the magazine of the Memphis Bar Association
Vol. 35, Issue 3
Cover Story
NINETEEN YEARS ON THE BENCH: SOME REMINISCES FROM Charles E. Pazar, Retired Immigration Judge
THIS ISSUE:
The Good-Faith Exception to the Exclusionary Rule: Tennessee Law in a Nutshell (Part One)
New Risks for Immigration-Related Hiring Decisions
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Volume 35, Issue 3
FEATURES 8 Nineteen Years On The Bench: Some Reminisces From A Charles E. Pazar,
Retired Immigration Judge
12 The Good-Faith Exception to the Exclusionary Rule:
Tennessee Law in a Nutshell (Part One) INTERVIEW BY JUDGE W. MARK WARD
14
Inns of Court Members Volunteer at FedEx Family House
16
New Risks for Immigration-Related Hiring Decisions
23
Regional Arbitration Competition
27
October is Pro Bono Month
30
The Center for Excellence in Decision-Making
BY TERRENCE O. REED BY DAVID JONES
BY WILLIAM F. WALSH, IV BY DANIELLE SALTON
COLUMNS 6
President’s Column
BY EARLE SCHWARZ
18 MALS Corner: McIver Celebrates 20 Years as Leader of MALS 24
Circuit Court Report BY STEPHEN LEFFLER
28 Community Legal Center: Equal Justice Works Fellowship Project Will
Provide Civil Legal Services for Memphis Immigrants BY BRITTANY BANES
32
People in the News
34
Classified Advertisements
3
MEMPHIS LAWYER
2018 MBA Officers
the magazine of the Memphis Bar Association
MBA Publications Committee Stephen Leffler, Chair Nicole Grida, Vice Chair Lucie Brackin, Executive Committee Liaison Preston Battle Leslie Byrd Karen Campbell Dean DeCandia Chastity Sharp Grice Sean Hunt Kendra Lyons Harrison McIver Jared Renfroe Jake Strawn Charles Summers Ellen Vergos Christy Washington
Earle Schwarz President
Lucie Brackin
Secretary/Treasurer
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ABA Delegate Lucian Pera AWA Representative LaQuita Stokes Law School Representative Elizabeth Rudolph NBA Representative Florence Johnson YLD President Mary Wu Tullis
MBA STAFF
Anne Fritz
Executive Director
4
Vice President
2018 Board of Directors Mike Adams Megan Arthur David Bearman Sherry Brooks Frank Cantrell Leslie Coleman Amber Floyd Peter Gee Tannera Gibson Nicole Grida Doug Halijan Earl Houston Sean Hunt Steve Leffler
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PRESIDENT'S COLUMN
By EARLE SCHWARZ, MBA President
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f you receive this magazine, you are a member of the MBA. Are you taking full advantage of the opportunities available to you as a member of the MBA? Are you a member of the Young Lawyer’s Division if you qualify by age or years of practice? Are you a member of one or more of the sections sponsored by the MBA? Have you attended at least one of our high quality Continuing Legal Education offerings utilizing your member discount? Have you watched any of the MBA’s online CLE offerings? Have you volunteered to participate in one of the many pro bono programs that the MBA sponsors? Have you attended a Bench/Bar conference? Have you been to a Bar Meet to socialize with other members? Have you gone to or fielded a team in Bar Feud? Have you coached a team or served as a judge for the High School Mock Trial competition run by the YLD? Have you joined Team MBA, our team of runners in one of the several events in the St. Jude Marathon weekend on Dec. 1? Did you run in this year’s new and improved Race Judicata? Have you volunteered to serve on one of the MBA’s standing committees? Did you join fellow members on the MBA’s trip to Cuba and Trinidad? Did your firm sponsor a high school student as part of our Summer Law Intern Program (SLIP)? Have you voted in the annual election? Have you attended an Annual Meeting? The John Dice Wellness Seminar? A Wellness Retreat? A Center for Excellence in Decision Making training or seminar? Played in the YLD’s annual golf tournament? Do you read the Memphis Lawyer? That was a trick question! You get the point. There are many opportunities to take advantage of your membership in the Memphis Bar Association. And the cost is nominal relative to membership in other volunteer organizations. We are moving into the membership renewal period. The MBA wants you back. But, more than that, we want your involvement. If you want to be a leader in the Bar 6
Association, we will find a spot for you; don’t be shy. If you don’t have the time to be an active leader, but still would like to contribute to the community of ideas that will shape the future of the MBA, then volunteer to participate in the MBA’s strategic planning process. This is a grass-roots planning effort. We need new people with fresh ideas. Finally, if you have no interest in participating in anything that the MBA offers, I’m just going to put it out there --- the MBA needs your money. The MBA has an annual budget in the range of $750,000. Approximately one-third of that revenue comes from dues. The MBA cannot continue to offer the breadth and variety of pro bono, access to justice and career development activities at the current level without financial support from each of you. So, please renew; if not for yourself, then for the good of the whole.
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7
NINETEEN YEARS ON THE BENCH:
SOME REMINISCES FROM Charles E. Pazar, Retired Immigration Judge Our Roving Reporter recently caught up with Charles Pazar, who retired from the Memphis Immigration Court in September 2017. Judge Pazar had worked for the Federal Government for 37 years, 19 of them as an Immigration Judge. R.R. asked Judge Pazar some questions about his experiences in Memphis, and his hopes for the future of the Memphis Immigration Court. R.R.: When did you first arrive in Memphis, and what was the court like then? Judge P: Attorney General Janet Reno appointed me as the first full time permanent Immigration Judge in Memphis in 1998. Prior to my appointment, removal cases were heard through the Dallas Immigration Court. Immigration Judges came to Memphis from Dallas and other cities to hear cases. Unlike my current portly self, I was thin and had black hair, and recently came from the Office of Immigration Litigation in the Civil Division of the Department of Justice. Originally, the Court was on the 10th floor of the Federal Building and was housed in space that Tom Davis, then and now the Memphis Court Administrator (and the best Court Administrator in the system, IMHO), described as having the charm of a bus terminal waiting room in Shreveport, Louisiana. The Court was in a crowded space with mismatched furniture; the “bench” was a Formica-topped table. The Court moved a few months later to the fourth floor of the Federal Building to space that looked like a real hearing 8
room. The Court now hears cases in a commercial building in Brinkley Plaza, at the corner of Main Street and Monroe Avenue, in downtown Memphis. During the early years of the Memphis Court, Immigration Judges visited from other Courts to help with the backlog of asylum cases. The docket in 1998 was comprised heavily of asylum cases from Mauritania and Somalia. Today, while most of the docket involves Respondents from Central America, the Memphis Court hears cases from all over the world. Last fiscal year, the Memphis heard cases in over 40 languages. Here’s a quiz: if I name the language, can you name the part of the world where it is spoken? Hassaniya. Mam. Foo Chow. These are all languages spoken by Respondents in the Memphis Immigration Court. Respondents in Immigration Court have a due process right to competent interpretation. EOIR has a contract with some company to provide interpretation service. Since I promised myself to be upbeat in the article, I will not comment on the quality of service provided by this company. The interpreters tend to be superb.
Then, as now, the venue of the Court was Tennessee, Arkansas, and north Mississippi. Later, Immigration Judges heard Kentucky cases by video.
and emergency room physicians) and I believe that this growth of cases has added to the stress of all court personnel.
