What I Learned about Inclusion and Why It Matters: I Am the Attorney . . . Page 10 Management Counsel: Law Office 101: A New Meaning to Bad Music at the Office . . . Page 25
A Monthly Publication of the Knoxville Bar Association | February 2024
“RESIDENTIAL” MIGHT NOT MEAN WHAT YOU THINK: PANDHARIPANDE AND SHORT-TERM VACATION RENTALS
Photo Ops
In 2023, the KBA Family Law Section organized multiple quarterly social events that proved highly successful. These gatherings provided an excellent chance for colleagues to connect and build relationships. The KBA expresses gratitude to the following firms for their generous sponsorship of these socials: Bernstein, Stair & McAdams, LLP; Breeding Carter Crippen, PC; Herston Law Group, PLC; Knoxville Family Law; and Sharp & Attanasio. At the December social, various unofficial section awards were presented, and we extend our congratulations to Jerry Becker for earning the “Bag of Coal” accolade. The Family Law Section plans to continue the socials in 2024. If you want to become a KBA Family Law Section member or sponsor a social, please contact Tammy Sharpe at tsharpe@knoxbar.org.
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DICTA
February 2024
In This Issue
Officers of the Knoxville Bar Association
February 2024
COVER STORY 16
“Residential” Might Not Mean What You Think: Pandharipande and Short-Term Vacation Rentals
CRITICAL FOCUS President Carlos A. Yunsan
President Elect Jonathan Cooper
Treasurer Rachel Park Hurt
Secretary Ursula Bailey
Immediate Past President Loretta G. Cravens
KBA Board of Governors Melissa B. Carrasco Meagan Collver Joan M. Heminway William A. Mynatt, Jr.
T. Mitchell Panter M. Samantha Parris Courtney Epps Read Vanessa Samano Charles S.J. Sharrett
James T. Snodgrass James R. Stovall Alicia J. Teubert Hon. Zachary R. Walden
The Knoxville Bar Association Staff
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19 25
President’s Message
New Kids on the Block
Practice Tips
Knox County General Sessions Court
Legal Update
Kathy Griffin’s Tweets Clarify Personal Jurisdiction in Speech-Based Tort Actions
Schooled in Ethics
How to Share Space Ethically
Management Counsel
A New Meaning to Bad Music at the Office
WISDOM 7 9 Tasha C. Blakney Executive Director
Tammy Sharpe Director of CLE & Section Programming
Jonathan Guess Bridgette Fly Membership Coordinator Programs & Communications Coordinator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
Jason Galvas LRIS Assistant
Volume 52, Issue 2
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 Tasha Blakney (522-6522).
February 2024
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Dicta is the official publication of the Knoxville Bar Association
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Publications Committee Executive Editor Executive Editor Executive Editor Brandon Allen Anita D’Souza Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho Matthew R. Lyon
Managing Editor
Cathy Shuck Sarah Booher Melissa B. Carrasco Robin McMillan Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Eddy Smith Grant Williamson
Tasha C. Blakney KBA Executive Director
DICTA
27 29 31
Attorney Profile
Barristers President: Charles “Chuck” Sharrett
Of Interest to the Bar
Navigating SECURE 2.0 and the Impact on Trust Services in 2024
What I Learned about Inclusion and Why It Matters
I Am the Attorney
The Oath
Embedded in Our Code
Hello My Name Is
Baylee Brown
Privileged to Be a Lawyer
Be Part of the Change
In Limine: Profiling Future JDs
Jackson Barton
Why Did the Lawyer Cross the Road
Vexatious Litigation
Top Ten List
Top Ten Signs It Is the New Year
Legally Weird
Proper Calculation Of Line Spacing: Did We Go To Law School For This?
Bill & Phil Gadgets
CES 2024: Tech Trends and Innovations Stealing the Show in Las Vegas
Legal Libations
Hi-Wire Brewing
Well Read
King: A Life by Jonathan Eig
Tell Me a Story
Lessons Learned Along the Way
COMMON GROUND 4 20 20 28 28 30
Section Notices/Event Calendar Barrister Bullets Welcome New Members Change of Addresses Bench & Bar in the News Pro Bono Project
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SECTION NOTICES & EVENT CALENDAR
Section Notices
There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarrett (566-5393) or Betsy Meadows (540-8777). Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on February 3, and volunteer registration is available at www.knoxbar.org. If you have a CLE program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Greg Logue (215-1000), Kevin Newton (588-5111) or Shanna Fuller Veach (545-4284). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (457-5640). 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 “Annual FLSA Update” CLE program scheduled for April 30. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000) or Tim Roberto (691-2777). 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 (804-3741), Kendra Mansur (771-7192), or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Blair Kennedy (539-3515) or Laura Wyrick (297-5511). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Ron Mills (215-2050) or Mitchell Panter (545-4167). 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 2022 will automatically be opted-in to the section. If you want to participate in planning section activities, please contact Section Chairs Dalton Howard (546-0500) or Mari Jasa (546-7770). Senior Section The KBA Senior Section will meet next on Wednesday, February 14, 2024, at Calhoun’s on Bearden Hill. The program will cover “One Perspective on the 1983 Closure of United American Bank (UAB)” and will feature Ray Lacy, Lacy, Price & Wagner, PC. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes a buffet lunch. If you have suggestions for luncheon speakers, please contact Chair Wayne Kline at (292-2307) or Sam Rutherford (659-3833). Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936), Brittany Dykes (214-7869) or Stan Young (209-8034).
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event calendar February
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Pro Bono Debt Relief Clinic Barristers Meeting Judicial Committee Faith & Justice Legal Clinic Professionalism Committee Senior Section Luncheon Veterans Legal Advice Clinic Bankruptcy CLE Board of Governors Meeting Law Practice Today Webinar
March
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Law Practice Today Webinar Professionalism Committee Access to Justice Committee Veterans Legal Advice Clinic Barristers Meeting CLE Committee Elder Law CLE Board of Governors Meeting Law Practice Today Webinar
SAVE THE DATE: Microsoft 365 – Its Value Proposition for Lawyers and The Included Useful Applications Most Subscribers Aren’t Even Using February 29 How to Fight and Beat Procrastination March 7
Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. February 2024
PRESIDENT’S MESSAGE By: Carlos A. Yunsan University of Tennessee College of Law
NEW KIDS ON THE BLOCK You are currently one, have been one before, or may become one— soon. Whether we have accepted new responsibilities, decided to pursue new professional adventures, committed to new volunteer efforts, or have simply entered a new chapter of life, we have or will inevitably be the new kid on the block—with all the challenges and opportunities the situation entails. For me, it seems, that label pretty much sums up most of my life story. Without a doubt, the most significant episode in the saga was moving from Panama City to Maryville, Tennessee, in 1994. There were no parents or relatives nearby, no connection to the area, and no long-term plan—other than learning English, because it was clear to my high school friends and I that such a step would open so many doors. And yet, with all the challenges of learning a new language, being unprepared for cold weather and snow for the first time (highs hover in the upper 80s most of the year in Panama), and lacking my go-to support system, I truly found a gem. The network of folks who offered kindness and guidance and even opened their homes to this new kid from a tiny, foreign country, who could barely understand them was—and still is—both heart-warming and representatives of the best volunteer tradition for which East Tennessee is known. In no small part because of those early experiences, here we are some 30 years later almost to the date of writing these thoughts. But history has a way of repeating itself, often in a good way. In August 2023, I became a new kid on the block again when I joined, full-time, the UT Law faculty. Working alongside some of the same professors who had prepared me to pass the bar exam a decade earlier was both humbling and terrifying! “Will I be able to teach students as effectively as them?” “I have almost no published scholarly work; would it be able to contribute to their academic discussions?” “Did I make the right decision?” These and other imposter syndrome thoughts crossed and still clutter my brain from time to time. Yet again, thankfully, a network of kind and generous law professors and colleagues in the bar have stepped up to continuously check in on how things are going and provide guidance and support in navigating these new waters. The challenges of the new come along with great opportunities for building new or strengthening existing relationships and for personal and professional growth. I bet you can relate. Have you recently become managing partner or decided to hang your own shingle? Have you joined a board of directors or accepted a pro bono case outside your area(s) of expertise? Have you changed law firms or left your firm for a legal career outside private practice? If you have tackled or are in the middle of juggling any of these scenarios, I hope you can join me in attesting that our colleagues and members of the bar are quick to offer the guidance and support needed to overcome the challenges that the new brings. And, if you are February 2024
contemplating any of these changes, I invite you to take the leap with full assurance that the Knoxville Bar Association and its members will be there to assist. On the flip side, you see them around you too. The new kids on the block, new to your office, new to the profession, eager to give their very best but perhaps unsure about how to best do so without overstepping or afraid of making a major mistake. What can you do you do? Like the many who have set an example before us, I encourage you to be the one who takes the initiative to reach out and offer friendship and wisdom. Be that attorney who reaches out to the newbie after that court hearing and express how well they did—and what can strengthen their position next time. Show up to events of the KBA section for your area(s) of practice and get to know an attorney you have no met before. Find out what they do and what they enjoy and find challenging about the practice. Build community with them. From time to time, we encounter new kids on the block together in our ever rapidly evolving world of legal practice. Take AI, for example. ChatGPT was launched by OpenAI on November 30, 2022.1 A survey conducted by the Thomson Reuters Institute less than four months later, in late March 2023, found that 51% of lawyers at large and midsize law firms in the United States, United Kingdom, and Canada, already believed that ChatGPT and/or other generative AI tools should be applied to legal work.2 Of course, that was ages ago, and today many of us have actually explored these tools or used them in drafting documents, but as with any new tool, there are challenges and pitfall that warrant caution. I am proud that the KBA has, as it has been its practice, taken a proactive approach to help our bar successfully meet and acquaint ourselves with this new kid on the block! Throughout the year, the KBA is featuring a lunch-hour Law Practice Today Webinar Series, with offerings in the upcoming months addressing AI, including ethical issues and challenges and pitfalls for practitioners. Over the previous three years, we learned to be flexible in ways we had not experienced before. Adapting to the new paradigms that AI tools are bringing to the doorsteps of legal practice is yet another test we can master. New kids on the block are only so until they are not new anymore. So, whether you are the new kid on the block or encounter one along your path, embrace the adventure and lean on the KBA to assist you along the journey. 1
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DICTA
Benj Edwards, ChatGPT is one year old. Here’s how it changed the tech world, ArsTecnica (Nov. 30, 2023, 12:01 p.m.), https://arstechnica.com/informationtechnology/2023/11/chatgpt-was-the-spark-that-lit-the-fire-under-generative-aione-year-ago-today/. New report on ChatGPT & generative AI in law firms shows opportunities abound, even as concerns persist, Thomson Reuters (Apr. 17, 2023), https:// www.thomsonreuters.com/en-us/posts/technology/chatgpt-generative-ai-lawfirms-2023/.
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PRACTICE TIPS By: Esther L. Roberts
Judicial Law Clerk to the Knox County General Sessions Judges
KNOX COUNTY GENERAL SESSIONS COURT In the current post-COVID world, Knox County General Sessions Court maintains an ongoing commitment to maximize efficiencies wherever possible so attorneys who practice in General Sessions can make the best use of their time and litigants can avoid lengthy wait times in court. DIVISION I/MISDEMEANOR: Misdemeanor Division begins at 8:30 a.m. Monday through Friday. Attorneys and litigants are advised to be ready to begin promptly at 8:30. For out of state litigants who may wish to plea via video, prior arrangements for the video plea should be made through litigant’s counsel with the Judicial Law Clerk (865.215.1246). NOTE: The relevant District Attorney must preapprove such a video plea in Misdemeanor and the litigant must sign all rights waivers and other documents and submit ahead of time to the court for the judge’s review and approval.
WANT TO BE PLACED ON THE GENERAL SESSIONS APPOINTED COUNSEL LIST? If you want to be placed on the General Sessions Appointed Counsel list, please contact the Judicial Court Administrator, Adam Thomas, at 865.215.2370. Typically, General Sessions judges appoint attorneys who are present in the courtroom at the moment the need for appointed counsel arises. DIVISION V/CIVIL: Civil Division begins at 9:00 a.m. Mondays, Tuesdays, and Wednesdays. The judges reserve Thursdays and Fridays for “special setting” civil cases – generally, such specially set cases are matters that require longer than an hour to present and adjudicate.
DIVISION II/DUI: DUI Division begins at 8:30 a.m. Monday through Friday. Attorneys and litigants are advised to be ready to begin promptly at 8:30. For out of state litigants who may wish to plea via video, prior arrangements for the video plea should be made through the Judicial Law Clerk. NOTE: The relevant District Attorney must preapprove such a video plea in DUI and the litigant must sign all rights waivers and other documents and submit ahead of time to the court for the judge’s review and approval. DUI Alcohol and Drug Addiction Treatment: For litigants who plea to/ are convicted of a DUI second, Alcohol and Drug Addiction Treatment (ADAT) funding may be available for in-patient treatment, if the relevant District Attorney agrees to treatment as part of the sentence. For additional information about ADAT qualifications and/or treatment funding, please contact the Judicial Law Clerk. DIVISION III/FELONY: Felony Division begins at 8:30 a.m. Monday through Friday. While it is rare that a felony plea from a longdistance litigant is taken by video, it does happen occasionally. NOTE: The relevant District Attorney must pre-approve such a video plea in Felony and the litigant must sign all rights waivers and other documents and submit ahead of time to the court for the judge’s review and approval. DIVISION IV/TRAFFIC & BONDED ARRAIGNMENT: Traffic/ Bonded Arraignment Division begins at 8:30 a.m. Monday through Friday. Attorneys and litigants are advised to be ready to begin promptly at 8:30. Video court is not available for any case in Division IV; rather, as part of the bond agreement, the accused must return in-person to Traffic/ Bonded Arraignment on their assigned court date. APPEARING IN MULTIPLE COURTS ON THE SAME DATE? If you are counsel of record and have cases in multiple courts on the same date, please let the relevant General Sessions bailiff(s) know if you will be
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in the building but not present in General Sessions at 8:30 a.m.
