February 2025 DICTA

Schooled in Ethics: US Department of Justice Concludes TBLE and TLAP are in Violation of ADA . . . Page 19 Management Counsel 101: Evaluating When It’s Time to Make Employees Watch Those Training Videos . . . Page 21

A Monthly Publication of the Knoxville Bar Association | February 2025

DIXIE X DEW DROPS: RICO AND THE THC MARKET

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February 2025

In This Issue

Officers of the Knoxville Bar Association

February 2025

COVER STORY 16

Dixie X Dew Drops: RICO and the THC Market

CRITICAL FOCUS President Jonathan Cooper

President-Elect Rachel Park Hurt

Treasurer Ursula Bailey

Secretary Catherine E. Shuck

Immediate Past President Carlos A. Yunsan

KBA Board of Governors Courteney M. Barnes-Anderson R. Kim Burnette Melissa B. Carrasco Meagan Collver

Samuel K. Lee T. Mitchell Panter M. Samantha Parris Courtney Epps Read Charles S.J. Sharrett

James T. Snodgrass James R. Stovall C. Scott Taylor Alicia J. Teubert

The Knoxville Bar Association Staff

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President’s Message

Searching for the Rule of Law

Appealing

To Designate or Not to Designate?

Legal Update

Pavia v. National Collegiate Athletic Association and the Decline of NCAA Eligibility Authority

Schooled in Ethics

US Department of Justice Concludes TBLE and TLAP are in Violation of ADA

Management Counsel

Evaluating When It’s Time to Make Employees Watch Those Training Videos

WISDOM 6 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

Dicta

February 2025

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Volume 53, Issue 2

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).

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22

Jason Galvas LRIS Assistant

DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.

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Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Executive Editor Brandon Allen Sherri Alley Anita D’Souza Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho Matthew R. Lyon

Managing Editor

Sarah Booher Wade H. Boswell, II Melissa B. Carrasco Summer McMillan Robin McMillan Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Cathy Shuck Eddy Smith Grant Williamson

26 27 29 31

Around the Bar

Annual Attorney Fee Increased by Tennessee Supreme Court

Photo Ops

The Family Law Section Gets Social

Of Local Lore and Lawyers

For the Love of the Loaf

Expanding Our Horizons

Learning From Each Other

Three Stars

State v. Curry—It’s Up to the Jury

Hello My Name Is

Bethany Wescott Wilson

21st Century Lawyer

Hybrid Workspaces

How to Thrive in Law & Life

How to Set and Achieve Your Goals

Top Ten List

Loving What They Love: An Ode to Our Valentines and their Hobbies

Barrister Bites

Diet Rehab and the Rise of Brussels Sprouts

Legal Libations

Printshop Beer Co.

Privileged to Be in the Law

My Role as a Jury Coordinator

Outside My Office Window

Life in the Circus

COMMON GROUND 4 20 28 28 30

Section Notices/Event Calendar Barrister Bullets Welcome New Members Change of Addresses Pro Bono Project

Tasha C. Blakney KBA Executive Director

DICTA

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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 865-522-6522 or send an email to membership@knoxbar.org.

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 Jarret (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. 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. Save the date for the annual “Criminal Law Rowdy Roundup” CLE program scheduled for February 6. 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 inhouse and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (615-574-6702) 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 2023 will automatically be opted-in to the section. If you like to get involved in planning section activities, please contact Section Chairs Dalton Howard (546-0500) or Mari Jasa (546-7770).

Senior Section The Senior Section schedules a luncheon with a guest speaker every quarter. If you have suggestions for future luncheon speakers, please contact Section Chairs Wayne Kline (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

n4 n6

Law Office Tech Committee Meeting Criminal Justice Section Rowdy Roundup CLE n 11 Lunch & Learn with UT Softball Coach Karen Weekly n 12 Veterans’ Legal Advice Clinic n 12 KBA Board of Governors Meeting n 17 The KBA Goes to Colombia! n 21-22 KBA High School Mock Trial n 27 Volunteer Breakfast

March

n4 n6 n8 n 11 n 12 n 12 n 26

Law Office Tech Committee Meeting Law Practice Today Expo Pro Bono Debt Relief Clinic Professionalism Committee Veterans Legal Advice Clinic Barristers Meeting KBA Board of Governors Meeting

SAVE THE DATE: KBA Annual Law Day Luncheon April 30, 2025 at 11:30 am Crowne Plaza Knoxville

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

February 2025

PRESIDENT’S MESSAGE By: Jonathan Cooper Knox Defense

SEARCHING FOR THE RULE OF LAW As previewed last month, my focus as President of the KBA this year is on the Rule of Law in our country and community. Even though lawyers spend much of their time laboring in the law, we do not always look beyond our computer screens at the actual operation of our legal systems to evaluate whether these systems are serving the needs of their constituents in a broad and fair manner. Further, even though lawyers naturally respect the rules and process that comprise the Rule of Law, large segments of our society do not, and as I outlined last month, recent trends have brought this issue into my focus.

But what do we mean when we talk about the Rule of Law? I have asked our local judges and elected officials to offer words on this term, and I will drop some of their quotes in these columns throughout the year.

I view the Rule of Law as the guiding principle under which the legal system endeavors to fairly interpret and justly apply statutes and rules to reach an outcome consistent with our Constitution and with what our society would accept as right and true. Recognizing that I am no legal or political science scholar, however, I sought to locate a definition by our courts.

After a non-exhaustive and possibly cursory search, I learned that our United States and Tennessee Supreme Courts have not expressly defined the Rule of Law but instead address legal issues that exemplify, or violate, this principle. In fact, in the examples I found, the term is more likely to be employed in concurring and dissenting opinions to express concern as to how the Rule of Law could be compromised by the majority opinion.

Thus, the Rule of Law has been cited to mean that the final result of a court establishes what is correct “in the eyes of the law”1 and that stare decisis is “a foundation stone of the rule of law.”2 Justice Thomas indulged in a comprehensive historical perspective on the Rule of Law as it applies to a check on the Executive and Legislative Branches for a concurrence in Perez v. Mortg. Bankers Ass’n 575 U.S. 92 (2015).3 And as one might expect, Supreme Court cases involving Donald Trump have generated considerable discussion on this principle.4 February 2025

This term seems to be most commonly used when a particular judge or justice takes issue with, or is aggrieved by, a majority opinion, even if the use of “Rule of Law” by the writer in that case would contradict its application in another case.5 So, perhaps this really is a better question for legal scholars and political scientists.

Nonetheless, we all have an ethical obligation to “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”6 What then, is our obligation to promote and defend the Rule of Law? In my opinion, and as I hope to share in my columns this year, lawyers have a responsibility to (1) speak against misinformation, (2) educate the public, (3) build respect for our legal institutions through charitable service, and (4) speak truth to power.

I hope you will join me on this review, and I welcome feedback and disagreement. My goal is to encourage our bar to think about the principles of law that are critical to our legal systems, and when necessary, take action to promote, defend, or even challenge the application of the Rule of Law. 1

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Edwards v. Vannoy, 593 U.S. 255, 290, 141 S. Ct. 1547, 1571 (2021) (Gorshuch, J., concurring).

Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 455, 135 S. Ct. 2401, 2409 (2015); Frazier v. State, 495 S.W.3d 246, 254 (Tenn. 2016) (Lee, C.J., dissenting). But see Kimble at 576 U.S. 446, 470, 135 S. Ct. 2401, 2417 (Alito, J., dissenting) (“Stare decisis is important to the rule of law, but so are correct judicial decisions.”).

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 112, 135 S. Ct. 1199, 1213 (2015) (Thomas, J., concurring) (“The Judiciary has one primary [check] on the excesses of political branches. That [check] is the enforcement of the rule of law through the exercise of judicial power.”)

See Trump v. United States, 603 U.S. 593, 687, 144 S. Ct. 2312, 2372 (2024) (Jackson, J., dissenting) (“[F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised.”).

See Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 26 (Tenn.

2000) (Barker, J., dissenting) (arguing to abandon stare decisis (and established abortion rights) in order “to advance the flag of liberty when the other branches of government have been unwilling or unable to do so, [because] judicial protection of liberty is the hallmark of our belief in the rule of law”).

Harris v. Bd. of Prof’l Responsibility of the Supreme Court of Tenn., 645 S.W.3d 125, 139 (Tenn. 2022) (quoting Tenn. Sup. Ct. R. 8, pmbl., cmt. [7]).

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AROUND THE BAR By: Hon. John F. Weaver and James R. Stovall

Co-Chairs, KBA Professionalism Committee

ANNUAL ATTORNEY FEE INCREASED

BY TENNESSEE SUPREME COURT Some Tennessee lawyers may have thought they got a little coal in their stockings this Christmas. On December 20, the Tennessee Supreme Court entered an order amending Supreme Court Rules 9 and 33 to increase the annual fee for attorneys from $170 to $270. The amendment also adjusts the allocation of those fees. The increase takes effect March 1, 2025.1 This note provides background on the increase and on the KBA’s efforts to monitor it.

Although the proposed fee increase was announced this past October, it did not originate then. In March 2022, the Board of Tennessee Lawyers’ Fund for Client Protection (the Fund) petitioned the Tennessee Supreme Court to increase the annual registration fee by $15 and to pass that increase to the Fund. (A certain amount of the annual registration fee is paid to the Fund.) The petition also requested an increase in the maximum amounts that the Fund, without prior approval by the Tennessee Supreme Court, may pay to claimants for losses caused by dishonest attorneys and to require the Fund to publish information concerning claims based on those losses. That month, the Tennessee Supreme Court issued an order asking for public comments on the Fund’s petition.2 The KBA’s Professionalism Committee reviewed the petition in two meetings, in April and in May 2022. In the May 2022 meeting, the Committee heard from Sandy Garrett, Chief Disciplinary Counsel for the Board of Professional Responsibility, who had co-signed the petition.

The Committee recognized that the amount of the registration fee had remained unchanged since 2009, and a $15 increase appeared reasonable. The increase in payment caps, however, did not appear to be supported by sufficient financial information, at least not by information that is publicly available. The Committee ultimately recommended that the KBA (1) support approval of the proposed increase in registration fee and the amount of the fee allocated to the Fund; and (2) oppose the proposed increase in claim-payment caps due to lack of data, including any publicly available annual financial statements showing, among other things, the Fund’s income and expenses, and detail about when permission to exceed the existing caps has been requested and the outcome of those requests. The KBA’s Board of Governors adopted the recommendation, and the KBA conveyed those comments to the Tennessee Supreme Court by letter dated June 7, 2022.

In September 2022, the Tennessee Supreme Court filed an order denying the Fund’s request for an increase in the annual registration fee and the related increased allotment while granting the Fund’s other requests. The order further stated that the Fund’s fee-related requests “highlighted the need for a comprehensive review of the sufficiency of the annual registration fee and the allocation of funds generated by the annual registration fee.” “Such a review will be undertaken,” the order continued, “and the Court will reconsider [the Fund’s] requests on its own motion at the conclusion of that review.”3 About two years later, this past October, the Tennessee Supreme Court filed an order stating that it had completed its “comprehensive review of the sufficiency of the annual registration fee and the allocation

of funds it generates.” The order proposed increasing the annual fee by $100, from $170 to $270 and increasing the allocations of the funds generated by the fee to the Board of Professional Responsibility from $140 to $225, to the Tennessee Lawyer Assistance Program from $20 to $30, and to the Fund from $10 to $15. The order did not provide any information about the comprehensive review. It asked for written comments by November 8, 2024.4 The Professionalism Committee reviewed this proposed increase as well. Although the Committee was not opposed to an increase, it was unaware of the information that supported the proposed increase, which was significantly larger than the increase requested by the Fund in 2022. The Committee recommended that the KBA comment that the Professionalism Committee could not meaningfully evaluate the proposed amendment because the order did not provide any information on the need for such a significant increase (nearly 60%), including any information about the comprehensive review that is mentioned in the order. The Board of Governors adopted the recommendation, and the KBA submitted the comment by letter dated November 1, 2024.

On December 20th, the Tennessee Supreme Court filed an order adopting the proposed amendments. The order notes that Tennessee’s annual registration fee, which has remained unchanged since 2009,5 “is one of the lowest in the country.” The Court found that the increase is a “necessary adjustment for fifteen years of inflation,” and that the increased fee is “well below the national average of $432.” The order notes that the Fund needs additional funds to fulfill its mission, not least because, for several years, the Fund “has annually paid claims that significantly exceed its average funding from the registration fee.”6 The order also notes that although attorneys pay a $400 privilege tax in addition to the registration fee, the tax is levied by the General Assembly, and the revenue it generates “is not earmarked to fund operations of the Judicial Branch or [the Supreme Court’s] boards and commissions.”7 The information in the order should provide some consolation to attorneys who were surprised by the holiday fee increase. It may also prompt them to wish that the General Assembly had allocated some of the privilege tax to the Judicial Branch. In any event, the KBA will continue to review all proposed rules amendments, regardless of the season.

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Tennessee Supreme Court Order No. ADM2024-01525 (Dec. 20, 2024).

Tennessee Supreme Court Order No. ADM2022-00281 (Mar. 11, 2022).

Tennessee Supreme Court Order No. ADM2022-00281 (Sep. 21, 2022).

Tennessee Supreme Court Order No. ADM2024-01525 (Oct. 4, 2024).

The annual registration fee—i.e., the component of the annual attorney fee required by Supreme Court Rule 9 that is specifically described as a “registration fee”—has been $140 since January 1, 2009. In 2013, the Tennessee Supreme Court amended Rule 9 to make a $10 annual fee for the Fund and a $20 annual fee for the Tennessee Lawyer Assistance Program part of the annual attorney fee, making the total annual attorney fee $170. See Tennessee Supreme Court Order No. M2012-01648 (Aug. 30, 2013).

Tennessee Supreme Court Order No. ADM2024-01525 (Dec. 20, 2024).

Id.