Then, as now, many Memphis lawyers were unaware that there was an Immigration Court in Memphis. In Volume 17, Issue 4, June 1999 issue of Memphis Bar Association The Bar Essentials there appeared an article on Page 6, entitled, “Welcome to the Memphis Immigration Court” by Immigration Judge Charles E. Pazar. The article explained that the Immigration Court is an administrative tribunal, within the Executive Office for Immigration Review of the Department of Justice. The article walked the reader through a “typical” removal case. At the end of the article, the author asked the lawyers reading the article, “What Can You Do?” The article touted an upcoming CLE program, “Introduction to Immigration Law for First-time Practitioners” and went on to encourage lawyers to participate in pro bono representation in the Memphis Immigration Court. The author hoped that this participation would create, a “winwin-win” scenario. First, the noncitizens benefit from the representation. Second, it goes without saying that the court benefits by representation. And third, the attorney representing the non-citizen “wins,” “by knowing that he or she has done the best job of representing someone who is new to our country, who does not speak the language, and who might not otherwise have been able to tell their story – and perhaps win relief from deportation.”
Of course all is not gloom and doom. Some years ago the Courts finally abandoned the 1970s era cassette tape decks for recording proceedings. Today the Court uses Digital Audio Recording, a (usually) reliable means of recording hearings (although the system crashed in 2014 for six weeks). Memphis now has two Judicial Law Clerks, although the Court needs one for each judge. Security has been enhanced. A court security officer is present in each courtroom during every hearing.
R.R.: How did you see the Memphis court change during your tenure as an Immigration Judge? Judge P: When the Court opened I was the only Immigration Judge. In 2002, Judge Lawrence Burman became the second Immigration Judge in Memphis. Now there are four Immigration Judges: Richard Averwater, Rebecca Holt and Vernon Miles. The caseload has ballooned. When I retired, I would have to ask, “Counsel, can you try this case February 14, 2020 at 1:00?” Part of this exponential growth in caseload is due to the “Surge” of 2014, which added thousands of cases to an already overloaded docket. Immigration Judges have always been under quite a bit of professional stress (Immigration Judges report stress levels comparable to those of prison wardens
One major difference has been the creation of a Disciplinary Counsel in the EOIR Office of General Counsel. Regulations promulgated in 2000 set out the bases for attorney discipline, and also set out a procedure that provides for a fair adjudication of claims of incompetence against lawyers in the Immigration Courts. My advice to lawyers who appear in Immigration Court: treat going to Immigration Court the way you would treat going to any other court. Be prepared. Unless you and the Respondent have agreed that you will only represent the Respondent for a limited purpose, such as a bond hearing, do not accept a fee from a Respondent in Immigration Court if you do not intend to represent the Respondent through the individual hearing. Follow the Immigration Court Practice Manual, which is another innovation since I became an Immigration Judge, for instruction on filing deadlines and the format of documents submitted. Always treat the Judge and Court staff with courtesy. Refrain from telling the Immigration Judge that he or she is “not a real judge” and the Immigration Court “is not a real court.” (Yes, I have heard that). The Immigration Court is not – yet – an Article I court. This is a distinction without a difference to your client if you do not follow the Practice Manual and otherwise comport yourself professionally. R.R.: Is there any legacy or tradition you left that you would hope to see continued? Judge P: From the establishment of the Court, I have participated in Continuing Legal Education classes in Memphis and other cities, often hosted by the MBA. My 9
colleagues continue that tradition. We hope to cut down on the number of suspended practitioners and improve the general quality of representation. Another Memphis legacy is commitment to pro bono representation. In 1999, I wrote an article in the Memphis Bar Journal encouraging lawyers to take cases pro bono in Immigration Court. Respondents in Immigration Court are not entitled to appointed counsel. When the Memphis Court opened, the “List of Free Legal Providers” was a blank sheet of paper. Tom Davis, the Memphis Court Administrator, and I, reached out to the legal community to help advance the cause of pro bono representation. Over the years, the Court has worked with the Community Legal Center, Latino Memphis, the University of Tennessee Immigration Clinic, and the University of Arkansas Immigration Clinic, among other groups, to encourage representation of Respondents in Immigration Court. I am gratified to see that this commitment has continued since my retirement.
“Reasonable minds can differ.” The president of the National Association of Immigration Judges has described the Immigration Courts as having traffic court volume with Supreme Court consequence. The volume of paper (the Immigration courts do not yet have electronic filing) can be staggering. There is nothing like a motion for summary judgment or a motion to dismiss in Immigration Court. Every application for relief is heard all the way through. The Immigration Judge dictates a decision from the bench 99 percent of the time, without benefit of a transcript, but the case is on the record. Appeal lies to the Board of Immigration Appeals, and then, for the non-citizen, to the Sixth Circuit. With so many cases being heard, the opportunities for pro bono representation in the Immigration Courts are numerous. Some resources are set out below.
R.R.: What are your plans for retirement? Judge P: At my retirement party, Chief of Staff to the AcVting Director of EOIR Christopher Santoro came from Headquarters and gave a very kind speech. He noted that I had decided over 25,000 cases during my time on the bench. Judge Santoro also noted my interest in family history and genealogy and pointed out that this number was equal to the population of Jurbarkas, Lithuania, where my maternal grandfather was born. He calculated the number of decisions I had made, including motions decided and cases heard, at over 1,000,000. No wonder I felt tired. Judge Santoro mentioned my travel in pursuit of family history. I enjoy researching my family’s history. I’ve visited Hungary, Slovakia, Romania, Germany and Lithuania in search of abandoned cemeteries and dusty church records. Connecting to my immigrant background is one way I coped with the stresses of being an Immigration Judge. My “people” got off the boat at Ellis Island. My maternal grandfather was 14 in 1906 when he came through Ellis Island with his sister. He arrived speaking no English. Some immigration officer treated my grandfather with respect (I hope) and listened to what he had to say. Whether I granted or denied relief, I owed the same to the people who appeared before me. I hope to continue to travel in search of my roots. I might also pursue certification in genealogy. Since retirement, I have spoken on panels at the law school and houses of worship. I will continue teaching as an adjunct professor at the University of Memphis. It will be great to teach during the day instead of after hearing cases all day. Since 2000, I have been teaching Immigration Law as an adjunct professor, first at the University of Mississippi and then at the University of Memphis. Why do I continue to do this? I want to imbue law students with a love of Immigration Law, and an understanding of the immigration tribunals and their operation. There are times when the consequences in a removal case can really be life or death. With so much at stake, it is particularly gratifying to see a former student, whether with ICE or in private practice, represent their client well in Court. It is unusually gratifying to see a former student choose to specialize in Immigration Law.
I knew I was getting old when I learned that one of my former students is now an Immigration Judge.
R.R.: What are your hopes for the court as it continues in your absence?
I am excited to be able to serve as the Scholar for the six part “Becoming American” series of documentary films that was recently shown at the Central Library in Memphis. Becoming American (http://becomingamerican.org/) is a six-part film viewing and scholar-led discussion series on America’s immigration experience. “Becoming American” is a City Lore project with funding from the National Endowment for the Humanities in collaboration with the Immigration and Ethnic History Society and the International Coalition of the Sites of Conscience. Memphis Public Libraries is one of 32 sites nationwide chosen to host this program series. Local sponsors include Memphis Library Foundation and Friends of the Library, along with local partners, Latino Memphis, Catholic Charities, Greater Memphis United Chinese Association, Confucius Institute at the University of Memphis, and Chinese Historical Society of Memphis and Mid-south.
Judge P: No wish list here, but I hope for adequate staffing and resources. The professionals at the Memphis Immigration Court, Judges and staff, work extremely hard to do the job that the American people expect them to do. It would be a shame for them to suffer burnout as the case loads climb and promised resources never arrive.
P.S.