Check Civil Court Location Every Tuesday in 2024: Tuesdays are generally reserved for detainer (landlord/tenant) matters. For 2024, due to the small size of the General Sessions Civil Courtroom (3rd floor of the Old Courthouse), the GS judges requested and were granted permission by the Public Building Authority (PBA) to hold Tuesday detainer court in the Main Assembly Room (MAR) whenever the MAR is available in 2024. The GS Civil Clerk’s office will have the master schedule of which Tuesdays will be held in the MAR and which will be held in the Old Courthouse. New Eviction Prevention Funding for 2024: In late 2023, Knox County received a multi-million dollar grant to fund the “Eviction Prevention Program. (EPP).” Part of the grant funds were dedicated to General Sessions to fund an EPP support team. The General Sessions EPP team is comprised of attorney Shelby Davis and LMU law students Kalyn Cisco and Willow Skyhawk. The GS EPP team is in Division V every day court is in session to provide real-time support to applicant tenants who need rental assistance to avoid eviction, and also to provide real-time support and information to the GS Judges so current application status, etc., may be taken into account during each relevant case. Funding for the GS EPP team is secure through June 2025, so detainer litigants who qualify for support will have the opportunity to remain in their current rental residence. Community Mediation Center Relocates: The Community Mediation Center (CMC) was recently relocated from the now-vacant Andrew Johnson building to the third floor of the Old Courthouse. Having the CMC located so close to the GS Civil Courtroom has proven to be an integral part of the overall support for General Sessions Civil Division litigants, as many pro se litigants can resolve their conflicts quickly and amicably through on-site mediation. If these litigants are unable to resolve their conflict via mediation, they can still have their case heard by the judge without having to reschedule their case or come back to court a second time.
DICTA
February 2024
ATTORNEY PROFILE By: Meagan Collver
Lewis Thomason, P.C.
BARRISTERS PRESIDENT: CHARLES “CHUCK” SHARRETT When I was asked to write an article about my friend and mentee, Charles “Chuck” S.J. Sharrett, I was honored, but had no idea where to start. This was not because I was abiding by the old adage of “If you don’t have anything nice to say, then don’t say anything at all.” The exact opposite was true, and I faced a tale as old as time with attorneys, i.e., I had a fair amount I wanted to say, but was subject to page limitations and word count limitations. I thought about using Chat GPT momentarily, but as awesome and laid back as Chuck is, he probably would not have appreciated serving as the next cautionary tale with me. Therefore, it was difficult to arrange the words on paper (which ironically lawyers are paid to do) to properly convey the amazing person and legal talent who is Chuck, ranging from one of the kindest and most genuine people you could ever hope to meet, to someone ready to go to a battle royale on social media with our formerly-shared neighbors over the exact language of a Knox County Code and its application to dogs barking. With that said, the best thing to do is to probably jump right into the deep end, as I (inadvertently, of course) have had Chuck do more times in the practice of law than either of us can count. Chuck is a native of the Chicago, Illinois area, and if you do not believe it, simply ask him how to say “Maryville” or “Blount County.” After graduating high school, Chuck moved to Harrogate, Tennessee in 2011, and lived with his grandparents while attending undergraduate classes at Lincoln Memorial University. College is often considered one of the best times in a person’s life and the same is undoubtedly true for Chuck since he met his beautiful, inside (and out) wife, Madaline (Maddy), during their junior year at Lincoln Memorial University. They have a love story straight out of a romantic comedy, which may or may not include some daredevil hijinks close to the beginning of their relationship. Before graduation, Chuck made the best decision of his life and asked Maddy to marry him. She said “Yes!” and it was off to the races, well, metaphorically of course since there was still undergraduate to finish. After graduating with his Bachelor of Arts degree from Lincoln Memorial University in May 2015, Chuck and Maddy wed later that same month. Thereafter, Chuck and Maddy moved to North Carolina for Chuck to attend law school. However, as fate would have it, he ended up transferring to the University of Tennessee College of Law. Unsurprisingly, Chuck excelled in law school, and demonstrated an innate February 2024
knack for practicing law. He graduated from the University of Tennessee College of Law in May 2018. After passing the bar in October 2018, he officially started practicing and has evolved into the rising star that everyone predicted he would be from the start. Chuck went from handling civil general sessions court cases to winning several motions for summary judgment in federal courts for deliberate indifference cases in the course of only a couple of years. Not only has Chuck evolved as a lawyer, but as a leader as well. I somehow managed to persuade Chuck to agree to be my Co-Chair for the Hunger and Poverty Relief Committee, which is one of the most challenging, but also most rewarding, committees within the Barristers. Chuck quickly took on the leadership role and immediately started organizing the annual drives. There will also always be fond memories of sorting mountains of (sometimes questionably donated) clothing in the basement of the Knoxville Bar Association and loading up bag after bag of donated clothing in Chuck’s truck. Chuck eventually transitioned to Co-Chairing the Access to Justice Committee, which helps with legal clinics throughout the year and served as the Barristers Vice President for 2023. However, Barristers Vice President was not Chuck’s biggest accomplishment last year. To the contrary, Chuck started the greatest role he has had yet: a father to his son Henley who was born in April 2023! Chuck was an amazing father from the start and continues to be an amazing father without letting anything fall between the cracks, including at his job and with his leadership in the Barristers. Further, Chuck allegedly has spare time in the midst of raising a family, building a house, leading various committees and organizations, and building a career. This spare time has not been confirmed, but allegedly during this “spare time,” he enjoys spending time with his family and his pets, fly fishing, the great outdoors, and traveling once Henley has better developed motor skills. Now that you have a small glimpse into the person who is to the next leader of the Barristers, I will close on this note: There is one thing about Chuck and that is if you give him a task, he will do it and he will do it right. There is no doubt that he will continue to do so in his new role as the Barristers President and the Knoxville legal community is excited for this next chapter of Chuck leading the Barristers through another successful year.
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February 2024
OF INTEREST TO THE BAR By: Brooke Lawson
VP and Private Client Relationship Manager, First Horizon Bank
Amber Young
VP and Sr. Trust Officer, First Horizon Bank
Materials from Broadridge Financial, Inc., were used in creating this article.
NAVIGATING SECURE 2.0 AND THE IMPACT ON TRUST SERVICES IN 2024 At the end of 2019, President Trump signed a federal spending package that included the Setting Every Community Up for Retirement Enhancement (SECURE) Act. The $1.7 trillion appropriations bill passed by Congress in 2022 included some notable provisions affecting workplace retirement plans and IRAs, dubbed the SECURE 2.0 Act. “In 2024, SECURE 2.0 will bring important changes to RMD rules, QCDs, changes to employer plans, 529 plans and more,” said Brooke Lawson, VP and Private Client Relationship Manager at First Horizon Bank. “Given the potential impact of these updates, it is wise to collaborate with a trusted advisor. Reviewing beneficiary designations, navigating changes, and making adjustments ensures a comprehensive grasp of your net worth and assistance with gifting, account titling, and challenges.” Here’s a look at the newest updates: Looser RMD Rules The 2019 SECURE Act increased the age for mandatory taxable distributions from traditional IRAs and work-based retirement accounts to 72. SECURE 2.0 further raises it to 73 in 2023 (for those turning 72 after December 31, 2022) and to 75 in 2033. Under the current law, failing to take the full Required Minimum Distribution (RMD) results in a 50% tax. The new law reduces it to 25% in 2023, and to 10% if the full amount is reported within the second year after the deadline. Starting this year, the legislation aligns Roth 401(k)s with Roth IRAs, removing the requirement for minimum distributions from workplace Roth accounts. Expanded QCDs Starting in 2024, the eligible amount for a qualified charitable distribution from an IRA ($100,000) will be inflation-indexed. From 2023, investors can also make a one-time charitable distribution of up to $50,000 from an IRA to certain charitable trusts. It’s essential to check with charitable organizations about their acceptance of various gifts as the chosen organization can impact the donor’s tax benefits. Rising Catch-up Contributions Individuals who are aged 50 and over can make an additional catch-up contribution of $1,000 to their IRA. Beginning in 2024, this amount will be indexed annually for inflation, similar to employer plan catch-up contributions (limited to $7,500 in 2023). Also, starting in 2025, the catch-up contribution for people aged 60 to 63 will increase to a minimum of $10,000 for 401(k)s and similar workplace plans ($5,000 for SIMPLE plans). However, in 2024, all catch-up contributions for workers with incomes above $145,000 will be after-tax (Roth) contributions. New Penalty Exceptions Distributions from retirement savings accounts are generally subject to ordinary income tax. Additionally, distributions taken before age 59½ may incur a 10% early-withdrawal penalty, unless exceptions like death or disability apply. SECURE 2.0 introduces new exceptions to the early-withdrawal penalty, covering emergency expenses, terminal illness, domestic abuse, long-term care insurance, and disaster recovery. The amounts, rules and effective dates differ for each circumstance, with some exceptions taking immediate effect. Changes to Employer Plans Beginning in 2025, the act mandates that new employer-sponsored plans auto-enroll employees at 3-10% income contribution, annually February 2024
increasing by 1% until reaching 10-15%. Workers can opt out of this new auto-enrollment. The act also modifies rules for tax-advantaged retirement accounts. Employer matches can now go into Roth accounts immediately, with adjustments to plans expected. In 2024, employers can auto-enroll non-highly compensated employees in emergency savings accounts, allowing up to $2,500. Excess savings can go to a Roth retirement account or be declined. Employers can assist those repaying student loans to simultaneously save for retirement by providing matching contributions. Rolling 529 Plans to Roth IRAs Contributions can be made to a 529 college savings plan offer tax advantages, with tax-deferred investment earnings and tax-free withdrawals for qualified education expenses. However, withdrawing funds for non-educational purposes may incur income tax and a 10% penalty. Starting in 2024, beneficiaries can roll over up to $35,000 from a 529 plan to a Roth IRA, given the account’s minimum 15-year tenure. Rollover amounts are subject to Roth IRA contribution limits, and distributions become tax- and penalty-free after meeting the 5-year holding requirement and reaching age 59½ (or meeting specific exceptions). Impact of Secure 2.0 on Trust Services A provision in this legislation effectively eliminated the “stretch IRA,” an estate-planning strategy that allowed an IRA to continue benefiting from tax-deferred growth, potentially for decades. Individuals who plan to leave IRA and retirement plan assets to heirs — and individuals who stand to inherit retirement assets — should understand the new rules. The new legislation, effective from January 2020, eliminates the “stretch IRA” strategy, requiring most non-spouse beneficiaries to liquidate inherited accounts within 10 years, in contrast to the previous rules allowing beneficiaries to take annual required minimum distributions based on their life expectancy. “As a result of these changes, trusts named as beneficiaries face profound impacts on retirement plans such as IRAs and 401Ks,” said Amber Young, VP and Sr. Trust Officer at First Horizon Bank. “The loss of the stretch IRA for non-eligible beneficiaries may bring unexpected tax burdens that you’ll want to discuss with your tax attorney. That’s why it’s important to start your planning early and consider collaborating with a trusted advisor to prepare.” Prior to 2020, individuals with high-value IRAs often used conduit — or “pass-through” — trusts to manage the distribution of inherited IRA assets. The trusts helped protect the assets from creditors and helped ensure that beneficiaries didn’t spend down their inheritances too quickly. However, conduit trusts are now subject to the same 10-year liquidation requirements, so the new rules may nullify or void some original reasons the trusts were established. Financial Planning Tips for 2024 Retirement account owners should review their beneficiary designations with a professional and consider how these new rules may affect inheritances and taxes. Any strategies that include trusts as beneficiaries should be considered carefully. Account owners may also want to consider converting traditional IRAs to Roths; bringing life insurance, charitable remainder trusts or accumulation trusts into the mix; and planning for qualified charitable distributions.
