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the magazine of the Memphis Bar Association | Vol. 38, Issue 1, Spring 2021

THIS ISSUE:

21st Century Law Profession: How Video Conferencing Is Blowing The Dust From The Practice Of Law The Emergence of the Immigration Bar in the Trump Years: A Personal Assessment

Employee Vaccinations: Carrot or Stick?


MEDIATION: (Noun) An

intervention between conflicting parties to promote reconciliation, settlement, or compromise. Example in a sentence:

Attorney Lisa J. Gill assisted my client in coming to an agreeable Settlement with their ex-spouse, without the emotional and financial expense of the courtroom experience. Lisa J. Gill is a partner and attorney at Thomas, White & Gill and is a Rule 31 listed mediator.

memphisfamilylaw.com 901-537-0010


Volume 38, Issue 1, Spring 2021

FEATURES 7 Judging the Judges: Q & A with Randy Noel, Esq. Chair of the ABA

Standing Committee on the Federal Judiciary BY HARRISON D. MCIVER III

11

Employee Vaccinations: Carrot or Stick? BY LISA A. KRUPICKA

15 21st Century Law Profession: How Video Conferencing Is Blowing The

Dust From The Practice Of Law BY TAURUS BAILEY

17 The Emergence of the Immigration Bar in the Trump Years:

A Personal Assessment BY GREG SISKIND

20

Memphis Bar Foundation

22

Center for Excellence in Decision-Making Roundtable Discussion INTERVIEW BY EARLE SCHWARZ

30

Access to Justice Virtual Legal Advice Clinic

COLUMNS 6

President’s Column

31

Community Legal Center: A Look Back

25

MALS Honor Roll

33

Circuit Court Report

34

United States District Court

BY PETER GEE

BY ANNE MATHES

BY STEPHEN LEFFLER

BY DEAN DECANDIA

35

People in the News


MEMPHIS LAWYER

2021 MBA Officers

the magazine of the Memphis Bar Association

MBA Publications Committee Sean Antone Hunt, Chair Jacob Strawn, Vice Chair Peter Gee, Executive Committee Liaison Dean DeCandia Chasity Grice Nicole Grida Stephen Leffler Harrison McIver Jennie Silk

The Memphis Lawyer is a quarterly publication of the Memphis Bar Association, Inc. with a circulation of 2,000. If you are interested in submitting an article for publication or advertising in an upcoming issue, contact info@memphisbar.org. The MBA reserves the right to reject any advertisement or article submitted for publication.

Peter Gee President

Tannera Gibson Vice President

Lucie Brackin Past President

2021 Board of Directors Justin Bailey Dawn Campbell Lisa Gill Hon. M. Ruthie Hagan Hon. JoeDae Jenkins Adam Johnson Marlinee Iverson Andrea Malkin Bobby Martin Patrick Morris Steve Mulroy Jennifer Nichols

Will Perry Edd Peyton Hon. Shayla Purifoy Billy Ryan Lauran Stimac Laquita Stokes

ABA Delegate Lucian Pera AWA Representative April Bostick Law School Representative Donna Harkness

Section Representatives Taurus Bailey Anne Davis Thomas Henderson Nancy Rigell Danielle Woods

NBA Representative Quinton Thompson YLD President Quinton Thompson

MBA STAFF

Maury Tower

Interim Executive Director

The Memphis Bar Association 145 Court Ave. Suite 301 Memphis, TN 38103 Phone: (901) 527-3573 Fax: (901) 440-0426 www.memphisbar.org

Jennifer Sink

Secretary/Treasurer

Lauren Gooch Membership & CLE Director

Kelly Swan

Communications Director


About the Cover

Women of the Shelby County judiciary in 2021

How Far We've Come

1982 photo of the Shelby County judiciary, including only three women judges – Judge Bernice Donald, Judge Julia Gibbons, and Judge Ann Pugh

5


PRESIDENT'S COLUMN

By PETER GEE, MBA 2021 President

N

one of us get where we are on our own. We get here with the support of parents, spouses, and friends. Today, I want to acknowledge another category that is critical in our personal and professional development: mentors. Whatever type of practice we have, there are people who took us under their wing, showed us the ropes and helped us find our footing and our voice as lawyers. For me, I was blessed to have Judge George Brown take an interest in my development. Many years ago I was asked to join The Leo Bearman, Sr. American Inn of Court which was led that year by Honorable Robert Childers. At that time, the Inn of Court had a formal mentor program and I applied to have a mentor assigned. I did not appreciate it in the moment, but it turned out to be one of the more consequential decisions of my career, and I was assigned Judge George Brown as my mentor. It is hard to put into words just how much of an impact Judge Brown has had on my life. Judge Brown was key in shaping my view about the importance of participation in our broader legal community and taught me that it is critical that we accept the call to service of that community. Judge Brown also taught me that the impact of our participation is not only about the “big picture” but that the small, individual interactions we have can have dramatic impacts on those individuals. Though many years have passed, I can proudly say that Judge Brown is still my mentor to this day. More than that, Judge Brown is a friend. I know that if I find myself in need of guidance, or just someone to talk through a challenging issue, Judge Brown will be there for me. 6

Thank you, Judge George Brown, for being my mentor and my friend. What I would like to ask of each of you is that you take a moment this month on whatever social media platform you favor and share a picture and a few words about your mentor in the legal community. Let’s take a breath from the chaos of our daily lives to acknowledge and thank those professional mentors. I would encourage you to use the hashtag #MBAMentors so that others can find your post and we can all engage together in this activity. I know we don’t like to admit it, but some of us are no longer the young, green attorney in need of mentorship, and perhaps this is an opportunity to “pay it forward” as well. Make yourself available to the attorneys in your orbit – take them to lunch, talk to them about life, share with them the wisdom gained through years of trials and errors (pun entirely intended). We are stronger when we can learn from each other’s successes and failures. If we get enough engagement in the #MBAMentors, perhaps this will be a jumping off point for the MBA to build a more formalized mentor network to benefit the lawyers that are coming behind us. I look forward to seeing the #MBAMentors pictures and stories filling my Facebook feed soon! 


Judging the Judges

Q & A with Randy Noel, Esq. Chair of the ABA Standing Committee on the Federal Judiciary HARRISON D. MCIVER III, Interviewer

T

he most recent U.S. Senate confirmation process resulting in the confirmation of U.S. Supreme Court Justice Amy Coney Barrett provides a unique opportunity for the Memphis Bar Association (MBA) readership to better understand the American Bar Association’s role in the process. Fortunately, the Chair of the ABA‘s Standing Committee on the Judiciary is Memphis’ own Randy Noel, a partner in the law firm of Butler Snow LLP, who will describe that role herein. As a member of the Publications Committee, I welcomed the opportunity to conduct this interview. I have known Randy since my arrival in Memphis to lead Memphis Area Legal Services, Inc. (MALS). Over the years I have witnessed Randy’s engagement in the Memphis, Shelby County community and in bar associations at all levels, especially the ABA, including as a member of the ABA House of Delegates and Board of Governors. He also served as President of the Tennessee Bar Association and the Tennessee Council of Judicial Appointments. Not surprising, he is truly committed to the rule of law and access to justice. That has taken on

several forms. I will share two examples based upon my personal experience. The first example came during the ABA Presidents’ annual visits to Memphis to speak to the Rotary Club of Memphis at the invitation of the late Shep Tate. (Shep was a former ABA President and an icon in the legal community). Randy and I worked together to ensure that the visits to Memphis were more than speaking to Rotary Clubs, but also afforded meetings with the Editorial Board of The Commercial Appeal, visits to the National Civil Rights Museum, engagement with law students at the University of Memphis Cecil C. Humphreys School of Law, and spending meaningful time with the MALS staff. Their remarks and words of encouragement were very inspirational to my staff. In the second example, Randy served as the Chair of MALS’ Campaign for Equal Justice to raise resources to support justice for those in need. He created the “Difference Maker” giving category to recognize law firms and legal departments for financially supporting MALS at one of the highest levels.

With the foregoing introduction, now the INTERVIEW: HDM: What is the role of the American Bar Association’s Standing Committee on the Federal Judiciary? RN: The Standing Committee conducts a comprehensive, independent peer evaluation of the competency, integrity and judicial temperament of every Article III (district, circuit and Supreme Court) and IV (territorial courts) for nominees to the federal bench. That evaluation is done under strict confidentiality to ensure candid opinions from the peers who know the nominee best. Those interviewed include law partners, judges before

whom the nominee has appeared, opposing counsel, bar leaders, and others in the legal community with first-hand knowledge. The work of this Committee is fire-walled from the rest of the American Bar Association (ABA), including its officers and board members. They have no say in the evaluation and have no specific knowledge of our work and deliberations. HDM: How did you become involved in the Committee? RN: I served on the Committee under an appointment from then ABA President Dennis Archer of Michigan 7


HDM: What rating did Justice Coney Barrett receive? RN: She received the Standing Committee’s highest rating of Well-Qualified. HDM: During the more than 65-year period, has the timing of the evaluations changed? If so, how has it changed?

in the early 2000‘s and evaluated many nominees in the Sixth Circuit and elsewhere, including Supreme Court Justices Roberts and Alito. Current ABA President Patricia Refo of Phoenix, Arizona appointed me as Chair of the Standing Committee this 2020-2021 association year. HDM: Why does this ABA Committee provide these evaluations? RN: The Standing Committee has conducted these evaluations for more than 65 years, since President Dwight Eisenhower sought the assistance of the ABA in the nomination process. It is a service to the White House, the Department of Justice, the U.S. Senate Judiciary Committee, and, of course, the public. HDM: How does the Committee conduct its work? RN: The work of the Committee currently is done by 18 members, from each of the federal circuits and four at large positions. These individuals spend hundreds of hours annually doing the work of contacting over 100 people with respect to each nominee, reviewing the nominee’s written works, and conducting an in-person interview with the nominee. A full written report is then prepared by the lead evaluator and submitted to all Committee members with a recommendation of a rating of Qualified, Well-Qualified or Not Qualified. The Committee deliberates and votes on the official rating. 8

RN: The timing has changed with different administrations. Until the administrations of George W. Bush, the practice was for the Standing Committee to evaluate potential nominees prior to their actual nomination by the President. This would allow the President, in the event of an unfavorable rating, to simply withdraw the name from consideration and select another person to be considered. President Bush utilized a different process and requested that the evaluation be conducted after the nomination had become public. President Obama reverted to the original pre-nomination evaluation process, while President Trump changed again to publicly nominate first and then call for the evaluation. And that is the practice that will be continued by the Biden administration. HDM: Political partisanship can become a large part of the appointment process. What role does politics play in the work of the Committee? RN: Politics has no part of it. The work of the Committee is completely non-partisan. We evaluate only whether the nominee has the professional qualifications to serve in these lifetime appointments.