Since the Roving Reporter caught up with Judge Pazar, he has been involved in another legal activity. He has joined a group of retired Immigration Judges and Board of Immigration Appeals members to advocate for judicial independence and fair application of the immigration laws in light of recent actions by the Attorney General. The Immigration Courts operate within the Executive Office for Immigration Review, which in turn is part of the Department of Justice. This means that the Attorney General is the final arbiter in cases before the Immigration Courts and the Board. Since January 2018, the Attorney General has instituted production quotas for Immigration Judges; issued a decision virtually abrogating the ability of asylum applicants who have been the victim of domestic violence to seek protection in the Immigration Courts; and also issued a decision taking away most of the
My hope is that the lawyers who appear in Immigration Court represent their clients well. It also requires work by the already overextended Judges and staff, to participate in CLE programs and encourage pro bono representation. I hope that the good relations among the Court, ICE, and the private bar will continue. From the time the Court was on the 10th floor of the Federal Building, the Court Administrator and Judges have worked to pursue good relations. One need not be disagreeable to disagree. My favorite saying in the law is, “Reasonable minds can differ.”
discretion that Immigration Judges had in scheduling their cases for hearing. The Director of EOIR has also shown scant regard for judicial independence when he assigned an Assistant Chief Immigration Judge to hear the continued case in one of the Attorney General’s remanded cases, instead of letting the Immigration Judge to whom the case was normally assigned, who had asked for briefs in the case, hear the Matter. The president emerita of the National Association of Immigration Judges has described this action by the Director as an existential threat to the independence of Immigration Judges. This group of retired Immigration Judges and Board members has filed amicus briefs with the Board and various Courts of Appeal, and has issued strongly worded press releases about the abrogation of judicial independence in the Immigration Courts. Judge Pazar suspects that this group will have plenty to do in the months ahead. t
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The Good-Faith Exception to the Exclusionary Rule: Tennessee Law in a Nutshell (Part One) by JUDGE W. MARK WARD, Judge of Criminal Court, Division 9 and Author: Tennessee Criminal Trial Practice (Thomson 2000-2009)
Part One: Non-Constitutional Violations:
D
espite the fact that a good-faith exception to the exclusionary rule has existed in federal court since 1984, the Tennessee Supreme Court has not, until recently, had occasion to address the merits of any good-faith exception. Perhaps frustrated by the lack of development of a good-faith exception, the Tennessee legislature in 2011 enacted the Exclusionary Rule Reform Act [ERRA] which is codified at Tenn. Code Ann. § 40-6-108. According to the Act, evidence which is obtained in violation of a state statute or rule, but not obtained in violation of a constitutional right, is not to be excluded or suppressed when it is obtained by virtue of a good-faith mistake or technical violation of such statute or rule. The Tennessee Supreme Court first addressed the merits of the good-faith exception to the exclusionary rule in 2016 and, since then, has rendered five opinions dealing with the good-faith exception.1 Most recently, in State v. Lowe,2 the Tennessee Supreme Court held that the ERRA represents an impermissible encroachment by the legislature upon the Supreme Court’s authority and responsibility to adopt exceptions to the exclusionary rule and violates the Tennessee Constitution’s Separation of Powers clause. In light of this ruling, I have been asked to provide a “short” synopsis explaining the current status of the good-faith exception in Tennessee state court. Space limitations prevent a detailed analysis of each Supreme Court opinion. Instead, I have attempted to “skip ahead” and provide the current “bottom line” for the practitioner. 12
The validity of search warrants in Tennessee is determined with reference to the Fourth Amendment of the United States Constitution, Article I, Section 7 of the Tennessee Constitution, various state statutes, and Rule 41 of the Tennessee Rules of Criminal Procedure. Accordingly, some deficiencies in search warrants constitute constitutional violations, while others are merely violations of a statute or court rule. Any discussion of the good-faith exception must take into account this dichotomy because the Tennessee Supreme Court has been much more willing to adopt good-faith exceptions for non-constitutional violations. This article [Part One] will be limited to a discussion of the good-faith exception for non-constitutional violations. Part Two [which will appear in an upcoming issue] will discuss the current state of the law with regard to the good-faith exception for constitutional violations. With regard to non-constitutional violations of a statute or court rule, as a result of three cases and an amendment to the Rules of Criminal Procedure, current law in Tennessee provides a good-faith exception to the exclusionary rule. In State v. Davidson,3 the Tennessee Supreme Court first adopted a good-faith exception when there was an inadvertent mistake resulting in there being a lack of an affidavit in support of the warrant as required by Tenn. R. Crim. P 41 and Tenn. Code Ann. § 40-6-103 and 40-6-104. In State v. Lowe,4 the Court adopted a good-faith exception for an inadvertent failure to make three “exact” copies of the warrant as required by Tenn. R. Crim. P. 41. In State v. Daniel,5 the Court
applied a good-faith exception when the executing officer inadvertently failed to leave a copy of the warrant with the person searched as required by Tenn. R. Crim. P. 41. In each of these three cases, the Court noted that the searches and search warrants complied with all constitutional requirements, but were deficient merely for a violation of a statute or court rule. In addition to these three cases, effective July 1, 2018, Tenn. R. Crim. P. 41(g) has been amended so as to allow trial judge’s to exercise “discretion to determine whether to exclude evidence that was gathered pursuant to a search warrant that meets constitutional requirements but is noncompliant with Rule 41’s technical requirements.6 Further, the Tennessee Supreme Court has interpreted this rule change so as to allow trial courts to exercise this discretion for any nonconstitutional technical violation, not just those that have already been addressed by the Tennessee Supreme Court. According to the Tennessee Supreme Court “[t] he implementation of this revised rule, at least for the most part, should obviate the need for this Court to determine on a case by case basis whether a good faith exception should be recognized for a technical violation of Rule 41.”7 In order to provide further guidance to trial courts handling motions to suppress for such nonconstitutional violations, the Court explained: …when a defendant has demonstrated that a search warrant or its supporting affidavit is noncompliant with the technical requirements of Rule 41 or other relevant statute(s), the burden shifts to the State to establish by a preponderance of the evidence that (1) the technical noncompliance was the result of a good-faith error, and (2) the error did not result in prejudice to the defendant. [citation omitted]. Although the term “good faith” is not subject to precise definition, a good-faith mistake is one characterized by simple, isolated oversight or inadvertence. A good-faith mistake does not include conduct that is deliberate, reckless, or grossly negligent, nor does it include multiple careless errors. Furthermore, where a finding of good faith depends on the credibility of one or more witnesses, the trial court should set forth its assessment of that factor to facilitate appellate review. If
the state carries its burden of proving both prongs, the trial court may then consider, in the trial court’s sound discretion, whether the technical noncompliance was sufficiently inadvertent and inconsequential to qualify for the narrow good-faith exception to Rule 41’s exclusionary rule that we have adopted.8 Thus, although the Tennessee Supreme Court has declared the ERRA unconstitutional, they have adopted a common law good-faith exception for nonconstitutional deficiencies with regard to search warrants that addresses all of the matters that were otherwise covered by the ERRA. Furthermore, although they have adopted this good-faith exception, the Court has also made it clear that these non-constitutional requirements have not been repealed and that both police officers and magistrates should exercise the utmost attention to detail when seeking and issuing search warrants, including compliance with the requirements of Rule 41 and any applicable statutes. t
1
2
3 4
5
6
7
8
State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016); State v. Davidson, 509 S.W.3d 156 (Tenn. 2016); State v. Pruitt, 510 S.W.3d 398 (Tenn. 2016); State v Lindsey Brooke Lowe, 2018 WL 3491044 (Tenn. July 20, 2018); State v. Angela Faye Daniel, 2018 WL 3492864 (Tenn. July 20, 2018). State v Lindsey Brooke Lowe, 2018 WL 3491044 (Tenn. July 20, 2018) State v. Davidson, 509 S.W.3d 156 (Tenn. 2016). State v Lindsey Brooke Lowe, 2018 WL 3491044 (Tenn. July 20, 2018) State v. Angela Faye Daniel, 2018 WL 3492864 (Tenn. July 20, 2018). State v Lindsey Brooke Lowe, 2018 WL 3491044, n. 6 (Tenn. July 20, 2018). State v. Angela Faye Daniel, 2018 WL 3492864, n. 5 (Tenn. July 20, 2018). State v Lindsey Brooke Lowe, 2018 WL 3491044 (Tenn. July 20, 2018).