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WHAT I LEARNED ABOUT INCLUSION AND WHY IT MATTERS By: Michelle Morales-Cruz Law Office of Rachel Bonano, PLLC
I AM THE ATTORNEY At the beginning of law school, students were encouraged to invite family members to witness them taking an oath. This day was the start of our legal career and supposed to be a special moment for us and our families. My dad was not able to attend the ceremony, but I was excited my mom would be present. The ceremony took less than an hour, and we were quickly back in the car on our way home. Suddenly, my mom began to cry. She told me she was worried because she believed I did not fit in with my classmates. I felt confused because I did not understand what she was saying. She said I did not look like them, and it was obvious I did not come from a similar background. My mom knew I was smart and capable, but she believed law school was going to be hard for me because I did not belong. Deep down, I knew my mom was right. Although I had a master’s degree and received a scholarship for law school, I never fit in with my classmates. I could not relate to their privilege, which many times they did not realize existed. For example, I did not have local judges write me a recommendation letter or family members offer me a job. I thought I would stop feeling out of place after I graduated law school and passed the bar exam. After all, I would then
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be a licensed attorney. I had proved myself throughout law school and earned my own externships. I felt like I finally belonged in the legal world because I was one of you – an attorney. My illusion collapsed the seventh or eighth time I was mistaken for a client and/or interpreter because of my skin color and name. It is difficult to walk into a courtroom when people automatically assume you are not an attorney. I feel like I must prove myself from the moment I get out of the car. Not only must I zealously represent my client, but I also have to prove – again and again – that I am part of the legal community. This is not a new experience for anybody who does not fit the stereotype of an attorney in America. I have the privilege to shift the stereotype to include more people. I want other Latinas to know they are not alone, and they have the right to be part of the legal community. I encourage other members of the legal community to welcome and support new and diverse attorneys into our profession. This could be as easy as mentoring a law student or inviting a new attorney to coffee. Being the first to reach out is what makes other attorneys, like me, feel welcomed and included in our legal community.
DICTA
February 2024
LEGAL UPDATE By: William Gill
Associate Dean for Academic Affairs and Associate Professor of Law Lincoln Memorial University Duncan School of Law
KATHY GRIFFIN’S TWEETS CLARIFY PERSONAL JURISDICTION IN SPEECH-BASED TORT ACTIONS Kathy Griffin, the comedian and activist known for her stand-up specials and her reality show, Kathy Griffin: My Life on the D-List, has a history of controversial social media commentary. For example, Griffin garnered attention in 2017 when she posted to Twitter (now renamed X) a video showing her holding a fake decapitated head that resembled Donald Trump. Later tweets by Griffin gave rise to two actions in the Sixth Circuit that have clarified the parameters of personal jurisdiction over out-of-state defendants in tort actions premised on internet speech. The Sixth Circuit first adjudicated a personal jurisdiction dispute focused on Griffin’s tweets in Blessing v. Chandrasekhar, a consolidated appeal involving two lawsuits arising from a January 2019 confrontation between a group Kentucky high school students and a Native American elder at the Lincoln Memorial in Washington, D.C.1 The incident was captured in a viral video, prompting Griffin to post a series of tweets encouraging her two million Twitter followers to identify the students, “shame them,” and share concerns about the incident with the students’ ‘fine Catholic school.’”2 Several of the students sued Griffin in the U.S. District Court for the Eastern District of Kentucky, asserting various statutory and common law claims, including invasion of privacy. Affirming the district court, the Sixth Circuit held that the plaintiffs had not established personal jurisdiction over Griffin as to any of their claims. Because the case involved a potential assertion of specific personal jurisdiction—that is, jurisdiction related to the defendant’s contacts with the forum state—the court applied the well-established due process standard, inquiring whether Griffin had “’minimum contacts’ with the forum state sufficient to comport with ‘traditional notions of fair play and substantial justice.’”3 The Sixth Circuit grounded its decision in a pair of U.S. Supreme Court decisions governing personal jurisdiction in intentional tort actions. In the first case, Calder v. Jones, California actress Shirley Jones sued Florida journalists over a defamatory article.4 The Court held that the California court had personal jurisdiction over the journalists, emphasizing that they had “expressly aimed” their conduct at California, that the “focal point” of the article was California, and that they knew their tortious conduct would cause Jones to suffer harm in California, where she lived and worked.5 The second leading case is Walden v. Fiore, in which a pair of professional gamblers from Nevada brought a civil rights action in a federal court in Nevada against a federal officer who had seized their February 2024
cash at a Georgia airport.6 The Court held that the Nevada court did not have personal jurisdiction over the officer, reasoning that the officer had never been to Nevada, had never conducted in activities in Nevada, and had never contacted anyone in Nevada. The officer’s contacts with the gamblers and awareness that they lived in Nevada did not provide a sufficient basis for the Nevada court to exercise personal jurisdiction over the officer.7 Applying Calder and Walden, the Sixth Circuit determined that due process would not permit a Kentucky court to exercise personal jurisdiction over the students’ claims against Griffin. As in Walden, Griffin “never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to” the forum state of Kentucky.8 And the court emphasized that there was nothing to suggest that Griffin had tweeted with the intent “to reach Kentucky specifically as opposed to [her] Twitter followers generally.”9 The Sixth Circuit noted in Blessing that it was unaware of “a single case in which a court extended personal jurisdiction based on a defendant’s allegedly tortious postings on social media.”10 Two years later, the Sixth Circuit decided Johnson v. Griffin, in which it extended personal jurisdiction based on a defendant’s allegedly tortious postings on social media.11 The defendant in that case was none other than Kathy Griffin, who, in April 2021, “posted tweets … asserting that Tennessean Samuel Johnson, the CEO of Tennessee-based VisuWell, had engaged in homophobic conduct.”12 Griffin’s tweets were in response to a publicly posted video of an incident at a hotel in Frankin, Tennessee, during which Johnson interacted with a group of “boisterous” teenagers who were taking prom pictures. During the confrontation, Johnson told a male teenager wearing a prom dress that he “look[ed] like an idiot.”13 Johnson also apparently attempted to smack the phone out of the hand of the teenager’s boyfriend, who was using the phone to record the video.14 In her tweets, Griffin provided details about Johnson, including his name, place of residence (Franklin), and position as CEO for VisuWell. Griffin urged her followers to make Johnson “online famous” because of his conduct. She also tagged VisuWell and publicly pressured the company to fire Johnson. VisuWell leadership responded with a tweet indicating that the company had ceased to employ Johnson in any capacity. Johnson and his wife sued Griffin in a federal court in Tennessee, asserting claims for tortious interference with employment, intentional infliction of emotional distress, invasion of privacy, and negligence.15 The Sixth Circuit held that the Tennessee court had personal continued on page 12
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L E G A L U P D A T E , continued from page 11 jurisdiction over the Johnsons’ claims against Griffin. The court distinguished the case from Blessing and Walden and analogized it to Calder, noting that Griffin’s tweets criticized the conduct of a Tennessee resident as to employment in Tennessee for a Tennessee company. Crucially, the court found that “Griffin intended that the ‘brunt of the harm’ would befall Johnson in Tennessee.”16 After resolving the jurisdictional issue in the Johnsons’ favor, the Sixth Circuit remanded for the district court to resolve the remaining extant issues, including whether the Johnsons’ had stated claims upon which relief could be granted.17 The Sixth Circuit’s “Griffin Duology” not only contributes to the development of jurisprudence regarding personal jurisdiction in speech-based tort actions but also offers valuable insights for attorneys considering where to bring such actions. The cases also provide guidance for professionals managing social media accounts and for attorneys tasked with assessing the legal consequences of social media language. Finally, Kathy Griffin should now have a clearer understanding of when one of her provocative tweets could lead to legal challenges in a distant jurisdiction. 1 2 3 4 5 6 7 8 9 10
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988 F.3d 889, 892 (6th Cir. 2021). Id. at 893. Id. at 904 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1940)). 465 U.S. 783, 784-85 (1984). Id. at 788-89. 571 U.S. 277, 281 (2014). Id. at 288-89. Blessing, 988 F.3d at 906 (quoting Walden, 571 U.S. at 289). Id. Id. at 905.
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85 F.4th 429, 431 (6th Cir. 2023). Id. Id. Id. at 436 (Cole, J., concurring). Id. at 431-32 (majority opinion). Id. at 432 Id. at 435-36.
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February 2024
THE OATH By: Melissa B. Carrasco
Egerton, McAfee, Armistead & Davis, P.C.
EMBEDDED IN OUR CODE “An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: ‘I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.’ This section does not affect other oaths required by law.”1 On September 6,1966, this little section was added to Title 5 of the United States Code, as part of the Government Organization and Employees Act.2 I know what you are thinking. That title alone makes you just want to grab Title 5 off the shelf of your Firm’s library, brew a cup of coffee, and find a comfortable chair so that you can read – in excruciating detail – all about how the U.S. federal government is organized. But, if you take the Nedward Flanders, Jr. perspective, there are some interesting parts. For example, you may not have known that, decades before the Americans with Disabilities Act was enacted, the Act authorized federal agencies to employ reading assistants for sightimpaired federal employees (as long as the employee was willing to pay for it) unless the reading assistant was also a secretary in which case, the agency had to pay for it.3 This Act also prohibits the employment of publicity experts and employees of the Pinkerton Detective Agency.4 According to the Act’s drafting notes, there was a real concern that, if a private detective agency was awarded a federal security contract, the agency would “take advantage of the opportunity to surreptitiously obtain from government files information of value to private clients such as a party to a divorce proceeding.”5 To date, this author’s research has not revealed which member(s) of Congress was going through a messy divorce in 1966 and whether there is any connection. Keep turning page after page, and you will find The Oath. Even though it did not become a part of the U.S. Code in 1966, its substance dates back to 1789. The first Act of the first Congress of the brandnew United States was An Act to Regulate the Time and Manner of Administering Certain Oaths.6 They had no choice. Article VI of the newly ratified Constitution required it. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution, but no religious Test shall ever be February 2024
required as a Qualification to any Office or public Trust under the United States.7 This was actually rather controversial. For the first time, the members of government of a country were required to swear allegiance, not to a sovereign, governing body, or even to a deity but to an agreement that “We the People” have made.8 At the age of 29, Charles Pinckney was the youngest of the South Carolina delegates at the Constitutional Convention. But, he was not the quiet one. After all, he was a lawyer, admitted to the South Carolina bar when he was 16. At 21, he was appointed captain of the Charleston Regiment during the American Revolution.9 He was the author and proponent of adding the phrase, “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” to the end of Article VI.10 It stuck. No religious tests were to be required because the Oath itself was sacred.11 So, the first Act of the first Congress was to adopt an Oath: “I, A.B., do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.”12 They did not swear allegiance to anything other than giving their own word to support the document that many of them had personally signed and the concepts it contained. It was a promise that they were going to stand together to protect the agreement made by the people. It was the embodiment of Jusjurandum—the right of a citizen to bind himself or herself by an oath, not out of compulsion but of free will. This simple Oath was embedded in our code, and it was all that was required of elected and appointed federal officials until 1861. We’ll talk about what happened in 1861 and the lawyer who was behind it next month. 1 2 3 4 5 6
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5 U.S.C. § 3331 (2023). Pub. Law 89-554 (Sept. 6, 1966). Pub. Law 89-554, § 3102 (Sept. 6, 1966). Pub. Law 89-554, §§ 3107-08 (Sept. 6, 1966). Comments Concerning the Anti-Pinkerton Act (B-139965) H. Parkins, The Oath of Office: The First Act of the First Congress, National Archives (May 30, 2014), https://prologue.blogs.archives.gov/2014/05/30/the-oath-of-officethe-first-act-of-the-first-congress/, last visited Jan. 9, 2024. U.S. Const. Art. VI, available at https://www.archives.gov/founding-docs/ constitution-transcript. Preamble, U.S. Const., available at https://www.archives.gov/founding-docs/ constitution-transcript. Mount Pleasant, South Carolina, Charles Pinckney, Forgotten Founder, https://www. tompsc.com/289/Charles-Pinckney#:~:text=In%201787%2C%20Pinckney%20 was%20elected,the%20rights%20of%20white%20men, last visited Jan. 10, 2024. Id. Arguably, his most important contribution to the Constitution was his insistence that the Constitution be divided into articles and clauses. People like that can be very persuasive . . . and tiresome. Sometimes, you just have to give them what they want. See Alexander Hamilton, Federalist, No. 27, 174-75 (Dec. 25, 1787), available at https://press-pubs.uchicago.edu/founders/documents/a6_3s15.html. H. Parkins, supra n. 7.
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HELLO MY NAME IS By: Bridget J. Pyman Arnett | Baker
BAYLEE BROWN Baylee Brown, February’s Hello My Name Is column feature, an attorney with Banks and Jones, enjoys a wide practice involving criminal defense, student and athlete defense, appellate work, personal injury, auto accidents, and wrongful death actions. Before beginning her legal career, Baylee attended Tennessee Technological University and, in 2019, earned her degree in Sociology with a concentration in Criminal Justice. She then attended and graduated from Lincoln Memorial University’s Duncan School of Law in 2022. Beyond the realm of her varied law practice, Baylee enjoys a similarly varied spectrum of interests spanning both the fast-paced and the serene, from avidly following Formula One racing to utilizing 3D printing for the recreation of fantastic landscapes to reveling in the serenity offered by Montana’s unique and tranquil scenery. Through her responses, Baylee embraced the opportunity to provide DICTA’s readers with a holistic view of a life in constant motion.
lake with water clear as glass. I like to think that during this time I can take up jam-making or the like. What skill or hobby are you currently learning outside of work? Outside of work, I have recently found an interest in 3D printing. My father has a small print farm consisting of six (6) printers in his workshop, and I have begun working with him to create a Harry Potter village for the unused space above my kitchen cabinets at home. What is your favorite way to stay active? Throughout middle school and high school, I played competitive basketball for most of the calendar year. Upon high school graduation, I found that an outlet for physical activity was needed and quickly discovered a love for the gym. In the beginning, it was kickboxing and kettlebells classes. Now I enjoy strength training at least four times a week and taking my dogs for a walk or hike at least once a week as well.