Committee are passionate about that. HDM: Do you have an interesting story or anecdote about your experience that you would like to relay?

HDM: Do you attend confirmation hearings? What about investiture ceremonies? RN: We do attend and testify in certain Senate Judiciary confirmation hearings. And we attend and speak at investiture ceremonies if invited, which is usually the case. HDM: What in your opinion is the significance of the work of the Standing Committee? RN: The work of the Standing Committee is of considerable importance to the appointment process. Those with whom we work in the White House, the DOJ, and the Senate Judiciary Committee value the service and appreciate the selfless, hard work of our members who are trying to get it right. This is the only peer evaluation of this type that the nominee will ever get. We share the objective of the President and the Senate in placing only the most professionally qualified candidates to serve in these important positions, and for good reason. The Federal Judiciary is a cornerstone of our great democracy, and the members of our

RN: There have been many rich and rewarding experiences from this service, including serving with a stellar group of Committee members who are handpicked for this job. One memorable moment concerns the privilege I had in testifying before the Senate Judiciary Committee during the nomination hearing of now Justice Amy Coney Barrett. I and my colleague were the first witnesses to follow Justice Barrett, and we were supposed to begin at 9 a.m. for an expected twenty minutes or so. While we were seated but before being sworn in, a motion was made calling for a delay in the proceedings, and Chairman Lindsey Graham allowed a full debate which lasted over two hours. To be at center court as it were in the room where it happened; watching this zealous political theater unfold was not part of the plan. Regardless of your position on this particular nomination, the stakes were big and there was this stirring level of impassioned advocacy back and forth. So, that experience kind of falls into the surreal category for a lawyer from Memphis. The icing on the cake was that our fifth grandson was born that evening after I returned from Washington. Randy, thank you for sharing your experience on such an important topic and congratulations to you and Lissa on the birth of your grandson.  Harrison D. McIver III is retired as CEO of MALS, holding the distinction of CEO Emeritus, and a 40- plus year champion and advocate for equal justice under law.

9


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Employee Vaccinations: Carrot or Stick? By LISA A. KRUPICKA

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n Tuesday, March 2, 2021, President Biden forecast that “[t]his country will have enough [COVID-19] vaccine supply for every adult in America by the end of May.” Employers that have been reluctant to address the issue of whether or not to require their employees to be vaccinated because of the scarcity of supply must now face the question head on. This article will address the legal considerations1 affecting that decision and offer some practical advice on whether and how to implement a vaccination policy in the workplace.

I. The Stick: Mandatory Vaccination Policy Employment lawyers have been down this road before. Efforts by employers to encourage or require the annual flu vaccine have been subject to legal challenges for years and existing case law provides some helpful guidance. The legal authority on which an employee may oppose a vaccine requirement comes from two sources: the prohibition of discrimination on the basis of religion in Title VII of the Civil Rights Act of 19642 , and the prohibition against discrimination based on a disability in the Americans with Disabilities Act (“ADA”).3

A. Objections Based on Religion Under Title VII, an employee who asserts a religious objection to an employer’s vaccination requirement requires an employer to consider whether it can reasonably accommodate such a religious belief without causing the employer an undue hardship. “Undue hardship” in this context is different from the definition used by the ADA and requires a showing only that the proposed accommodation in a particular case poses “more than a de minimis” cost or burden. In contrast, the ADA undue hardship standard requires a showing that the proposed accommodation would require “significant difficulty or expense.”4

As most world religions do not prohibit their adherents from receiving immunizations,5 an objection to a COVID-19 vaccination based on religion is likely to be based less on formal religious tenets6 than on the broad definition of religion used by Title VII, which defines “religion” to include “all aspects of religious observance and practice as well as belief, not just practices that are mandated or prohibited by a tenet of the individual’s faith.7 There seem to be two schools of thought in the courts about how to determine if an objection is based on a “religious” belief when an unconventional belief is involved. One analysis, embodied by the Third Circuit in Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania,8 has a fairly restrictive view of when an unconventional belief can be deemed religious. In making that determination, the Third Circuit looks for three “useful indicia”: (1) a religion addresses “fundamental and ultimate questions having to do with deep and imponderable matters”; (2) a religion is “comprehensive in nature” and “consists of a belief-system as opposed to an isolated teaching”; and (3) a religion often can be recognized by the presence of certain formal and external signs.”9 The Third Circuit explicitly rejects a definition of religion that is based on “essentially political, sociological or economic considerations” or a “merely personal moral code.”10 The court therefore rejected a hospital worker’s basis for refusal to be vaccinated for influenza as not being religious when it was based on what he described as his “conscience.” On the other hand, both the Equal Employment Opportunity Commission (“EEOC”) and the Second Circuit employ a more expansive definition of religion and are much more willing to consider a belief that is more akin to a “moral code” to be a religion. Under the EEOC’s regulation, a belief can be considered religious when it involves “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”11 11


Likewise, the Second Circuit defines religion to involve “ultimate concerns,” that are more than “intellectual,” i.e., when “a believer would categorically disregard elementary self-interest in preference to transgressing its tenets.”12 Using this standard, a court determined that a couple’s rejection of immunization of their children as a condition for attending school was religious when they described their existence as “God in expression or life in expression” and believed that immunization “interferes with the health of the organism.”13 The court found that the repeated references to God, coupled with the parents’ “willingness to engage in a protracted legal battle” to be dispositive.14 The Sixth Circuit has not been squarely confronted with this issue to date, but at least one federal district court in the Sixth Circuit has relied on the EEOC regulations to deny a motion to dismiss a claim that an employee had a religious objection to the flu vaccine, holding that veganism could plausibly be a religious belief at the pleading stage.15 That case was eventually settled out of court. Even if a legally valid religious objection to a vaccine is identified, the employer must then determine if it can accommodate that objection without causing an undue hardship. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business, including impairment of workplace safety.16 A hospital or other healthcare employer would likely be most successful in asserting undue hardship based on safety in response to a religious objection to a vaccine, but there are as yet no reported cases squarely considering whether a hospital can fire or refuse to hire someone who has direct contact with patients but refuses a vaccine on religious grounds. The EEOC has avoided taking a direct position on the issue.17 There are, of course, alternatives to firing or refusing to hire an employee who will not take the vaccine that must be considered in this context. Such alternatives are discussed in more detail in the next section.

B. Objections Based on Disability There are three provisions of the ADA that come into play when considering whether to create a mandatory vaccination program: (1) by prohibiting employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk of substantial harm that cannot be eliminated or reduced with a reasonable 12

accommodation)18; (2) by severely limiting employers’ disability-related inquiries and medical examinations19; and (3) by requiring employers to provide a reasonable accommodation for individuals with disabilities absent undue hardship20. Under ordinary circumstances, these provisions would severely curtail an employer’s ability to ask an employee whether he or she is ill and to require employees who are ill to stay home without considering other alternatives. However, the declaration in March 2020 of a COVID-19 global pandemic by the Centers for Disease Control and Prevention (“CDC”) and the World Health Organization (“WHO”) has made it a matter of life and death to ask questions and take actions that would otherwise violate the ADA. Recognizing this circumstance, on March 21, 2020 the EEOC issued an updated version of their 2009 guidance on the H1N1 pandemic to address the COVID-19 pandemic.21 Under this guidance, employers are permitted to ask employees if they have COVID-19 symptoms, require them to be tested for COVID-19 as a condition to entering the workplace, and take employees’ temperature even though these actions would ordinarily be prohibited by the ADA. Moreover, under this guidance, the EEOC considers employees with COVID-19 to automatically pose a direct threat to themselves or others in the workplace. This means that employees who exhibit symptoms consistent with COVID-19 infection or who have tested positive for COVID-19 may be sent home and not permitted to come back to work until they are symptom free and no longer contagious. Once a vaccine had been developed, the EEOC updated its technical assistance publication in December 2020 to address how a COVID-19 vaccine program interacts with the legal requirements of the ADA.22 Under this updated publication, a vaccination is not considered a medical test under the ADA and employers may therefore require it. However, although the actual administration of the vaccine is not a medical examination, pre-screening vaccination questions may be likely to elicit information about a disability, and so could run afoul of the ADA’s prohibition against such inquiries. The way to avoid this dilemma, the EEOC suggests, is to use a third-party provider like a pharmacy, which can ask the questions without violating the ADA. So far, so good. But wait! There will be some employees who cannot take a COVID-19 vaccination because of a disability. These may include those who are allergic


to the vaccine’s ingredients, are immune compromised, or pregnant.23 The ADA still requires employers to go through the interactive process with such employees to determine if a reasonable accommodation can be made that would allow the employee to remain employed without receiving the vaccine. Accommodations to be considered include teleworking, paid or unpaid leave, reallocation of non-essential job functions, transfer to another job, or wearing a mask and social distancing. The EEOC encourages employers to consult with the most recent CDC guidance in assessing whether an accommodation is possible. Only after the interactive process has been completed and all possible accommodations have been considered and found unreasonable may an employer terminate a disabled employee who has a medical objection to taking the vaccine.