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Inns of Court Members Volunteer at FedEx Family House by TERRENCE O. REED
E
very year, the Memphis Inns of Court chapter conducts several community service projects in the local community. The most recent project was Sunday, April 22, when over 25 members of the Memphis Inns of Court chapter and their families volunteered at the FedEx Family House. The FedEx Family House has been housing families with children being treated at Le Bonheur Children’s Hospital since 2010 and has served over 126,000 family members from around the world since it opened its doors. Not only did attorney members of the Inn volunteer, but various judges who are Inn members also devoted their Sunday serving the FedEx Family House families. The volunteers purchased hundreds of dollars of food and beverages to donate. They also grilled chicken, hot dogs, and burgers and prepared salad, sides items, and desserts for the families staying at the FedEx Family House. Besides preparing dinner, the volunteers stocked the pantry, filled welcome bags, and cleaned the dining room and kitchen areas. The most rewarding part of the community service project was meeting the families, dining with them and offering them support.
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With the help of volunteers like the Memphis Inns of Court chapter, the FedEx Family House can continue to provide free, comfortable accommodations to out-oftown families of patients at Le Bonheur. t
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New Risks for Immigration-Related Hiring Decisions by DAVID JONES, Managing Partner of Fisher Phillips’ Memphis
O
ver the last year and a half, numerous programs granting work authorization to foreign nationals have been targeted for rescission. The Trump Administration announced on September 5, 2017 that it was ending the Deferred Action for Childhood Arrivals (DACA) program. While that is currently tied up in the courts, it is still expected to end. Earlier this year, the administration announced it was ending Temporary Protected Status (TPS) for El Salvador, Haiti, Nicaragua, and Sudan. Also, on the radar is the rule allowing certain spouses of H-1B holders to obtain work authorization. All individuals covered by these programs may receive temporary employment authorization, which can create concern for employers about the longevity of the individuals’ employment. Some employers may hastily make employment decisions based on concerns about continued work authorization while other employers avoid these foreign national employees altogether by restricting employment to individuals who have certain status. In either case, employers may be in for a surprise.
Background The Immigration and Nationality Act (INA) protects US citizens, nationals, permanent residents and asylees / refugees from discrimination based on immigration status. Employers may not treat protected individuals differently based on immigration status. A foreign national in any other status, however, is not protected. Employers are permitted to ask certain questions in order to determine the immigration status of an individual before making a hiring decision and may 16
choose not to hire someone based on a non-protected immigration status. In other words, it is not necessarily unlawful discrimination not to hire someone who has DACA or is on a visa for example, if the non-protected immigration status is truly the actual reason for the decision. This is not to be confused with the I-9 process where rejecting a document based on a future expiration date is unlawful. By contrast, national origin discrimination under the INA and Title VII make no such distinction. If an employer chooses not to hire a non-protected individual based on that individual’s country of birth, it is unlawful regardless of immigration status. As such, employers
have always faced the possibility of national origin claims where citizenship is ostensibly the reason for a discriminatory action.
Recent Case Studies Recent decisions based on Section 1981 claims may make the immigration status versus national origin question irrelevant. Rather than provide protection from national origin discrimination (multiple circuits have found that 1981 does not apply to national origin), Section 1981 covers race and alienage. Alienage is distinct from national origin and has been interpreted to mean citizenship. See Anderson v. Conboy, 156 F.3d 167, 170, 180 (2d Cir. 1998). Additionally, Section 1981 applies to “all persons within the jurisdiction of the United States.” As recently as this year and going back to 2014, some Circuit Courts have allowed employment discrimination claims filed by individuals not protected by the citizenship status protection provided by the INA to proceed under Section 1981. “To state a claim under § 1981, a plaintiff must allege that (1) he or she is a member of a protected class [as defined in Section 1981], (2) the defendant intentionally discriminated against him or her on the basis of membership in that protected class; and (3) the discrimination concerned one of § 1981's enumerated activities.” See Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000). In each of the cases, the courts held that the individuals were members of a protected class and that the activity (employment) was covered by Section 1981. The factual question in each case to be determined was whether there was intentional discrimination. In Rodriguez v. The Proctor & Gamble Company (1:17-cv-22652), the United States District Court for the Southern District of Florida held that hiring only US citizens, nationals, permanent residents and asylees / refugees “could be construed to discriminate against a subset of legal aliens, which are a protected class under Section 1981.” Rodriguez involved a Venezuelan DACA recipient who was denied employment because “per P&G policy, applicants in the U.S. should be legally authorized to work with no restraints on the type, duration or location of employment.'' In allowing the Rodriguez complaint to proceed, the court relied heavily on Juarez
v. Northwestern Mutual Life Insurance Company, Inc., 2014 U.S. Dist. LEXIS 160726 (S.D.N.Y. Nov. 14, 2014). Juarez similarly involved a DACA recipient who was refused employment based on a policy that restricted employment to US citizens and permanent residents. That policy also was found to potentially be intentional discrimination.
Conclusion These decisions call into question long held policies of employers restricting employment to US citizens, nationals, permanent residents and asylees / refugees. As more and more work-authorized individuals are denied employment or terminated under the Trump Administration’s announced policies, we are likely to see additional claims filed under Section 1981. If they prove to be successful, employers will have to re-evaluate their hiring policies. t
Mediation Nick Rice Rule 31 Mediator
901.526.6701 firm@ricelaw.com 17
An interview with CEO, Harrison D. McIver, III by the Hon. George H. Brown, Jr., the first Director of Memphis Area Legal Services, Inc.