What do you enjoy doing in your spare time? Whether it be catching the race on television or checking stats while at the gym, my favorite way to spend leisure time is keeping up with Formula One grand prix weekend results. During the off season, I enjoy spending time with my nieces and nephew or taking my dogs for hikes across East Tennessee.
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What was your first job, and what did you learn from it? After graduating high school, I started working for Cracker Barrel Old Country Store. I successfully put myself through undergrad by serving in a wide range of roles from hostess to waitress to skill trainer. I look back at this time fondly as I credit this experience with sharpening my communication skills, love of meeting new people, and even multitasking. Restaurant work is not the easiest work to perform, but as a young woman, I found that it prepared me well for life outside of my tiny hometown with just one traffic light. If you had an unlimited budget, where would you choose to live? Montana. Since serving on a two-week mission trip in Helena during the summer of 2018, I fell in love with the state. I have never experienced a more peaceful and serene area than Montana. Ideally, one day I would love to retire, buy a small area of land with a little river running from a
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DICTA
February 2024
PRIVILEGED TO BE A LAWYER By: Mariel Bough VeraSafe
BE PART OF THE CHANGE Lawyers are inherently public leaders. This is a message that was subconsciously (and consciously, let’s be real) preached to the members of the UT College of Law Class of 2020 from the very first week of classes in the Fall of 2017. Lawyers are leaders; a lawyer’s particular leadership qualities have no effect on the matter. This was a theme driven home in the group discussion following the personality test we were required to take in those early, impressionable law school days. At the time, I figured this narrative must be at least a little bit ambitious. On a very basic and loosely related level, I think the ratio of introverts to extroverts in my law school class was something like 14-1, respectively. Now, when I reflect on this part of my law school experience, I understand the message a great deal more than I did at the time. You see, regardless of the existence of any predisposed leadership skills or personality characteristics, lawyers are naturally given a great deal of deference by others in important positions and by the public at large. This public perception can lead to potential instances of government/municipal, corporate, and social influence throughout a lawyer’s career. In other words, lawyers are at times given opportunities to lead just because we are lawyers. Through hard work and diligence in our careers, lawyers can create real change in the world around us, especially if we take great care to be effective in these instances of influence. The same way a recently graduated law student might suddenly find herself to be her family’s subject-matter expert on contract negotiations or simple estate planning matters, an attorney who has successfully built a long-term career in complex commercial litigation will likely find herself rewarded with a great deal of deference in practice through the colleagues, clients, and judges with whom she interacts. It is in these opportunities that we as lawyers have the privilege of being a part of change. For example, colleagues will respect a successful reputation and follow your lead on new approaches to solve an issue; clients expect sound advice supported by practice or industry experience and will sometimes make big decisions guided solely by your advice; and judges who hear pointed and well researched arguments may decide to lay down brand new case law accordingly. These, of course, are examples of leadership opportunities relevant primarily to the fearless litigator. What about lawyers in other roles such as government, in-house counsel, HR, or compliance? While leadership opportunities in these roles might look different than opportunities for the litigator, I would argue that they come along just as frequently for lawyers in non-litigation roles. As a compliance attorney consulting primarily on data privacy matters, I am privileged to be at the forefront of changes in technology and the laws that govern our use of it. There is a natural tension between the progress of innovation and applicable governing regulations. Being in a position to assist organizations and individuals with navigating the tricky balance between the two, even as new regulations are constantly February 2024
being put into place, often leads to similar influential leadership opportunities. The nature of my role constantly requires me to research and keep abreast of new data privacy regulations and to understand how organizations and individuals across different global societies are engaging with new, innovative technology. Using these insights, I regularly analyze the risks of utilizing technology and certain methods of data processing and their impact upon a person’s privacy rights. This experience has led to a deep, personal understanding of certain organizations’ reputations when it comes to the processing of personal data with transparency and integrity, and how industry standards regarding the same have evolved (quickly!) over time. Through my practice, I have become uniquely qualified to educate others on how the use of certain technologies might impact their rights and give guidance to organizations regarding the lawful principles of data processing. Instead of allowing this privilege to go to waste, I intend to use it throughout my career to actively advocate for change to our cultural perception of the importance of prioritizing data privacy while balancing the interest of uninhibited innovation. I believe the application of this leadership privilege is transferable no matter your specific practice area. Each of you as a lawyer has a unique skill set specially refined by your experiences in practice. Even those who are non-practicing lawyers, or obtained a J.D. but have never practiced, enjoy the same privilege of being more informed about legal matters than the general public. This privilege likely contributed to a reform of your life’s perspectives. This honor is sometimes easy to forget and can get lost in the mundane, day-to-day tasks required in each of our roles. I challenge you to stay inspired and be reminded daily of your ability to utilize this privilege and be a part of the change that matters most to you, no matter how big or how small the impact might seem.
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“RESIDENTIAL” MIGHT NOT MEAN WHAT YOU THINK: PANDHARIPANDE AND SHORT-TERM VACATION RENTALS I’ve taught Property to law students for over eighteen years. When we cover topics like zoning and restrictive covenants we often discuss property restricted to “single family residential use.” Most of our discussion focuses on what “single family” means. With the recent Tennessee Supreme Court decision in Pratik Pandharipande, M.D. v. FSD Corporation, our discussions, and the law surrounding short-term vacation rentals, have changed.1 Short-term vacation rentals are still a growing industry. In the Knoxville market, revenue from short-term rentals went up 30.7% from January to June 2023 over the same period in 2022.2 There are nearly eleven hundred listings for short-term rentals in Knoxville and Knox County combined.3 In neighboring Sevier County, there are approximately thirteen thousand overnight rentals.4 Short-term rentals in the Knoxville area brought in over thirteen million dollars in revenue in just the first half of 2023 (and that’s before football season)!5 Any changes in the laws concerning short-term rentals are likely to be noteworthy for practitioners given that it is an expanding and lucrative area. What is Pandharipande all about, and what has changed? A doctor (Pandharipande) bought a vacation home on a lake in DeKalb County in 2015. At the time of purchase, the property was subject to a recorded restrictive covenant (the “1984 covenant”) that said that the lot should be used for “residential and no other purposes.”6 At the time of purchase, the doctor intended to use the property as a shortterm rental.7 The property was successfully used this way until the HOA (FSD Corporation) amended the covenants in 2018 to state that owners were allowed to lease their properties, but that the length of the leases must be at least thirty consecutive days.8 After seeking legal counsel, in March 2019, the HOA notified Dr. Pandharipande that he was violating the 2018 amendments and in June 2019 he sued the HOA seeking an injunction to prohibit them from taking any other action to enforce the covenants.9 The trial court granted the HOA’s motion for summary judgment finding not only that the 1984 covenant prohibited Dr. Pandharipande from using his property as short-term rental, but also that he was further prohibited by the 2018 amendments.10 The Court of Appeals affirmed.11 In a question of first impression for the Tennessee Supreme Court, it addressed whether “a restrictive covenant that limits the use of property to residential purposes prohibits short term rentals.”12 The Court found
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the 1984 covenant ambiguous and held that it did not prohibit shortterm rentals.13 The Court employed various dictionary definitions of “residential” to examine its scope. Ultimately, it examined the type of activities that would take place on the property during a short-term rental. It found that short-term renters engage in eating and sleeping and that those are activities more akin to what a resident would engage in, and were less like professional, trade, or business activities.14 While the Court notes that short-term rentals are certainly a lucrative endeavor, it focuses on the nature of the use, rather than the amount of money generated. In a separate legal realm, a court found an adverse possessor able to establish requisite possession of a vacation home because his possession “marks the conduct of owners in general, in holding managing, and caring for property of like nature and condition.”15 In other words, if you do the things a residential owner would do, you are behaving like a resident, then property is thus engaged in a residential use. While the Tennessee Supreme Court agreed with Dr. Pandharipande that the 1984 covenant didn’t prohibit short-term rentals, it agreed with the Court of Appeals that the 2018 amendment did prohibit them because rentals were, at a minimum, to be thirty consecutive days and Dr. Pandharipande only rented from two to twenty-eight days.16 So, the doctor lost and cannot use the property as a short-term rental. The significance of the decision is that it changed the definition of “residential” in Tennessee. In 2006, the Court of Appeals determined in Teffeteller that the use of short-term vacation rentals violated restrictive covenants that were to be used “for residential purposes exclusively.”17 The Court of Appeals found that while short-term renters might “eat, sleep, relax, and bathe while there, they do not reside there.”18 Covenants requiring “residential use exclusively” were “clear and unambiguous” per the Court of Appeals in 2006, but now “residential and no other purposes” covenants are ambiguous according to the Tennessee Supreme Court. How does this impact HOAs? A Tennessee statute specifically allows for condominium, co-op, and homeowners’ associations to prohibit or otherwise restrict short-term rentals in ways that a city or municipality cannot.19 It is still possible to craft language that accomplishes what the statute allows, but with the decision in Pandharipande, “residential purposes only” is no longer
DICTA
February 2024
COVER STORY By: Stevie J. Swanson LMU Duncan School of Law
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Knoxville News Sentinel (Aug. 28, 2023), https://www.knoxnews.com/story/ money/business/2023/08/28/how-many-airbnb-rentals-in-knoxvilletennessee/70421959007/. Id. Gregory Raucoules, Many Sevier County rental cabins will soon pay higher property taxes, WATE (Apr. 20, 2023), https://www.wate.com/news/sevier-county-news/ short-term-rental-cabins-higher-property-tax/. Sloan, supra note 1. Pandharipande, 2023 WL 6819018, at 2 (Tenn. Feb. 22, 2023). Id. Id. Id. Id. at 3. Id. Id. at 8. Id. at 10. Id. at 11. Howard v. Kunto, 477 P.2d 210,212 (Wash. Ct. App. 1970) (citing Whalen v. Smith, 167 N.W. 646 (Iowa 1918)). Pandharipande, 2023 WL 6819018, at 15. Shields Mt. Prop. Owners Ass’n v. Teffeteller, 2006 Tenn. App. LEXIS 106, 10 (Tenn. Ct. App. 2006). Id. at 12. Tenn. Code Ann. § 13-7-605. Daniel Dassow, Airbnb dispute in Tennessee mountain town turns nasty as neighbors head to court, Knoxville News Sentinel (Aug. 10, 2023), https://www. knoxnews.com/story/news/local/2023/08/10/tennessee-mountain-town-neighborsgo-to-court-over-airbnb-rentals/70446801007/. Id.