Joe’s, have taken a different approach to getting their employees vaccinated: a vaccine incentive program that rewards employees for getting the COVID-19 vaccine.

C. Other Objections

Immediately prior to President Biden’s inauguration, the EEOC issued new proposed regulations on January 7, 2021 limiting the incentive employers could offer to employees for participation in a wellness program to items of only de minimis value like a water bottle or a gift card of modest amount. Before the proposed rules could be published in the Federal Register, however, President Biden issued a directive to all federal agencies to withdraw all proposed rules not published in the Federal Register by January 20, 2021, pending further review.

In this current age of political polarization and misinformation spread on social media, there is going to be a significant number of people who will object to receiving the vaccine on grounds other than religion or disability. Concerns based on misinformation include concern that the vaccine will transfer microchips into the blood stream so the government can monitor people’s activities, that the vaccine will alter their DNA, that the vaccine with give them COVID-19, or that the vaccine causes infertility.24 More rational concerns include whether the vaccine has been adequately tested for safety and efficacy, mistrust of the medical establishment to administer the vaccine based on past mistreatment of Black patients, and the seriousness of the vaccine’s side effects. None of these objections is legally significant. Employers who override those concerns and require all employees to receive the vaccine are unlikely to create legal exposure for themselves. However, as a practical matter, such a requirement will likely lead to the termination of any number of otherwise good employees in order to enforce the policy, impacting both the bottom line and employee morale. These practical considerations are significant, and should give employers pause before creating a mandatory vaccination policy.

II. The Carrot: Vaccine Incentive Programs A number of large employers, including Kroger, Aldi, Target, Amtrak, Walmart, Chobani, and Trader

There have been concerns about whether a vaccine incentive program would be impacted by the EEOC’s rules on the ADA and employee wellness programs. The ADA permits employers to implement wellness programs that require employees to disclose medical information only if participation is voluntary. Guidance on what level of incentive that may be offered without affecting the voluntary nature of the program has been in limbo for some time now after the Commission’s regulations limiting the value of incentives offered to employees to 30% of the total cost for self-only coverage under their group health plans were struck down by a D.C. federal district court in 2017, causing their subsequent withdrawal.25

On February 1, 2021, a group of business interests and trade groups wrote the EEOC asking for guidance on what ADA-compliant incentives could be offered to employees through a wellness program to persuade them to take the COVID-19 vaccine.26 To date, the EEOC’s only response has been to withdraw the proposed rules and remove them from its website.27 Employers are once again left with no guidance as to the value of incentives that can be offered to employees to get the vaccine as part of an employee wellness program without running afoul of the ADA.28 Nevertheless, employers have gone forward with vaccine incentive programs, offering incentives that range from paid time off to get vaccinated to $100 cash payments to those who show proof of vaccination. Appropriate accommodations must be made for employees who object to the vaccine on disability-related or religious grounds, such as requiring them to watch a video on COVID-19 safety in order to receive the same incentive other employees can earn by getting vaccinated. 13


Based on experience to date, it is unlikely that vaccine incentives alone will accomplish employers’ goal of having everyone in the work force vaccinated. Fear and mistrust of the vaccine have become deeply entrenched in U.S. culture, and even $100 may not be enough to overcome it.

involving cash payments may encourage some employees who are on the fence about getting vaccinated, but not likely all of them. Getting all employees vaccinated is an important goal, but it is likely one that can only be achieved, if at all, with time, patience and continuing positive information about the vaccine. 

III. Recommendations

Lisa A. Krupicka is a member of Burch, Porter & Johnson, PLLC, where she is head of the firm’s Labor & Employment Group. She is a Fellow of the College of Labor & Employment Lawyers and a frequent commentator on employmentrelated topics.

Given the legal uncertainties and complications surrounding a mandatory vaccination policy, many employers are taking a more cautious approach by strongly encouraging their employees to be vaccinated, paying for the vaccine if necessary, and giving employees paid time off to get the shot. A more robust incentive program 1

This article will not address the legal implications for a vaccination program as related to its implementation through an employer’s group health plan, including possible implications under the Employee Retirement Income Security Act (“ERISA”) and under the Health Insurance Portability and Accountability Act (“HIPAA”).

2

42 U.S.C. § 2000e.

3 4

5

6

16

See, e.g., EEOC v. GEO Grp., Inc., 616 F.3d 265, 273 (3d Cir. 2021) (“A religious accommodation that creates a genuine safety or security risk can undoubtedly constitute an undue hardship” for an employerprison).

17

See EEOC Informal Discussion Letter, EEOC (March 5, 2012), https:// www.eeoc.gov/foia/eeoc-informal-discussion-letter-250.

42 U.S.C. § 12101.

18

42 U.S.C. § 12111(3), (8); 29 C.F.R. § 1630.2(r), 1630.15(b)(2).

Compare Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977) (interpreting standard under Title VII) with 42 U.S.C. § 12111(10)(A) of the ADA.

19

42 U.S.C. § 12112(d)(4)(A).

20

42 U.S.C. § 12112(b)(5); see also § 12111(3); 29 C.F.R. § 1630.2(r).

21

See Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, EEOC (Mar. 21, 2020), https://www.eeoc.gov/laws/ guidance/pandemic-preparedness-workplace-and-americans-disabilitiesact#7.

22

See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (Dec. 16, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19and-ada-rehabilitation-act-and-other-eeo-laws. This guidance also discusses the implications of a vaccination program under the Genetic Information Non-Discrimination Act (“GINA”).

23

See Interim Clinical Considerations for Use of COVID-19 Vaccine Currently Authorized by the United States, CDC (Mar.5, 2021), https://www.cdc.gov/vaccines/covid-19/info-by-product/clinicalconsiderations.html.

24

The Real Facts about Common COVID-19 Vaccine Myths, UC DAVIS HEALTH (Dec. 21, 2020), https://health.ucdavis.edu/healthnews/newsroom/the-real-facts-about-common-covid-19-vaccinemyths/2020/12.

25

See AARP v. EEOC, 267 F.Supp.3d 14, 38 (D.D.C. 2017); 83 Fed. Reg. 65,296 (Dec. 20, 2018).

26

Stephen Miller, Employer Groups Seek Clarity on COVID-19 Vaccination Incentives, SOCIETY FOR HUMAN RESOURCES MANAGEMENT (Feb. 5, 2021), https://www.shrm.org/ resourcesandtools/hr-topics/benefits/pages/employers-seek-clarity-oncovid-vaccination-incentives.aspx.

27

See Rulemaking, EEOC https://www.eeoc.gov/regulations/rulemaking (last visited Mar. 15, 2021).

28

However, for employers who are simply asking employees to show proof of vaccination by a third party or their own healthcare provider outside of an employer-sponsored wellness program, the EEOC has made clear that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. See note 22, infra, at question K.3.

Religions that do not prohibit immunization include Islam, Judaism, Buddhism, Hinduism, Roman Catholicism, and most Protestant denominations. Immunizations and Religion, VANDERBILT UNIV. MED. CTR.: OCCUPATIONAL HEALTH CLINIC, https://www. vumc.org/health-wellness/news-resource-articles/immunizations-andreligion (last visited Mar. 15, 2021). Recently, however, some evangelical Christians and Catholics have registered objections to the Johnson & Johnson vaccine in particular because it is derived from a line of cells tracing back to a fetus that was aborted in 1985, although the official position of the Vatican is that Catholics may use a “morally compromised” vaccine if none other is available. See Pub. Affairs Office, U.S. Bishop Chairmen for ProLife and Doctrine Address Ethical Concerns on the New COVID-19 Vaccines, USCCB (Dec. 14, 2020), https://www.usccb.org/news/2020/ us-bishop-chairmen-pro-life-and-doctrine-address-ethical-concerns-newcovid-19-vaccines.

7

42 U.S.C. § 2000e(j).

8

Fallon v. Mercy Catholic Med. Center of Southeastern Pennsylvania, 200 F.Supp.3d 553 (E.D. Penn. 2016), aff’d, 877 F.3d 487 (2d Cir. 2017).

9

Id. at 560.

10

Id. (quoting United States v. Seeger, 380 U.S. 163, 173 (1965)).

11

29 C.F.R. §1605.1.

12

Int’l Soc. For Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir. 1981).

13

Sherr v. Northport-E Northport Union Free Sch. Dist., 672 F.Supp. 81, 92-93 (E.D. N.Y. 1987).

14

Id.

15

Chenzira v. Cincinnati Children’s Hospital Medical Center, No. 1:11CV-00917, 2012 WL 6721098, at *4 (S.D. Ohio 2012).

14


21st Century Law Profession: How Video Conferencing Is Blowing The Dust From The Practice Of Law By TAURUS BAILEY

THEN: When I started law school in 1995, Westlaw was a new thing. Stacks of floppy disks were loaded into a computer, which also plugged into a fax modem to access this new thing called the internet. NOW: In our pockets and tablets, we have computers with more processing power than the computers did that took astronauts to the moon. That same device can not only connect us with phone calls, but with live video, and abilities to share documents, photos, video, etc. In the practice of law, we especially enjoy the advantage of sensory reading. It's certain that communication is more effective when you can see the person you're talking to, and gauge that person’s facial and micro-expressions. For example, it makes it easier to determine a joke from a serious declaration. But as the courts and profession of law have learned since the start of the pandemic, in-person court hearings, witness examination or client meetings are not essential for case progress or compliance with the rules or procedure for evidence. Instead, all over the world, video conferencing and collaboration services have become the tool of choice for courts, law firms, schools and even the bar exam. And it works, so long as participants know how to unmute themselves. The Memphis Bar Association’s Technology Section has assembled this comprehensive look into the leading conferencing software platforms, all capable of providing high-quality video and fullfeatured collaboration tools. While many of these video conferencing platforms also offer live streaming and webinar capabilities, the focus here is primarily on virtual meetings for court and for clients.

