types of notifications, and the idea of caring about another person’s daily bowel movements was unfathomable. In fact, aside from the infrequently used MyFitnessPal, which tracks input only, none of the eight million applications on my iPhone before Maxine’s birth was designed to track the phases of digestion for me or anyone else, and the only push notifications I received in those days were from ESPN, Apple News, and our Ring doorbell.

Since Maxine’s arrival, however, these real-time updates about her most basic activities dominate my home screen and are routinely met with strong emotions. My wife and I have literally cheered at the report of a bowel movement and spiraled out of control when we receive a notification that Maxine has napped for only 30 minutes in a 10-hour day at daycare, despite waking up at 5:00 a.m.

My personal investment in Maxine’s intake and output leads me to regularly say things like, “Man, that was an awesome pee diaper!” You may think it’s sad, and it is, but I am beaming with pride each time Maxine sets a new personal record.

In addition to the push notifications, daycare also provides a livestream of Maxine’s classroom. There are multiple cameras, so we can see what she’s doing at any point by simply logging into the app. When I tell people with older children about the livestream, they’re fascinated and inevitably say that when their kids were in daycare, no such technology existed. In true “we-walked-to school-in-the-snow-and-uphill-bothways fashion,” these parents lament of the days of old when their children were left with ogres and bridge trolls, fed slop, contracted polio, were routinely frostbitten, and released from their cages at pickup only to be driven home in cars with no car seat and a gas tank at the rear of the vehicle, waiting to explode.

As with most things that begin with “Back in my day,” I don’t seem to recall any of that trauma, having been in daycare myself in the late eighties and early nineties, well before the days of livestream. That’s true even though I was in an unregulated environment. My daycare teacher, Mrs. Barbara, ran the daycare out of her basement. We watched Eureka’s Castle, Sesame Street, and Mr. Rogers’ Neighborhood and played on the make-shift playground in her backyard, which rested on the side of a steep hill and had playground equipment manufactured principally of glass shards and asbestos. The closest thing to torture that I can remember was being forced to eat peas at every meal, breakfast included. All things considered, life at Mrs. Barbara’s wasn’t so bad.

In retrospect, it’s for the best that my parents had no idea what we were doing during the day at Mrs. Barbara’s. Maxine, in contrast, is watched like a hawk. My wife and I routinely text one another throughout the day to alert the other to something cute or, less often, to share something alarming.

Just the other day, for example, I watched Maxine approach another

child who had been hoarding toys. Maxine laid her eyes on a Magna Doodle in the other child’s cache of toys, and as Maxine reached for the Magna Doodle, the other child grabbed the other side and tried to pull it from Maxine’s hands. My child, whose frame resembles that of her father, is no delicate flower. Maxine grabbed the Magna Doodle’s pen, which is attached to the drawing board by a string, and dragged the other child two or three feet until one of the teachers saw what was happening and intervened. I must admit that I briefly celebrated the fact that my child “ain’t no punk,” but once that dust settled, and it settled quickly, I was overwhelmed with embarrassment and concern.

The truth is, these are normal childhood interactions, and my child is not destined for reality TV. Babies are pure id—impulsive, illogical, and emotional. They hoard toys, throw fits, and react disproportionately when something they want is denied or inaccessible.

Absent the proliferation of technology, I would live as my parents did: blissfully ignorant to what occurred outside their presence. Maxine isn’t so lucky—at least while she’s in daycare.

MITCHELL’S MALARKEY
DICTAOctober 2022 29

PRO BONO SPOTLIGHT

Egerton McAfee Armistead & Davis presents KNOXVILLE PRO BONO NIGHT 2022!

Join Legal Aid of East Tennessee and the Pro Bono Project for our 2022 celebration of the incredible pro bono work performed by our friends, volunteer attorneys, and community partners! Many thanks to the firms who have already committed to sponsoring in 2022; if you are interested in learning more about our sponsorship packages, please reach out to Caitlin Torney at ctorney@laet.org for more information.

We are excited to once again be hosting this year’s event at The Standard in Downtown Knoxville. Please join us after work on Thursday, November 3rd, 2022, for live music, drinks, food, awards, a silent auction, and fun! Awards will be presented to local community partners, attorneys, and firms who have exemplified pro bono service in 2022, and we will induct this year’s nominee into the Donald F. Paine Memorial Hall of Fame. Doors open at 5:00 PM. Tickets can be purchased at the door, through our website, or by scanning the QR Code! See you there!

Remaining Clinic Opportunities for 2022

Legal Advice Clinic for Veterans: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available.

• Wednesday November 9th Noon – 2pm • Wednesday December 14th Noon – 2pm

• To sign up, please use the form on the KBA Website or email ctorney@laet.org.

Debt Relief Clinic: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville.

• Saturday November 19th 9:00am - Noon

• To sign up, please use the form on the KBA Website or email ctorney@laet.org.

Virtual Statewide Debt Relief Clinic: Via Zoom. Volunteer to provide advice only on debt related issue ranging from bankruptcy to collections virtually.

• Saturday October 8th 10:00am – 12:30pm. (Attorneys can join at 10:30am).

Lincoln Memorial University Duncan School of Law Wills Clinic: In person at Duncan School of Law. Supervise law students as they draft and execute simple wills. Email ctorney@laet.org or sign up through our website www.laet.org.

• Saturday November 12th 9:00am – Noon.

Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
30 October 2022DICTA

MY NONLINEAR PRACTICE OF LAW

I’m an odd attorney, in that I didn’t start my legal career by practicing law. No, I first threw myself into entrepreneurship and to business making. I’m a self-taught coder, and I’ve launched several projects over the past twenty years. Now, I practice business law at my own firm, Forthlaw PLLC, in addition to teaching entrepreneurship at the Haslam College of Business at the University of Tennessee.

While starting a law firm sounds traditional, Forthlaw has been everything but traditional. My tech and entrepreneurial background have (and continue to) open more opportunities in transforming how I practice law and how my clients harness the power of quality legal counsel. That very background and that process are so quintessential to my approach with Forthlaw and my attitude towards the norms in our legal industry.

I had been coding and programming since 2000. More relevant to this chapter of my life, I started a music technology startup called Audiohand back in 2014. Some readers may even remember this company. The entire concept was to crowdsource and combine audio recorded from the audience’s smartphones, to create a new class of energetic and immersive audio. The tech was challenging, but we figured it out and successfully patented the technology (many thanks to my good friend, Stephen Adams). Even more challenging than the technology was the business making; we were ahead of customer behavior, and I was inexperienced in creating and running a startup, even as an energetic and outgoing technical founder who coded most of the technology. I couldn’t seem to break the right walls to move it forward at that time.

Quickly, I realized that I needed a breather from my entrepreneurial journey. Audiohand had a team of 8, excluding myself, and we couldn’t figure out how to launch the revenue generating version of the technology. Ultimately, I wasn’t growing the company (or myself, professionally) and something needed to change. I decided to move my personal life forward; I proposed to my wife (then girlfriend of 7 years) in 2016, and we married in 2017. I then decided to practice startup law, taking with me all of my entrepreneurial experiences and putting them to good use.

I started with David Morehous at his firm, newly hired as a parttime Entrepreneur in Residence. (I would be full-time later in 2017.) The entire concept of my position was to be the bridge between entrepreneurs and lawyers. This concept wasn’t without issues; the legal team wasn’t large and often, I needed to draft documents to meet deadlines. Other than retaining legal services for my own technology startup, I didn’t have direct and applicable experience in providing those legal services to entrepreneurs and startups. Meaning, I was still learning as I was promising deliverables.

More I reflect on that time, I was essentially entering into a new chapter of my life. This was a great opportunity to learn the detailed mechanics of startup and entrepreneurial law; I was thirsting for that

hard knowledge and experience. On top of it all, David was so fantastic at entrepreneurial law, I couldn’t have asked for a better mentor. Soon after, I had my sights on growing the firm and to reach and help more entrepreneurs.

About 3 years into the firm, there were indicators that I wasn’t going to reach that goal. Nearly 5 years into the firm, I realized that I needed to venture on my own. At the end of the day, what I wanted to actualize required a full (and radical) transformation of the firm’s business model and its daily activities:

To completely eradicate the billable hour; To discourage ad-hoc marketing, lunches, and events, that all too often create marketing black-boxes for growing any firm’s client base; To reach underserved swaths of entrepreneurs and businesses, many of which need straightforward communication and “handholding” so they can better understand what they’re buying and how to deploy the best legal counsel.

I started Forthlaw PLLC this past May of 2022. A brainchild of sorts, it’s my response to correcting the misaligned incentives that fraught the attorney-client relationship. Not as an alternative legal service provider (or ALSP, for short), but actually as a firm licensed to practice law.

(Quick commentary on retail ALSPs: LegalZoom, Rocketlawyer, and other ALSPs are valuable in certain contexts, but are highly misleading to customers due to limited lawyer networks, inherent structural flaws of those networks, and no available business model incentives to encourage improvements to customer experiences.)

As a member of this prestigious profession, I feel that we have a duty to bring more improvements to our respective areas of law: to bridge more gaps and to increase access wherever possible.

I often talk with students on how some of the best and most enriching parts of our careers are nonlinear. Often, students are thinking about the next step in their life — and they should — but often fail to ignore the beauty in the twists and turns. Hardship and rewards are forever intertwined.

For this chapter of my life, I’m driven to innovate the business of law and redefine what it means to buy — and deploy — legal services. It is incredibly hard, challenging, and riddled with doubtful moments (that have shattered even the highest of my self-confidence at times).

I believe the best way forward is to leverage our nonlinear past and paths, to call on our eclectic perspectives and strengths. I’ll forge my path forward by heavily leveraging my skills and technological and entrepreneurial perspectives to unlock that client innovation. For me, it’s worth the wait and its lengthy process.

It’s a great pleasure to contribute to this column. Continue to be as great as you can be, to create value for others, and to do more good that is out there right now.

TELL ME A STORY
DICTAOctober 2022 31

P.O. Box 2027 Knoxville, TN 37901

Bench-Bar Celebration

On Wednesday, September 7, the KBA membership gathered to honor our local judiciary at the Bench-Bar Celebration. The reception was a triumphant celebration of our bench and bar, with well over 200 attorneys and judges in attendance. Everyone who attended took full advantage of the opportunity to enthusiastically fellowship with friends and colleagues. Photos were provided by Shooting the Bar more pictures are available in the photo gallery at www.knoxbar.org

Prsrt Std US POSTAGE PAID KNOXVILLE, TN PERMIT NO. 309
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