unambiguous in Tennessee. What would be clear enough language? The Court upheld the 2018 amendment to the covenant that specified that rentals were allowed but had to be a minimum of thirty days. Perhaps limitations of this type will be the best course of action moving forward. Other cases dealing with the short-term rental issue are still being decided. One example is the Lone Mountain Shores community in New Tazewell on Norris Lake.20 A lawsuit was filed in November of 2022 by the homeowners’ association seeking an injunction to stop short-term rentals. The covenant at issue in this case excludes “any rental accommodations or services” from single family residential use.21 The Lone Mountain Shores case is complicated by a long history of allowing short-term vacation rentals despite what the covenants state. It remains to be seen whether a blanket prohibition on “any rental accommodations” will be sufficiently specific to bar short-term rentals. What does this mean for the future of short-term rentals? It is clear in the Tennessee post-Pandharipande short-term rental market that HOAs still have the right to limit or prohibit short-term rentals, as this is their statutory right. The trick for practitioners who represent HOAs will be to draft (or assist in amending) covenants in a way that unambiguously prohibits them. Those who represent homeowners seeking to use their property as short-term rentals have undoubtedly celebrated a victory after Pandharipande because “residential use only” is no longer enough to stop them from their desired use. 1
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Pandharipande v. FSD Corp., No. M2020-01174-SC-R11-CV, 2023 WL 6819018 (Tenn. Feb. 22, 2023). Silas Sloan, Knoxville-area Airbnb rentals are having a record year,
February 2024
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IN LIMINE: PROFILING FUTURE JDS By: Jordan Houser LMU Law Director of Career Services and Alumni Relations
JACKSON BARTON
LINCOLN MEMORIAL UNIVERSITY DUNCAN SCHOOL OF LAW, CLASS OF 2024 Please tell me about yourself. My name is Jackson Barton, and I am a second-year law student at the Lincoln Memorial University Duncan School of Law. I will be graduating early in December 2024 through an accelerated program, and I plan to sit for the Tennessee Bar Exam in February 2025. I obtained my undergraduate degree in History with a Minor in Business Administration from the University of Nebraska at Kearney. I did not take a traditional path to higher education, as I received my bachelor’s degree in my late 20s; however, I believe that this has helped me immensely during law school. Over the years prior to law school, I worked in a wide variety of professions, each of which rewarded me with additional knowledge, skills, and experience that I have been able to carry forward into my career and subsequently apply to my education. How did you make the decision to go to law school, and why did you pick LMU Law? As I was finishing up my undergraduate degree, I already knew that I wanted to pursue a law degree. I had worked in several legal-adjacent roles in banking, finance, and real estate where I was introduced to the various legal aspects within those industries. Working for an attorney in the past also gave me insight into the life of a solo practitioner and the benefits and drawbacks that come with it. My wife and I fell in love with East Tennessee while visiting the area about five years ago, and we made it our goal to eventually move here. My wife ended up securing a position in Knoxville at the start of 2021, and as we started putting down roots that year, I began assessing my law school options in the local area. When I visited LMU Law, I was surprised that multiple deans took the time to meet with me. The support and sense of community I experienced then, and continue to experience now, is what solidified my desire to attend the Duncan School of Law. Over the last several years, I have continued to enjoy life in Knoxville and hope to contribute to this community and participate in the Knoxville Bar Association for many years to come. Tell me about your law school experience so far: what activities and classes have you participated in and enjoyed? While I have enjoyed most of my classes in law school, Civil Procedure, Property, and Legal Communications have been most interesting to me. Law Review has also provided me with an incredibly enjoyable experience reading and editing law review articles for publication as well as preparing for our Symposium. I also serve as a Peer Leader, which gives me the privilege of helping with 1L open house, facilitating orientation, and mentoring incoming students. As a Research Assistant for our Property professor, I have been able to expand my research and writing skills while exploring new topics and assisting on various law review articles. Over the past summer, I had the exceptional
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opportunity to intern with the Honorable Suzanne H. Bauknight. While I could not fully digest every detail that went on within bankruptcy court, I learned an immense amount from Judge Bauknight and her incredible staff about the character and integrity of the legal professional I aim to become. What type of law do you want to practice and where would you like to end up? Given my background in banking, finance, and real estate, I feel I would excel in business and transactional law. However, I have also found that my interests are much broader than when I first entered law school. Learning about the various practice areas of law throughout my coursework has given me more confidence to branch out beyond the industries that I am familiar with. I truly believe that my fit within the organization is as important as the specific area of law that I will practice. I also hope to have an opportunity to adjunct teach at a law school at some point in my career, which I believe could help me continue to learn and build subject matter expertise. I have had numerous adjunct professors who not only taught the course material well but also provided valuable insight into the legal specialty from their own professional experience. I believe adjunct lecturing would provide me with a rewarding avenue to support the next generation of law students at LMU Law or elsewhere. What do you enjoy doing outside of law school? Although classes, studying, and extracurricular activities keep me quite busy, I always make time to spend with my wife, Kalyn, and our numerous pets. We typically spend our downtime hiking in the Smoky Mountains, kayaking, working on home projects, watching baseball, and traveling around the Southeast. Even with my lengthy law school reading assignments, I read non-fiction books each evening, with my favorite genre being stories of human perseverance. What is your ultimate “why” with respect to being a future attorney? I have always been drawn to the profession given the unique opportunity it provides to make a difference in individuals’ lives. People turn to attorneys when they have a problem they need help solving. Society tends to focus on high-profile court cases, but solving a small problem for a client in your community can have a profound impact on that person’s quality of life. Being able to help others achieve their goals, plan for their future, or even solve a problem that they have spent years worrying about is what I am most looking forward to as a future attorney. *Hiring Footnote* As career services professionals, our main priority is helping our current students secure internships, clerkships, and associateships during law school and permanent positions upon graduation. As part of our roles, however, we often hear from alumni of all experience levels about their potential career moves. Next time your firm or organization is hiring a lateral attorney, consider reaching out to Carol Anne or myself, as we are able to spread lateral job postings throughout our alumni networks, and we may already have candidates in mind.
DICTA
February 2024
SCHOOLED IN ETHICS By: Judy M. Cornett
University of Tennessee College of Law
HOW TO SHARE SPACE ETHICALLY In July 2023, the ABA issued Formal Ethics Opinion 507, discussing the ethical issues that arise when lawyers share space. The opinion identifies four areas of concern: (1) confidentiality; (2) supervision of nonlawyers; (3) conflicts of interest; and (4) communication regarding the lawyers’ services. The Rules of Professional Conduct referred to in the opinion are identical in material respects to Tennessee’s Rules. The opinion addresses lawyers who share space but do not constitute a firm within the meaning of TRPC 1.0(c). Space-sharing can take several forms – traditionally, several lawyers who rent portions of the same space and share support personnel, library facilities, telephone lines, and perhaps computer systems. A law firm may also rent out unused space to a sole practitioner, along with support services. The first space-sharing issue is confidentiality. When unaffiliated lawyers use shared space, opportunities are rife for information protected by Rules 1.6 (current clients), 1.9 (former clients), or 1.18 (prospective clients) to be disclosed to other lawyers, staff not employed by the lawyer, or even to lay visitors to the office. To address this concern, the opinion helpfully suggests the following measures: separate lobby or waiting areas; refraining from leaving client files out on workspaces . . . ; installing privacy screens on computer monitors and locking down computers when not actively in use; clean desk policies; and regular training and reminders to staff of the need to keep all client information confidential[,] . . . securing physical client files in locked cabinets or offices, and using separate telephone lines and computer systems. If laywers share a computer system, confidentiality can be maintained by “appropriate security measures, staff training, and client disclosures.” The second issue is supervision of nonlawyers. To ensure that their staff members’ “conduct is compatible with” the Rules, as required by TRPC 5.3(b), space-sharing lawyers must provide training and supervision adequate for their employees to understand and adhere to their confidentiality obligations. This duty becomes especially important when two or more lawyers share the same employee. The third issue is conflicts of interest. If space-sharing lawyers develop the functional aspects of a “firm,” the conflicts of one lawyer will be imputed to the others by virtue of TRPC 1.10(a). The ABA Opinion explains that the lawyers’ failure to maintain confidentiality, as well as the failure to make their space-sharing status clear to clients and the public, may result in those lawyers being deemed a “firm” for imputation of conflicts purposes. When space-sharing lawyers are meticulous in preserving client confidences and not holding themselves out as a firm, they may ethically represent adverse interests, “even in the same lawsuit or transaction.” However, if space-sharing lawyers represent adverse interests, they may be obligated by Rules 1.4 and 1.7 to disclose the arrangement to their clients and obtain their clients’ informed consent. The opinion also cautions that, when representing adverse interests, each lawyer’s staff members must be screened from receiving confidential information about the
adverse matter. Because of this screening requirement, the ABA Ethics Committee “does not believe it is possible for lawyers in an office sharing arrangement to maintain this kind of separation when representing clients with adverse interests if the lawyers together share only one staff member.” The opinion urges caution in representing adverse interests, reminding lawyers that “[p]otential pitfalls range from inadvertent disclosures of client information in a shared office to opposing parties coincidentally scheduling meetings at the same time.” The best practice is to avoid conflicts on the front end by choosing office mates whose practices are unlikely to lead to conflicts of interest. A final aspect of conflicts that affects all lawyers, including those who share space, is consultation with other lawyers. Any time a lawyer consults with another lawyer outside their own firm, both lawyers must ensure that the consultation does not give rise to a conflict of interest. Comment [4] to TRPC1.6 advises that this can be done by discussing cases in a way that poses “no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.” Tennessee’s comment [4a] to Rule 1.6 provides even more assurance: Unless there is a reasonable likelihood of adverse effect to the client, this Rule does not prohibit a lawyer from disclosing information relating to representation of a client for purposes of providing professional assistance to other lawyers, whether informally, as in educational conversations among lawyers, or more formally, as in continuing-legal-education lectures. Thus, a lawyer may generally confer with another lawyer (whether or not in the same firm) concerning an issue in which the disclosing lawyer has gained experience through representing a client in order to assist the other lawyer in representing that lawyer’s own clients. The ABA opinion assumes that the space-sharing lawyers maintain a joint conflicts file, advising that, even before an informal consultation, the consulting lawyer should check for conflicts. The final issue implicated by space sharing is communication to clients and the public. Rule 7.1 prohibits lawyers from making a false or misleading communication. Therefore, as comment [13] to TRPC 7.1 notes, “Lawyers sharing office facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, ‘Smith and Jones,’ for that title suggests that they are practicing law together in a firm.” The ABA opinion advises that space-sharing lawyers “should use separate business cards, letterhead, and directory listings, as well as office signs, firm names, and advertisements that describe their distinct practices.” It is desirable for each lawyer to have a separate telephone line, but if they share a phone line and a receptionist, the receptionist should answer the phone “with a generic salutation such as ‘Law Offices’ to avoid implying that the lawyers are practicing together in the same firm.” Lawyers who share space must be cognizant of the ethical issues arising from space sharing. ABA Formal Opinion 507 provides useful guidance to those lawyers.
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. February 2024
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wkfirm.com or Miranda Goodwin at mirandaegoodwin@gmail.com with any questions and/or about volunteering. MONTHLY MEETING Plan now to attend the Barristers monthly meeting on Wednesday, February 7, starting at 5:15 pm at The Firefly, the outdoor patio at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm. All Barristers members are invited to attend, meet fellow attorneys, and learn about upcoming Barristers events. Please note the change from the second Wednesday so not to conflict with Valentine’s Day. 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 February 14. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.
HIGH SCHOOL MOCK TRIAL The Barristers High School Mock Trial Committee finalized this year’s Regional Competition dates. The Regional Competition will occur in the City County Building on February 16 and 17, and the final two teams will advance to the championship round held in LMU’s Courtroom on Sunday, February 18. This program is supported entirely by volunteer efforts. Traditionally, East Tennessee attorneys, judges, and law students have donated their time to serve in the roles of bailiffs, scoring judges, and presiding judges during the competition. Please contact either Celia Ball at (865) 281-1000 or Isaac Westling at (865) 673-8516 with any questions, and if you are interested in volunteering, you can sign up at: https://memcentral.wufoo.com/forms/mdbyy3q1labt0z/ BARRISTERS PLANNING MEETING The Barristers Executive Committee met on January 8 for a planning meeting. Contact bfly@knoxbar.org to get involved,
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 mknable@
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DICTA
February 2024
WHY DID THE LAWYER CROS THE ROAD? By: Brad Fraser Leitner Williams Dooley Napolitan, PLLC
Stefanie Bowen
Leitner Williams Dooley Napolitan, PLLC
VEXATIOUS LITIGATION Here you come again Just when I’ve begun to get myself together Dolly Parton, “Here You Come Again” A basic belief in the legal system is that you are entitled to “your day in court,” whether the claim is federal, or state-law based. But are you entitled to more than one shot? If it is the same issue repeatedly, maybe not. What happens when a plaintiff appears as a defendant shortly after a claim is successfully dismissed? There are other idioms for this concept, i.e.: “one bite at the apple,” but we Tennesseans love us some Dolly. Some file claims or appeal adverse judgments “all the way to the Supreme Court,” but there are limits. Issue preclusion and claim preclusion are affirmative defenses asserted to avoid repeated frivolous filings or appeals, but sometimes the prospect of a dismissal or note that an appeal would be frivolous is not enough to curb future fillings. Responding to any complaint or appeal requires attention and expense. Researching and pleading affirmative defenses of issue or claim preclusion take time and cost money. Time and expense will be spent addressing the matter, which interferes with the day-to-day operations of businesses and lives. When a case is repeatedly filed using the same factual basis, or an appeal is frivolous, the costs continue to mount. Frivolous or vexatious litigation costs the courts, too. Court resources are finite. Litigating frivolous lawsuits and appeals jeopardizes worthy litigants who need help with causes that “are noble and needs that are great.” To address those who “glut the judicial system by filing essentially the same lawsuit over and over,” courts must carefully balance the Constitutional rights of an individual to file an action in court against the necessity of limiting the waste of resources that comes with frivolous filings.1 In Tennessee, courts are presumed open. Tennessee Constitution Article I, section 17 states: That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. . . .2 Rule 11 of the Tennessee Rules of Civil Procedure provides a guide to determine appropriate sanctions in a given case, limiting such actions to “what is sufficient to deter repetition of such conduct,”3 and sanctions under this rule may include nonmonetary directives.4 Rule 11 can be a “potent weapon” that could chill enthusiasm and stile litigant’s creativity to pursue novel factual and legal theories.5 But used properly it may curb litigation abuse that “plague the dockets of our trial courts.”6 Therefore, Tennessee Supreme Court has held that a litigant may not be enjoined completely from filing an action in court as it would violate Article I, section 17 of the state Constitution.7 However, a court may impose prelitigation restrictions designed to deter abuse of the litigation process in a limited fashion, to protect the rights of a litigant and the judicial system.8 The balance is delicate. February 2024
In Hooker v. Sundquist, for example, the Tennessee Court of Appeals upheld a trial court’s imposition of Rule 11 sanctions that required any subsequent lawsuits the plaintiff filed be submitted by the clerk of the court to a special master who would then determine whether the new lawsuit was frivolous or duplicative.9 The procedure permitted an appeal of the decision of the special master and was limited in scope and duration.10 The action was “fully justified” given the plaintiff ’s undisputed history of filing lawsuits to relitigate essentially the same claims.11 The balance of permitting new lawsuits while blocking frivolous ones, prevented judicial glut and allowed other litigants to have the full, fair, and impartial hearings to which they are entitled.12 Fortunately for Tennesseans, the Sixth Circuit’s stance on vexatious litigation and sanctions is similar. Rule 11 of the Federal Rules of Civil Procedure allows sanctions crafted to deter the repetition of impermissible conduct, including enjoining actions.13 The Sixth Circuit Court of Appeals finds an absolute bar on a litigant’s filing of any lawsuit to prevent repetitive, frivolous filings is too broad and thus impermissible. But the Sixth Circuit will permit prefiling limitations just as Tennessee state courts do. The prefiling limitations allow a balance between the right to redress wrongs and the need to promote judicial economy and prevent harassment. An injunction in the Sixth Circuit may affect a plaintiff and others who wish to file lawsuits related to the same set of facts. In Feathers v. Chevron U.S.A., Inc., a line of heirs repeatedly litigated the ownership of oil-rich land after an intestate death, challenging over and over for generations the oil company’s interest in the land.14 The Sixth Circuit upheld the district court’s directive that the plaintiff (Feathers) or other heirs with claims comprised of the same basic facts seek leave of court from a district court judge in order to file any case litigating those facts, given the long history of repetitive, frivolous, or vexatious cases within the category.15 The Court of Appeals called the injunction “nothing unusual” and stated that the circumstances dictated a restrain on the plaintiff and others using the same facts given the history of the matter.16 However, creative (or desperate) people enjoined in one court (i.e.: Circuit Court), might just have to go “Two Doors Down” and file in Chancery. Here you come again.