Zoom Zoom is easily the best-known video conferencing brand and most frequently used among lawyers for now. Zoom solidified its status as one of the leaders in the video conferencing industry because of clarity, reliability, and ease of use. Yes, there have been privacy concerns, but the risk vs. benefit have been reliable. Zoom has conferencing flexibility allowing simple 1:1 meetings or large group calls. It’s my understanding that up to 1,000 participants (with many using high definition without interrupting the bandwidth feed) can simultaneously enjoy it. Its document sharing feature is simple and great to use. Also, I personally enjoy being able to choose my own background, especially if I am at home working or in a place like Starbucks. I do find that the connection with Bluetooth headphones (I use AirPods Pro) has trouble connecting if you don’t connect prior to starting the video. FEATURES: Also setting the meeting invitations integrates smoothly with popular calendaring systems. Its free (we love that word...free) tier allows unlimited 1:1 meetings but limits group sessions to 40 minutes and 100 participants. Paid plans start at $15 per month per host and scale up to full-featured Business and Enterprise plans. The courts, judges, lay witnesses, clerks, homebased workers, and anyone can easily enjoy this system.

Microsoft Teams If you’re already using Microsoft Office, then why not? Microsoft Teams is essentially a successor to Skype for Business. Personally, I loved Skype for Business. Skype for Business was the original favorite in Western District of Tennessee federal court, however they are uniformly switched now to Teams. Teams has great features; however I don’t personally find the interface and layout intuitive or user friendly for everyone – especially 15


Cisco WebEx

the public or lay witnesses that may need to join on your call or court hearing. Teams is a direct feature of Microsoft 365. In that culture of usage: (Businesses and educational school districts) it accomplishes the purposes necessary. Anyone can sign up for the free version of Microsoft Teams using a personal email address. FEATURES: Document collaboration using online Office web apps; 300 meeting participants, with guest access; 1:1 and group video and audio calls; shared files and what has increasingly become important - screen sharing, and document collaboration. For this, one would use online Office web apps.

Skype for Business As easy and reliable as Zoom in my opinion It gives access to the most important collaborative tools video conferencing offers. Among the key features are the integration of Microsoft Office applications, meeting notes, webinar recordings, polls and surveys, screen sharing, and whiteboards. UNFORTUNATELY, Skype for Business has begun transition into Microsoft Teams as a unified collaboration suite. Sometimes, good things should be left alone.

GoToMeeting Hercules of video meeting software A great user interface is essential. I like this one. It’s reliable and rarely drops calls. Both Zoom and GoToMeeting offer simple and user friendly user interfaces. Call buttons are clearly marked and placed in spots that make sense. The only thing people may not like is that you have to download software prior to use. But anyway, GoToMeeting’s conferencing solution is consistent across platforms and integrates with calendar solutions and platforms from Office 365. Unfortunately, like Teams, the general public involved in your hearing or meeting may not have enough familiarity to navigate it quickly. FEATURES: HD video, screen sharing, web audio, unlimited meetings, dial-in conference line, no meeting time limits, business messaging, personal meeting rooms, meeting locks, mobile apps, mobile commuter mode, call me and dial-out options, and 24/7 support. It also offers integrations with Office 365, Google Calendar and Salesforce. 16

Just as good as GoToMeeting This option has been around a long time. It supports up to 50 participants per meeting, with meeting times capped at 40 minutes and online storage limited to 1 GB. The free conferencing plan allows up to three users. Quality is excellent on international calls. FEATURES: HD video, screen sharing across devices and it has limited recording options. It supports up to 50 participants per meeting (but capped at 40 minutes and online storage limited to 1 GB). All in all, the ease of use is an important feature, but with increasing usage in court and in mediations, I have discovered that the “break out rooms” feature is important for a sidebar with a client or between lawyers. Other important features to examine are: 1. Cost 2. Interface and layout ease / intuitive usage 3. Quality of sound 4. Reliability / not dropping calls 5. Recording ability 6. Screen sharing for video and documents (EVIDENCE MUST BE EASY TO VIEW) 7. After screen sharing, accessibility of the participants to do screen sharing without hosting 8. Chat room ability, both private and public 9. Invest in Bluetooth headphones. Ease of mobility is important for people who like to stand up during arguments. I love the AirPods Pro by Apple. 10. Also, get a USB Video Camera to allow you to move around the video positioning without setting a laptop awkwardly in an unstable spot. Prices vary and so do features. Some have built in microphones, but unless you buy an expensive one, I do not recommend using the audio.  Taurus Bailey is an attorney with the Walter Bailey Law Firm. His experience includes extensive knowledge in Federal, State, Civil, Criminal, Family, Personal Injury and Domestic Law. He is recognized for coordinating and leading seminars in taking action on technology advancements, case strategy, presenting evidence, writing legal briefs and making oral arguments for hundreds of cases.


The Emergence of the Immigration Bar in the Trump Years: A Personal Assessment By GREG SISKIND1

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mmigration lawyers used to operate in obscurity and insularity. Most lawyers had a vague notion of what we did. Law schools generally didn’t bother to even teach a single course on the subject or if they did, it was a two-credit class and not taught every year. Immigration lawyers tended to hang out with other immigration lawyers and many never bothered to join bar organizations other than the American Immigration Lawyers Association (which has as members nearly every full-time immigration lawyer in America). The immigration bar is really an odd lot in many ways. We’ve been labeled the happiest legal specialty2 (despite being one of the lowest paid3). I’ve heard immigration lawyers described as social workers with law degrees. Most of us can’t imagine leaving for another field. And it’s easy to see why. When we win, we change people’s lives for the better, and we all have the government as our common opponent versus other members of the bar. It’s also an area that is regularly changing so there’s a constant challenge that requires even the most seasoned lawyers to devote substantial time to learning. If one could describe this as an idyllic situation, that was certainly tested over the last four years. Love him or hate him, the Trump presidency tested the immigration bar in ways none of us could have imagined. He attempted to bring more anti-immigrant change to the country than any President had done since Calvin Coolidge a century ago. And the bigger the headlines the better. Banning Muslim immigrants. Building a wall on the Mexican border. Massive changes making it nearly impossible to qualify for political asylum. Changes to the rules for skilled workers forcing many people in the U.S. for decades to have to leave. It was impossible not to become absorbed in the daily news cycle.

There was shell shock in the immigration bar but also a defiance that quickly emerged (starting with the Airport Lawyers during the implementation of the Muslim ban4). No one could have imagined how much work we had cut out for ourselves. The Immigration Policy Tracking Project at Yale Law School tracked changes in immigration policy from the beginning to the end of the Trump Administration. The final count of changes was 1,064.5 Some were spectacular in their scope. Some were obscure. Many were reversed, but enough survived that the new President will be spending a good portion of the next four years trying to get us back to where the system was four years ago. The most remarkable thing to me about Trump’s immigration program was that it was all done without Congress passing a single law to change a thing. Much of the agenda was driven by his advisor Stephen Miller, but the substance of the changes were mapped out before Trump actually won. The Federation for American Immigration Reform, an anti-immigrant group, published a document in November 2016 entitled Immigration Priorities for the 2017 Presidential Transition that contained a list of 72 ideas for things the Trump Administration could do without Congress. That list largely guided Stephen Miller in his policy initiatives and many FAIR alumni as well as people with similar backgrounds ended up being appointed to lead U..S immigration agencies to carry out the plans. But despite this dismal assessment, it could have been worse. Far worse. That it didn’t go as badly as it might have is largely due to an army of immigration lawyers that engaged warfare familiar to fellow lawyers (litigation) as well as the unconventional (Twitter, protests, running for office). The immigration bar fought back in the courts to the point where it became predictable that the big changes would be followed, often within hours, by a federal lawsuit. Nearly every major policy and a number of the smaller ones did, in fact, get litigated and the Trump 17


Administration’s record was abysmal. I’m in a position to know because I was co-counsel on some of those cases. They included Purdue University v. Scalia, a case filed on behalf of a dozen major universities that sought to reverse a Department of Labor wage rule that would have devastated universities and hospitals. For some colleges, complying with the rule would have shut down entire departments. For teaching hospitals, the rule threatened their ability to hire medical residents. The case ended in summary judgement and the rule was rescinded. I was also co-counsel on Aker v. Trump, a case that sought to reverse the Administration’s plan to stop people from using the Diversity Visa. If individuals remember Trump’s remark about “shithole countries” he was referencing a legislative initiative that would have ended this visa category. Aker v. Trump had more than 100 plaintiffs and is still in litigation, but we succeeded in getting a preliminary injunction in September 2020 that forced the administration to issue 5,000 green cards it otherwise would not have and another 9,000 visas that are reserved for issuance after the litigation concludes. These cases were just a few of many dozens of suits filed by a number of lawyers across the country, many of which resulted in injunctive relief including the rescinding of a number of rules and policies. A lot of the cases were pro bono suits (including the two I mention here). The American Immigration Lawyers Association and its foundation affiliate organization the American Immigration Council went so far as to create an in house litigation department that filed a number of suits and also set up training initiatives to help immigration lawyers learn how to file federal suits. We didn’t always win. Trump v. Hawaii, the Muslim ban suit, was a stinging loss and the Supreme Court opened the door for a much wider use by the Administration of the use of Section 212(f ) of the Immigration and Nationality Act. Section 212(f ) allows a President to bar the entry of an individual or a group of individuals after a finding that the entry of the individual or group would be detrimental to the interest of the U.S. After that win, Trump began issuing more than a dozen proclamations using that power to eventually keep out hundreds of thousands of people (until later suits struck some of them down). But there were just a handful of wins for the Trump Administration in the Supreme Court, which were far outnumbered by dozens of losses in the lower courts. 18