February 2025

APPEALING By: Robin McMillan

Co-Author of the upcoming book People Behind the Precedent

TO DESIGNATE OR NOT TO DESIGNATE? Although they contain many of the same documents, the record on appeal differs from the record in the trial court, and the importance of the record on appeal cannot be overstated. The appellate court has not ‘lived’ with your case for years the way that you, opposing counsel, and the trial court have. The appellate court’s familiarity with the case begins and ends with the record on appeal.

Filing a designation of the record is an option, not a requirement.

So, should one file a designation of the record on appeal? As it is with so many legal questions, the answer is: it depends. It depends upon many factors, including the type of case, the size and content of the trial court record, and the issues being raised on appeal.

An understanding of what happens when one does, and does not, file a designation is helpful to making the decision of whether to file one. Let’s first consider what happens if a designation is not filed. If a designation is not filed, the trial court clerk should comply with Rule 24 of the Tennessee Rules of Appellate Procedure when preparing and transmitting the record to the appellate court. The record should contain copies of all documents filed in the trial court (except for those listed for exclusion by Rule 24), original exhibits, a transcript or statement of the evidence, and any requests for instructions submitted to the trial judge for consideration.1 Items to be excluded include, among other things, subpoenas, summonses, discovery documents, and trial briefs.

If you are raising any issues on appeal with regard to service or a discovery matter, seeking to include some of the specifically excluded items could be critical to your appeal. So now you are probably thinking that filing a designation is the only way to go because you can include what you want in the record.2 But wait. If a designation is filed, the court clerk is to prepare a record containing only those items specifically listed in the designation. So, if a designation is filed, it must be very carefully, thoroughly, and painstakingly prepared. Why? Well, when a record is transmitted to the appellate court it must undergo several layers of review before it can be filed. The transmitted record is reviewed by the court clerk and by the court’s staff attorney for such things as compliance with the rules and jurisdiction. The transmitted record must pass the reviews before it can be filed.

Consider an example wherein a designation is not carefully prepared.

This hypothetical case involves multiple defendants. In the trial court, one of those defendants, let’s call him Defendant X, is dismissed three months into the litigation. The case then proceeds to trial two and a half years later. An appeal is filed, and the appellant prepares a designation of the record. The designation, however, fails to include the order dismissing Defendant X. The trial court clerk properly prepares a record containing the documents listed in the designation and transmits it to the appellate court where the record undergoes the necessary levels of review. As it appears to the appellate court that no final judgment has been entered - remember that the record submitted to the appellate court contains nothing showing that the trial court disposed of the claims against Defendant X - the case is flagged for lack of jurisdiction.

Now, it is true that in a scenario such as the one posed in the hypothetical the problem can be cured. When the appellate court is February 2025

unable to determine that it has jurisdiction, a show cause order will be issued and the parties will have an opportunity to have the record corrected. You may be thinking at this point ‘no harm no foul’ because the problem can be corrected. But consider that an extra charge is levied each time the court issues a show cause order. Furthermore, having to ‘pause’ an appeal to correct such a mistake takes time and delays a decision from the appellate court. Most clients care deeply about time and money. So, avoiding extra cost to the client and a longer wait for an appellate decision by avoiding entry of a show cause order, if possible, is a worthy goal.

Here is the take-away. First, keep in mind that filing a designation of the record is optional, not required. Consider whether you need any of the items excluded by subsection (a) of Rule 24. If not, then perhaps a decision to not file a designation is the better decision. Second, if you determine that filing a designation of the record is necessary, be careful and thorough in preparing that designation. Remember, the appellate court sees only what appears in the record on appeal, and it must ensure that it has jurisdiction to consider the appeal.

And finally, please do not file a designation that says something like ‘include all documents filed in the trial court’ rather than listing specific documents. Not only is non-specific language such as this likely to confuse the trial court clerk preparing the record, but it also runs afoul of subsection (g) of Rule 24, which provides that nothing in the rule empowers the parties, or the court, to add to the record “except insofar as may be necessary to convey a fair, accurate and complete account of what transpired in the trial court with respect to those issues that are the bases of appeal.”3 If the documents excluded pursuant to Rule 24 have nothing to do with the issues raised on appeal, they do not belong in the record.

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Tenn. R. App. P. 24(a).

Nothing gives a party a right to include things in the record not properly includable, such as evidence not properly admitted. See Tenn. R. App. P. 24 Adv. Comm’n Cmt. (“The ability to designate additional parts under subdivision (a) does not permit a party to augment the record by evidence entered ex parte”).

Tenn. R. App. P. 24(g).

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LEGAL UPDATE By: John E. Pevy

Tennessee Valley Authority Office of the General Counsel

PAVIA V. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION AND THE DECLINE OF NCAA ELIGIBILITY AUTHORITY Diego Pavia’s Meteoric Rise to Marketability as a Vanderbilt Commodore: Sometimes beleaguered, the Vanderbilt Commodores football team had what nearly all sports fans would consider an outstanding 2024 season. And though it may be simplistic to reduce their success to one element, the addition of transfer quarterback Diego Pavia (Pavia) certainly helped. Pavia’s journey to Vanderbilt was winding; he played two seasons at junior college New Mexico Military Institute prior to transferring to NCAA1-member institution New Mexico State University (NMSU) in 2022, and then transferring again to Vanderbilt prior to the 2024 season.2 A fiery personality,3 Pavia won the adoration of Vanderbilt fans, leading them to upsets of the Alabama Crimson Tide and Auburn Tigers and simultaneously helping take his team to its first bowl game in six seasons, all while accruing Associated Press All-South Eastern Conference (SEC) second team honors, the SEC Newcomer of the Year award, and racking up impressive statistics.4 With this heightened profile, Pavia’s marketability in the burgeoning collegiate name, image, and likeness (NIL) markets boomed.5 Unfortunately, there was one problem. Pavia lacked any remaining eligibility to secure his market price.

Or so everyone thought. On November 8, 2024, Pavia filed an antitrust lawsuit against the NCAA in the United States District Court for the Middle District of Tennessee alleging that the NCAA’s eligibility rules illegally precluded him from participating in the NIL market economy.6 This article explores the leadup to Pavia’s lawsuit, the district court’s ruling in Pavia’s favor, and the ruling’s implications for NCAA eligibility moving forward.

The NCAA and the Decaying Amateurism Debate: Since its inception, the NCAA “limited compensation of student athletes in an attempt to maintain amateurism across college sports.”7 But as collegiate athletics ballooned into a wildly lucrative industry—annual television rights for the March Madness basketball tournament of nearly $1.1 billion in 2016, and approximately $470 million for the Football Bowl Subdivision College Football Playoff in 20128—concerns and outcry for player compensation at the highest levels of college sports likewise grew, with many claiming that the NCAA’s profiteering off of college athletes’ labor was unethical.9 Litigation challenging the lawfulness of NCAA rules prohibiting compensation ultimately reached the United States Supreme Court, where in National Collegiate Athletic Association v. Alston the Court deemed the NCAA a “‘sprawling enterprise’ that generates billions of dollars in revenues each year,”10 and ultimately affirmed a permanent injunction11 prohibiting the NCAA from limiting education-related benefits provided by member conferences or schools.12 The decision in Alston sent a shockwave throughout college athletics, and soon additional lawsuits sprung up to further erode the already thin veil of amateurism draped over college athletics, allowing student-athletes to earn NIL compensation in advertising and promotional materials.13 Both of these bludgeons to the NCAA’s power to regulate amateurism in college

athletics were rooted in the Sherman Anti-Trust Act.14 Eligibility Limitations Under the “Five Year Rule” Constitute a Restraint on Trade: Pavia’s lawsuit emulated this previous litigation by relying on anti-trust law, but he made the novel argument that the NCAA’s “Five Year Rule” violated the Sherman Act,15 which prohibits “contract[s] combination[s], or conspirac[ies] in restraint of trade or commerce.”16 The Five Year Rule, contained in NCAA Bylaw 12.8, mandates that college athletes must complete their four years of eligibility within a five year timespan.17 This eligibility clock starts upon enrollment at a “college institution,” whether or not the athlete’s career began at an NCAA member institution (in either Division I, II, or III), or a National Junior Collegiate Athletic Association school, which has no affiliation with the NCAA.18 Pavia sought to enjoin the NCAA from foreclosing his eligibility due to his junior college playing career because, as he argued, applying the Five Year Rule to him in this manner would eliminate his ability to earn “over $1 million dollars in NIL compensation in the 2025–26 season.”19 In order to succeed on the merits under Section 1 of the Sherman Act, Pavia needed to prove both that the NCAA participated in an agreement and that the agreement unreasonably restrained trade in the relevant market.20 In determining whether to preliminarily enjoin the NCAA as Pavia requested, the court evaluated the familiar four-factor test for injunctive relief,21 determining that he satisfied them all.

The majority of the court’s reasoning concerned Pavia’s likelihood of success on the merits, where the court repeatedly discussed the NCAA rules’ preclusive effects on college athletics as a whole, not just on Pavia.

For instance, the court rejected the NCAA’s arguments that the Five Year Rule promoted competition by stating that the association’s rationale “ignores the new economic reality in the age of NIL compensation,” and adding that “restrictions on who can compete (and earn NIL compensation) and for how long necessarily have anticompetitive effects.”22 Likewise, the court held that denying Pavia—or any athlete for that matter—the ability to play college sports resulted in lost NIL opportunities and a loss of opportunity for exposure and personal brand development.23 Though the court granted the injunction only “as to Pavia” and not other players, much of the court’s reasoning for granting the injunction pertained less to Pavia’s individual NIL value and more to the evolving landscape of college athletics,24 which increasingly appears to mirror a market economy similar to professional sports.25 Is Pavia the Watershed Decision to Topple NCAA Eligibility Rules?

While the court stated that its ruling “does not mean that the NCAA cannot impose eligibility rules, only that those rules will be subject to further scrutiny to determine whether they are an undue restraint on trade,”26 some speculate that this decision sets the stage for further, and more far reaching, changes to come.27 The Pavia case certainly provides a roadmap for other junior college transfers playing at NCAA institutions to sue for additional years of eligibility, but by continued on page 11

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February 2025

Photo Ops The Family Law Section Gets Social The KBA Family Law Section wrapped up a busy year in December with a festive holiday party hosted by the Herston Law Group. It was a wonderful evening filled with holiday cheer, great company, and plenty of laughter. Several “unofficial” section awards were presented, adding an extra touch of fun to the celebration. We congratulate K.O. Herston for earning the “Bag of Coal” accolade and Jon Fromke for receiving the first annual “Grinch” award. Thank you to everyone who joined us and made the event so memorable!

The Family Law Section plans to continue the fun in 2025. If you want to become a KBA Family Law Section member or sponsor a social event, please contact Tammy Sharpe.

February 2025

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

FOR THE LOVE OF THE LOAF The Love of the Loaf Over the course of my adult life, I’ve gone by a variety of titles, namely: Federal Law Enforcement Officer, Commissioned Army Combat Arms Officer, Risk Manager, Lawyer, and College Professor. However, while growing up in my native Brooklyn, my family assigned me a singular title: “Bread nut!” I can’t deny it; I am a true paniphile,1 or lover of bread. When I was a lad, you couldn’t walk a block in my old neighborhood without coming across a bakery, and oh, what bakeries there were to be had!

There was the Jewish bakery that specialized in challah, a traditionally braided bread baked for special holidays like Rosh Hashanah. And rugelach,2 a crunchy yeasted and laminated delicacy with a flaky dough, filled with jam, nuts, or chocolate.

There was the Italian bakery that specialized in ciabatta, a rustic loaf that is filled with irregular-shaped air pockets, making it an ideal choice for sandwiches, and so on. Suffice it to say, it was great place for a paniphile to grow up.

The Law of the Loaf After college and grad school, I was back overseas, compliments of the United States Army. I cannot begin to express my delight when I ended up in Germany, a country populated with people who love bread just as much as I do and who take bread baking most seriously. According to the German Bread Institute (Deutsche Brotinstitut), over 3,000 different types of bread and other baked goods are sold in Germany every day.

Baking in Germany is a serious, well-regulated business. It all began in 1516, when the Reinheitsgebot, or the “Beer Purity Law,” was enacted in Bavaria. This law ultimately evolved into today’s baked goods regulations.

Entitled Leitsätze für Brot und Kleingebäck, or “Guidelines for Bread and Pastries,” the production and composition of bread is strictly regulated, including the percentage of ingredients like fat and sugar, labeling requirements for multi-grain breads, and even the definition of terms like “sourdough” where the acidity must come from natural sourdough starter, not just the addition of yeast or another leavening agent.

A Taste of the Loaf You can call it fate, kismet, or merely my destiny that led me to take an apartment in the village of Steinnenbronn, a hamlet near Stuttgart, the capital and largest city of the German state of Baden-Württemberg. Was it coincidence that my apartment was right across the street from the town’s bakery?3 When my landlord was showing me around, I was distracted by

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the wonderful aromas wafting from the bakery to my new abode. Once the tour ended, I marched across the street and purchased a dozen Brötchen, the crunchy rolls that are a staple across Germany. I also asked for a loaf of Kartoffelbrot or “potato bread,” and a loaf of Schwarzbrot, or “black bread,” another staple of the German diet. This hearty, dense loaf is made from a mixture of whole grain rye flour and caraway seeds. I likewise couldn’t resist a couple of Laugenbrezeln, the large, coarsely salted soft pretzels that are traditionally split open and slathered with sweet butter. I soon became a regular, often chatting up the baker or his wife, who found me a bit of a novelty as I was the only American living in the village. One day, fate again reared its quirky head. I asked the baker whether he’d be willing to teach me how to bake a couple of the more popular breads he sold. He eyed me somewhat suspiciously, then said, “knock on the back door any morning at 3:00 A.M., and I’ll show you a few things.”

The Art of the Loaf Two days later I found myself knocking on the baker’s door. I was bidden to enter, and my education began. Just watching the baker at his craft was a joy. His shaping movements as he kneaded the dough by hand on the working surface were nothing short of mesmerizing. I silently stood by as he deftly and reverently put the dough into the proofing baskets, ultimately slashing the top of each loaf three times before he put them into the oven to allow steam to be released during the baking process. This, he explained, ensured that the loaves would be crunchy on the outside, but soft on the inside. I stood by quietly, interrupting only when necessary as I indulged in the irresistible aroma of freshly baked bread, and the subtle smell of warm yeast.