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Hooker v. Sundquist, 150 S.W.3d 406, 414 (Tenn. Ct. App. 2004). Tenn. Const. Art. I, section 17. Tenn. R. Civ. P. 11.03(2). Id. Andrews v. Bible, 812 S.W.2d 284, 292 (Tenn.1991). Id. Hooker, 150 S.W.3d at 412; see also Ali v. Moore, 984 S.W.3d 224, 230 (Tenn. Ct. App. 1998). Anderson, 812 S.W.2d 284, 292 (Tenn. 1991). Hooker, 150 S.W.3d at 414. Id. at 410. Id. at 413. Id. Fed. R. Civ. P. 11(c). Feathers v. Chevron U.S.A., Inc., 141 F3d 264, 267 (6th Cir. 1998). Id. at 269. Id.
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TOP TEN By: Jason H. Long Lewis Thomason
TOP TEN SIGNS IT IS THE NEW YEAR deposition on December 26.” Two days later, the District Court Judge took additional mercy and stayed pending deadlines while we scheduled a mediation. The holidays are now passed. That type of leniency and good will toward man gives way to the pressing need of courts to keep their dockets moving. Woe be unto the lawyer unprepared in the month of January.
I believe this column will go to print while we are still in the month of January, so I thought, what better way to kick off 2024 than presenting the Top Ten Signs It Is The New Year: 10. Clients assume the “slow” week between Christmas and New Year’s was enough time for their attorneys to recuperate and get back to work. I don’t know about you, but my clients are ready for updates on their cases. ALL OF THEM. I guess spending three or four days between Christmas and New Year’s, attending to family obligations and holiday events, catching up on endof-the-year projects, and generally running around like a chicken with my head cut off was enough of a rest. Time to get to work. Starting a New Year is almost like coming back from vacation with a pile of work to get done. Honestly, the worst.
5. Things have gotten quiet. The holidays are all about family, office gatherings, sharing in fellowship, church services, trips to the stores, Christmas carols, and general celebrations. Once that ball drops on New Year’s, things get quiet quickly. Once more, it’s just you and the spouse, staring at each other across the room, wondering who is going to suggest dinner plans. 4. You’ve already broken your resolutions. In fairness, I haven’t even started on my resolutions yet, but I foresee breaking them before the time this article goes to print. It’s hard to teach an old dog new tricks, and the enthusiasm I feel on January 1 usually fades by Martin Luther King, Jr. Day.
9. Kids are going back to school. Scheduling becomes a nightmare once again as we have to coordinate school drop off and pick up. Mornings are spent laboriously making my way down the roads through school zones and behind buses. There is an argument to be made for homeschooling. 8. The next DICTA article is due. Actually, this happens at the beginning of each month. In January, it just feels more stressful. You realize you are locked in to writing for another full year. It’s January 10 and you are already out of fresh ideas. Yep. It’s gonna be a long year. Even worse, this year I have to educate Tasha on the thrill and beauty of late submissions. I spent 24 years training Marsha on my writing habits, and now I have to break in a newbie. 7. You’re wearing fancy new clothes. One bright spot of the New Year is that everyone gets to wear all of the fancy new clothes we got for Christmas. Those who know me know that I am, by no means, a fashion maven. Nonetheless, I have to admit that it feels nice to have new duds. Please compliment me accordingly. 6. Courts are actually expecting that the cases they have set be tried. True story here. I had a federal case that got hot and heavy over the month of December. For some reason, the discovery deadline had been set for December 27, and lots of work was left to be done. Scores of depositions had been noticed and the Plaintiff ’s attorney even subpoenaed one witness to give a deposition on December 26. I don’t blame him. He had to preserve his right to take the deposition. On a desperate conference call, the Magistrate Judge took pity on us and said “I don’t care what religious affiliation you are, nobody is going to take a
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3. Decorations look out of place. Alright, as of the writing of this column, our Christmas decorations are still up. Judge us if you must. If you put that much time into making the house look special for the holiday season, you should be able to enjoy it for a few days extra. All of the grinches in our neighborhood can take down theirs; the Longs want the magic to last a little longer (plus, it’s a pain to box all of this stuff back up). 2. College football season is over. I’ll be the first to admit that I am not a Michigan fan. However, they did surprise me this year as they were a much better team than I gave them credit for. Still, you know it’s the New Year when you close the chapter on the Joe Milton era and begin looking forward to Nico Iamaleava (once you figure out how to pronounce his last name). 1. Billable hours are at zero. Is there anything more tragic for an attorney than looking down at the timesheets and seeing a big fat “0.”. All that hard work and rush from last year to meet and exceed goals is wiped away with one turn of the calendar page. We really need to think of a better way to do this. Maybe that will be a resolution I’ll keep this year. I hope everyone has a wonderful 2024.
DICTA
February 2024
LEGALLY WEIRD By: Lisa J. Hall Hodges, Doughty & Carson
PROPER CALCULATION OF LINE SPACING: DID WE GO TO LAW SCHOOL FOR THIS? Lawyers can be awfully…wordy. I see you, right now, thinking to yourself, “Not me!” But I have also seen you in open court, telling the judge that your argument will take ten to fifteen minutes and fifty-five minutes later, I am wondering if I have time to run to the restroom before you finish your argument and my case is called. I see you taking twelve pages to explain a legal concept that would be just as easy to understand (possibly easier) in four or five pages. I do believe that less is often more, brevity is a virtue, and simple and straightforward language is best. I suspect many lawyers agree with this concept and yet routinely submit briefs that are…too wordy. When there is a restriction on the number of pages and words must be conserved, yet arguments must be fully developed, sometimes lawyers must use fewer words than they would prefer, leaving brilliant phrases on the cutting room floor. Imagine the fury one might feel if their adversaries did not feel the same constraint in trimming their own words but rather manipulated the typography to squeeze, say, four additional lines per page in their briefs. In the case of Jones, et al. v. Varsity Brands, LLC, et al., United States District Court, W.D. Tenn., No. 2:20-cv-02892-SHL-tmp, this was alleged to have happened. The local rule required that lines must be doublespaced, and the Defendants alleged that Plaintiffs manipulated their spacing to allow 24 points between lines as opposed to the 28 points which is standard on Microsoft Word documents. This alleged manipulation allowed Plaintiffs to submit a 49 page statement of additional material fact, which should have been 57 ½ pages, and a 99 page legal memorandum, which should have been 116 pages. The definition of “double-spacing” was debated, with Plaintiffs arguing that doublespacing simply means line spacing that is twice the size of the font, and Defendants arguing that the default spacing of Microsoft Word, Google Docs, and Apple Pages sets the standard for double-spacing. This was Matthew Butterick’s time to shine. Butterick wrote Typography for Lawyers, in which he devoted a section to line spacing. In the book, he confirmed that line spacing is “the vertical distance between lines of text.” He submitted a declaration in support of Plaintiffs’ Opposition to Defendants’ Motion to Require Adherence with Formatting Requirements of Local Rule 7.1, in which he referenced his book, where he wrote that “formatting rules about line spacing ‘should be interpreted arithmetically, not as word-processor lingo.’” He explained that Microsoft Word’s interpretation of double line spacing neither conforms to the technical definition nor is consistent across all of its February 2024
versions of Word. It is also not consistent from font to font. Butterick opined that the lines of Plaintiffs’ motion are “indisputably and correctly double-spaced.” Judge Sheryl Lipman denied the motion, acknowledging that the issue of what constitutes a double space had not been raised in the district, and that the Local Rules did not define “double-spaced.” She called the Defendants out in one footnote, stating, “Reading between the slightly larger spaced lines, it appears that Defendant initially raised this issue in an attempt to extend their time to file a reply…” and the Plaintiffs out in another: “Indeed, Plaintiffs’ twelve pages worth of prose, two declarations, and multiple other exhibits filed in opposition to this Motion, while interesting, displays both sides’ tendency toward overkill.” Without taking a position on the correct definition, Judge Lipman found that the Plaintiffs’ use of twenty-four point spacing was not in violation of the local rule. She concluded with this: The Court further notes that the last thing any party needs is more words on a page. The length of an argument is no guarantee of its success, and indeed could result in more confusion, not clarity. Moving forward, the Parties are encouraged to spend their valuable time focusing on the merits of this case, and certainly not figuring out how many sometimes-useless words will fit on a page. I can’t top that, so I won’t. To do otherwise would be unnecessarily…wordy.
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IS PLEASED TO ANNOUNCE NEW PARTNERS
KAITLYN E. HUTCHERSON
PAUL C. SHUMAN
AND NEW ASSOCIATE
GRACE M. EWELL
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DICTA
February 2024
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Jimmy Snodgrass Kramer Rayson LLP
A NEW MEANING TO BAD MUSIC AT THE OFFICE Whether employees should be allowed to listen to music while at work is a struggle for supervisors at all types of companies. While this would be unheard of for old-school managers, younger employees have stressed how it can improve productivity or enhance the culture of an office. At first glance, it appears to be a business issue, rather than a legal one. If called and asked to discuss an employee playing music in the office, most employers would think their attorney was padding their bill to ensure they could afford seasons tickets next year after Nico Iamaleava’s Citrus Bowl debut.1 However, in Sharp v. S&S Activewear, L.L.C., 69 F.4th 974, 977 (9th Cir. 2023), the Ninth Circuit Court of Appeals brought up a new issue—the role of music in the workplace when viewed under Title VII of the Civil Rights Act of 1964. The Court held that “sexually graphic” and “violently misogynistic music” in the workplace could create a hostile work environment or be the basis of a harassment claim under Title VII, even if it was not targeted at a specific individual.2 In Sharp, eight employees of an apparel manufacturer (seven women and one man) alleged that S&S permitted its managers and employees to play music which denigrated women, used offensive terms, and described extreme violence against women. Far from the coworker at a nearby cubicle playing music too loud through their headphones, Judge McKown described the warehouse at issue as: Blasted from commercial-strength speakers placed throughout the warehouse, the music overpowered operational background noise and was nearly impossible to escape. Sometimes employees placed the speakers on forklifts and drove around the warehouse, making it more difficult to predict—let alone evade—the music’s reach.3 The plaintiffs claimed that the music was a catalyst for abusive conduct by male employees, who pantomimed graphic gestures, yelled obscenities, made sexually explicit remarks, and shared pornographic videos. Even after complaints, S&S management “defended the music as motivational and stood by its playing for nearly two years.” After the plaintiffs brought their hostile work environment claims under Title VII, the U.S. District Court for the District of Nevada granted S&S’s motion to dismiss and denied the plaintiffs’ motion to amend, finding that the fact that the music was offensive to both men and women “nullified any discriminatory potential.” The Ninth Circuit found that the district court improperly dismissed the plaintiffs’ “music claim,” as it rejected the “equal opportunity harasser defense.” Additionally, the Court found that “sexually derogatory music audible throughout the workplace can create a hostile work environment.” In part, the Ninth Circuit relied upon a decision from the Eleventh
Circuit addressing harassment from male co-workers, including routinely playing a “crude morning show” from a “central office radio” and “regularly [singing] songs about gender-derogatory topics.”4 Similarly, the Sixth Circuit has considered music-based allegations as a relevant factor in hostile work environment claims when reviewing the continuous playing of “misogynistic rap music” as part of the plaintiff ’s Title VII claim.5 While the warehouse at issue in Sharp is not typical for most companies, the Ninth Circuit’s decision still provides some interesting insights for employers. It is important for employers to consider whether allowing employees to play music in the workplace could create “[a] workplace saturated with sexually derogatory content.”6 Companies now often tout their unique culture in an attempt to recruit younger employees, but they should obviously ensure that sexually explicit or offensive music is not played. An established company music policy is beneficial to ensure that employees are not being exposed to “actionable, auditory harassment that can pollute a workplace.” Such a company electronic systems policy may also protect a decision to restrict certain employees from listening to music, such as those with regular interactions with customers, without providing support for any potential discrimination claim. Specifying that inappropriate music cannot be played may help prevent potential hostile work environment claims from those offended by a co-worker’s choice of music. The company’s IT Department may have security concerns about streaming services or downloading music on work devices. Additionally, employees may be prohibited from listening to music or using headphones if it is unsafe for their position. OSHA’s Hearing Protection Standard, 29 CFR 1926.101, requires that ear protective devices be provided by the employer and used wherever necessary to reduce noise levels below established limits. However, a portable music player or music headphones are “not a substitute for hearing protection.”7 Ultimately, while not applicable to Tennessee employers, the Ninth Circuit’s decision in Sharp highlights the multiple factors that can lead to a claim of a hostile work environment. While an employer cannot predict every issue, it also demonstrates the importance of effectively reviewing and responding to complaints by employees. 1 2 3 4 5 6 7
I hope this is the first, but not last, Nico reference in DICTA. Sharp v. S&S Activewear, L.L.C., 69 F.4th 974, 977 (9th Cir. 2023). I’m not sure how much you would have to pay me to work in this warehouse. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 804 (11th Cir. 2010). Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 678 (6th Cir. 2000). Sharp, 69 F.4th at 979. See OSHA Standard Interpretation, available at https://www.osha.gov/laws-regs/ standardinterpretations/2019-09-06-0.