MALS
CORNER McIver Celebrates 20 Years as Leader of MALS Judge Brown: Why did you decide to seek the MALS’ Directorship? McIver: The period 1997-1998 was a time in which I made a strategic decision that I wanted to return to the South to continue my life’s work involving promoting equal justice. I spent more than a decade in Mississippi from the Mississippi Delta to South Mississippi and finally in Jackson, Mississippi before moving to the D.C. area, leaving in Mississippi a legacy that remains a part of the Mississippi legal aid history. The decision to move back was not an easy one but I recognized I needed something new and challenging. My years in Washington D.C. were pivotal in terms of my growth and development that would be of benefit to a new environment and a major change from working at the Project Advisory Group (PAG) a/k/a the National Organization of Legal Services programs. MALS was one of the PAG’s members. With the experience gained from decades in the equal justice community on local, state, and national levels, I felt well prepared to return to a leadership role in the South and in particular at MALS. Judge Brown: What did you find once you arrived in 1998 and what did you communicate to your staff? 18
McIver: During the period between the Board decision and my arrival, the Board held a reception in my honor that attracted then City Mayor W. W. Herenton, members of the judiciary, bar leaders, government officials, Congressional representatives, board, staff, community organization representatives and others. That experience left two very distinct impressions. First, it confirmed my perception that legal aid was an important institution in the Memphis area community and it enjoyed strong support among key players and decisionmakers. Second, we had a very capable and experienced staff but were in need of strong leadership anchored by a shared vision facilitated by strategic and business plans. Staff was poised to break out of its reclusive posture and join the mainstream legal community. I communicated that the staff should continue the tradition of being a community law firm that was focused on the addressing the compelling legal needs of the client community. Judge Brown: How does being involved in bar activities benefit the clients of Memphis Area Legal Services? McIver: As a nonprofit law firm, goodwill, reputation and appealing to the ethics and altruism of the legal community create an environment conducive to attracting
highly qualified staff, volunteerism and hopefully, greater financial support for the work MALS does for its clients. Judge Brown: Is the organization fully embraced by the judiciary? McIver: Yes, I believe the judiciary fully understands and values what we do. It is one of our strongest supporters. The Tennessee Supreme Court announced several years ago that access to justice is its number one priority. That has led to rule changes that encourage pro bono and financial support of MALS and other legal aid organizations across the state. In Memphis, we established various pro se clinics including the courthouse advice clinics, the Saturday Legal Clinic and faith-based community clinics in various parts of the community. In addition, we enjoy the fact that several past and sitting judges on county, state and federal courts are MALS’ alumni, including you. Judge Brown: What are your proudest and/or significant accomplishments during your 20-year tenure? McIver: We have accomplished a lot; some of them are: 1. MALS has vision and mission statements that are easily remembered and serves as a foundation that propels our staff into action carrying out MALS’ purpose and informs the external environment that we are an essential community resource. 2. MALS’ Board was reduced from 30 to 21 members, facilitating a more engaged and cohesive member group exercising its fiduciary responsibilities. 3. MALS has created an organizational structure and assembled a dedicated and committed staff, with several seasoned veterans, and a host of young and energetic members, who zealously represent our clients. 4. MALS enjoys a strong relationship with the organized bar at all levels and that support translates to the bar being a stronger advocate for the continuation of federal funding, especially from the Legal Services Corporation and increased participation in MALS’ Pro Bono Programs. 5. MALS’ Campaign for Equal Justice has grown from less than $100,000 to approaching $400,000, enabling MALS to expand client services while leveraging other grants and contracts. Its current
budget is double what it was in 1998. 6. MALS annually receives a clean audit demonstrating it is fiscally sound and a good steward of its financial resources. 7. On a personal level, I was invited to testify before a congressional committee chaired at the time by U.S. Representative Steve Cohen to make the case for continued federal funding while sharing concrete stories of the essential legal work we do for our clients. The Tennessee Bar Association honored me during a reception at the ABA Annual Meeting in Boston a few years ago where I also received the Charles Dorsey Award from the ABA. The Ben F. Jones Bar Association also presented me with the AA Latting Award several years ago. Judge Brown: If you had to look into a crystal ball, where would you see legal services twenty years from now? McIver: Hopefully in twenty years, this country is firmly committed to access to justice being on par with other priorities. The issues and challenges that low-income individuals face are being addressed at all levels. Our country is strengthened and enhanced when the least of us are able to achieve the American dream, something that so many of us enjoy, but our clients do not. Judge Brown: What is the economic and social benefit that MALS provides for the community? McIver: When we are successful in keeping people in their homes, extricating women, children and the elderly from domestic and financial abuse, assisting the most vulnerable including our veterans to obtain public benefits to which they are entitled, ensuring nutritional meals and affording access to health care, we bring both economic and social stability to our community. We reduce blight, loss of tax revenues, and crime -all of which improve the social and economic fabric of our community. A statewide economic impact study found that for every $1.00 expended by legal aid organizations in Tennessee, an $11.00 return is realized. Judge Brown: If you had to ask yourself a question, what would that question be? What would you like to share? McIver: Why have I dedicated my life to this work when there were other opportunities? Although we weren’t poor, I witnessed poverty firsthand and during my youth, 19
we lived in a segregated environment. It had an effect on me. I was presented other opportunities that were economically more beneficial; however, I recognized, as a product of my parents who believed in giving back to the community, my life’s purpose was predestined to do something meaningful. That’s the reason why I have stayed the course. Judge Brown: What can attorneys do to help MALS achieve its mission? McIver: They can volunteer to do pro bono, serve on MALS’ Board and committees, advocate for continued funding for legal services, participate in our Campaign for Equal Justice and attend MALS’ fundraising events, such as the Justice For All Ball. Judge Brown: What does Harrison McIver as an individual do to ensure that he doesn’t get burned out and is able to renew himself periodically since you’ve been in this position twenty years? McIver: I employ multiple strategies. I enjoy myself with my family and friends. I enjoy traveling and experiencing
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other parts of the country and the world; it reenergizes me. Because of my past work on the national level, I have relationships with colleagues from across the country. They serve as resources, a sounding board and source of energy. Taking that mental and emotional break engaging in fun activities re-energizes me. Doing things for my church and community allows me to give back in a different, yet in very important ways. t (Ret.) Judge George H. Brown, Jr. is a Rule 31 Mediator and a Fellow of the International Academy of Mediators, affiliated with Resolute Systems, LLC. Harrison D. McIver, III, Chief Executive Officer of Memphis Area Legal Services, Inc. a nonprofit law firm chartered in 1970. Its mission is to provide excellence in legal advocacy for those in need.
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Regional Arbitration Competition by WILLIAM F. WALSH, IV
Overview The University of Memphis, Cecil C. Humphreys School of Law is proud to be a host of the 2018 American Bar Association Regional Arbitration Competition on November 9-10, 2018. This competition provides law students with legal training in arbitration and promotes excellence in arbitration advocacy. Participating students from across the nation prepare and present an arbitration case before a panel of judges. Rounds consist of opening statements, witness examinations, exhibit introductions, evidentiary presentations, and summations.
How to Participate The University of Memphis Law School is requesting volunteers to serve as Arbitrator Judge on a panel to score the performance of the competitors and to provide feedback to the teams. Practicing attorneys and judges are preferred but non-lawyer, arbitration professionals are also welcomed to volunteer and serve as competition judges. The competition will be held at the Law School’s beautiful, downtown campus. If you or a colleague are interested in volunteering as an Arbitrator Judge, or if you have any questions concerning the competition, please feel free to contact the Student Chair of the Arbitration Competition, William Walsh: memphislawmootcourt@gmail.org OR (901)487-4026. t
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Circuit Court Report by STEPHEN LEFFLER
Covers April 12, 2018 to July 18, 2018 DIV. 1: FELICIA CORBIN-JOHNSON 1. CT-002901-16: 5-23-18, Bridgette Barnes v. Jacquelyn Yancy, Breach of Rental Agreement, Non-Jury, Quinton E. Thompson for Plaintiff, Tim J. Thompson for Defendant, Plaintiff Verdict for $1,050.00. Plaintiff’s request for attorney fees denied for lack of written notice to Defendant. 2. CT-002783-11: 5-25-18, Willie C. Kerr, Individually and on Behalf of Willie M. Kerr v. Tommy C. Thompson, M.D., Med Mal, Jury, Linda K. Garner for Plaintiff, John C. Ryland for Defendant, Defense Verdict. 3. CT-001804-15: 7-5-18, Jennifer L. Simmons, Individually and as Executrix of the Estate of Rose E. Crowe v. Tresa Jean Lawson, William M. Lawson and Leighann Fratterelli, Fraud and Undue Influence, NonJury, Jeffrey A. Land for Plaintiff, Steven N. Douglass for Defendants, Plaintiff Verdict: Mandatory Injunction to return real and personal property.