Over the ensuing weeks I returned for lesson upon lesson, as I translated German to English, metric to U.S., and bulk to small batch. Needless to say, my first few attempts were not fit for human consumption, but just fine for the birds and squirrels in my back yard. In the end, my lessons paid off, making me an enriched man indeed. The poet Robert Browning once said, “If thou tastest a crust of bread, thou tastest all the stars and all the heavens.” I kept in touch with the baker until his passing in 2005. I’ll forever be in his debt for teaching me to bake such heavenly delights.

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Paniphile (s) (noun), A person who savors bread. New English Word Dictionary.

The word rugelach comes from Yiddish, meaning “little twists.”

The German word for bakery is bäckerei.

February 2025

L E G A L U P D A T E , continued from page 8 ruling that eligibility rules directly intersect with NIL opportunities— and thereby implicate free-market anti-trust considerations—athletes may now possess a vehicle to challenge eligibility rules more broadly.28 For instance, why should graduate students not be granted additional eligibility to pursue their market value,29 and why should the NCAA Eligibility Center30 be allowed to enforce various academic requirements that limit the ability for students to participate in the NIL market?31 Five days after the blow dealt in Pavia, the NCAA—while appealing the court’s ruling—issued a waiver of Bylaw 12.8 for the 202526 football season, allowing junior college transfers to retain an additional year of eligibility, despite the rule.32 The NCAA has also already begun considering a blanket extension of eligibility from four years to five.33 Will these concessions be enough to stave off additional lawsuits? Only time will tell.

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The National Collegiate Athletic Association will be referred to as the “NCAA” throughout for readability.

See Ralph D. Russo, NCAA Appeals Diego Pavia lawsuit ruling but creates blanket waiver for juco players in 2025-26, The Athletic (Dec. 23, 2024), https://www. nytimes.com/athletic/6016665/2024/12/23/diego-pavia-lawsuit-ncaa-juco-waiver/.

Video surfaced in 2023 appearing to depict Pavia urinating on the logo of NMSU-rival, University of New Mexico’s, indoor practice facility in Albuquerque— coincidentally, the New Mexico Lobos had previously failed to offer the Albuquerque-native a scholarship following his prep-career. See Sean Reider, NMSU coach ‘disappointed’ in Diego Pavia after urination video, says matter will be handled internally, Albuquerque Journal (Sept. 26, 2023), https://www. abqjournal.com/sports/nmsu-coach-disappointed-in-diego-pavia-after-urinationvideo-says-matter-will-be-handled-internally/article_dd7ae81a-5cb2-11ee-8fce1b2e53fd9c9d.html.

Later, after the landmark victory over Alabama, an elated Pavia accidentally “used an f-bomb on national TV” in a postgame interview. See Dennis Dodd, Diego Pavia’s Rise: The QB who once peed on a rival’s logo leaves his mark after wild journey to Vanderbilt, CBS Sports (Oct. 9, 2024), https://www.cbssports.com/college-football/ news/diego-pavias-rise-the-qb-who-once-peed-on-a-rivals-logo-leaves-his-markafter-wild-journey-to-vanderbilt/.

Pavia passed for 2,133 yards and 17 touchdowns, in addition to rushing for 716 yards and six scores. See Russo, supra note 3.

See Pete Nakos, On3 NIL Valuation: College football’s 20 biggest risers after Week 7, On3 (Oct. 16, 2024), https://www.on3.com/nil/news/on3-nil-valuation-collegefootball-20-biggest-risers-after-week-7-diego-pavia-derrick-harmon-garrettnussmeier/.

See generally Compl. for Inj. Relief, Pavia v. Nat’l Collegiate Athletic Ass’n, No. 3:24cv-01336 (M.D. Tenn. Nov. 8, 2024).

Pavia v. Nat’l Collegiate Athletic Ass’n, No. 3:24-cv-01336, 2024 WL 5159888, at *1 (M.D. Tenn. Dec. 18, 2024).

Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 79, 93 (2021).

See generally Nicole Kraft, Why the Public Strongly Supports Paying College Athletes, Forbes (Aug. 21, 2023), https://www.forbes.com/sites/ nicolekraft/2023/08/21/why-the-public-strongly-supports-paying-college-athletes/; Abigail Johnson Hess, Majority of college students say student-athletes should be paid, survey finds, CNBC News (Sept. 11, 2019), https://www.cnbc.com/2019/09/11/ student-athletes-should-get-paid-college-students-say.html; Allen R. Sanderson & John J. Siegfried, The Case for Paying College Athletes, Journal of Economic Perspectives, Vol. 29, No. 1 (2015).

Pavia, 2024 WL 5159888, at *1 (quoting Alston, 594 U.S. at 79).

See In re: Nat’l Collegiate Athletic Ass’n. Athletic Grant-In-Aid Cap Antitrust Litig., No. 14-md-02541 CW, 2019 WL 1593939 (N.D. Ca. Mar. 8, 2019).

See Alston, 594 U.S. at 93.

See Tennessee v. Nat’l Collegiate Athletic Ass’n, 718 F. Supp. 3d 756, 759 (E.D. Tenn. 2024); Ohio v. Nat’l Collegiate Athletic Ass’n, 706 F. Supp. 3d 583 (N.D.W. Va. 2023).

See 15 U.S.C. § 1 et seq.

See Pavia, 2024 WL 5159888, at *1.

15 U.S.C. § 1 (2004).

Pavia, 2024 WL 5159888, at *2.

See id. at *2–4.

Id. at *4.

Id. at *5.

The factors considered were (1) the plaintiff’s likelihood of success on the merits, (2) whether the plaintiff is likely to suffer irreparable harm absent the injunction, (3) the balance of equities, and (4) the impact of the injunction on the public interest. See id. at *5 (citations omitted). Prior to fully evaluating the factor analysis, however, the court dispensed with the NCAA’s argument that the Sherman Act did not apply, because—as they argued—the NCAA’s eligibility rule was not “‘commercial in nature.’” Id. (citations omitted). Based upon precedent from the Tennessee v. National Collegiate Athletic Association decision, deeming rules that

February 2025

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restricted athletes’ ability to negotiate under NIL as commercial in nature, the court determined that “it necessarily follows that restrictions on who is eligible to play and therefore to negotiate NIL agreements is also commercial in nature.” Id. at *6.

Id. at *10.

See id. at *12.

See id. at *2. But see id. at *13 (dispensing with the NCAA’s balance of the equities argument on the basis that the proposed injunction would not usher in a “sweeping change” to college athletics because the injunction only applies to Pavia individually).

See id. at *8 (“Although the NCAA argues Pavia has not offered evidence to support the proposed market definition, it does not dispute that the proposed market is the relevant market for purposes of the Court’s antitrust analysis. . . . Moreover, other courts considering antitrust challenges to NCAA eligibility rules have found that the labor market for college athletes, in this case college football, to be relevant labor market.”) (citing Tennessee v. Nat’l Collegiate Athletic Ass’n, 718 F. Supp. 3d at 761–62; Ohio v. Nat’l Collegiate Athletic Ass’n, 706 F. Supp. 3d at 592).

Pavia, 2024 WL 5159888, at *7.

See Michael McCann, Pavia Injunction Could Lead To Seven-Year College Careers, Sportico (Dec. 22, 2024), https://www.sportico.com/law/analysis/2024/paviainjunction-seven-year-college-careers-1234821486/.

Id. Notably, the Pavia court was not persuaded by the NCAA’s argument that eligibility rules were necessary to limit the timeframe of athletic competition in order to protect the “natural and standard degree progression timeline that is central to the NCAA’s mission,” to “preserve a space for collegiate competition,” or to “cohesively meld NCAA member schools’ academic and athletic objectives.” Pavia, 2024 WL 5159888, at *11 (citations omitted).

Formerly called the NCAA Clearinghouse, the NCAA Eligibility Center sets academic eligibility standards for students wishing to play college sports.

See McCann, supra note 28.

See Eli Lederman, NCAA grants waiver to ex-JUCO players while appealing Pavia ruling, ESPN (Dec. 23, 2024), https://www.espn.com/college-football/story/_/ id/43131557/ncaa-division-board-grants-waiver-former-juco-players-appealingdiego-pavia-injunction.

See Zack Geoghegan, NCAA reportedly considering allowing five years of college eligibility for all sports, Kentucky Sports Radio, https://www.on3.com/teams/ kentucky-wildcats/news/ncaa-reportedly-considering-allowing-five-years-collegeeligibility-all-sports/.

Tarpy, Cox, Fleishman & Leveille, PLLC is pleased to announce new associate attorney

KELLI D. HOLMES Lincoln Memorial University, Duncan School of Law United States Air Force Veteran

1111 N. Northshore Drive, Suite N-290 Landmark Center North Tower Knoxville, Tennessee 37919 Tel: 865-588-1096 Fax: 865-588-1171 Email: kholmes@tcflattorneys.com

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EXPANDING OUR HORIZONS By: Marty McCampbell

LEARNING FROM EACH OTHER A study in 2021 found that over 60% of people had never interacted with a transgender person. This is hardly surprising as individuals who identify as transgender total less than 1% of the population of the United States. I am one of the fortunate few, because in my personal and professional life, I have had the opportunity to get to know and learn from several individuals. For people whose gender identity aligns with their birth gender, it is very difficult to understand gender dysphoria.1 Imagine living with the constant feeling that you are not at ease in your own body.

In many ways, their stories are not that different than any other person. Rhiannon was a Sergeant in the 82nd Airborne Division, who served as a team leader in Iraq in 2003. After completing military service, Rhiannon underwent hormone therapy and surgery to transition to female. When I met her, she was the program manager of the Office of Veteran Student Services at a state university. Rhiannon was beautiful, had a great figure, and wore very pretty clothes. Perhaps because of her appearance, there was no controversy about which lavatory Rhiannon used: she used the women’s. I imagine it would have been odd to see Rhiannon in the men’s lavatory.

For 30 years, Mark worked in the maintenance department at a religious institution of higher education. He was crucial in keeping the HVAC system operational – despite the age of the buildings. He was married to his high school sweetheart, and they had adult children. At the time, I was the college’s general counsel, and when he informed them he wished to transition, I was concerned about safety and the reaction of other maintenance and operations employees. I was wrong.

Because of her long years of service at the college, her work ethic, and skill set, Maria had her co-workers’ respect, and there was no opposition or push-back. Maria’s wife and children were supportive of her transition. When I left the college, she and her wife were still happily married.

But, in other ways, their stories reveal challenges that the other 99% of the U.S. population does not face. Justin would tell you that he experienced gender dysphoria at a young age. Faith in God was central to young Justin’s life, and he prayed nightly to wake up as a girl. Every morning, he was disappointed. While a teenager, Justin saw a transgender person on the Phil Donahue television show – that was the first time Justin realized he was not alone. But, given the cost of surgery, he did not think transition was feasible.

Justin was attracted to women and dated a lot in high school where he was known as a smart, quiet fellow. When Justin got engaged to his girlfriend, he told her his gender identity was female. They got married and had two children. He was successful in information technology and his family led a comfortable middle-class life. Unfortunately, the marriage grew toxic, and Justin’s wife took the kids and left him with just a note— stating that she had informed his workplace he was a “faggot who wants to be a woman.”

Justin did not think he could face his co-workers and took 60 sleeping pills. After two days of no contact, Justin’s supervisor found him at home, unconscious, lying at the base of the stairs. Justin barely survived liver and kidney failure due to the overdose and injuries from falling down the stairs.

The hospital gave Justin time to reflect upon a life spent trying to live up to other people’s expectations. So, Justin made the decision to go forward as a woman. It was “the best decision I ever made.”

Justin returned to work, but found that, after beginning the

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transition process, co-workers no longer wanted to socialize. Gone was the invitation to beer and pizza night. Eventually, Justin resigned and completed the hormonal and surgical transition to her true self, Carla.

Carla began attending a transgender support group in Knoxville, where she met another young woman--Jamie. They have been a happy couple for many years.

Carla’s ex-wife obtained an Order of Protection that prevented Carla from having contact with their children. Later, Carla’s ex became addicted to opioids and their children came to live with Carla and Jamie.

Both Carla’s children are now adults, and they and their children have loving relationships with Carla and Jamie.

Jamie was born James. He learned about the existence of surgical gender transition but believed he could never afford it (more than $500,000.00). So, James decided to be celibate and enter the ministry, enrolling in Johnson Bible College.

At the age of 27, James decided to transition to female but, in the mid-90’s, James was unable to locate a physician in the Knoxville area willing to prescribe estrogen or other transitional care. So, Jamie started hormone therapy with a physician out of state. She changed her middle name, Nelson, to Novella, which had been her grandmother’s name, and after months of hormone treatment, Jamie completed the transition with surgery in Wisconsin.

But that is not all of the story. Jamie attended beauty school to start a career in cosmetology. Her classmates referred to her as “shem,” and one classmate told her, “Everyone will know you aren’t really a woman, and you will never find a man that loves you.” Other students thought it was justified to treat her differently than everyone else. This discriminatory and hostile environment created great anxiety, but Jamie graduated and has become a successful salon owner.

For most of her adult life, Donyae identified as a gay man. During the COVID quarantines of 2020, Donyae realized that she was not happy being a man and decided to transition to her true self. She was surprised by the reaction of many of her friends who were gay men; they didn’t understand why any man, gay or straight, would want to be a woman.

One gay friend told Donyae told her he would be embarrassed to be seen in public with her.

Donyae’s faith community has accepted her transition. Like Donyae, Jamie and Carla also found a faith community that was welcoming, the Tennessee Valley Unitarian Universalist Church in Knoxville. In 2008, Jamie and Carla were in the church when a mass shooting occurred during a youth performance of Annie Jr.2 The shooter claimed to be motivated by his hatred of liberals and the LGBTQ+ community. He killed 2 and wounded 6.3 Carla and Jamie both suffered severe anxiety after this tragedy as it was an attack motivated by discrimination against who they are.