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 Sam Henninger at shenninger@wmbac.com. February 2024
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BILL & PHIL’S GADGET OF THE MONTH By: Bill Ramsey Neal & Harwell
By: Phil Hampton
CES 2024:
TECH TRENDS AND INNOVATIONS STEALING THE SHOW IN LAS VEGAS We are fresh from our annual pilgrimage to the mecca of gadgets – the Consumer Electronics Show (CES) in Las Vegas. After roaming the endless aisles, conversing with robots more social than some of our acquaintances, and trying out gadgets that make James Bond’s tech look passé, we’re buzzing with excitement to share our top takeaways from CES 2024. The Year of AI: Everywhere and in Everything If there was one omnipresent theme at CES this year, it was Artificial Intelligence (AI). AI is now like that one friend who’s everywhere – in your fridge, car, watch, and even in your shower (more on that later). The advancements are not just about smarter responses but how AI is integrating into daily life, making gadgets more intuitive and, dare we say, more human-like. One standout was the AI-powered personal assistant that could not only manage your schedule but also predict your mood and suggest activities accordingly. Feeling blue? It might cue up your favorite comedy show! Augmented Reality: Not Just for Gaming Anymore Augmented Reality (AR) is stepping out of the shadows of gaming and entering practical life. We witnessed AR glasses that overlay navigation, translate signs in real-time, and even provide detailed information about the people you meet (a bit creepy, but undeniably cool). Imagine walking to a meeting and getting real-time data about traffic, the weather, and a brief bio of the person you’re meeting. It’s like having a superpower! Sustainability: More Than Just a Buzzword Sustainability is no longer just a token mention; it’s a driving force in tech. We saw solar-powered everything – from smartphones to smart homes. One of the gadgets promoting sustainability that caught our attention was the Solar Generator Rooftop Tent from California solar company Jackery. Who said getting off the grid meant we had to power down all our devices? With this sustainable power generator, we can camp (or glamp) in style. Health Tech: Gadgets That Care Health tech at CES 2024 showed us that the future of personal healthcare is here. From wearables monitoring vitals in real-time to a ‘smart mirror’ analyzing skin health, technology is making wellness more personalized. Withings showcased a new device called BeamO which was getting a lot of attention at the show. With this small handheld device, you can conduct an at-home health checkup on yourself. The BeamO
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device can function as a thermometer and digital stethoscope and can run a medical-grade ECG and measure your blood oxygen level. Entertainment: Immersive and Interactive The entertainment gadgets this year were like stepping into a sci-fi novel. We experienced a home theater system that not only provided 360-degree sound but also adjusted the acoustics based on the number of people and their positions in the room. Movie night just got a serious upgrade! Smart Homes: The Jetsons Would Be Jealous The smart home tech at CES 2024 made us feel like we were visiting the Jetsons. From AI-powered kitchens that suggest recipes based on your fridge contents to smart windows that tint based on the time of day and your mood, convenience is being redefined. And yes, the AI shower adjusts water temperature, flow, and even plays music based on your preferences – it’s like a personal spa day, every day. Gaming: More Real Than Reality Gaming tech this year blurred the lines between reality and virtual. We tried a VR headset that not only offered an immersive visual experience but also had haptic feedback – you could feel the game! Plus, cloud gaming is making high-end gaming more accessible, no beastly PC required. Wearable Tech: Fashion Meets Function Wearable tech is becoming more fashionable and functional. We saw smartwatches that monitor health metrics while looking like luxury timepieces and smart clothing that adjusts to temperature changes. It’s like your wardrobe got a tech degree! Wrapping Up: A Glimpse into Tomorrow CES 2024 was a mind-blowing glimpse into the future, with AI, AR, and sustainability leading the charge. While we’re excited to integrate these innovations into our daily lives, we’re also aware of the challenges – privacy, security, and the ever-blurring line between tech convenience and tech intrusion. As we wrap up our CES journey, we’re left with one prevailing thought: The future is not just coming; it’s here. And it’s packed with potential, promise, and a whole lot of cool gadgets. Stay tuned for more detailed reviews of our favorite picks from the show.
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February 2024
LEGAL LIBATIONS: KNOXVILLE BREW REVIEW By: Parker Bohne LMU Duncan School of Law J.D. Candidate, 2026
HI-WIRE BREWING Boasting over 10,000 square feet of space at 2020 Barber Street, Hi-Wire Brewing is a place not just for South Knoxville’s craft beer enthusiasts to convene, but a venue for all of Knoxville to enjoy. The Atmosphere Nestled within the confines of a repurposed industrial building, Hi-Wire offers an expansive and modern space that seamlessly blends an industrial aesthetic with warmth provided by wooden accents. The atmosphere is both welcoming and dynamic, featuring creatively crafted wall murals that add an artistic flair to the surroundings – and make for a fun game of “I spy.” The brewery’s commitment to fostering a sense of community is evident in the design, with long wooden tables strategically placed in the center of the taproom to encourage shared moments, making it an ideal spot for striking up conversations and forming connections. Beyond its architectural charm, this brewery goes above and beyond to cater to a diverse audience. It’s not just a spot for beer enthusiasts; it’s a haven for families and dog lovers alike. The familyfriendly and dog-friendly policies create an inclusive environment where everyone can feel at home. The thoughtful incorporation of games and activities further enhances the vibrant atmosphere, offering lively matches of ping pong, foosball, shuffleboard, and soccer pool (Which you really need to try if you never have. Imagine a pool table large enough to stand in but replace all the pool balls with soccer balls.) Hi-Wire also hosts a large variety of events with options ranging from ping pong tournaments and watch-parties for sporting events to trivia nights, yoga, and hobby workshops. With outdoor covered seating, this brewery is versatile and seamlessly transitions between an animated indoor sanctum and an alfresco escape, making it a go-to destination for any occasion. The Brews With an impressive lineup of twenty featured taps, Hi-Wire stands as a craft beer retreat, catering to the diverse palates of all beer February 2024
enthusiasts. The extensive selection includes a meticulously curated range of craft beers, showcasing the brewery’s commitment to quality and innovation. From the tried-and-true flagships available year-round to the enticing seasonals that capture the essence of each season, patrons can embark on a flavorful journey that evolves with the changing tides. What sets Hi-Wire apart is its dedication to pushing the boundaries of beer craftsmanship. The inclusion of specialty brews adds an exciting dimension to the menu, providing a platform for unique and experimental flavors that result from partnerships with other breweries or creative collaborations. This commitment to pushing the envelope ensures that there’s always something new and enticing for even the most seasoned beer connoisseur. For those who want to savor the experience at home, Hi-Wire offers a convenient togo beer option. This allows patrons to bring the distinctive flavors of the brewery to their own gatherings, extending the enjoyment of these finely crafted beverages beyond the confines of the brewery itself. Whether it’s exploring the flagship classics, indulging in seasonal delights, or venturing into the realm of specialty brews, this brewery’s beer selection promises an unparalleled and ever-evolving taste adventure. The Food Though Hi-Wire does not offer a food menu of its own, the brewery has an opendoor policy that invites patrons to bring food from their pantries or from one of the delicious eateries in walking distance. In fact, Hi-Wire is conveniently situated atop Redbud Kitchen, a restaurant offering a variety of lunch and dinner options – including what I believe to be the best turkey sandwich I have ever tasted. Simply order your food, pick it up downstairs at Redbud, and rejoin your party upstairs at Hi-Wire to carry on the festivities.
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BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to membership@knoxbar.org.
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FIRST HORIZON OFFERS FINANCIAL WELLNESS CHECKUP First Horizon is dedicated to helping you and your family achieve life’s financial goals. From setting a realistic financial plan and budget, to building savings and wealth, the Financial Wellness Checkup aims to provide financial clarity to keep you on track. Schedule your complimentary checkup appointment today by visiting www.firsthorizon.com/ appointment and enter the Banker Code: KBA80760. Appointments can take place by phone, virtually, or in person. 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 members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. Interviews of Tim Priest, Bob Pryor, and Charles Swanson have been recently added. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.
Downtown Office Space for Rent - Large corner office with a view of downtown. Located in the First Horizon Building. $900 monthly. Inquiries can be sent to jfanduzz@gmail.com.
Address Changes
Please note the following changes in your KBA Attorneys’ Directory and other office records: Erika J. Blalock BPR #: 035948 Breeding Carter Crippen, PC 800 S Gay Street, Suite 1200 Knoxville, TN 37929-9729 Ph: (865) 357-1995 erika@breedinglaw.com
Wendy G. Patrick BPR #: 032298 P.O. Box 32831 Knoxville, TN 37930-2831 Ph: (865) 244-6000 wendy.patrick@outlook.com
William L. Cathcart BPR #: 038408 207 W. Main St. McMinnville, TN 37110-2517 Ph: (931) 259-3900 bill.cathcart@tn.gov N. Craig Holloway BPR #: 033354 Craig Holloway Attorney at Law, PLLC P.O. Box 607 Murrells Inlet, SC 29576-0607 Ph: (843) 780-0145 craig@craighollowayattorneypllc.com Robert R. Kurtz BPR #: 020832 Robert R. Kurtz, Attorney at Law 625 Market Street, Suite 901 Knoxville, TN 37902-2212 Ph: (865) 522-9942 rrkurtz@gmail.com Matthew Morris BPR #: 038761 Watson, Roach, Batson & Lauderback, P.L.C. P.O. Box 131 Knoxville, TN 37901-0131 Ph: (865) 637-1700 mmorris@watsonroach.com
OFFICE SPACE AVAILABLE: •
North Knoxville, right off I-640/275. Part of a larger office with an established attorney. Free Parking and Internet, access to Kitchen and Conference room. Separate entrance. Excellent set-up for a new attorney. $500 per month. Contact Daniel Kidd, dan@ danielkiddlawoffice.com.
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First class furnished individual offices for rent on the 19th floor right off the elevator in First Horizon Plaza, 800 S. Gay Street. Please contact Lance Baker at 865-310-0997 for further details if you are interested.