Often, immigration lawyers effectively used media strategies – including social media - to reverse the policies. The policy of separating families and detaining young children in jail-like conditions ultimately was reversed because of an enormous amount of public pressure. A whole cadre of immigration lawyers effectively harnessed the power of social media and forged relationships with journalists and activists to keep the public apprised of what was happening. One case that got national attention was from right here in Memphis involving a pro bono client of mine. A five-months pregnant unrepresented woman married to a U.S. citizen was attending an immigration interview at the Memphis USCIS office. She ended up arrested because of a deportation order from another state which she did not even know about. The woman was in a very high-risk pregnancy and was at risk for a stroke, but nonetheless was denied her medicine and put on an 8-hour bus ride to a Louisiana detention center. Her husband found us right away, and we launched a campaign on Twitter that same day that resulted in millions of views and then thousands of calls to the ICE detention center while she was still on the way to Louisiana. She ended up being sent immediately to a doctor and the next morning driven right back to Memphis and released.6 Over the course of the Trump years, my Twitter following grew from about 10,000 followers to well over 50,000, which means we now have options like this for our clients. Lawyers have always had reporters’ names in their rolodexes to deploy a media strategy when it could help. Today’s immigration lawyers now have those contacts (indeed, reporters often follow immigration lawyers on social media to find out what’s happening in the field). But we can now ally with activists to push back on out-of-control agencies that are sensitive to being viewed in a bad light. I’m not alone, by the way, and some immigration lawyers active on social media have teamed up to advocate for legislation, regulatory changes, and to bring awareness to the litigation options many immigrants have that they didn’t know. There’s a whole new generation of immigration lawyers that are taking advantage of these new advocacy tools. The Biden Administration is obviously very different when it comes to its views on immigration. But now that the immigration bar has come out of its shell, there’s no going back. We’re an administrative law practice


that has been used to paper filings and relatively tame advocacy on behalf of our clients. But a large number of immigration lawyers learned to fight in federal court on behalf of their clients thanks to the last President, and I doubt that skill set is going to be stored in mothballs. Nor will they leave social media or stop using the other tools they’ve learned to use to fight an unconventional battle. And perhaps that will ensure that we remain the happy bar we’ve always been.  1

Greg Siskind is a Memphis immigration lawyer and the 2020 recipient of the American Immigration Lawyers Association’s Advocacy Award.

2

A personal observation, but at least supported by this distinguished lawyer: https://www.nationofimmigrators.com/immigration-lawyers-2/ why-are-immigration-lawyers-so-happy/.

3

https://www.studentloanplanner.com/highest-paid-types-of-lawyers/

4

https://www.nytimes.com/2017/01/29/us/lawyers-trump-muslim-banimmigration.html

5

https://immpolicytracking.org/.

6

https://www.commercialappeal.com/story/news/2019/03/28/ immigration-ice-detaining-pregnant-women/3003451002/.

Greg Siskind is a co-founder of Siskind Susser, a Memphis-based immigration law firm with clients throughout America. He is a member of American Immigration Lawyers Association’s Board of Governors and Vice Chair of the International Bar Association’s Immigration and Nationality Law Committee. He has written a half dozen books on immigration law topics as well as the ABA’s Lawyers’ Guide to Marketing on the Internet, now in its 4thedition. In 1994, he created the first immigration law website, and in 1998 he created the world’s first law blog. Today, he’s creating artificial intelligence-based web applications for immigration lawyers. In 2020, he was awarded the Advocacy Award by the American Immigration Lawyers Association.

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T

he Memphis Bar Foundation was established in 1982 by eighteen charter fellows to serve as the philanthropic arm of the Memphis Bar Association. The Memphis Bar Foundation is a 501(c)(3) organization, which provides a platform for attorneys and others in the legal profession to give back to the community through tax-deductible contributions. The Foundation is governed by a Board of Directors, whose members serve a two-year term. The Memphis Bar Foundation is housed at and receives staff support from the Memphis Bar Association.

Mission of the Memphis Bar Foundation: • Promote philanthropy among members of the legal profession • Advocate and support public awareness of the legal system • Promote social justice and legal education • Encourage and recognize professionalism among members of the Memphis Bar Association

CHARTER FELLOWS:

Richard H. Allen, Sr.

Herbert Glazer

George S. Petkoff

James T. Bland, Jr.

Eugene Greener

John S. Porter

Irvin Bogatin

J. Fraser Humphreys, Jr.

D. Beecher Smith

Lucius E. Burch, Jr.

W. Emmett Marston

Miles Standefer

James D. Causey

Charles L. Neely

S. Shepherd Tate

Ross B. Clark, II

J. Woodrow Norvell

James W. Watson

The Foundation fulfills its mission in several ways:

Grants:

The Foundation awards grants to non-profit organizations to support projects and programs. Over the years, the Foundation has awarded grants to:

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» Support legal services for the working poor

» Cover stipends for the Summer Legal Intern Program

» P  rovide a safe, secure environment for children to visit with their non-custodial parent

» P  ay the filing costs for expungement & restoration of citizenship rights for those unable to pay

» P ublish a manual outlining jurors’ rights and responsibilities

» P  rovide information about the legal system to non-English speakers

» Support Memphis Area Legal Services and Community Legal Center

» A  ssist lawyers and others in the legal profession with problems such as stress, depression and substance abuse


Fellows:

The Foundation annually nominates attorneys and judges to become Fellows. Nominees are chosen based on their devoted and distinguished service to the legal profession and the administration of justice and their adherence to the highest standards of professional ethics and personal conduct.

Benjamin L. Hooks Award:

The Foundation presents the Benjamin L. Hooks Award to an attorney or judge whose activities, both locally and on a national level, have significantly contributed to social justice and professionalism in the law. The award was first presented in 1998 to Benjamin L. Hooks, for whom it was named. The second recipient was the Hon. Bernice Bouie Donald, who was honored with the award in 2002. Other recipients of the award are S. Shepherd Tate, U.S. Supreme Court Justice Ruth Bader Ginsburg, U.S. Supreme Court Justice Antonin Scalia, and A.C. Wharton.

Bogatin Scholarships:

The Irvin Bogatin Social Justice Award and the Irvin Bogatin Scholarship are sponsored by the Bogatin Fund, created by the family and friends of the late Irvin Bogatin to honor his legacy of pursuing social justice. Mr. Bogatin was a Charter Fellow and first President of the Memphis Bar Foundation. He also helped to found Memphis Area Legal Services and served as President of the Memphis Bar Association from 1971-72. The recipients of the award and scholarship are selected by the University of Memphis Cecil C. Humphreys School of Law. You can help the Memphis Bar Foundation increase its ability to impact the community, other attorneys, and children by: • Including a voluntary contribution of $25 with payment of your Memphis Bar Association dues

• Including a provision in your (or a client’s) will leaving a bequest to the Foundation

• Making a tax-deductible contribution to the Foundation in support of its work or in honor or memory of a legal professional

• Telling others about the Foundation and its work and encouraging them to contribute

• Making a multi-year commitment to help create an endowment fund for the Foundation

Make a Donation

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Center for Excellence in Decisionmaking Roundtable Discussion EARLE SCHWARZ, Interviewer

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arle Schwarz spent time with four of his favorite people to talk about one of his favorite projects - Center for Excellence in Decision-making (CEMD). All interviewees have been involved in the CEDM for a period of time - Judge Bernice Donald currently on the U.S. Court of Appeals for the Sixth Circuit, Judge Thomas Parker sitting on the U.S. District Court for the Western District of Tennessee, Dean Katherine Schaffzin who is the current dean of the University of Memphis Cecil C. Humphreys School of Law, and Terrence Reed, Managing Director at FedEx and current President of the Center for Excellence in Decision-making. This interview delves into the CEDM’s history, purpose, and future.

History SCHWARZ: Judge Donald, rumor is that you coined the title, or the name the Center for Excellence in Decision-making, and you were involved in the Center from the time it was an idea or a glint in our eyes. Help us understand the history and your involvement, and why this project is so near and dear to your heart. JUDGE DONALD: I will say first and foremost the opportunity to work with incredibly passionate, distinguished, and committed individuals is the first thing that attracted me. I go back to the beginning of our journey to explore and learn about the term implicit bias, which we incorporated as a part of a Memphis Bar Association project under one of our really visionary MBA leaders, Earle Schwarz. We invited a trainer to come in and make a presentation. We recognized that as the legal profession is one of the least diverse professions in the country, that we, as lawyers, have an obligation legally, ethically and I believe, morally to do everything we can to make the profession a profession that is more diverse and just. So, we invited Ms. Kimberly Papillon, who was our trainer, to come to Memphis and do several days of training for a variety of groups of lawyers. Because we are such optimists, there was a question on the front end, I think by Earle Schwarz: If we end up with excess funds from this venture, what do we do with these funds? I think lawyers and judges are natural problem solvers, and it occurred to me in that moment that we should broaden this opportunity. We should expose more people. Knowledge is always, in my view, a shared 22

commodity, or should be. And I thought that we ought to impact the larger legal landscape in our community, if not beyond. I'm mindful that sometimes when the term race is interjected in a term, that it can become a charged word, and it can cause some unintended reactions. But this group always wanted to be inclusive, and we wanted to build bridges, not build barriers, or increase barriers. To me a diverse institution, an equitable institution is one that provides a benefit to all participants, and one that seeks to respect and enlarge the dignity of individuals, and one that strives for excellence, a model that I thought we ought to strive for. And so, to answer Earle’s question, I said, we will create a center, and we will call it the Center for Excellence in Decision-making because all of the things we do, the decisions that we make are intentional. And diversity and inclusion have to be intentional. Equity has to be intentional. And bias reduction must be intentional. It