These are just a few stories of the transgender individuals I have been able to meet. We have much in common, but we also have much to learn from each other.

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According to the Mayo Clinic, “[g]ender dysphoria is a feeling of distress that can come when a person’s gender identity differs from the gender assigned at birth.”

Mayo Clinic, Gender Dysphoria, https://www.mayoclinic.org/diseases-conditions/ gender-dysphoria/symptoms-causes/syc-20475255, last visited Jan. 14, 2025.

Unitarian Universalist Association, The Tennessee Valley Unitarian Universalist Church Shooting, https://www.uua.org/re/tapestry/adults/ethics/ workshop5/191874.shtml, last visited Jan. 14, 2025.

Id.

February 2025

THREE STARS By: Melissa B. Carrasco Carrasco Trump, PLLC

STATE V. CURRY—IT’S UP TO THE JURY At the last headcount, Madison County, Tennessee had a population of less than 100,000 – total.1 The County was created in 1821 from land formerly occupied by Native American tribes, and it was named after the fourth U.S. President, fifth U.S. Secretary of State, and antagonist in the musical Hamilton – James Madison himself.2 Although it is home to the great city of Jackson (population 68,264),3 much of the county is still fairly rural.

So when Mr. Curry saw flashing blue lights in the rearview mirror of his white Honda Accord, after he rolled through a stop sign and then improperly passed another vehicle, he had plenty of places to go.4 Eventually, he crashed the car, and ran into the woods on foot.5 However, he left two things behind – a Social Security card and a cell phone, with his picture on the screen.6 The police officer called for a police dog unit to search the woods, and although the police dog did not find Mr. Curry, it did find a 9mm handgun, with one round in the chamber. The loaded magazine was about 30 yards away.7 Mr. Curry was arrested about 2 weeks later in the driveway of his home – where the white Honda Accord was parked.8 During that encounter, Mr. Curry volunteered that the reason he ran into the woods was because he was a convicted felon and wasn’t supposed to have the handgun.9 The gun was not registered to Mr. Curry.10 At trial, the prosecution introduced a certified judgment of conviction stating that Mr. Curry had been convicted for robbery, a Class C felony, in 2017.11 The jury convicted Mr. Curry of (1) being a convicted felon in possession of a firearm, (2) evading arrest, (3) reckless driving, (4) driving without a license, (5) violation of the vehicle registration law, and (6) disobeying a stop sign (which, if you recall, was the reason why the flashing blue lights showed up in his rearview mirror in the first place).12 He was sentenced to 10 years – primarily due to being a convicted felon in possession of a firearm.13 But Mr. Curry and his legal team saw an issue with the jury instructions. The applicable statute states: A person commits an offense who unlawfully possesses a firearm, as defined in § 39-11-106, and (A) [h]as been convicted of a felony crime of violence, an attempt to commit a felony crime of violence, or a felony involving use of a deadly weapon; or (B) [h]as been convicted of a felony drug offense. An offense under subdivision (b)(1)(A) is a Class B felony.

A person commits an offense who unlawfully possesses a handgun and has been convicted of a felony [unless one of the exceptions applies] . . .. An offense under subdivision (c)(1) is a Class E felony.14 The jury instructions informed the jury that to be guilty of this offense, the state had to prove beyond a reasonable doubt (1) that the defendant had been convicted of robbery, (2) that the defendant, after such felony conviction, possessed a firearm, (3) that the defendant acted either intentionally or knowingly, and (4) that the conviction was for a felony crime of violence.15 February 2025

That was the issue. Is robbery automatically a “felony crime of violence” such that the State can satisfy its burden simply by introducing a certified judgment of conviction and then do nothing more?

Interestingly, the statutory definition of “crime of violence” does include aggravated robbery and especially aggravated robbery,16 but it does not include regular robbery. In fact, even though the list in the statutory definition of “crime of violence” has changed over the years, it has never included regular robbery.17 As such, is the list exhaustive (if it isn’t on the list, it isn’t a “crime of violence”) or illustrative (if it is like one of the things on the list, it is a “crime of violence”)?

The answer from the Tennessee Supreme Court is the latter: the list is illustrative. The statutory list of felonies that constitute a “crime of violence” isn’t exclusive. If a felony is similar to one on the list, it could be a “crime of violence” for purposes of a felon-in-possession charge.18 And, since “robbery” is like “aggravated robbery,” or “especially aggravated robbery” (just not as bad), it can be a “crime of violence.”19 But that is where it gets thorny, and really is the ultimate question in this case. Who gets to decide if the robbery is a “crime of violence” for purposes of the enhanced felon-in-possession charge? Is this for the judge to decide as a matter of law, or for the jury as a matter of fact?

The answer is: the jury. After all, having a prior conviction of a “felony crime of violence” is one of the essential elements of this particular offense. Juries get to decide whether the State has proven each and every element of the alleged crime, and in Tennessee, it is now clear that the jury gets to decide this one as well.20 In Mr. Curry’s case, the certified judgment of conviction of robbery from 2017 was not good enough to prove that Mr. Curry committed a “felony crime of violence,” and Mr. Curry’s conviction was reduced from Class B to Class E.21 Then, everyone in the Tennessee court system got homework.

Trial judges now have homework: the term “felony crime of violence” will have to be defined in every case in which a felon-inpossession charge is at issue. The Committee on Pattern Jury Instructions (Criminal) got homework as well. New pattern jury instructions will have to be drafted.

Prosecutors have homework. Now, they not only have to prove the fact of the prior conviction, but if the conviction is not on the statutory list, then they will also have to introduce evidence that the prior offense was committed using violence. Defense attorneys have homework, as they will have to navigate re-litigating a prior conviction and the chance that a jury might be more interested in that one than in the case before them.

And, most of all, juries have more homework. If the prior conviction is not listed in the statute, then the jury will have to be instructed on the elements of the prior conviction, and the jury must decide (unanimously) whether the prior conviction was or was not committed using violence before it can decide (1) whether the accused violated the felon-inpossession statute, and (2) if so, whether the conviction should be enhanced because the prior conviction was a “felony crime of violence.”

With this much homework, there are going to be a lot of all-nighters.

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United States Census 2020, available at https://www.census.gov/quickfacts/fact/ table/madisoncountytennessee,US/POP010220.

continued on page 24

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HELLO MY NAME IS By: Bridget J. Pyman Arnett | Baker

BETHANY WESCOTT WILSON This month’s Hello My Name Is column features attorney Bethany Wescott Wilson, an Associate Attorney with Kramer Rayson LLP, where she specializes in Labor & Employment Law. A 2024 graduate of the University of Tennessee College of Law, Bethany also holds a degree in Classical Humanities from Lee University. She is an active member of the Tennessee Bar Association, the Knoxville Bar Association, and the American Bar Association, and is involved in the TBA Labor & Employment Section and KBA Barristers.

It’s clear from her responses that Bethany’s path into the legal profession has been shaped by a deep appreciation for structure, creativity, and community. Her experiences, from her time at UNUM insurance company to her current role as a labor and employment attorney, reflect her commitment to navigating complex challenges with both enthusiasm and curiosity. Whether solving legal puzzles or enjoying the quirks of her rescue dogs, Bethany brings a unique blend of dedication and humor to both her professional and personal life.

Did you have any significant or interesting work experiences before you became a lawyer that have impacted your career?

I am incredibly thankful to have started my professional life in the Leave Management Department at UNUM, an insurance company based out of my hometown, Chattanooga. I fully blame UNUM and the time I spent there—immersed in the day to day of federal and state regulatory structures—for turning me into a huge labor and employment law nerd.

While at UNUM, I was a proud member of the mentor team, which gave me the opportunity to work with some of the best co-workers in the universe in both Chattanooga and Portland, Maine. Together, we mentors worked to ensure each and every new hire had the tools and support they needed to thrive.

I also took a quick jaunt into the Short Term Disability Department, which gave me what many consider to be my most bizarre quality: give me an insurance policy to read and analyze, and I will be happy as a clam.

What do you enjoy most about your job?

The never-ending surprises.

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Human beings are endlessly creative, and that talent is always super, super evident in employment law. Thanks to my years working with new hires at UNUM, I have seen a lot of crazy scenarios and employee shenanigans, but there is still at least one time each week where I find myself saying, “Wow, they did WHAT?!?!” I love having a job where I am possibly stressed but never, ever bored.

Tell me about your family.

My husband Aaron and I have been married for six years. He is an electrical engineer working in research and development at Oak Ridge National Lab. We first moved to Knoxville for his PhD program, which he finished my 1L year of law school. This fall marks the first time since we met that neither one of us is in school.

We have two perfect rescue dogs, Nellie and Lucy. Our angel— “nervous” Nellie—is a loving pit mix who is scared of literally everything (except her little sister Lucy). Nellie loves being outside, popping soccer balls, building elaborate nests out of blankets and toys, and eating anything with carbs in it.

Meanwhile, Lucy is some sort of a cross between an undefined type of terrier and Satan. She was named after the Chronicles of Narnia character, but we like to joke that “Lucy” is actually short for Lucifer.

Her nickname is “Goose” because when she was a puppy she would hiss whenever she was upset. Lucy loves treats, exorbitant amounts of attention, showing people how nice her toys are, and being an absolute menace to society.

What is your favorite movie?

Greta Gerwig’s adaptation of Little Women. Louisa May Alcott’s Little Women has remained one of my favorite books since childhood, so I have read it a bazillion times.

It is magical watching a movie directed by someone who clearly cherishes the book as much as I do. Even better, it challenged me to see my hitherto least favorite character, Amy, in an entirely new light.

DICTA

February 2025

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February 2025

DICTA

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DIXIE X DEW DROPS: RICO AND THE THC MARKET RICO has resurfaced at the U.S. Supreme Court, this time at the intersection of employment law and the THC product market.

Medical Marijuana, Inc. v. Horn raises the practical question of whether an employee who gets fired for failing a drug test after unwittingly consuming a THC-containing product, is a “person injured in his business or property by reason of ” a pattern of racketeering activity.1 The legal question is more nuanced: are economic harms resulting from personal injuries, injuries to “business or property by reason of ” a defendant’s pattern of racketeering activity, for purposes of a civil RICO claim?2 The story itself is fascinating.

Background Douglas Horn and his wife, Cindy Harp-Horn, first learned about Dixie X Dew Drops while thumbing through an issue of High Times magazine.3 Earlier that year, Doug had been in a car accident and continued to experience pain.4 Doug and Cindy were looking for a natural alternative to his prescriptions, and based on the High Times article about Dixie X, it seemed to be the solution.

Using a proprietary extraction process and a strain of high-CBD hemp grown in a secret, foreign location, Colorado’s Dixie Elixirs and Edibles now offers a new product line called Dixie X which contains 0% THC and up to 500 mg of CBD. This new CBD-rich medicine will be available in several forms, including a tincture, a topical and in capsules.5 Regardless of the reason why Doug and Cindy were reading High Times magazine, it actually was very important to them that Dixie X not contain any THC. They were both commercial truck drivers for Enterprise Transportation Company and subject to mandatory drug testing.6 Testing positive for THC could get them fired. But not to worry – it was right there, in the article, in black and white:

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We are importing industrial hemp from outside the U.S. using an FDA import license – it’s below the federal guidelines for THC, which is 0.3% - and we’re taking that hemp and extracting the CBD. We have meticulously reviewed state and federal statutes, and we do not believe that we’re operating in conflict with any federal law as it relates to the Dixie X (hemp-derived) products.7 Doug and Cindy actually went even further than just reading the advertisement. They watched several YouTube videos, including an interview with the president of the company, read the FAQs on Dixie X’s website, and even called the customer service number and talked to someone.8 The customer service agent, YouTube, and the FAQs all assured the Horns that there was no THC in Dixie X.9 So, on September 17, 2012, they ordered Dixie X, and Doug started to take it.10 You already guessed what happened next. A few weeks later, Doug was selected for a random drug test. He tested positive for THC, and he was fired after 10 years at Enterprise Transportation.11 Cindy quit soon after because she believed it was not safe for her to continue driving without her husband.12 Inspired by CSI, they bought another bottle of Dixie X and had it tested for THC.13 It tested positive.14 The Lawsuit They sued in the Western District of New York—primarily under various state statutes and common law theories for false advertisement, negligence, unfair business practices, intentional infliction of emotional distress, etc.—but they included a civil RICO claim.15 A civil RICO claim has 4 elements: “(1) conduct, (2) of an enterprise, (3) through a pattern (4) of racketeering activity, and injury to business or property as a result of the RICO violations.”16 To have a “pattern of racketeering

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February 2025

COVER STORY By: Melissa B. Carrasco Carrasco Trump, PLLC

activity,” there must be evidence of two or more, related, predicate acts of racketeering which “pose a threat of continued criminal activity.”17 No one disputed the evidence of the “conduct” and “enterprise” elements, and the District Court had no issue finding a “pattern of racketeering activity” once it determined that Dixie X met the definition of a “controlled substance constituting marijuana.”18 So that just left the element of injury. On a motion for summary judgment, the Defendants successfully argued that all of the Horns’ tort claims should be dismissed because their only injury was an economic one––the loss of employment.19 The court found that genuine issues of material fact existed as to the RICO claim that precluded summary judgment, although the court did grant summary judgment for Cindy’s claimed damages under RICO.20 Then, on the eve of trial, the Defendants introduced a new theory: the Horns did not sustain an “injury to business or property” for purposes of RICO because their economic loss (loss of employment) was derivative of a personal injury (“unconsented bodily invasion by THC”).21 After all, RICO requires an “injury to business or property,” and although there was no Second Circuit precedent on point, there was precedent from the Sixth Circuit.