DIV. 2: JAMES F. RUSSELL No cases tried to verdict this reporting period DIV. 3: VALERIE L. SMITH 1. CT-004626-16: 4-27-18, George Brown and Wife, Diane Brown v. Markesha Echols, Auto Accident, Jury (UM), Stephen R. Leffler for Plaintiff, Dawn Davis Carson for Defendant, Plaintiff Verdict for $250,000.00. 2. CT-001663-15: 6-18-18, Avery Lewis and Dontavious Golden v. Delores Barnes, Auto Accident, Jury, James J. Patterson for Plaintiff, Larry White for Defendant, Plaintiff Verdict for $9,432.80 for Avery Lewis and $6,960.00 for Dontavious Golden. Order of Judgment included that both parties waived the right to appeal and awarded Plaintiff discretionary costs of $1,500.00. 24
DIV. 4: GINA C. HIGGINS 1. CT-001573-14: 6-1-18, Regina Smith and LeKeitha Moore on Behalf of Ellion A. Smith and Adarieus J. Smith, Minor Children and Next of Kin of Elliott Smith v. Benihana National Corporation, Wrongful Death (Food Poisoning), Jury, Terrell L. Tooten for Plaintiff, Lauren L. Holloway for Defendant, Defense Verdict.
DIV. 5: RHYNETTE HURD 1. CT-000351-16, 5-17-18: Emeisha Wicks v. Blythe Nicole Johnson and Delana Johnson, Auto Accident (Stipulated Liability), Jury, W. David Cheek for Plaintiff, Nicholas J. Owens, Jr. for Defendant, Plaintiff verdict for $994.00 (Medical Expenses). 2. CT-002616-16, 6-29-18: Natasha Jackson v Kendy Erwin, Auto Accident, Jury, Ben L. Daniel for Plaintiff, Nichlas J. Owens, Jr. for Defendant, Plaintiff Verdict for $14,500.00 (Verdict form set out 4 different elements of damages, none of which were marked. The damage award was filled in for “Total”).
DIV. 6: JERRY STOKES 1. CT-004220-16, 5-4-18: Mandy Renner v. David Crow, Landlord/Tenant, Non-Jury, Kirk A. Caraway for Plaintiff, Joseph D. Barton and Lauren P. Parker for Defendant, Plaintiff Verdict for $14,062.00 (Compensatory Damages - $850.00, Attorney Fee $12,290.00, Discretionary Costs - $922.00). 2. CT-003031-13, 6-4-18: Latryce Tate v. Wal-Mart Stores, Inc. d/b/a Wal-Mart Supercenter #1248, Slip and Fall, Jury, W. David Cheek for Plaintiff, W. Christopher Frulla, for Defendant, Plaintiff verdict: Gross Damages - $69.182.00 (Past Medical Bills - $46,882.00, Lost Wages - $2,300.00, Pain and Suffering - $10,000.00, Loss of Enjoyment of Life - $10,000.00) Reduced by 35% plaintiff fault; Net verdict: $44,968.30.
3. CT-002608-15, 6-7-18: Dennis Thomas and Audra L. Thomas v. Jaida Lowery and Tracy Lowery, Auto Accident, Jury, David McLaughlin for Plaintiffs, Trey McLain for Defendants, Nicholas J. Owens, Jr. for UM; Defense Verdict (Stipulated liability, No damages).
DIV. 7: MARY L. WAGNER 1. CT-000476-15: 5-24-18, Kathleen Bouloy. v. The Juice Plus+ Co. LLC, f/k/a NSA, LLC, and/or NSA, Inc., a Tennessee Limited Liability Company, Breach of Contract, Jury, Alan G. Crone for Plaintiff, W. Travis Parham for Defendant, Defense Verdict. 2. CT-003221-16: 6-12-18, Jack V. Delaney and Yvonne Delaney v. Martin R. Kriger, Adminstrator Ad Litem of the Estate of Mary Jo Cochran, D.V.M., Deceased, and Carolyn A. McCutcheon, D.V.M., Individually and d/b/a Park Avenue Animal Hospital, LLC , Veterinary Malpractice , Non-Jury, Jack V. Delaney for Plaintiff, Edward U. Babb for Defendant, Defense Verdict. 3. CT-004190-15: 6-12-18, Monica Auston v. Carlyn Hulett, Auto Accident (Stipulated Liability), Jury, Bobby F. Martin, Jr. for Plaintiff, Andrew R.E. Plunk, for Defendant, Plaintiff verdict for $15,000.00 ($10,000.00 – Past Pain and Suffering; $5,000.00 – Past Loss of the Enjoyment of Life). 4. CT-003205-12: 6-18-18, Diane Hamilton, Conservator o/b/o Cassie McGill v. Mthodist Healthcare Memphis Hospitals d/b/a Methodist LeBonheur Hospital Germantown, P.A., Med Mal, Jury, Robert Spence, Regina Guy and Andrew Horvath for Plaintiff, Kevin Baskette, Jerry Mitchell, Christopher B. Sullivan and Laura L. Deakins for Defendant, Trial started February 6, 2018 and concluded February 21, 2018. Jurors began deliberating on February 22, 2018. On February 23, 2018, jurors announced they were hopelessly deadlocked at 11-1. Mistrial granted.
DIV. 8: ROBERT S. WEISS 1. CT-002653-17: 4-12-18, Christopher D. Williams. v. Laura A. Flesher, Auto Accident, Jury, William B. Ryan for Plaintiff, Catherine H. Costict for Defendant, Defense Verdict. Verdict by 11 jurors on consent of the parties. 2. CT-003669-13: 5-17-18, Kim Fulton v. City of Memphis, GTLA (Negligence in Maintaining Trees in a Public Space), Non-Jury, Brandon Scott Leslie for Plaintiff, Prince C. Chanmbliss, Jr. and Darius Walker, Jr. for Defendant, Defense Verdict.
3. CT-002024-15: 5-21-18, Patrick Rice v. Jerry Hindle and John Doe 1 and John Doe 2, Auto Accident, Jury, Jennifer L. Miller and Russell B. Jordan for Plaintiff, James Conley for Defendant-Hindle, Shattera Marion for Defendants-John Doe 1 and John Doe 2, Plaintiff Verdict: Past Pain and Suffering: $50,000.00, Future Pain and Suffering: $225,000.00, Permanent Impairment: $70,000.00, Past Loss of Ability to Enjoy Life: $15,000.00, Future Loss of Ability to Enjoy Life: $70,000.00, Past Medical Care / Services: $21,552.96, Lost Wages: $1,125.00 – Total Judgment for Plaintiff: $452,677.96; Fault Apportionment: 90% to Defendant-Hindle, 10% to John Doe 2, 0% to John Doe 1; Net verdict reduced to a total of $200,000 which was the amount of the ad damnum. 4. CT-000876-17: 5-29-18, George West, Jr. v. Nedria Webber, Breach of Contract (Promissory Note), NonJury, Both parties pro se, Plaintiff Verdict for $5,000.00. 5. CT-002434-17: 6-22-18, St. Benedict at Auburndale v. Lavale R. Burgess , Breach of Tuition Contract , Non-Jury, R.C. Babaoglu for Plaintiff, Defendant pro se, Plaintiff Verdict: Tuition: $17,033.00, Interest: $3,065.94, Filing Fees: $180.00, Attorney Fees: $950.00 – Total Judgment for Plaintiff: $21,238.84. 6. CT-000249-16: 7-18-18, Aubrey Franklin and wife, Linda Franklin v. Jim Prentiss, Jr., Executor of the Estate of Stephen M. Prentiss, Auto Accident, Jury, Allen Gressett for Plaintiff, Robert L. Moore for Defendant, Plaintiff Verdict: Gross verdict for Aubrey Franklin - $7,369.00, Gross verdict for Linda Franklin - $0.00, Reduced by 49% plaintiff fault; Net verdict: $3,758.19.