Judge Donald talks about the formation of CEDM


just seemed to me that phrase would capture what we wanted to do. And fortunately for me, people around the table said yes, and so the Center was born. SCHWARZ: And so it was. I wanted to go back to something you said early on, because I think it was intentional for you to refer to the fact that there were all lawyers involved in the Center and continue to be involved in the Center from day one. Is that something that is important and perhaps distinguishes the Center from other institutions with similar missions? JUDGE DONALD: I believe it is. I'm not aware of one that just includes lawyers at this level. And there are a lot of people working in this space. But, lawyers have a unique ability because law governs our being from the cradle to the grave. There are laws and regulations that impact every phase of our existence. And as I said, lawyers are natural problem solvers. There's a quote by Charles Hamilton Houston, that says “lawyers are either social engineers or parasites on society,” and that's powerful. But I think that lawyers have that ability. We help shape society. We are in large part influencers of whatever the society looks like that we operate in and, of course, people come to us looking for us. And in order to be the leaders that we rightfully ought to be, we must be doers of that thing that we are advocating. For us being in a space where we are the least diverse and looking towards the future, I think it was incumbent upon us. And the other issue that always defines where we are, we are so defined in large measure and so routed and attached to history because this is one of the citadels of movements toward diversity and inclusion. Dr. King made the statement that the arch of the moral universe is long, but it bends toward justice. He certainly impacted and imprinted what is going on here, and lawyers were involved then as we move from basic human rights and basic civil rights, and now we are at another echelon. And lawyers have to be involved in that also. So, I think we are different, and I think we are leaders. I think that other communities are going to look to the Center as we grow and expand and use it as a model to say yes, there are things that lawyers can do. We said from the outset, we want to first start with our own home. We want to start with the legal profession, but we do not want to end there. We want to embrace the fullness of our being as lawyers, and in time move out, but first we want to fix our house. And I think that was the right thing to do.

Terrence Reed shares how the CEDM is different from other training groups REED: If I could piggyback on what Judge Donald said regarding how we are different than other organizations because Earle, your question is correct, it implies that there are other entities out there that provide diversity and equity and inclusion training, and how are we different. Well, Judge Donald is right, we have specifically targeted training workshops toward our actors in our criminal justice system. We have had state and federal court judges go through our training workshops. We have had attorneys in the U.S. Attorney's Office, Federal Public Defenders, Shelby County District Attorneys, and key decision makers within law firms and in-house counsel. Because lawyers and judges do have such an impact on everyone in society, we decided to start, just like Judge Donald said, in our own backyards. One way that we are different is that we decided to target our diversity, equity and inclusion training workshop towards these particular lawyers that have such a profound impact on our community's public. And that's really how we are different. I know from working with the National Civil Rights Museum they have a training series, too. But it's unlike the Center, and it's not targeted towards these particular key decision makers. It is targeted towards the public that submits an application, and then they are chosen. So that’s really the main difference between the services that the Center provides with other entities that provide this similar training. SCHWARZ: Judge Parker, you were in the audience for Kimberly Papillon's presentation at the Bench Bar conference in St. Louis and were deeply affected and moved by that presentation. Then, you made a presentation about the value of the CEDM at the Memphis Bar Association's annual meeting a couple of years ago. What attracted you to the Center and has 23


encouraged you to stay involved and to presumably, be involved for a long time to come? JUDGE PARKER: Judge Donald touched on one thing that attracted me. Just look at this group of people that we get to work with. And there are many others. Chancellor JoeDae Jenkins was there from day one. Dean Schaffzin attracted me out of the gate. And Earle, you're exactly right. I sat in that audience and heard Kimberly Papillon's address. I had heard the term implicit bias, but that was the first time I really sat through a lengthy discussion of what it is, and how it can impact the decisions we make, especially if we are not aware of it. As Judge Donald said, we want to make intentional decisions, not knee-jerk reactions.

Judge Parker shares why he joined CEDM I was attracted to being able to work with a group of people to improve the process of decision making, starting with the legal community, where our decisions affect not just ourselves, but they affect other people oftentimes. It’s critically important that we do our best. And I think that when we allow implicit bias to interfere with those conscious intentional decisions, we are not doing our best. To add to what Terrence was saying, the legal community is a group of lawyers who thought of this, with Judge Donald being the main one. If we are not going to look at our own house first and deal with that out of the gate, how can we then go and try to influence what other people are going to do. That was an important part to me. SCHWARZ: Without asking you for a ruling on any topic or particular case, it sounds as if you believe that your decision making has been improved by the training you have received under the auspice of the CEDM. 24

JUDGE PARKER: Well, I do. I will add that in the Western District of Tennessee, Judge McCalla was a real leader in this area. He has had discussions of implicit bias as part of his jury selection process for many years. When I came to the bench, I got his outline, and I use many of the same questions that he does to put it on the table and talk about it. What I am hoping to gain, and where I think a judge can affect this is to help learn more about the science of decision making and the science behind implicit bias. How we operate will not only help make better decisions for ourselves, but we will also incorporate insights across the legal system, which hopefully would include jury selection and sentencing questions. These concepts come into play over and over again on a daily basis for us.

Judge Donald discusses why decision makers need implicit bias training JUDGE DONALD: I certainly agree with everything Judge Parker said. Many times when people think about implicit bias and its effect on the work that judges do, they think about it in terms of the criminal mode, but it is equally applicable in the civil context. Implicit bias can affect not only decisions that jurors make, but the decisions that judges make. If we think about it, the science says, where there is the greatest discretion, there is the greatest opportunity for bias. We make rulings on motions to dismiss, on summary judgment motions, on evidentiary decisions, on credibility of witnesses, and a whole range of things. As legal professionals, we certainly want to make the best decisions we can and insure that the decisions we make are fair and just. SCHWARZ: There has been mention of one of the nice things about working with the Center is the opportunity to interact with a number of really special folks, deep thinkers, and persons committed to progress


within our community. Terrence, would you talk about the structure of the Center, who's involved, and the Center’s hopes for the future. REED: The Center for Excellence in Decisionmaking is truly a grass roots organization that started in 2018. It stemmed from the MBA Bench Bar conference in St. Louis. So, we are still a fairly new 501(c)(3) nonprofit organization. Since we do not have an executive director, all our initiatives are accomplished through our board. We have 21 very esteemed board members. One of the reasons I'm so privileged to work with the Center is because of these very progressive forward-thinking leaders within our community.

We volunteer to put on workshops, training sessions, educational programs and other initiatives. We are able to accomplish what we do through very generous benefactors, law firms, companies like International Paper and FedEx, and personal donations and sponsorships. Our most recent sponsors are State Farm, Baker Donelson and Ogletree Deakins. We work in partnership with the Memphis Bar Association and other wonderful partners with whom we collaborate, in order to turn these initiatives into reality. Most of which are free because of our very generous donors. We have had some exciting programs: Jeffrey Robinson, who is with the ACLU, presented in February

Center for Excellence in Decision-making Board of Directors President Terrence Reed, FedEx Express Managing Director Vice President Bryce Ashby, Donati Law Firm Treasurer Dean Katherine Schaffzin, University of Memphis Cecil C. Humphreys School of Law Secretary Doris Randle Holt, Western District of Tennessee Federal Public Defender • Judge Bernice Donald, U.S. Court of Appeals for the Sixth Circuit • Judge Thomas Parker, U.S. District Court for the Western District of Tennessee • Chancellor JoeDae Jenkins, Shelby County Chancery Court • Judge Gina Higgins, Shelby County Circuit Court • Phyllis Aluko, Shelby Country Chief Public Defender • Matthew Barron, International Paper Associate General Counsel • Greg Duckett, Baptist Memorial Health Care Senior Vice President/Chief Legal Officer • Professor Demetria Frank, University of Memphis Cecil C. Humphreys School of Law/Director of Diversity & Inclusion

• Desi Franklin, First Horizon Senior Vice President • Mark Glover, Baker Donelson Office Managing Shareholder • Marlinee Iverson, Shelby County Attorney • Ray Lepone, Shelby County Deputy District Attorney General • Caren Nicol, Evans Petree, PC • Earle Schwarz, Law Office of Earle J. Schwarz • Jennifer Sink, City of Memphis Chief Legal Officer • Kenneth Walker, Shelby County Schools General Counsel/Chief Legal Officer • Monica Wharton, Methodist LeBonheur Healthcare Executive Vice President/Chief Administrative Officer

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on racism in policing and in April with a three-hour dynamic program titled “Who We Are, a Chronicle of Racism in America.” We have some very dynamic programing planned for the upcoming months. SCHWARZ: Let me turn to Dean Schaffzin, who also has been involved in the Center pretty much from the beginning. What attracted you to the project and what do you see as the potential synergy between the law school and the Center?

synergy with what's happening that’s really helping the law school achieve its goals of increasing enrollment and graduation of diverse attorneys. But we can't do that alone. The legal community has to hire those attorneys and create opportunities for those attorneys. So, I thought that the Center for Excellence in Decision-making was an excellent partner for the law school, because together we are the legal community. We can help bring in and support successful law students and bring them to graduation. Then hopefully, the legal community will embrace them and provide opportunity. And the Center for Excellence in Decision-making helps prepare the legal community for that opportunity. I think it's a great partnership, and we are very happy to be a part of it.