In Jackson v. Sedgwick Claims Mgmt. Servs., Inc.,22 the Sixth Circuit held that a party does not have standing to bring a RICO claim when their “pecuniary loss ‘flows from, or is derivative of ’ an antecedent personal injury even if the loss constitutes an injury to ‘business or property’ within the plain and ordinary meaning of the phrase.”23 The Seventh and Eleventh Circuits adopted a similar analysis, asking “whether the plaintiff ’s claimed pecuniary losses are more properly understood as part of a personal injury claim.”24 Thus, the District Court applied what is known as the “antecedentpersonal-injury-bar,” and dismissed the Horns’ RICO claim.25 They appealed.26 The Second Circuit reversed the District Court,27 finding that, although RICO clearly bars claims for personal injury, it does not preclude a claim for “injuries to business or property simply because they flow from, or are derivative of, a personal injury.”28 The Defendants filed a petition for writ of certiorari, which was granted.29 So, now it is up to the Supreme Court to resolve this Circuit split and decide whether a person has standing to bring a RICO claim when the person has suffered an economic harm (injury to business or property) by reason of a pattern of racketeering activity but the economic harm was the result of a personal injury. The Horns say, “yes,” and the companies that sold Dixie X say, “no.”

If the Supreme Court should also say, “yes,” it would overrule Sixth Circuit precedent and create a new avenue for RICO claims. But the Court may not even get that far. During oral argument, one question raised by several Justices was whether the Defendants had waived their arguments regarding the “antecedent-personal-injury-bar” because, in the District Court, they succeeded in having the Horns’ tort claims dismissed essentially by arguing the economic loss doctrine––that the Horns February 2025

did not sustain any personal injuries but only economic losses.30 So, it is entirely possible that the Supreme Court will decline to resolve the Circuit split and simply find the argument was waived.

Until then, be careful about what you read in High Times.

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3 4 5 6 7 8 9 10 11 12 13 14 15 16

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Horn v. Med. Marijuana, Inc., 80 F.4th 130, 133 (2nd Cir. 2023).

For the more formal statement of the question presented, see Medical Marijuana, Inc. v. Horn, Case No. 23-365 (U.S. Apr. 29, 2024), available at https://www. supremecourt.gov/qp/23-00365qp.pdf.

Horn v. Med. Marijuana, Inc., 383 F. Supp. 3d 114, 121 (W.D.N.Y. 2019).

Horn v. Med. Marijuana, Inc., 80 F.4th at133.

Id. Id. at 133-34.

Id. at 133.

Horn, 383 F. Supp. 3d at 121-22.

Id. Id. at 122.

Horn, 80 F.4th at 134.

Id. Horn, 383 F. Supp. 3d at 122.

Id. Id. at 131-32.

Id. at 131, quoting Flexborrow LLC v. TD Auto Fin. LLC, F. Supp. 3d 406, 414 (E.D.N.Y. 2017).

Id. at 132, quoting De Falco v. Bernas, 244 F.3d 286, 320 (2d Cir. 2001).

Id. at 132.

See id. at 134-35.

Id. at 133.

Horn, 80 F.4th at 134-35.

731 F.3d 556, 565-66 (6th Cir. 2013) (en banc).

Id. Horn, 80 F.4th at 137 n.5.

See id. at 137.

Id. at 136-37.

Id. at 137, 142. In doing so, the Second Circuit agreed with the Ninth Circuit, which called the Sixth Circuit’s approach “deeply flawed.” See Diaz v. Gates, 420 F.3d 897, 905 (9th Cir. 2005) (en banc).

Id. at 138.

Medical Marijuana, Inc., Case No. 23-365 (U.S. Aug. 22, 2023).

See Transcript of Oral Argument, at 32-33, Medical Marijuana, Inc. v. Horn, (U.S. Oct. 15, 2024) (23-365), available at https://www.supremecourt.gov/oral_arguments/ argument_transcripts/2024/23-365_9o6b.pdf.

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21ST CENTURY LAWYER By: Bridget J. Pyman Arnett | Baker

Samantha Pyman McAfee Google LLC

HYBRID WORKSPACES I don’t like working remotely, though folks in our firm have that option. I like working in a hybrid workspace, where “hybrid” is framed through a conceptual – rather than geolocational – lens. I enjoy working at my desk, in my office, in a building that is not my home, while my dog Liz lounges across the circle rug that lies beneath the Chairs Reserved for Office Guests sign. I enjoy walking down the hallway toward my boss’s office and catching sight of my paralegal’s son playing with Star Wars action figures under a tent-fort he built beside her desk or spotting my colleague’s kids tackling school assignments in the firm’s library due to prophylactic, but ultimately unnecessary, winter school closures. It’s not a traditional workspace; it’s more comfortable that way – more human.

And, at times, I enjoy indulging in the convenience of moderating a virtual CLE program from the comfort of one of our conference rooms, unburdened by the logistical demands that typically accompany planning and facilitating in-person events—proof that I do occasionally appreciate the perks of remote-adjacent work.

I am but a simple woman, shaped by my experiences and moments of significant discomfort—experiences like, for instance, when the final half of my graduate education was delivered entirely online due to the COVID-19 pandemic or when the virtual testing platform Examplify crashed on me twice during the July 2021 bar exam.1 Technology is, of course, undeniably useful—streamlining tasks, improving efficiency, enabling remote work, and, most crucially, allowing us to hold virtual meetings without the need to trek to a reputable Market Square dining establishment and part with $18.99 for a garden salad and a glass of water. Yet, for me, technology’s utility has limits.

The convenience of technology comes at the expense of genuine engagement and relational quality. Virtual meetings, though convenient, lack the nuance and energy of face-to-face interactions, and it’s draining to spend entire days staring at a screen while missing the tactile presence of real conversations and the subtle gestures that make communication meaningful. My general sentiment about remote work is that the ease of digital connectivity strives to replicate authentic human interaction but instead offers something that, despite its efficiency, always feels a little flat.

To provide a more wholesome analysis of the hybrid workspace concept, I sought insight from my sister, Sam, whose workspace preferences are diametrically opposed to mine.2 Samantha and I typically stand in a complementary contrast to one another. Growing up, Sam thrived in individual sports like track and golf, while I gravitated toward team-oriented sports like volleyball and rugby. Sam’s favorite undergraduate course was Theory of Mathematical Interest; mine was British Literature. Samantha has a yellow Labrador; my Labs are black.

We’re different; or, we are, as Sam often describes us, “two halves of one idiot brain.”

Sam is a program manager at Google, overseeing third-party data center engineering field services and managing small infrastructure projects globally. Google utilizes a hybrid schedule requiring employees to be in the office three days a week and work from wherever on the remaining two days.

The appeal of remote work in the tech industry is axiomatic. Sam’s 45-minute commute each way to the Atlanta office contrasts sharply with the nature of her role, which often transcends the need for physical office space. With partners and team members scattered across the globe and time zones, Sam’s work is primarily consumed by phone calls and virtual coordination. A significant portion of team-building activities are conducted entirely online, and the dispersed nature of her team

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diminishes the value of in-person collaboration.

The Atlanta office provides a range of thoughtful amenities: on-site massages, a yoga studio, a salon, a game room, a jam room, a cafeteria, barista-staffed coffee bars, and a dog park, among other offerings.

These amenities, while undeniably appealing, pale in comparison to the productivity and comfort Sam enjoys when working from home.

To her, hybrid work flexibility reflects an employer’s trust, a tacit acknowledgment that she, like her colleagues, is an adult capable of managing her responsibilities independently. When asked if hybrid work had any drawbacks, Sam replied with a simple, “Hm. No.” For folks like Sam, the primary benefit of a hybrid workspace lies in optimizing productivity from home in a professional world no longer constrained by limits of physical proximity. Others, like me, prioritize the energy of an expanded in-person community and thrive in environments rich with human connection and collaboration. At its core, the hybrid workspace concept is as flexible and varied as the people who embrace it.

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Writing this sentence evoked tender memories of sitting alone in a silent room, trepidatiously presenting and squishing each of my foam earplugs in front of my laptop camera, as required, to appease the bar exam proctors of any suspicion that a tiny communication device may have been implanted in them. This is safe to try at home; give it a go and see how it makes you feel.

Sometimes, a wholesome analysis requires only considering an issue’s polar positions – no need to complicate things with nuance.

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February 2025

SCHOOLED IN ETHICS By: Paula Schaefer

Art Stolnitz Distinguished Professor of Law University of Tennessee College of Law

US DEPARTMENT OF JUSTICE CONCLUDES TBLE AND TLAP ARE IN VIOLATION OF ADA In a December 17, 2024 letter to the Tennessee Supreme Court, the U.S. Department of Justice (DOJ) announced the results of an investigation of complaints by two Tennessee bar applicants against the Tennessee Board of Law Examiners (TBLE) and the Tennessee Lawyers Assistance Program (TLAP).1 The DOJ concluded that TLAP and TBLE violated the Americans with Disabilities Act (ADA) by: (1) “subjecting bar applicants to burdensome supplemental investigations triggered by their status or treatment for a substance use disorder;” and (2) “excluding them or implementing burdensome, intrusive, and unnecessary conditions on admission that are improperly based on individuals’ diagnosis or treatment for a substance use or mental health disorder.”2 The letter requests that TBLE and TLAP adopt corrective measures through voluntary compliance negotiations with the DOJ.3 Investigation of Two Complaints The DOJ investigated complaints by two bar applicants, D.S. and C.B., who asserted that TBLE and TLAP had discriminated against them in the bar admission process. Because of space limits, I will only address D.S.’s case in this article;4 C.B.’s case involves similar issues and is fully detailed in the DOJ letter.5 D.S. had been receiving treatment for Opioid Use Disorder (OUD) since 2012 when his physician prescribed buprenorphine, an FDA-approved medication. The treatment was highly effective. During treatment, D.S. earned his undergraduate degree in 2016 and his J.D. in 2019.6 After he passed the Tennessee bar exam, the TBLE referred D.S. to TLAP for evaluation as part of the character and fitness investigation.7 TLAP’s director told D.S. that because of his use of buprenorphine, he would have to be evaluated by a TLAP-approved facility. D.S. chose the least expensive option, a $2,000 evaluation at Palmetto Addiction Recovery (“Palmetto”) in Louisiana. D.S. tested negative for all drugs other than his doctor-prescribed buprenorphine. Palmetto recommended that D.S. sign a five-year monitoring agreement with TLAP and complete a 6- to 12–month, inpatient treatment program that would include detoxification from his prescribed medication.8 Because D.S.’s doctor “emphatically” disagreed with D.S. forgoing the prescribed medication and because D.S. could not afford the estimated $30,000 cost of inpatient treatment (as well as the loss of employment necessary for inpatient treatment), D.S. sought advice from TLAP and ultimately requested that Palmetto revise its recommendation.

Palmetto responded by stating its opposition to professionals taking prescribed medication to address OUD and concluding, “We believe that a professional who wishes to take controlled medications should make a choice between the medications and the profession.” The TBLE informed D.S. that if he did not comply with TLAP recommendations, TBLE would deny his application based on character and fitness grounds.9 Subsequently, D.S. sought TLAP’s permission for a second opinion which he obtained from a TLAP-approved provider, Vanderbilt University. While Vanderbilt found D.S. had been successful in treatment February 2025

for over a decade—noting that he had experienced no legal, educational, or employment issues—Vanderbilt concluded that D.S. “is not fit to practice law, which is a safety-sensitive position” and recommended abstinence-based treatment.10 In late September 2023, TBLE learned of the DOJ investigation into possible ADA violations in D.S.’s case. The TBLE set a “show cause” hearing for D.S. on December 6, 2023.11 On the day of the hearing, the TBLE informed D.S. and his counsel that issues with TLAP compliance would not be addressed in the hearing. At the conclusion of the hearing, the TBLE determined that D.S. had the character and fitness necessary to practice law and he was admitted without any conditions or monitoring.12 DOJ Findings The DOJ found that the TBLE and TLAP discriminated against D.S. in violation of Title II of the ADA by withholding his law license based on his disability and his treatment for his disability. The DOJ also found that C.B. was discriminated against in violation of the ADA when—based on his actual or perceived substance abuse disorder—the TBLE and TLAP subjected him to unnecessary examinations and a burdensome 5-year monitoring agreement, which caused him to lose his job and his therapist.13 The DOJ explained that while public entities like TLAP and the TBLE can impose “legitimate safety requirements,” it must ensure that such requirements “are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”14 The DOJ concluded, “To the extent they are proffered as safety requirements, the restrictions and conditions that TBLE and TLAP imposed on D.S. and C.B. were based on speculation about their disabilities that were contrary to demonstrated conduct, and as to D.S. in particular, they were based on stigma and stereotypes about his prescribed treatment.”15 The DOJ ended its findings by explaining the significant economic harm TBLE and TLAP’s discriminatory conduct caused to D.S. and C.B.16 DOJ Recommended Remedial Measures The DOJ concluded by listing five corrective measures that the TBLE and TLAP should take to address their ADA violations.17 The DOJ stated its hope that the TBLE and TLAP would enter voluntary compliance negotiations so that it will be unnecessary for the DOJ to take further action under applicable law.18 Final Thoughts As someone who has spent much of my career researching, writing, and teaching in the area of professional responsibility, I have been surprised by the recent assertion by some that lawyers are members of a “safety sensitive profession.”19 This safety sensitive designation appears not to be based in legal authority, but nonetheless is used to justify special requirements that lawyers—like doctors, pilots, nuclear power workers, and truckers—be “free from impairment.”20 In a 2024 article, TLAP’s continued on page 24

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volunteering, you can sign up at https://memcentral.wufoo.com/forms/ rvlhyqd0mswwrf/.

BARRISTERS ELECTIONS OUTCOMES The Barristers Elections and Holiday Party was held on December 10.

Thank you to everyone who came and to our newly elected Executive Officers: Jimmy Snodgrass, President; Courteney Barnes-Anderson, Vice President; Isaac Westling and Mariel Bough, Secretary/Treasurer; and Lucas Fishman and Jon Fromke, Members at Large. Hunger & Poverty Relief Co-Chairs Holly Nehls and Dillan Zinser received the Barristers’ President’s Awards.

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 12. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.