DIV. 9: DAVID M. RUDOLPH 1. CT-000249-1: 4-12-18, Tennessee Farmers Mutual Insurance Company. v. Robert McCulley and L&M Recovery, LLC, Auto Accident (Property Damage Subrogation – Issue was the allocation of fault between the two drivers), Jury, Ashleigh C. Kiss for Plaintiff, Loys A. “Trey” Jordan III for Defendant, Plaintiff Verdict. Defendant found 75% at fault for $1,880.75 in total property damage, Net verdict - $1,410.56. 2. CT-000964-15: 5-21-18, Kevin Williams v. Cristil Powell Roach, Auto Accident, Jury, Eric J. Lewellyn for Plaintiff, H. Lynne Smith for Defendant, Plaintiff Verdict: Gross verdict - $1,000.00 Reduced by 15% plaintiff fault, Net verdict - $850.00.
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TENNESSEE CHAPTER Memphis Area Members recognized for Excellence in the field of Mediation or Arbitration
Allen BLAIR (901) 581-4100
George BROWN (901) 523-2930
Fred COLLINS (731) 686-8355
John CANNON (901) 328-8227
Trey JORDAN (901) 526-0606
Minton MAYER (901) 312-1640
Frank CANTRELL (901) 328-8269
Hayden LAIT (901) 527-1301
Jerry POTTER (901) 525-8776
Check preferred available dates or schedule appointments online directly with the state’s top neutrals www.TennesseeMediators.org www.TennesseeMediators.org isis free, free, funded funded by by members members
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October
is Pro Bono Month by DANIELLE SALTON
T
his year marks the 10th anniversary of the American Bar Association's National Celebration of Pro Bono. The ABA encourages the legal community to engage in pro bono service during Pro Bono Week, October 21-27, 2018. However, our state of Tennessee has decided to extend the celebration from one week to the entire month of October! During October there will be numerous opportunities for you to contribute to the vision of access to justice for all. If you regularly donate your time and skills to those in our community who are unable to afford an attorney, I applaud you and thank you for your commitment to access to justice. If you haven't thought much about pro bono service, I encourage you to do so this coming Pro Bono Month. Many lawyers may feel hesitant to offer their services because they do not typically practice in the areas in which we perceive people to be in need. I would encourage you to set those fears aside.
and our community can be become empowered by the knowledge learned from their pro bono lawyer. As we approach Pro Bono Month take a few minutes to reflect on the legal needs of our community and determine where you can lend you skills and talents to make a difference. Pro bono service can come in many forms, from providing advice and counsel at legal clinics, to representing clients with a variety of legal matters, to educating the community about their legal rights. What may be a handful of hours of your time may make a lifetime of differences for the individual you assist. Are you ready to make pro bono part of your practice?
There are many avenues to offer your skills and talents to make a difference in our community. This Pro Bono Month the MBA's Access to Justice Committee will partner with various legal aid organizations within the city to host events and trainings to equip you with the opportunities and knowledge necessary to impact fellow Memphians as they navigate the legal system. The benefits and positive impact of pro bono service are abundant. From a professional view, we recognize that access to our justice system should not be merely for those that can afford an attorney. We are encouraged by the Tennessee Supreme Court to donate 50 hours annually toward pro bono service. From a personal view, pro bono service enables us to grow in our skills as lawyers and be part of the change. From a community view, many of the injustices that take place can be addressed and diminished by our involvement in pro bono service 27
Equal Justice Works Fellowship Project Will Provide Civil Legal Services for Memphis Immigrants by BRITTANY BANES
I
magine you are in an unfamiliar country. You know only a few basic words of the language, and you do not understand the legal system. However, you are desperate to stay because your home has been overrun by violence, corruption and poverty. You soon run into trouble. Your abusive spouse convinces you that you will lose your children and be deported if you file for divorce. Or maybe a shady car salesman takes your payment—almost all your money—and refuses to give you the keys. Perhaps your landlord repeatedly ignores your requests to fix the air conditioning. Similar situations routinely happen to low-income immigrants in Memphis, and many find it impossible to hire an attorney. My mission is to change that. My name is Brittany Bane, and I am an Equal Justice Works Fellow. Equal Justice Works connects new attorneys with sponsors who fund projects that fill a justice gap or innovate the provision of legal services. My project, sponsored by International Paper, is the new Civil Immigrant Justice Program at the Community Legal Center (CLC). The objectives of the project are to represent low-income immigrants in civil cases and to educate immigrants about their rights.
The Need Addressed The Memphis metropolitan area is home to about 70,000 immigrants.1 Many fall into low-income 28
categories, with 21.7 percent below the Federal Poverty Level.2 Being low-income is associated with experiencing frequent legal needs. A 2014 report revealed that more than 60 percent of low-income Tennesseans experienced at least one civil legal issue per year, the average being 3.66.3 Despite the frequency of civil legal needs, no affordable options have been available to low-income immigrants. Hiring a private attorney is a landmine due to cost and low English proficiency. Language issues also preclude pro se litigation, as court documents must be in English and the litigant would need a court certified interpreter. Even legal aid organizations are limited in this area. Memphis Area Legal Services (MALS) is unable to represent undocumented immigrants in most cases because it receives a portion of its funding from the Legal Service Corporation. Other nonprofits in Memphis provide affordable representation in immigration matters, but a program for civil legal aid tailored to the needs of the immigrant community has not existed. This need inspired me along with the CLC team to design the Civil Immigrant Justice Program.
What the Program Will Do The Civil Immigrant Justice Program will offer direct representation to low-income immigrants in civil areas including divorce, probate, contracts, consumer and landlord/tenant. Addressing the legal needs of immigrants will improve their social, financial and physical wellbeing, and in turn make Memphis as a whole better.
The program will also provide education. Representation alone is not enough because many immigrants are misinformed about their rights. Although every person in the United States has a Constitutional right to access the court system, the fear of deportation leads some immigrants to ignore problems that courts could remedy. This avoidance makes immigrants vulnerable to mistreatment by predators who doubt they will fight back. We will host educational workshops to inform immigrants of their civil rights and empower them to stand up to injustice.
How to Get Involved A program like this needs community support to thrive. One way you can help is referrals. If you know an immigrant who might qualify for services under the Civil Immigrant Justice Program, encourage him or her to call CLC’s intake number at (901) 543-3395. Another option is to take a pro bono civil case assisting an immigrant client. We also need bilingual volunteers to interpret for
pro bono attorneys. If you are interested in volunteering, you can visit our website at https://clcmemphis.org/ to sign up. You can also support the program financially by making a donation on the website. Follow CLC on Facebook, Twitter, and Instagram if you want updates on the program and volunteer opportunities. t
1 New Americans in Memphis, New American Economy, 1 (2018), available at http://research.newamericaneconomy.org/ wp-content/uploads/sites/2/2018/02/G4G_Memphis_V4_ DIGITAL-1.pdf. 2 Roberto Suro, Jill H. Wilson, & Audrey Singer, Immigration and Poverty in America’s Suburbs, Brookings, 14 (2011), available at https://www.brookings.edu/wp-content/uploads/2016/06/0804_ immigration_suro_wilson_singer.pdf. 3 Linda M. Daugherty, Statewide Legal Needs Assessment 2014, University of Tennessee College of Social Work 15 (2014), available at http://justiceforalltn.org/sites/default/files/2014%20 Legal%20Needs%20Study.pdf.