CEDM Future SCHWARZ: If you could wave a magic wand, what would you like the Center to be over the next five years. Dean Schaffzin discusses her involvement and the importance of CEDM DEAN SCHAFFZIN: When I was first approached, it was maybe two months into my deanship, and I was still drinking from the fire hose. By July, we had our first big meeting in planning the next steps for the Center, and I was thrilled to be invited. What attracted me was really two things. One, the focus on diversity and inclusion, because I knew from the start of my deanship that was going to be a priority for me in leading the law school. So, the timing was perfect from my vantage point. I was also attracted by the uniqueness of the Center's approach by targeting implicit bias from the top down. It seems so much more effective than starting from the bottom up. And it seems so obvious when you look back on it, but it's not how a lot of diversity programs or implicit bias programs are structured. But, of course, start with the decision makers, and that will then be passed down through the ranks. So, I loved the innovative thought of starting with the decision makers. And yes, lawyers are decision makers, and it did seem obvious to be starting with the legal community. The law school was happy to be a partner and offer space. The Center offers the law school complimentary programing to really enhance the diversity and inclusion programing that the law school is focused on. I see a 26

DEAN SCHAFFZIN: I know exactly what I would want it to be. I would want it to be an academic center that was part of the law school community to foster research in the area, and receive national grants to fund research to support the data to drive policies in this area, and to develop a national curriculum. I see it as a center that could not only have this national curriculum, but could create fellowships whereby individuals receiving training from the Center could go out across the country and provide training to other legal communities beyond just Memphis. In five years, that would be an amazing accomplishment.

Dean Schaffzin waves her magic wand JUDGE PARKER: When I look back at our vision statement, one of the things that we wanted to do was to influence key community leaders, business leaders, as well


as individuals. In five years, I would like to see us be able to influence people like the CEOs of major corporations perhaps, all the way across our business community and other key stakeholders, political leaders, you name it. I think that would dovetail nicely with Dean Schaffzin's thoughts as well.

areas to do something to expand that diversity. Dean Schaffzin talks about diverse students graduating and having increased opportunities. I think that's a perfect goal for the Center to be a part of. Finally, I would love to see us continue to provide the rich, thought-provoking programing that we have been able to do, along with developing a resource bank for cutting edge and expansive information in this area. I know there is a lot out there, and most of us when we start to look for this, it is like turning the water hose some, but if the Center could provide some basic materials and recommend a must-read list for your diversity and inclusion and bias diet, that would be great.

Judge Parker shares his hopes for the CEDM in the next five years JUDGE DONALD: I'm waving my magic wand, first of all, to concur and adopt the statements of Dean Schaffzin and Judge Parker. I would add a couple of things. I love the notion of the information and education. I would like to see the Center, in addition to those things, or a part of that mission as articulated by Schaffzin and Parker, be in a position to go to entities, institutions, companies, firms, and upon request, be able to help them perform diversity assessments, to look at the overall operation and help them develop a plan, a strategic plan to foster the need for diversity in every area of their institutions. I would like for the Center to be able to have facilitators who would lead upon and request difficult conversations in diverse environments. I believe that we still are not at a point where we can really talk to each other across some of these barriers about difficult conversations that can help us grow. So, if a company wanted to have a lunch and learn conversation, or just a conversation around certain events, I would like them to look to the Center to come and facilitate this conversation. I would also like for us to be a resource to help firms and entities who are seeking to increase diversity, to help give them information and strategies for doing that. We have two programs, one about diversity in law firms and another about diversity in government entities. And there was an expressed need, a desire in both of those

Judge Donald waves her magic wand REED: If I could wave my magic wand in the next five years, I agree and I concur with everybody else's wish list. I do think that the Center has done a really good job with providing training and opening up the conversation within the legal community. We talked earlier about the groups within the legal community in which we targeted to try to improve the decision making, for example, within our criminal justice system. Within the next five years, I fully anticipate, and would like to see the Center transcend beyond the legal community, because there are issues to be addressed within the educational system, the media, and so forth. So, I hope that within five years we have not only tackled and made vast improvements within the legal community, but also within other fields. Within five years, I hope that the Center will have established itself as the premier training organization. We have provided what I thought was excellent training. We need to get our name out there, and spread the word that the Center for Excellence in Decision-making is where you need to go, and where organizations need to go if they want to provide training to leaders within their 27


HOW TO BECOME A BETTER LAWYER SURVEY OPPORTUNITY Life can sometimes throw curve balls and lawyers could find themselves sitting in the client’s chair. While it may be mildly interesting looking at their lawyer’s diplomas, what the lawyer-cumclient really wants is a resolution of their personal legal matter, yesterday if possible. Be on the lookout. The Publications Committee will be emailing a survey for any lawyers who have occupied the seat of the client in their personal lives. Please provide your feedback to this short survey, which will consist of less than 10 questions that will range from how the experience made you a better lawyer to what irritated you about your lawyer during the process. All responses will be confidential, and no names of lawyers or lawyer/clients will be used in analyzing the results. Your input, though, could go a long way to allowing us to reflect on what could make all of us ultimately better lawyers for our clients.

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Terrence shares 5-year-plan for CEDM organization, to their workers and so forth. We have been able to provide a tool kit and tips for the organizations that we have targeted. So, I would like to be that shop for organizations within the legal community and out. I would also like to be the repository for groundbreaking research. I know Judge Donald and Dean Schaffzin talked about that. That is certainly on our list. We are not there yet, but within five years hopefully the Center for Excellence in Decision-making will be where people will go when they want high level, intensive research in this area. One of the things that we have done in addition to the training on diversity, equity and inclusion, especially during this COVID period, we have provided educational programs, virtual programs through webinars, for certain issues that are plaguing our community. We had a program on voter suppression. We have had a program on domestic terrorism. We had a program on racisms and the U.S. economy, and we recently had a program on racism in policing and the history of that within the United States. Hopefully, in five years we are still providing that educational arm for the Center. And here's something that is novel. I'm hoping we can track and benchmark improvements for organizations that have used the Center to provide training, so over time we will be able to gather and analyze data to show how the Center has benefited these organizations or legal groups. So, that's my wish list.


TENNESSEE CHAPTER Memphis Area Members recognized for Excellence in the field of Mediation or Arbitration

Gayle ASHWORTH (615) 254-1877

Allen BLAIR (901) 581-4100

George BROWN (901) 523-2930

John CANNON (901) 328-8227

Fred COLLINS (731) 686-8355

Janice HOLDER (901) 527-3765

Trey JORDAN (901) 526-0606

Hayden LAIT (901) 527-1301

Minton MAYER (901) 312-1640

Jerry POTTER (901) 525-1455

Check preferred dates or schedule appointments online directly with the state’s top mediators & arbitrators. www.TennesseeMediators.org is entirely free, funded by our members

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T

Access to Justice Virtual Legal Advice Clinic

his year the Memphis Bar Association’s Access to Justice Committee will launch a Virtual Legal Advice Clinic! We are excited to bring this opportunity to our community and hope your firm, legal department, or organization may be interested in sponsoring a Virtual Clinic! You may have participated in the 2nd Saturday Legal Advice Clinic in the past. The Virtual Clinic will be similar in concept, though logistically, it will look quite different. The Clinic will take place via Zoom and focus on one to two legal issues per clinic, accommodating a maximum of 10 clients. The Clinic will take place the 1st Friday of each month. It will offer optional training from 12:00P-1:00P on the day of the clinic, then the clinic will follow from 1:00P-3:00P. As a sponsor, you will commit to having volunteer attorneys participate in the clinic by providing free, legal advice to clinic registrants. Sponsors are expected

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to cover the 10 client appointments, 5 appointments each hour beginning at 1:00P and 2:00P. If you are interested in sponsoring a month or would like more information, please contact the MBA's Access to Justice Committee, Danielle Woods, at dwoods@bhammlaw.com.


A Look Back By ANNE MATHES

P

arker Palmer, the author and educator, tells a story of his search for a vocation, which dragged on into his 30's. During time spent at a Quaker retreat, he was often told "Have faith and way will open." Becoming frustrated, he turned to an older Quaker friend, who told him that in her 60 years of living "Way has never opened for me; but a lot of way has closed behind me, and that's had the same guiding effect." It can be hard to leave what we know and have faith that another path is unfolding, but that is exactly what I did in 2015 when I left a thirty-year career as a corporate attorney to become Executive Director of the Community Legal Center. What did I know when I started this work? That we each deserve to seek justice regardless of our circumstance in life, and that every person deserves quality legal care. What do I know now? That over 30% of Memphians qualify for the Community Legal Center, meaning they likely have nowhere else to turn in their time of need. That without our dedicated staff, all too many would go to court without counsel because they cannot afford a lawyer to fight for basic rights like their housing, their citizenship status, or their safety. That our work often keeps people that we now know are essential workers - grocery clerks, education assistants, hospital cleaners - from slipping into outright poverty or homelessness. That civil legal help at the right time can make all the difference in the life of someone who thinks they have no recourse - it can even save lives. That it takes a village, and then some, to do this work. That providing low and no-cost legal services to those of low and moderate income is key to addressing the problems we hope to solve as a community. And I now know that, once again, I am ready to take a new path, with faith, that it will unfold. I will turn the reins of the CLC over to a new leader when I retire.