HIGH SCHOOL MOCK TRIAL The Barristers High School Mock Trial Regional Competition will occur in the City County Building on February 21 and 22, and the final two teams will advance to the championship round held in LMU’s Courtroom on Sunday, February 23. This program is supported entirely by volunteer efforts. Traditionally, East Tennessee law school students, attorneys, and judges have donated their time to serve in the roles of bailiffs, scoring judges, and presiding judges during the competition.

Please contact either Celia Ball-Christmas (celia@knox-attorney.com) or the KBA at 865-522-6522 with any questions. If you are interested in

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS 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@ wkfirm.com or Miranda Goodwin at mirandaegoodwin@gmail.com with any questions and/or about volunteering.

Pictured: Grant Williamson, Maddie Lynn, Mary Ward, Kacie McRee, and William McRee

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February 2025

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Jimmy Snodgrass Kramer Rayson LLP

EVALUATING WHEN IT’S TIME TO MAKE EMPLOYEES WATCH THOSE TRAINING VIDEOS Everyone remembers the onboarding process for their new job, no matter what field, where after hoping to remember to bring their passport as a second form of ID, they’d sit down to watch training videos which were filmed—at a minimum—thirty years earlier. I’ve had many jobs and can honestly say I did not come away with any insight from any of these training videos.1 As employers are getting organized in the new year, training employees and managers is one of the most important steps that an organization can take. Often, smaller companies realize that it has been several years since certain employees, even at management levels, received any training on the company’s policies. Why is this training important?

These courses ensure that employees are aware of the company’s policies and procedures, promote a good corporate culture, and hopefully reduce future incidents and prevent harmful behavior in the workplace. This is in addition to eliminating or reducing potential employer liability in a future lawsuit.

First, employees should receive training on the company’s policies and procedures when onboarding after being hired. But, what some companies may neglect is continued workplace training for its employees on a regular or yearly basis. This often occurs when a small company slowly expands how many employees it has. These forms of various workplace training are most effective, in my opinion, for front-line managers, who are often the company’s first line of defense when dealing with employment issues. For example, training materials can ensure that supervisors are aware of what responsibilities they have in responding to a request for an accommodation for a disabled employee. What words trigger an accommodation request? When should a manager notify human resources? Another hot button example is a report of sexual harassment. Who should the manager notify about the report? How should the manager interact with the victim and accused? Lastly, the example everyone is thinking of is educating managers and employees on what behavior constitutes discrimination or harassment.

Second, what types of training should employees receive?

Regardless of any compliance or safety training, the most effective forms involve preventing discrimination, harassment, or retaliation in the workplace. In addition, these trainings can help managers in other avenues, such as properly interviewing potential applicants or handling safety concerns.

With respect to sexual harassment, training courses can educate the company’s employees on a zero-tolerance policy and hopefully prevent any future incidents. Additionally, an effective policy and training supports the Faragher-Ellerth defense in potential sexual harassment litigation. As you may be aware, an employer may avoid liability for conduct by a supervisor resulting in an alleged hostile work environment where: (1) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the plaintiff

employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.2 Such training shows that the employer took reasonable care to prevent harassing behavior.

Regarding training on anti-discrimination policies or sexual harassment and retaliation prevention, it should be emphasized to employees where/how to report complaints. Managers should be instructed on how to properly handle such complaints. Additionally, it should be repeatedly emphasized to employees that they will not be retaliated against for making a complaint or engaging in any protected activity. The presence of higher-level management or retention of outside counsel to administer these training can highlight their importance to the company. During these trainings, managers are often more receptive to hearing stories of companies in their industry facing lawsuits for discrimination, harassment, or retaliation.

Ultimately, here is a list of best practices to keep in mind when evaluating training procedures in place: • Have all employees sign in and acknowledge the training that they received.

• Preserve all presentation materials and regularly ensure that they are updated with any changes in applicable statutes or laws.

• Keep a transcript of all training courses that employees receive.

• Create a schedule of when existing employees will receive training.

• Evaluate whether any online trainings administered by third-party vendors are actually effective. Would they be better received by the Company’s employees if administered by an outside party? While on-line trainings administered by third party providers may be easier, in-person training with front-line managers is the most effective in preventing future employment problems, while also highlighting the Company’s commitment to anti-discrimination and retaliation policies.

Lastly, under 29 C.F.R. § 785.27, employers are required to pay for time spent at nonvoluntary training related to an employee’s job.

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My first job may have been my best. I was a stadium vendor for the Potomac Nationals (a single A baseball team). I started out selling hot dogs and cracker jacks in the stands but ended up selling beer (and getting unreal tips) by the end of the summer. Hopefully the statute of limitations has passed on that because I was 14 (and probably looked 12). Erik Estrada, of “CHiPs” fame (?) once was throwing out the first pitch. He expected free food and drinks. He did not take it well when I declined.

See, e.g., Giles v. Hometown Folks, LLC, 61 F. Supp. 3d 749, 755 (E.D. Tenn. 2014).

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 Jimmy Snodgrass at jsnodgrass@kramer-rayson.com.

February 2025

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HOW TO THRIVE IN LAW & LIFE By: Emily Heird, LPC/MHSP Vantage View Coaching

HOW TO SET AND ACHIEVE YOUR GOALS We’re a month into 2025 now, and I am curious: how are those New Year’s resolutions holding up? If you’re like most people, they’ve probably already faded into the background. It’s not just you. Research shows only about 20% of people stick to their resolutions, and fewer people are making them at all. In 2024, only 3 out of 10 Americans set resolutions. It seems we’re realizing that “New Year, New You” might be more of a marketing slogan than an effective strategy for change.

But that doesn’t mean we should give up on goals and dreams! It just means we need a better approach. One powerful concept to leverage is the “Fresh Start Effect.” Dr. Katherine Milkman’s research reveals that certain times—birthdays, anniversaries, the start of a new season—provide a psychological boost for making changes. These “temporal landmarks” prompt reflection, opening us up to new possibilities. While January 1st is the classic example, you can create a fresh start anytime: the beginning of a new quarter, month, week, or even day. It’s all about mindset. You have the power to create fresh starts throughout the year.

Once you’ve got that fresh start feeling, it’s time to get clear on your vision—to set those goals. This is the first thing I do with my clients and the foundation of our work. Some people know exactly what they want, while others need more exploration through our discussions to articulate their goals. Ask yourself: What’s no longer serving me that I’m ready to let go of ? What am I working toward this year? How do I want to grow as a person? What do I want to experience in my career and life?

Visualization and imagery can help you connect to a future version of yourself. Also, consider your intention: How do you want to show up in the world? By focusing on who you want to be, you embody the identity of the person who achieves those goals.

Now, here’s a crucial piece that often gets missed with resolutions: connecting to your “why.” So many resolutions fail because they’re focused on the outcome (lose 10 pounds, make partner) without a deeper reason behind them. Why do you want to lose 10 pounds? Is it to have more energy to play with your kids or grandkids? To feel and exude more confidence at work? To improve your heart health or reduce back pain? Why do you want to make partner? Sure, a bigger paycheck is nice, but what’s the real reason? Is it to save for your kids’ college, to take your family on amazing vacations, or to have emotional freedom around finances? Do you want the title, or do you crave the opportunity to lead, mentor others, and have more influence on the firm’s direction?

The more deeply you connect with your “why,” the stronger your intrinsic motivation becomes. And research shows that intrinsic motivation is a key ingredient for overall happiness and well-being. Tap into that “why” every day to fuel your actions.

Once you know where you’re headed and why, the next step is to

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define the “how”—the specific action steps. One of my main roles as a coach is to help clients map out how they will make their goals happen (and keep them on track). We break goals down into small, specific steps linked to a time deadline. For example, after defining why a solo law firm owner wants to increase profits, we get to the how. This requires getting more cases, which requires more marketing. Great start, but to increase specificity and a timeframe, it could be: • Publish 2 blog posts per month (the 15th and 30th) and share on social media channels • Spend $1,000 on local service ads each month and work with an ads expert to optimize them • Attend 3 networking events this quarter, one with other attorneys and two others where my ideal clients are (or other professionals who work with my ideal clients) Finally, commit fully and take consistent action. We often underestimate how long it takes to reach our goals (and we crave instant results!) – another reason why resolutions fail so quickly. So, give yourself some grace and build in some buffer time. Think about Olympic athletes: they’re not half-in, half-out when it comes to winning a gold medal. They’re all in and for years of committed action before they get the chance to compete if they make the Olympics. It can feel scary to fully commit, but half-hearted commitment only sets you up for self-sabotage. Full commitment doesn’t guarantee you’ll achieve every single goal, but it dramatically increases your likelihood of success.

Once you’ve started on the path to attaining goals, it’s important to track progress, evaluate, and make necessary adjustments. Is what you’re doing working? Are the strategies hitting the target? Noticing the incremental progress and celebrating the accomplishment of those steps boosts motivation to keep going. A helpful acronym for creating goals is SMARTER: Specific, Measurable, Achievable, Relevant, Time-Bound, Evaluate, Reward.

You can also use the science-based WOOP method developed by Dr. Gabriele Oettingen to help you plan for adversity and stay on track.

Wish: Identify your goal. For example, “I wish to increase firm revenue by 20% this year.” Outcome: Visualize the best possible outcome. What will success look and feel like? Obstacle: Acknowledge potential challenges.

For instance, “I’ll struggle to find time for business development due to court appearances.” Plan: Create an if-then plan. For example, “If I have a busy week, then I’ll dedicate my Saturday morning to marketing efforts.”

Lastly, surrounding yourself with others who want you to succeed and who will provide accountability is critical for success. This may be a mentor, a friend, a colleague, an expert, (e.g., a marketing expert), a peer group, or work with a coach who can help you with this process from start to finish. If you haven’t accomplished goals in the past, remember that past failures don’t determine future successes!

DICTA

February 2025

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DICTA

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T H R E E S T A R S , continued from page 13 Tennessee Blue Book, p. 750, available at https://publications.tnsosfiles.com/pub/ blue_book/23-24/23-24_TennesseeState.pdf.

World Population Review, Jackson, Tennessee Population 2024, https:// worldpopulationreview.com/us-cities/tennessee/jackson, last visited Jan. 8, 2025.

State v. Christopher Oberton Curry, Jr., No. W2022-00814-SC-R11-CD, p. 2 (Tenn.

Jan. 8, 2025).

State v. Christopher Oberton Curry, Jr., No. W2022-00814-SC-R11-CD, 2023 Tenn.

Crim. App. LEXIS 191, at *3 (Tenn. Crim. App. June 5, 2023).

Id. Id. at *4.

Id. Id. at *5.

Id.

2

3

4

5

6 7 8 9 10

11 12 13 14 15 16 17 18 19 20 21

Id. Id. at *8.

Id. Tenn. Code Ann. § 39-17-1307(b), (c).

Curry, No. W2022-00814-SC-R11-CD, p. 4 (Tenn).

Tenn. Code Ann. § 39-17-1301(3).

Curry, no. W2022-00814-R11-CD, p. 12 n.6 (Tenn.).

Id. at 9-10.

Id. at 13.

See id. at 15.

Id. at 16.

S C H O O L E D I N E T H I C S , continued from page 19 executive director praises the American Society of Addiction Medicine (ASAM) and its 4th Edition of the ASAM Criteria which lists “judges, lawyers, politicians, etc.” as safety sensitive workers and recommends “profession-specific” facilities with “safety-sensitive expertise” for the evaluation and treatment of safety sensitive workers.21 TLAP’s executive director relies on ASAM to make several points, including these: (1) that treatment plans for safety sensitive workers should take into account “the expectation that the level of treatment will generate recovery without any recurrence of substance use”; (2) on the subject of prescribed medication, that the advisability of long-term addiction treatment medications for safety sensitive workers should be “carefully consider[ed],” that “the monitoring organization [such as a LAP] should be consulted early in the treatment planning process to support best long-term outcomes and prevent professional damage,” and that the risks of “misuse and potential adverse neurocognitive effects of medications should be carefully considered”; and (3) that the appropriate length of post-addiction monitoring is “typically five years.”22 This view that lawyers are safety sensitive workers and that these listed consequences flow from the designation should give all Tennessee lawyers pause. These assertions are not supported by Tennessee law and are inconsistent with the ADA, as described in the DOJ’s findings. The safety sensitive worker justification should be carefully scrutinized as Tennessee charts a path forward to comply with the ADA.

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Id. The DOJ also explained that a determination to deny participation by a public entity to a person that poses a “direct threat to the health or safety of others” must be based on “an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence.”

Id. at 9 (citing 28 C.F.R. § 35.139(b)). The DOJ found that the TBLE and TLAP based their restrictions on speculation and stigma rather than an individualized assessment or current evidence. Id. at 9.

Id. at 9.

Id. (recommending that the TBLE and TLAP promptly implement the following corrective measures: (1) refrain from prohibiting the use of medications to treat substance use disorder; (2) refrain from inquiring into substance use disorder or mental health disorder or treatment, unless voluntarily disclosed by the applicant to explain conduct that would otherwise warrant denial of admission; (3) not recommend or impose conditional admission solely on the basis of diagnosis or treatment of substance use disorder or mental health disorder or use of lawfully prescribed medication for substance use disorder; (4) ensure that conditions of admission imposed on an applicant who reveals a substance use disorder or mental health disorder are individually tailored to address the conduct at issue; and (5) provide ADA training to TBLE and TLAP personnel.

Id. (citing 28 C.F.R. §§ 35.173 and 35.174).

As noted in the DOJ discussion of the D.S. case, Vanderbilt described the practice of law as a “safety sensitive position” when justifying its conclusion that D.S. was not fit to be a lawyer despite his successful use of buprenorphine to treat his OUD for over a decade.

J.E. “Buddy” Stockwell, The New ‘ASAM Criteria 4th Edition’: Today’s Blueprint for Addiction Treatment, Tennessee Bar Journal, Vol. 60, No. 2 (March 4, 2024), https://www.tbaorg/?pg=TBJSelect&pubAction=viewIssue&pubIssueID= 39458&pubIssueItemID=233724.

Id. Id.