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The Center for Excellence in Decision-Making
L
eaders within our legal community, with the Memphis Bar Association, recently launched a new initiative called – The Center for Excellence in Decision-Making. Several local judges and lawyers worked hard to get this initiative off the ground, but the Center is the brain child of Judge Bernice Donald, Judge Tommy Parker and Chancellor JoeDae Jenkins. The Center’s goal is to foster better decision-making among local stakeholders to break down barriers to hiring, promotion, fair prosecution and sentencing, access to educational opportunities, just community policing and economic development. The Center aspires to be a change agent that positively affects the trajectory of Shelby County.
training on the neuroscience behind decision-making. Kimberly is a nationally recognized expert on legal and judicial decision-making. She has delivered over 200 lectures nationally and internationally on the implications of neuroscience, psychology, and implicit association in the analysis of decision-making. Kimberly has delivered presentations to various judicial organizations, including the United Sates National Council of Chief Judges of the State Courts of Appeal and the National Council of Juvenile and Family Court Judges. She was appointed to the National Center for State Courts’ National Training Team on Implicit Bias, which is a “think tank” for national judicial education.
The Center’s inaugural workshops were held September 13 and 14 when Kimberly Papillon provided
The Center was enlightened enough to bring Kimberly to the University of Memphis law school to conduct a
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five-hour interactive workshop for our local judges and another similar workshop for law firm and corporate key decision-makers and leaders. She also conducted a threehour general sessions workshop open to the public. These workshops were highly interactive combining cuttingedge neuroscience research with practical applications to assist attendees in making accurate, fair, and equitable decisions devoid of unconscious influences. The Center will tackle other aspects of decisionmaking soon, and while the first initiative was targeted to lawyers and judges, future initiatives will target other groups such as hospitals, local politicians, law enforcement, educational institutions and media outlets. For a mission of this magnitude to succeed, it requires support from the entire community, including committed financial sponsors. The MBA and the founders of the Center applaud the following sponsors and acknowledge their financial contributions:
Baker Donelson
$5,000
Butler Snow
$5,000
FedEx Express
$5,000
International Paper
$5,000
ServiceMaster
$5,000
Glankler Brown
$4,000
MALS
$3,000
Ford & Harrison
$3,000
U.S. District Court
$1,500
City Attorney's Office
$1,000
Evans & Petree
$1,000
Ogletree Deakins
$1,000
Adams and Reese
$1,000
Counsel On Call
$250
Quotes The "Center" provides an opportunity for Memphis and Shelby County to recalibrate our future, strengthen our critical statistical indicators and to heighten the vibrancy of our communities. -Chancellor Jenkins "The Memphis Bar Association is proud and excited to be a major part of the Center for Excellence in Decision Making. It is appropriate that the legal community push to create opportunities for leaders in public and private institutions and organizations throughout the City to examine how they might become even better at ensuring equal and fair treatment for all persons whose lives their decisions impact." -Earle Schwarz With knowledge comes power. Until we truly understand what motivates our decisions we will lack the ability to change them. Evans Petree is proud to sponsor a program that encourages us to question our inner biases. -Caren Nicol "This was one of the most enlightening workshops I have ever attended. Ms. Papillon shared some truly enlightening data and statistics with us. She also provided several tools that I will share with my employer, FedEx that should positively impact hiring and promotional decisions." -Terrence Reed
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REBECCA ADELMAN Rebecca Adelman, a former founder of Hagwood Adelman Tipton, is resuming full operation of her firm, Adelman Law Firm, which was originally founded in 2001. Adelman Law Firm’s team of legal professionals will serve the public in the areas of medical malpractice, long-term care and aging services, professional liability, general litigation, insurance defense, government tort liability, public entity defense and risk reduction and loss avoidance. JOHNNA MAIN BAILEY Johnna Main Bailey has joined the Memphis office of Siskind Susser P.C. Most recently, she practiced employment-based immigration, representing businesses in petitioning for foreign-national employees. She is a member of the American Immigration Lawyers Association (AILA) and received her Juris Doctorate from the John Marshall Law School. She is a founding board member and current chair of the Mid-South Immigration Advocates, a nonprofit organization dedicated to providing immigration representation to low-income clients. AMBER FLOYD Amber Floyd, an attorney at Wyatt, Tarrant, & Combs, was among the prestigious Access to Justice Award honorees at the Tennessee Alliance for Legal Service’s (TALS) annual conference. Floyd was honored with the Holder 2018 Award, in recognition for her work spearheading critically needed statewide expungement clinics. Through these clinics, countless people received assistance in getting non-conviction records expunged so they can secure better jobs, better housing, and have greater opportunity to achieve success. Former Justice 32
Janice M. Holder presented the award named in her honor and established to recognize those who have advanced the quality of Tennessee’s justice system by ensuring the legal system is open and available to all. JESSICA FARMER FERRANTE The National Academy of Family Law Attorneys has recognized Jessica Ferrante as a 2018 Top 10 Family Law Attorney. Through a stringent selection process, the NAFLA awards the best family law attorneys in each state with the most prestigious honor of being named "Top 10.” The very few attorneys that make the list have demonstrated an extraordinary amount of knowledge, skill, experience, expertise and success in their practice of family law. KRISTINE E. NELSON Kristine E. Nelson has joined Baker Donelson’s Health Care litigation group. Nelson serves as Of Counsel and has significant experience in health care liability defense, commercial litigation, insurance coverage litigation and insurance defense. She represents health care providers, including physicians, medical practice groups, and medical institutions in defending all phases of lawsuits alleging health care liability in federal and state court. Her practice also focuses on counseling and litigation on behalf of employer clients in the area of labor and employment. JULIA KAVANAGH Hall Booth Smith, P.C. recently welcomed Julia Kavanagh as Of Counsel as it expands its office in Memphis. Kavanagh’s practice is focused on professional negligence/medical malpractice, products liability, aging services, health care and general liability. For a decade, she has represented hospital systems, nursing homes and
long-term care facilities, physicians and other health care providers in both state and federal court. She also handles products liability, premises liability, insurance defense and general civil litigation matters. An active participant in the Memphis Bar Association, Kavanagh has served as Vice Chair of the Continuing Legal Education Committee and as member of the Board of Directors for the Young Lawyers' Division. She has been named a Rising Star by Mid-South Super Lawyers every year since 2013. JARED S. RENFROE Jared S. Renfroe has been promoted to partner at Spicer Rudstrom, PLLC. Renfroe has been an associate with the firm for the past three years, primarily concentrating his practice in Workers’ Compensation and Employment Law. He was a recipient of the Mid-
South Super Lawyers® Rising Star in 2016 and 2017, a distinction awarded to no more than 2.5 percent of attorneys in Tennessee. Renfroe is involved in the MidSouth Workers’ Compensation Association – Memphis Chapter and a member on the Publications Committee, St. Jude Committee, and Membership Committee of the Memphis Bar Association. JOSEPH W. SMITH Joseph W. Smith, Associate Attorney at the law firm of Rice, Amundsen & Caperton, PLLC, was selected to be an Associate Member in the Leo S. Bearman, Sr. American Inn of Court. Mr. Smith was nominated and voted to this highly selective position by the Masters of the Inn. His practice area includes all aspects of domestic relations, including divorce, custody, support and adoption.
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1. Rebecca Adelman 2. Johnna Main Bailey 3. Amber Floyd
4. Jessica Farmer Ferrante 5. Kristine E. Nelson 6. Julia Kavanagh
7. Jared S. Renfroe 8. Joseph W. Smith
SUBMIT YOUR NEWS AND UPDATES ONLINE AT: WWW.MEMPHISBAR.ORG/BLOG/SUBMIT-CONTENT
If you are an MBA member in good standing and you’ve moved, been promoted, hired an associate, taken on a partner, or received an award, we’d like to hear from you. Talks, speeches, CLE presentations and political announcements are not accepted. In addition, we will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers). Notices are limited to 100 words; they are printed at no cost to members and are subject to editing. E-mail your notice and hi-resolution photo (300 dpi) to cdoorley@memphisbar.org.
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The Magazine of the Memphis Bar Association 145 Court Avenue #300 Memphis, TN 38103 www.memphisbar.org