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February 2024
WELL READ By: M. Akram Faizer
Professor of Law LMU Duncan School of Law
KING: A LIFE BY JONATHAN EIG Dr. Martin Luther King, Jr. donated his Nobel Peace Prize winnings of over $550,000 and all his sizable speaking fees to the Southern Christian Leadership Conference (SCLC), while his wife, Coretta, and their four children, Yoki, Martin, Dexter and Bernice, lived very modestly in a small rented Atlanta house.1 The only luxury he afforded himself, the gold Rolex wristwatch that was given to him as part of his Nobel prize, he wore for the rest of his all too short life. Always a snazzy dresser, he owned only five suits, and his dress shoes were from the very modestly priced Stacy Adams brand. He was extremely charming and attractive to women, several of whom attended his graduation from Crozer Theological Seminary expecting to be introduced to King’s parents as his fiancée. The love of his life was a white woman, Betty Moitz, whom he reluctantly chose not to marry because it would have kept him from a career in the Southern ministry. While studying for his doctorate in Systematic Theology at Boston University, King, though known as the most eligible Black man in the city, immediately fell in love with Coretta Scott, a highly cultivated graduate of Antioch College who was studying voice at the New England Conservatory. Although a doting and affectionate father, he relied unfairly on Coretta to do all the child-rearing and refused her request to take a prominent role in the struggle for racial justice. King struggled with exhaustion, aged prematurely, and would intermittently check himself into the St. Joseph’s Infirmary in Atlanta, where he would ingest sleeping pills to catch up on sleep.2 These are just some of the details that emerge from Jonathan Eig’s beautifully written and incredibly well-researched biography of King, which draws on a treasure trove of newly available information, including White House transcripts, F.B.I. documents, letters and oral histories, to supplant David J. Garrow’s 1986 “Bearing the Cross” as the definitive book on its subject, as well as a much-needed and timely history of Black America from the Depression-era through the end of the Second Reconstruction. 3 What is evident is that King, much more so than is acknowledged on both left and right, was motivated to peacefully pursue racial justice by his Christian faith that is explained by his education and life in the Black Baptist Church.4 His religiosity, in turn, explains why, unlike W.E.B. Dubois and Paul Robeson, he rejected Marxism because of its secular materialism: “[T]his I could never accept … for as a Christian I believe that there is a creative personal power in the universe who is the ground and essence of all reality – a power that cannot be explained in materialistic terms.”5 It explained his empiricism, intellectual modesty and rejection of Malcolm X’s belief in violence: I don’t want to seem to sound as if I feel so selfrighteous, absolutist, that I think I have the only truth, the only way. Maybe [Malcolm] has some of the answer. But I know that I have so often felt that he would talk less of violence, because I don’t think that violence can solve our problem. And in his litany of expressing the despair of the Negro, without offering a positive, creative approach, I think that he falls into a rut sometimes.6 It also explained why he rejected the advice of his closest advisors and was fiercely attacked by the New York Times when he publicly February 2024
opposed the Vietnam War and called his own government the greatest purveyor of violence in the world today: “[I] figure it was politically unwise, but I will not agree that I was morally unwise. I think I have a role to play which may be unpopular…”7 It remains a historical tragedy that King’s opponents, most notably Hoover’s FBI and the pusillanimous public officials charged with holding it accountable, including former presidents Kennedy and Johnson and former attorneys general Robert Kennedy and Katzenbach, were most likely too racially condescending to appreciate that a Black person could be so intellectually sophisticated in his religiosity. It is also striking that that the few white Americans who truly understood King’s greatness at the time and did not waiver in the fight for racial justice were not Christians, but Jews such as Stanley Levison, Harry Wachtel and the Rabbi Abraham Joshua Heschel. The importance of American Jews in the struggle for equality is insufficiently appreciated. King returned to the South to become pastor at Dexter Avenue Baptist Church in Montgomery, Alabama, where he successfully led the 385-day Montgomery bus boycott, and, in 1957, co-founded and led the SCLC, thereby making him the country’s leading Black citizen before the age of 30.8 The highwater mark of King’s influence was 1963, when the SCLC led a nonviolent protest movement against segregation and racial injustice in Birmingham, where, after King was arrested and jailed, he used napkins, toilet paper and newspaper margins to write the “Letter from a Birmingham Jail,” which remains the most widely read and sophisticated articulation of the American ideal since the Gettysburg Address. King was also the key participant in the “March on Washington for Jobs and Freedom” that culminated in his 17-minute “I Have a Dream” speech that was viewed by a larger than expected crowd of 250,000 and broadcast nationwide by a sympathetic news media in a country where 91% of households owned televisions.9 Although it is true that King was unfaithful to Coretta and had both sexual liaisons and longstanding relationships with numerous other women, it apparently never occurred to Hoover’s FBI, which lawlessly surveilled and threatened King, that the white public figures Hoover cultivated had equally problematic private lives. In a shocking passage, Eig recounts how FBI Chief of Domestic Intelligence, William C. Sullivan, ordered FBI’s laboratories to create a composite tape containing some of the most explicit moments recorded in King’s hotels and then sent King a letter threatening their release unless he were to take his own life.10 Although it is, at times, tempting to see Dr. King’s assassination as a tragic historical switch point that facilitated the rise of anti-Black populism as exemplified by Richard Nixon’s two winning presidential campaigns, Eig carefully notes that King’s popularity was at a low point when, in March 1968, he returned to Memphis to march on behalf of striking sanitation workers. This was due to King’s courageous opposition to the Vietnam War, enduring white biases about Black Americans, and how demands for racial justice worsened white status anxiety. He was killed at 39. 1
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Dr. King actually used a small portion of the prize money to purchase a gold Bulova wristwatch for the Reverand Ralph Abernathy. The actual prize money was $54,123, which is about $550,000 in 2024.
continued on page 31
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Caitlyn Torney Director of Pro Bono Legal Aid of East Tennessee
PRO-BONO BASICS: WHY SHOULD I VOLUNTEER WITH LAET? As we kick off the new year, here’s a powerful resolution for attorneys: volunteer for The Pro Bono Project. It’s more than just a chance to apply your legal skills—it’s an opportunity to make a real difference, boost your mental wellbeing, network with other attorneys in the area, and give back to our community. Rule 6.1 of the Tennessee Rules of Professional Conduct encourages yearly “pro bono service.” We are all familiar with this exhortation to provide pro bono services, but many do not know the rules governing pro bono representation and the benefits available to volunteers. So, I’d like to start this year clarifying common questions from attorney volunteers, and reiterating the many ways that you can improve your 2024 by volunteering with Legal Aid of East Tennessee’s Pro Bono Project. 1. You get CLE credit for pro bono work! · You can earn one hour of dual CLE credit for every five hours of pro bono service you report. You may earn up to three EP credits this way per year. [Tenn. S. Ct. R. 21 § 4.08(c)] · To qualify for CLE credit, pro bono service must be provided through an “approved legal assistance organization.” The Pro Bono Project at Legal Aid qualifies under these rules, and we are happy to record and report hours earned through our program to the Tennessee Commission on Continuing Legal Education. 2. You can earn free CLE from the Knoxville Bar Association! · Attorneys who complete between 25 to 49 hours of pro bono service in a year qualify for a free 1-hour Lunch-and-Learn seminar provided by KBA. Attorneys with over 50 hours of pro bono service in a year qualify for a free 3-hour extended KBA-sponsored seminar. 3. You can refer a pro bono file to us! · Referring pro bono cases to us helps ensure that you can get CLE credit for your reported hours. You can also avoid being surety on a cost bond, and you are eligible for the other benefits of handling a case through the Pro Bono Project. · You can help the Pro Bono Project by referring cases to us! More cases reported in the area allows us to secure continued grants and funding to expand our program and serve area residents. · To refer a case to us, simply email or call me at 865-251-4951. We will reach out to your client and ensure they meet our eligibility guidelines and have them sign a few forms. 4. You are covered under Legal Aid’s Malpractice Insurance! · You are eligible for primary liability coverage for any case you take through the Pro Bono Project. 5. You can withdraw from a pro bono case! · The same rules apply to withdrawing from a pro bono case that apply to withdrawing from a fee-generating case. [RPC 1.16]
You do not have to do everything a pro bono client wants! · Your ethical duty to perform pro bono services does not eclipse all other ethical obligations. You are not required to sacrifice your professional judgment about what claims have merit and what actions should be taken just because your client is indigent. [RPC 3.1] 7. You do not need to pay expenses for a pro bono client! · By agreeing to assist a client on a pro bono basis, you are agreeing to not seek payment from the client for your services. This does not mean you are required to spend money on a client’s filing fees, cost bonds, etc. · Security for costs is waived by TCA § 20-12-127, and Tennessee Supreme Court Rule 29 creates a presumption of indigency for litigants who meet “the Legal Service’s Corporation poverty guidelines,” which includes all clients referred for pro bono assistance through the Pro Bono Project. 8. You may seek attorney’s fees in pro bono cases! · Provided you only collect fees from the adverse party instead of your client, you are free to collect attorney’s fees in a pro bono case. Please be aware that if you do collect a fee, you will not be eligible for CLE credit. 9. LAET can provide you with training, pleadings, and support! · We have pleadings, forms, and training material available to help you master a new area of the law. We are always available for questions and to help provide support and referrals when necessary. 10. There are many ways to take a case for the Pro Bono Project. · We reach out directly to individual attorneys to ask them to take specific cases that fit their practice area. If you would like to be on our list to contact regarding a specific type of case, please let us know. We are always looking for attorneys interested in directly representing clients for minor name changes, agreed adoptions, estate planning, conservatorships, and help with driver’s license reinstatement. · Go online to browse cases based on service area or subject matter at www.laet.org/pro-bono-matters. We update cases regularly so check back often to see the latest case opportunities. 11. You can dedicate time to provide legal advice at a clinic! · You can also earn CLE credit by volunteering to give legal advice at one of our many clinics. To learn more about upcoming clinics, please check out the KBA’s website, Legal Aid’s website www.LAET.org, this column in DICTA, or reach out to me directly. 6.
Upcoming Clinic Opportunities
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. Signup via the KBA website. • NOTE: The clinic will be held bimonthly in 2024. • Wednesday February 14th Noon – 2:00 PM. • Wednesday April 10th Noon – 2:00 PM Debt Relief Clinic: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Signup via the KBA website. Signup via the KBA website. • Saturday February 3rd 9:00 AM – Noon • Saturday May 4th 9:00 AM – Noon Faith and Justice Clinic: In person at The Church of Jesus Christ of Latter Day Saints 400 Kendall Road. Signup via the KBA website. • Saturday February 10th from 9am - Noon. Virtual Debt Relief Clinic: Zoom. Saturday March 9th 10am – Noon. Email ctorney@laet.org
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February 2024
TELL ME A STORY By: Cynthia Gibson
SVP General Counsel Bush Brothers & Company
LESSONS LEARNED ALONG THE WAY I was asked to tell my story and things that I have learned along the way that have informed my approach to the practice of law. My husband is a great storyteller , and one of his friends once told him that he needed new stories, and without missing a beat, he said, “Maybe I just need new friends!” So, my new friends, here is my story. I grew up about 90-miles south of Knoxville in a little mountain town called Andrews, North Carolina. The official population is 1,781 and the elevation is about the same. The entire county has about 25,000 people, so Knoxville was a big city for me growing up. In fact, one of my aunts lived here – driving across the mountain they call the Dragon – 300 curves in 11 miles – and I always got carsick. My dad would just make us hang our head out the window, so as a kid I associated going to Knoxville with throwing up. Years later my husband and I got into motorcycles, so fortunately that same road became my favorite place to ride my Harley Fatboy. And after having moved here in 2010, our family is very happy to call Knoxville home. It just goes to show you that perspective can change everything. Growing up in Andrews, our family ran a small furniture store. It was a family affair: Dad, Mom, aunt, uncle, and grandfather. We sold furniture at 20 percent above cost with free delivery to Atlanta, Chattanooga, and Knoxville. Retail markup on furniture is anywhere from 100 to 150 percent so I still have a hard time paying retail to this day. I grew up with dinner table conversation all about the business. My parents talked about everything including margins, inventory, employee issues and cost management. There were good years and lean years so I grew up understanding at a very fundamental level how business works. This experience influenced my choice of law firms. After graduating from law school at the University of Virginia, I joined Katz Teller, a very business-oriented entrepreneurial law firm in Cincinnati, Ohio. We represented mostly middle market companies and high net worth families. Our clients reminded me so much of my family business. Although our clients’ financials had many more zeros – the fundamentals were the same. They were business owners who wanted business answers. They did not want the memo from the associate to the junior partner who then reviewed it for the partner. They wanted answers. And not just legal answers. They wanted business solutions. I still have a vivid memory of being chastised by our managing partner when he reviewed the draft of a letter to our client telling them they couldn’t do what they wanted to do in about six different ways. Instead, he and I worked together to come up with a solution that was not as originally proposed, but nonetheless accomplished the client’s business objectives.
I feel fortunate to have grown up as a lawyer in that environment because it informs how I have approached my roles as in house counsel, first as General Counsel at Scripps Networks Interactive and now as General Counsel at Bush Brothers & Company. I don’t see our job as analyzing the legal issues and presenting options for my colleagues to choose from based on the risk. While I always lay out the options, I am willing to take the field and say, “if I were you, this is what I would do”. It takes courage to practice law this way because if you are wrong, you own your advice. I have also been fortunate enough to be the first woman in almost every role I have had. I was the first woman partner and the first woman in management at my firm. I was also the first woman General Counsel at both Scripps and Bush Brothers. I never set out to have “first woman” as my theme song but it has taught me a thing or two. I give a lot of credit to my mother for never assuming that I was limited in my career options. When I would say that I wanted to be a nurse, she would just ask, “Why not a doctor?” Or if I would say I wanted to be a stewardess as they were known then, she would ask, “Why not a pilot?” She never suggested one was preferable to the other, she just helped me realized that I shouldn’t limit my options. That is not to say that it has always been easy to be the first or only woman in a role. I have had plenty of experiences that were tough. I was told the only reason I was hired at my firm was because I was a woman, was called “little lady” by more than one opposing counsel, assumed to be the court reporter at depositions and asked by a judge if he was going to see a cat fight between myself and female opposing counsel. (These things all happened in Cincinnati, not Knoxville!) And while those experiences were painful, I learned that it is important to let those things go. It does not help to be bitter or have a chip on your shoulder. A mentor told me once that holding on to grudges or slights is like putting rocks in your backpack – they only weigh you down. Comments like that say more about the speaker than they do about you. Another important lesson that I have learned is that it is very important to show up every day trying to do the right thing. Whether that is for your client in private practice or for the business when you are in house. At the end of the day, it is not about the lawyer as an individual, it is about the client or business that we serve. If you show up every day with that servant approach, it makes a big difference in building a rewarding legal career.
W E L L R E A D , continued from page 29 2 3 4
5 6 7 8
Jonathan Eig, King: A Life, Farrar, Straus and Giroux (2023) at 385. Id. King was the grandson and then the son of the pastor at Atlanta’s Ebenezer Baptist Church, before becoming pastor there himself after a highly consequential stint as pastor at Montgomery, AL’s Dexter Avenue Baptist Church. Eig at pp. 78-9. Eig at 423. Eig at 523. The boycott commenced after first Claudette Colvin and then Rosa Parks, both Black American women were arrested for courageously refusing to give up their seats in favor of white passengers in Montgomery’s segregated city buses that required Black passengers to give up their seats in favor of white passengers and relocate to the back of the bus. The matter was finally resolved in favor of the
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boycotters when, in Browder v. Gayle, 142 F. Supp. 707 (1956), a three-judge panel of the United States District Court in Alabama concluded that segregated municipal buses violate the Fourteenth Amendment’s Equal Protection Clause. Eig at p. 329. Eig at 389-90.
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KNOXVILLE, TN PERMIT NO. 3 0 9