Letter from U.S. Dept. of Justice, U.S. Attorney for the Middle District of Tennessee, to John B. Coke, Esq., General Counsel, Legal Services & Judicial Development, Tennessee Supreme Court (Dec. 17, 2024), https://www.justice.gov/crt/case/ tennessee-board-law-examiners [hereinafter DOJ Letter].

Id. at 1.

Id. at 9.

D.S.’s case is also detailed in two NBC News stories. Hannah Rappleye and Adiel Kaplan, Justice Department Finds Tennessee Board Discriminated Against Lawyer Over Opioid Disorder Medication, NBC News (Dec. 24, 2024); Hannah Rappleye, Overcoming Poverty and Addiction, He Passed the Bar Exam. Then His Prescription Got in the Way, NBC News (Mar. 2, 2024).

DOJ Letter, supra note 1, at 5-7.

Id. at 2.

Id. See also Tenn. Sup. Ct. R. 7, Sec. 6.04 (providing that as part of the character and fitness investigation, the TBLE may refer an applicant to TLAP for an evaluation under Rule 33.05).

Id. at 3.

Id. at 4-5.

Id. at 5.

Id. Note from the author: a TBLE hearing would have been unnecessary if D.S. had simply consented to TLAP’s terms for a monitoring agreement (which would have required inpatient treatment to achieve abstinence from buprenorphine).

In that case, D.S. and the TBLE Executive Director could have entered an Agreed Conditional Admission Order. Tenn. Sup. Ct. R. 10.05(b)(2).

DOJ Letter, supra note 1, at 5.

Id. at 7-8.

Id. at 8 (citing 28 C.F.R. § 35.130(h)).

DICTA

February 2025

TOP TEN By: Sarah M. Booher

Tennessee Department of Human Resources

LOVING WHAT THEY LOVE: AN ODE TO OUR VALENTINES AND THEIR HOBBIES Ahhh, the season of amore is upon us. And while we debate if it is best celebrated as a made-up Hallmark holiday, a time for self-care, a night with your Galentines, or a chance to remember why you fell in love with your romantic partner in the first place, I instead took the opportunity to informally poll folks about what things interest their favorite people outside of the practice of law (although I personally use February 14th as a chance to annually share Nina Totenberg and Supreme Courtthemed valentines via social media).

So, without further ado, here’s my Top 10 list for fun hobbies and skills enjoyed by our beloveds.

joined a bocce team, but he also loves repeatedly clearing his throat when I’m trying to go to sleep.” Well, I guess it’s important that couples have both independent and team-building hobbies.

4. One lady has a full subscription to The Economist and listens to all their podcasts. One gentleman loves spending his free time listening to podcasts about British politics.

Now I know that we listen and don’t judge, but dang, y’all. Perhaps I should have defined “fun hobby” at the onset of this endeavor!

10. Taylor tells me that her husband really enjoys making his own concrete retaining pavers for his raspberry garden. “He made the various molds and dyes them.”

Already I have so many questions.

How many raspberries constitute a garden? What color concrete pavers best suit a raspberry-flavored garden? Is he aware that pavers are one of the cheapest things you can buy at Home Depot next to number stickers for your mailbox and individually-sold screws and washers? Is it also more affectionately known as the Prince Memorial Garden?

9. Marge’s husband has practiced drumming every day since she’s known him, and they’ve been married for 47 years. Either Marge is the most patient human being on the planet, or she’s the deafest, or she took herself on to Home Depot for the best insulation/sound absorbers money could buy. Either way, we wish him the best of luck in his fallback career.

8. Andrea says her husband is a “walking, talking calculator.” Her husband is my brother, and it’s true. He got all the family math genes aside from my ability to calculate 1/3 of any dollar amount – a number I’m very confident of after doing rough accounting in my head and then immediately confirming it thrice on my phone’s calculator.

7. Mary’s man likes to surf. That’s it. He surfs. How can I tease about that? He’s basically the coolest guy in all of East Tennessee, because I can barely stand on land, much less atop angry bodies of water.

6. Some of you ladies seem to have YouTube husbands.1 One “obsessively watches random crap,” one watches videos about Warhammer and “old world conspiracy theories” (again, I have a lot of questions),2 and another watches engine clips. Does this mean YouTube is an obsession for your obsessions, or a sub-obsession?

3. I’m here for this one: Kathryn’s husband enjoys “impersonating off-duty Santa.” In my mind (and please let it be true!), this means he’s smoking in his Santa suit in some dirty alley of Market Square, throwing back a few Jägerbombs as horrified moms and children stare at him from the street. Mouths agape. I will settle for nothing less than this mental image.

2. Some of you are single this Valentine’s Day, which means you have total and complete control over your own time, space, and money. No notes. This is one of the greatest and most enjoyable hobbies of all time.

1. Obviously my man gets the number one spot.3 James makes cheesecakes. Chocolate espresso cheesecake. Blueberry crumble cheesecake. Cranberry white chocolate chunk cheesecake. Oh, and let’s not forget pumpkin cheesecake for Thanksgiving, the one he used to reel me in. Honestly, he could easily make it a living rather than a hobby.

GORGEOUS WORKS OF INFLATION-PRICED CULINARY ART, I tell you! But let’s face it - I can’t make a living working out at the Y, so I’m going to let him stick to his day job.

Put down your phone. Turn your computer off. Set that aggravating case file to the side for one night, and pick up a bocce ball, a drumstick, or the fork off your plate of chocolate-covered strawberry cheesecake.

Fully delight in your valentine (and what makes them them). Or, if you’re in the market, hit up the Home Depot – I’ve heard it’s a great place to fall in love.

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5. Christina tells me that she and her husband Glenn have “recently February 2025

DICTA

Don’t blame me! More women responded to my query than men.

After a quick Google search, Warhammer appears to be akin to Dungeons & Dragons? Can someone confirm or deny? Another quick search took me to the Tartarian Empire, which likes to say “mud floods” a lot.

I’m happy to turn my article over anytime you want to highlight your person in a law-centered publication of regional distribution. I care and am happy to share writing responsibilities.

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BARRISTER BITES By: Angelia Morie Nystrom

Vice President for Advancement and Chief Legal Counsel East Tennessee Foundation

DIET REHAB AND THE RISE OF BRUSSELS SPROUTS I do not think I will ever forget one of my first conversations with Trace after I dropped him off at UT last summer. He called home to tell me how much he loved college, and then he sent the dagger through my heart: “It’s amazing… I get three really good meals a day!”

“Excuse me,” I thought. “Didn’t I have three meals a day for you for the last 18 years?” Given that I LOVE to cook and that I LOVE to write about cooking, I was more than a little bit insulted.

By the time Trace came home for Christmas, his tune had changed considerably. He told us that he was so glad to be home to get really good food. He then said that all of the cafeteria food at UT was brown and that he wanted lots of colorful foods. When he was younger, colorful foods included M&Ms and pop-tarts. This time, though, he meant fruits and vegetables.

I felt vindicated at that point and was determined to “up my vegetable game.” As a general rule, vegetables at our house include sweet potatoes, green beans, and Brussels sprouts. While we like others, those seem to be the ones that we eat most frequently. Trace will not eat sweet potatoes, and I find it hard to be creative with green beans. That meant that Brussels sprouts would be a frequent side dish on our table while Trace was home.

Generally, I just toss Brussels sprouts in olive oil, add a little salt and pepper, and roast them in the oven until they are crispy. If I am feeling adventurous, I may toss them in Mike’s hot honey after I’ve finished cooking them, but that is a rarity.

With Trace at home and actually wanting green vegetables, I knew that I would need to be creative with the Brussels sprouts. I found a couple of recipes that were huge hits at our house.

The first one combines my love of Brussels sprouts and bacon: Shredded Brussels Sprout Candied Bacon Salad. It is quick, festive, easy to make ahead, and so delicious. Shaved Brussels sprouts, kale, nutty Manchego cheese, warm candied bacon, walnuts, and sweet pomegranates. All tossed with a delicious cinnamon apple dressing that is sweet and tangy. Every bite of this salad is bursting with flavor. The candied bacon and walnuts that create amazing textures. They are tossed together with a little sugar and spice, then baked to deliciousness. It is too good not to share.

To make, preheat oven to 400°. Line a baking sheet with parchment paper. On the baking sheet, toss together 7 slices of chopped bacon (I prefer the Benton’s hickory smoked bacon), 2 tablespoons of chopped fresh rosemary, 1 tablespoon of brown sugar, 1 tablespoon of pure maple syrup, and 1 teaspoon of cayenne pepper. Arrange in an even layer and

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bake for 5 minutes, until bacon is crisping. Add 1 cup roughly chopped walnuts and 1 tablespoon of salted butter and toss to coat. Bake another 8-10 minutes, watching closely.

In a large salad bowl, combine 4 cups shredded Brussels sprouts and 2 ½ cups chopped kale.

To make the dressing, combine 1/3 cup extra virgin olive oil, 1/4 cup apple cider vinegar, 1 small shallot (chopped), 1 tablespoon fresh thyme, 1 tablespoon of orange zest, 1/4 teaspoon cinnamon, and kosher salt and pepper to taste. Pour dressing over the salad and massage into the greens. Add 1 ½ cups pomegranate arils, 1 cup grated Manchego cheese, and 1 cup pepitas. Toss together until well acquainted. Arrange the warm bacon and walnuts over the salad.

Serve warm or at room temperature.

If you are looking for something that can be served either hot or cold, Blackberry Farm’s Roasted Brussels Sprouts and Apple Salad with Black Walnuts cannot be beat. This recipe will convince even the biggest skeptic to love Brussels sprouts.

To prepare, trim and quarter 1 lb Brussels sprouts. Toss in olive oil and spread evenly over a baking sheet. Bake in oven at 350° until Brussels sprouts are tender and lightly browned. While the Brussels sprouts are baking, prepare a sweet hot mustard sauce by mixing 1/4 cup Dijon mustard, 2 tablespoons whole grain mustard, 1 ½ teaspoon apple cider vinegar, 2 tablespoons firmly packed light brown sugar, and 1/8 teaspoon hot sauce.

In a separate dish, whisk 2 tablespoons of smoked onion jam or caramelized shallots, 1 tablespoon sherry vinegar, 5 tablespoons olive oil, and kosher salt and black pepper to taste. Add at least 2 tablespoons of the sweet hot mustard. (I add the entire mustard mixture. It is just that good!) Add the Brussels sprouts and mix well.

Then, add 1 ½ Fuji or Gala apples (cored and thinly sliced) and 1 cup toasted black walnuts. Transfer to casserole dish and heat in oven until warm. Note that this can also be served as a cold salad. I prefer it warm, though, as the heated apples and walnuts seem to bring out the flavors even more.

School is about to start again, and Hugh and I are hoping that Trace has enjoyed eating at home so much that he will actually visit occasionally. If he does, I will make sure that we have something green… and it likely will be Brussels sprouts. If you have any good recipes, feel free to share with me. You might see them in print in DICTA next month!

DICTA

February 2025

LEGAL LIBATIONS: KNOXVILLE BREW REVIEW By: Parker Bohne LMU Duncan School of Law J.D. Candidate, 2026

PRINTSHOP BEER CO. Located at 1532 Island Home Avenue, Printshop Beer Co. is the perfect place to treat yourself to riverfront views and craft brews.

The Atmosphere Printshop Beer Co. exudes an unmistakable “come as you are” vibe, making it the perfect place to unwind after a bike ride or walk along the Island Home Avenue waterfront. The brewery’s name pays homage to Stubley Knox Lithography, the printing company that previously occupied the taproom’s space. Situated along the river in a repurposed industrial building, its modern, yet casual, atmosphere strikes a balance between raw and refined. Natural light floods the taproom through large windows, giving it an airy feel that complements its expansive, open layout. The harsh concrete floors are softened by the warm tones of a wooden bar and tabletops, creating a comfortable and inviting space.

Local artwork from “featured artists” adorns the walls, adding a touch of creativity that reflects the surrounding community. Both seasoned craft beer aficionados and newcomers eager to explore will find Printshop Beer Co. welcoming with its approachable and friendly ambiance. It’s clear that community is a priority.

The brewery regularly hosts events that bring people together--from Paint and Pints Workshops, where beginners can enjoy crafting with a pint in hand, to gatherings like “Dungeons and Drafts,” weekly yoga on Saturday mornings, and the Printshop Putting League for disc golfers.

With both indoor and outdoor seating options, families, friends, or any large gathering of people can enjoy this versatile space. Whether you’re stopping in for a casual pint, attending one of its many events, or reserving the taproom for a private party or workshop, Printshop Beer Co. is a place where everyone feels at home.

The Brews Printshop Beer Co. boasts a diverse beer menu that caters to all tastes, ensuring a positive experience for every guest. Lighter options like the crisp Southern Lager and refreshing Pilsner are perfect for easy sipping, while the Robot Vampire Cowgirl Disco (try saying that five times fast) adds a fruity twist with its strawberry infused Kolsch. Hop enthusiasts will appreciate bold selections like the Karmic Rap Sheet Hazy IPA, packed with tropical citrus aromas, or the Hop Pusher West-Coast IPA, offering a dank, tropical punch. For malt lovers, the Baker Creek Brown Ale delivers rich notes of chocolate and toffee, while the Hedonistic Tendencies Imperial Stout provides a decadent treat with flavors of chocolate and toasted coconut. The menu offers something to discover and enjoy for everyone, from seasoned craft beer fans to newbies trying their first pint.

In the taproom cooler, you will find a limited selection of canned Printshop Beer Co. brews. And for those that prefer something other than beer, the cooler provides a range of ciders and seltzers, as well as non-alcoholic options like iced coffee, sweet tea, soft drinks, and a variety of non-alcoholic beers.

The Food Aside from a small selection of snack items, Printshop Beer Co. does not provide a food menu. It does, however, host various local food trucks, so you’ll just have to stay up to date with Printshop’s social media pages to make sure you don’t miss out on all the good eats.

February 2025

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Address Changes

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

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Hannah M. Clyde BPR #: 041385 McKinnish Law Group, PLLC 11826 Kingston Pike, Suite 220 Knoxville, TN 37934-3842 Ph: (865) 229-9854 hannah@mckinnishlaw.com

David W. Headrick BPR #: 025443 SAM, LLC 9047 Executive Park Drive, Suite 120 Knoxville, TN 37923-4600 Ph: (865) 363-9181 headricklaw@yahoo.com

Sarah A. Hawk BPR #: 039754 Pilot Company 5508 Lonas Drive Knoxville, TN 37909-3221 Ph: (865) 588-7488 sarahahawkk@gmail.com

Erin Alexander White BPR #: 034486 Young, Williams & Theiss, P.C. 300 Montvue Rd. Knoxville, TN 37919-5510 Ph: (865) 637-1440 erin@ywlawfirm.com

DICTA

February 2025

PRIVILEGED TO BE IN THE LAW By: Lauren Vassallo

Jury Coordinator for Knox County

MY ROLE AS A JURY COORDINATOR The legal system is routinely portrayed as a world where attorneys and judges are the primary figures driving justice. While this is true, every attorney and judge would readily admit that behind every trial, hearing, and legal proceeding, countless non-lawyer professionals are also playing key roles to ensure the system functions smoothly. Among these professionals is the jury coordinator, whose role is integral in upholding the justice system. The jury system is the bedrock of our democracy, ensuring justice is decided by a group of peers representing the community, rather than a single individual determining the outcome of a specific issue. The jury coordinator works as part of a team of individuals to safeguard the integrity of the jury process and thereby, the preservation of democracy as we know it.

In 2022, I was appointed by the Knox County Criminal Court judges as the jury coordinator. This role’s purpose is to oversee the jury service processes within the Criminal Court Clerk’s office. Prior to my service in this role, I had the opportunities to work as both a Judicial Assistant to a sitting criminal court judge and as a Victim Witness Coordinator at the Knox County District Attorney General’s office. Because of my experiences in these positions, the perspective I bring to this role is different than previous jury coordinators. This background informs my work in ensuring the jury process upholds the integrity of trials and proceeds justly and impartially.

Jury service is one of the most essential civic duties a citizen can perform, yet it is often misunderstood. It has been the subject of books, movies, and television shows, frequently described as a loathed chore in the community. Yet much to the contrary, jury service plays a crucial role in upholding our democracy and ensuring the fairness of our justice system. The role of a jury coordinator is critical in ensuring that jurors are properly summoned, educated, and selected, allowing the system to function as intended. As the Knox County Criminal Court Jury Coordinator, I ensure that this process operates smoothly from start to finish. My daily tasks are varied, but they are vital to the efficiency of our courtrooms and the integrity of the trials conducted within them. Every juror’s participation directly impacts the fairness of the justice system, making their role a cornerstone of a democratic society.

To serve, jurors must first meet the qualifications outlined in Tennessee Code Annotated. Specifically, Tenn. Code Ann. § 22-1-101, establishes the eligibility criteria for jury service: being a U.S. citizen, at least 18 years old, and a resident of the county in which you are summoned to serve. Potential jurors are randomly selected from the Department of Motor Vehicles database, and summonses are then sent to the address of record to inform them of their obligation. This process is often the first point of contact a potential juror has with the legal system, and it’s the responsibility of the jury coordinator to ensure the February 2025

summonses are clear, respectful, and informative.

Once jurors are summoned, the next phase is managing the juror pool. This involves carefully tracking the status of each potential juror, including qualifications, requests for excusal, postponements, and availability. It is crucial to ensure we have a sufficient number of jurors for each trial while also respecting individual circumstances. A key part of my role is maintaining a jury pool that reflects the diversity of our community. By comparing the pool with the latest Knox County census data, great effort is made to ensure proportional representation across racial and ethnic groups. Additionally, juror orientations are conducted to inform potential jurors about their rights and responsibilities and to guide them in understanding what to expect during their service.

Throughout the process, the jury coordinator serves as the point of contact for potential jurors. This helps to ensure that trials move forward as scheduled and that the jurors understand their service as an aspect of citizenry in this country. Many people have never served on a jury before and are unfamiliar with the process, often having questions or concerns about their role.

I work in close collaboration with judges, attorneys, and other court staff to select a qualified jury panel for each trial. This process involves understanding each case’s specific needs while ensuring that jurors are selected fairly and impartially. Maintaining accurate records is crucial, including tracking attendance, compensation, and reasons for excusal, and documenting every detail to ensure transparency and compliance with legal standards. Regular communication with all parties involved helps to ensure that each trial has the appropriate number of jurors and runs smoothly.

One often overlooked responsibility is educating the public about the critical role of jury duty. Many people are unaware of how essential their participation is to the functioning of the legal system. Jury service is not just a civic duty; it is an opportunity to contribute to something larger than oneself and to help uphold justice in our society. I take pride in raising awareness about this vital responsibility, as well as informing the public about jury scams, which have unfortunately become more common in recent years. Educating citizens about both the importance of their service and how to protect themselves from scams is crucial.

Working in the legal field is a privilege, not only for attorneys and judges, but for the support staff who help the justice system function smoothly. It is an honor to contribute to the balance that keeps our legal system running. While my work as the Knox County Criminal Court Jury Coordinator may not always be in the spotlight, I understand that it plays a crucial role in upholding the fairness of our system. Ultimately, when you receive a jury summons, it is not just a notice — it is a privilege.

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

PRO BONO SPOTLIGHT By: Caitlin A. Torney Director of Pro Bono Legal Aid of East Tennessee

PRO BONO YEAR IN REVIEW It was a pleasure and a privilege to work with such an incredibly supportive and responsive bar association as the Knoxville Bar Association in 2024. I am excited to share all the amazing work you have done this past year, and I hope this will inspire you to continue to build on this year’s accomplishments in 2025. There are so many ways to get involved: clinics, direct representation, and serving on the KBA’s Access to Justice committee are all great ways to give back to your community as you develop your legal skills and network.

Last year, our collective efforts made a difference. We hosted 19 clinics in the Knox service area, serving 214 clients. Among them was the Faith and Justice Clinic, held at the Church of Jesus Christ of Latterday Saints in early spring, where 11 volunteer attorneys assisted over 38 clients. These clinics create safe, welcoming spaces for conversations about challenging legal issues. In 2025, we aim to host at least two more and invite your suggestions for additional host sites. Special recognition is also due to ATJ Committee member Crystal Shrof and Cokesbury Church for all the work they do at their Administer Justice Clinic, which offers monthly clinics free of charge along with social service support.

In the summer of 2024, the Expungement Clinic, a collaboration with the Knox Area Urban League, the KBA ATJ Committee, the UT Legal Clinic, and others, helped 25 residents expunge charges and waive court costs, opening doors to new opportunities. We also joined a new statewide initiative, helmed by our very own Professor Joy Radice, The Rights Restoration Project, that connects justice-involved individuals with private attorney volunteers to help restore their civil rights. This project is supported by comprehensive forms, training materials, and law student assistance that empowers attorneys from all practice areas to gain the skills and knowledge to help clients through this life-changing process. I encourage you to email me if you are interested in joining this initiative.

The Debt Relief Clinic, supported by Judge Bauknight and the local bankruptcy bar, holds a special place in my heart. This quarterly clinic

has helped 25 clients this year and thanks to dedicated volunteers, each leaves with renewed hope and a plan to manage their debt. Our Veteran’s Clinic, now operating bimonthly, served 69 veterans this year, including clients traveling from as far as Nashville and Kentucky. Yesterday, I had the honor of matching a 75-year-old Marine veteran with one of our dedicated volunteers to discuss estate planning, ensuring this widower, caring for 11 grandchildren, receives the legal guidance he needs.

Beyond our clinics, we’ve matched 90 cases for full representation this past year. Our website is continually updated with available cases, and I hope you’ll answer the call when you receive a request for help.

Collectively, local attorneys contributed over 500 hours of pro bono service this year, a value of nearly $145,000—and these are just the reported hours.

Finally, I want to acknowledge our community’s incredible response to the devastation caused by Hurricane Helene in late September 2024. This unprecedented disaster hit neighboring counties hard, and I was deeply moved by the immediate and overwhelming swell of support from attorneys eager to assist. We are actively working in the affected areas, where legal needs are beginning to emerge, and we are planning clinics for early January to connect disaster survivors with volunteer attorneys. Legal Aid of East Tennessee will continue to work on the ground to meet the needs of the community and connect interested attorney volunteers with pro bono opportunities on the ground. Please keep an eye on our website for more information.

I would be remiss if I didn’t close by thanking Tasha Blakney and the wonderful staff at the KBA whose dedication and hard work make this all possible. I am also so grateful for the incredible commitment of my co-Chair for the KBA Access to Justice Committee, Daniel Ellis: I am inspired by his passion and boundless energy. The work we all do together changes lives and strengthens our community. Let’s carry this momentum into 2025 with renewed determination.

Thank you for all that you do.

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. Ssign up via the KBA website. NOTE: The clinic will be held bimonthly in 2025.

• Wednesday, February 12 Noon – 2:00 PM. • Wednesday, April 9 Noon – 2:00 PM Virtual Pro Se Name Change Clinic: Zoom. Email ctorney@laet.org.

• Thursday, March 6 4:30 PM – 6:00 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.

• Saturday March 8 9AM – Noon.

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DICTA

February 2025

OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber

LIFE IN THE CIRCUS Sherry by Frankie Valli & The Four Seasons blared from the speakers of his stereo system at 8:00 a.m. on a Saturday morning. The year was 1983. I was in 8th grade, and my father’s music woke me and five of my friends who had spent the night in our Farragut home. How could my father know that I kissed a girl named Sherry on the back of the basketball team bus the night before? My buddies laughed, having given me up to my parents the night before. So was life inside the circus that was my childhood home.

Growing up on Beacontree Lane was a wondrous musical ride. My memories from that time are cloaked in the smell of bacon and pancakes and the ever-present music from my father’s state-of-the-art stereo. My father, Bob (that’s what the grandkids call him), hasn’t always been a lawyer, but he has always been a showman, a music lover, and the ringleader of a traveling circus since his birth.

Seven years younger than his only sibling, Bob was a born performer and entertainer. He did anything in his youth to grab attention and entertain others. He cross dressed and sang, bought a ventriloquist dummy, and performed on radio variety shows. By the time we came along (I am the oldest of three), he’d chosen the courtroom as his stage, the dummy relegated to a case in our garage. Our entire youth, the frightening bundle of switches was covered in cobwebs in a case. My brother and sister and I would dare each other to put our hands inside it, a perfect beginning to a Stephen King movie. We horrified our friends in the neighborhood with the same dare. Everyone’s dad was a ventriloquist, weren’t they?

In our house, music came hand-in-hand with performance. My parents formed Tennessee Troupe & Travel (TTT), a group that roamed the southeast in buses to Tennessee football games. They had annual parties, family picnics, and rented out ballrooms to perform skits and lip-sync performances for each other’s enjoyment. Dad’s frivolity carried over to our bar association. My father took the lead in directing the same type of shows for the Knoxville Bar Auxiliary Dance. As a child, our house had a revolving door - my parents’ friends, local lawyers, members of the judiciary, and mayors would come to our basement to practice musical/comedic performances, drink beer, and laugh. My father directed it all - choreography and music selection. There was a constant infusion of music, laughter and comedic strategy traveling through the ductwork and the walls of our house and directly to my room. We traveled to family vacations with the same pack of gypsies. Whether it was a beach vacation in Florida or a New Year’s celebration in Gatlinburg, we traveled with upwards of 10-15 TTT families. Consequently, my siblings and I have dozens of friends our age whom we have known the entirety of our lives.

As children, we were often left to fend for ourselves in hotels and beach February 2025

resorts as a community of carnival children, who, quite naturally, would also transform into performers. On one particular beach trip, we, ranging in ages from 6 to 12, hijacked a video camera to record a cooking show.

We performed and were expected to perform. Urged by my father, my brother and I were the Blues Brothers at a TTT picnic, singing Soul Man and gesticulating the studied moves of John Belushi and Dan Ackroyd; the same performance given by Bob and Attorney Mike Rowland at the Bar Auxiliary.

I was 11 years old. On Saturday evenings we were placed in the car without seatbelts and driven to the original Buddy’s BBQ for bluegrass bands. We crawled under tables and chased one another through cigarette clouds and clanking bottles as Fox on the Run and Foggy Mountain Breakdown came from the stage. I can still smell the cigarette smoke and spilled beer when I hear a banjo, one of a thousand glorious Pavlovian responses from my youth. We, the children of the SNL cast, were on a carousel with yacht rock, Merle Haggard, George Jones, and Elvis, caught up in the sounds of the circus without any understanding of its unique beauty and our good fortune. The true gift was the music.

As a teenager, my father bought me sound equipment and taught me how to make mixed tapes. I became a DJ, playing everything from kids’ birthday parties to high school reunions. I taped Casey Kasem’s Top 40 every week on a reel-to-reel tape recorder and then transferred my chosen favorites to a cassette. If you think being the first boy to drive was an advantage in 1984, try knowing your way around mixed tapes to gift to young ladies. My siblings and I are the offspring of a born performer and rock n roll historian. Amy, the baby, is the only one who enjoyed the full benefit of the performance gene. Everything that comes from her mouth is funny. Unfortunately, the gifts of my parents did not include talent.

Pryors are among those cursed with extraordinary stage presence but without any musical talent. Yet, it is the music for me that has endured. In my first car on the night I earned my license, I slipped in a cassette mix tape. First song was ACDC, Highway to Hell. Steve Earle’s Transcendental Blues album single-handedly pulled me through a forest of grief after Cheryl’s death. First slow dance - Open Arms by Journey. First dance with Cheryl, Spandau Ballet’s True. First dance with Nancy, I Need to Know by Marc Anthony - Latin dance class. Lord, that dance. I play music when I’m getting ready in the morning, and listen through my airpods on my way to work. I often have Spotify playing on my desk. Nancy and I scour the planet to see bands we love.

When I reflect on my youth it is with great happiness. I view it through a 70s haze of autumnal colors and always bathed in laughter and music, knowing that I was loved. It was a gift to travel with the circus.

Thank you, Mom and Dad.

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