At the CLC, we look back proudly on over 25 years of service to this community. We have answered over 70,000 calls for help, often stepping into the gap to provide services not otherwise available. We were the first nonprofit to offer comprehensive immigration legal services, almost 15 years ago, helping those fleeing violence find safety and refuge. Our dedicated Elder Law attorney has, since 2015, worked full-time fighting the growing problem of elder abuse. The Pro Se clinic we have staffed for many years at the Courthouse helps unrepresented mothers get divorces and child support that makes all the difference to their children. In recent years, we have added a General Civil division, through which we provide help with adoptions, wills, and other vital legal care. We have developed deep and meaningful collaborations with other nonprofit organizations in our community and across the state. And while I cannot take credit for all of these accomplishments, I am proud that under my tenure we have made it a priority to pay all staff at least $15 an hour and to provide them with health insurance. Our most exciting development during my time with the CLC happened last year when we moved to our own building with generous space to serve our neighbors in need. As we look to the future, the CLC is poised to remain the nimble and creative organization it has always been. New leadership will work with our dedicated Board and diligent staff to chart a course through the unprecedented times we all find ourselves in, working to ensure we serve our clients well while continuing to grow and meet the ever-changing needs of this community. I have faith in it.  31


Memphis Area Legal Services Thanks the 2020 Contributors to Our Campaign for Equal Justice Cindy Cole Ettingoff, Esq.

VISIONARIES

In Memory of Robert L. Green, Esq. and Virginia W. Griffee, Esq.

Community Foundation of Greater Memphis DIFFERENCE MAKERS Firms of 2 or more contributing $350 or more per attorney

Evergreen Packaging First Horizon Bank Lucia Gilliland In Memory of Frank Glankler and Roy Wesley, Jr., Esq.

Michael (Esq.) & Sharon

Goldstein Family Fund Adams & Reese LLP In Memory of Bass Berry & Sims PLC Black McLaren Jones Ryland & Lloyd C. Kirkland, Jr., Eq. Griffee, P.C. Brian E. Heim, Esq. Bourland Heflin Alvarez Minor & Honorable Janice Holder Matthews, PLC In Memory of Burch Porter & Johnson PLLC Sylvia and Louis Holder and Butler Snow LLP Lloyd C. Kirkland, Jr., Esq. Farris Bobango Branan PLC Gatti, Keltner, Bienvenu & Sunita K. Jain, MD Montesi, PLC Paul A. Klein Glankler Brown, PLLC Memphis Reprographics Glassman, Wyatt, Tuttle & Cox PC Harkavy Shainberg Kaplan, PLC Monogram Food Solutions LLC Randall D. Noel, Esq. The Hunt Law Firm International Paper Paragon Bank Lewis, Thomason, King, Krieg & Eugene J. Podesta, Esq. Waldrop PC Mr. and Mrs. Dan Richards Littler Mendelson PC In Memory of Martin Tate Morrow & Lloyd C. Kirkland, Jr., Esq. Marston PC Thad S. Rodda, Jr., Esq. Memphis Area Legal Justin M. Ross, Esq. Services Inc. Sharon (Esq.) & Bill Ryan Morgan & Morgan PA Russell, Oliver & Stephens The Prosser Law Firm Alex (Esq.) & Debra Spicer Rudstrom PLLC Saharovich In Memory of Lloyd C. Kirkland, Jr., Esq. Shephard D. Tate, Esq. The Wharton Law Firm In Honor of Rita Gibson Rayford, Esq. Wolff Ardis P.C. Mary Morgan Whitfield, Esq. Wyatt, Tarrant & Combs LLP Nedra L. Wick, Esq. WREG CHAMPIONS Contributions from $15,000- LEADERS $29,999 Contributions from $400-$999 Honorable Diane K. Vescovo & Mike G. McLaren, Esq. In Memory of Lloyd C. Kirkland, Jr., Esq. John Thomason and Virginia W. Griffee, Esq.

BARRISTERS Contributions from $10,000$14,999 Jack S. Magids, Esq. Brice M. Timmons, Esq.

ADVOCATES Contributions from $5,000$9,999 Glenda Hastings & Napa Café Kathy and J.W. Gibson Kristine L. Roberts, Esq. Memphis Bar Association Methodist LeBonheur Healthcare

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Honorable Robert L. Childers John E. Kruger, Esq. In Memory of In Memory of Lloyd C. Kirkland, Jr., Esq. Conrad and Jeanne Kruger Jim Gilliland, Esq., Paul H. (Esq.) & Prof. Mary Leo Bearman Jr., Esq., Morris Elizabeth G. Ford Hohenberg, Esq. Kimbrough B. Mullins, Esq. Bill Jeter, Esq., and Network For Good Honorable Curtis S. Person Jr.

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Richard Cullison, Esq. Liberty Cunningham Marie Dodson Kimberly A. Dougherty, Esq. In Honor of Anne Edwards Brice M. Timmons, Esq. Eric L. Elms, Esq. Biridiana Erives Matthew M. Lubozynski, Esq. Bonnie Eulinberg Philip E. Mischke, Esq. W. H. Ewing, Jr., Esq. Jerry E. Mitchell, Esq. Danielle Faulk Murfreesboro Medical Clinic Linda L. Garceau In Memory of In Memory of Paul D. Trapeni, III Paul D. Trapeni, III Janice Nacol Ruth Gatlin In Memory of In Memory of Lloyd C. Kirkland, Jr., Esq. Lloyd C. Kirkland, Jr., Esq. Lee Howard Gerald, Esq. Kayron L. Newman In Honor of Mike Stengel, Esq. Sharon L. Petty, Esq. In Memory of Honorable Julia Gibbons and In Memory of William Gibbons Lloyd C. Kirkland, Jr., Esq. Mary L. Wolff, Esq. In Memory of Priority Insurance Agency Rice Caperton Rice PLLC Lloyd C. Kirkland, Jr., Esq. Conor Quinn Pat Gipson Maggie C. Roney, Esq. In Honor of In Memory of Paul D. 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William (Esq.) and Ruth Young Carroll C. Johnson, III, Esq. Lauran G. Stimac, Esq. Fred Jones Honorable Jerry Stokes JoAnn Jones FRIENDS Victor H. Jones Bradley E. Trammell, Esq. Contributions from $149 and below In Memory of W. Paul Tuberville, Esq. Lloyd C. Kirkland, Jr., Esq. United Way of the Mid-South Lawrence Adams Justin N. Joy, Esq. In Memory of Pamela Williams Kelly, Esq. James C. Warner, Esq. Lloyd C. Kirkland, Jr., Esq. Jeannie Kosciolek, Esq. Jeff Weintraub, Esq. Mr. and Mrs. George Albright Carol & Charles Kronquist In Memory of In Memory of Faye A. Williams, Esq. Lloyd C. Kirkland, Jr., Esq. Lloyd C. Kirkland, Esq. Yuletide Office Solutions Amazon Smiles John E. Kruger, Esq. Anonymous Hon. Loyce Lambert-Ryan SUPPORTERS Chris M. Apalodimas, Esq. Lynn and Gregg Landau, Esq. Contributions from $150-$399 Taurus M. Bailey, Esq. In Memory of In Honor of Mike Stengel, Esq. Lloyd C. Kirkland, Jr., Esq. Rebecca Acosta Rosanne Ballin Goodman, Esq. Tasha Lee In Memory of Marvin E. 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In Memory of V. Steven & Patricia Parrish Prof. Donna S. Harkness Lloyd C. Kirkland, Jr., Esq. In Memory of Albert C. Harvey, Esq. Tara D. Brown, Esq. Lloyd C. Kirkland, Jr., Esq. Megan A. Bula, Esq. Margie Perkins Honorable Gina C. Higgins In Memory of Lloyd Calhoun In Memory of the Lloyd C. Kirkland, Jr., Esq. Nancy A. Calhoun Honorable Rita L. Stotts and Brian C. Plankenhorn and Kelley In Memory of Paul D. Trapeni, III Viola E. Johnson, Esq. Plankenhorn and Susan Ketchmark Leslie Donald Campbell, Jr. Joshua A. Hillis, Esq. In Memory of Prince C. Chambliss, Esq. Honorable Rhynette N. Hurd Lloyd C. Kirkland, Esq. In Memory of Judge D'Army Bailey Prof. Andrew Hussey Betsy A. Prendergast, Esq. Marcellina Chatman In Memory of Jamal Johnson, Esq. Honorable Connie Clark Connie Ross In Honor of Sukita L. Johnson, Esq. Richard & Nancy Prillaman Justice Holly Kirby Bruce M. Kahn, Esq. In Memory of Community Foundation of In Memory of Lloyd C. Kirkland, Jr., Esq. Middle Tennessee Lloyd C. Kirkland, Jr., Esq. Thomas B. Pritchard, Esq. David M. Cook, Esq. Home Instead Senior Care In Memory of In Memory of In Memory of Paul D. Trapeni, III Leo Bearman, Jr. Lewis Reich Lloyd C. Kirkland, Jr., Esq. Anthony & Mary Cremerius In Memory of Paul D. Trapeni, III In Memory of Lloyd C. Kirkland, Jr., Esq. Milandria King, Esq.

John H. Parker, II, Esq. In Honor of Susan Parker, Betty Leach and Mike Stengel, Esq. and In Memory of John Parker & Patrick Leach Carla A. Peacher-Ryan, Esq. John C. Pekar, Jr., Esq. Anna L. Phillips, Esq. Katherine Pope In Memory of Paul D. Trapeni, III Presbyterian Women of Buntyn Presbyterian Church

Donations made through The United Way or a change in our method of data migration may not be reflected here due to unavailability of contribution lists.

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Marie Ricossa In Memory of Lloyd C. Kirkland, Jr., Esq. Joan R. Romer In Memory of Lloyd C. Kirkland, Jr., Esq. Jason M. Ross, Esq. In Honor of Nicole M. Grida, Esq. Lindsey Rowe In Memory of Lloyd C. Kirkland, Jr., Esq. Diane Rudner In Memory of Lloyd C. Kirkland, Jr., Esq. Elaine St. Clemmons, Esq. Kimberly K. Schreiber, Esq. Patricia and Larry K. Scroggs, Esq. In Memory of Lloyd C. Kirkland, Jr., Esq. Paul D. Trapeni, III Evan Sharp In Memory of Paul D. Trapeni, III Mr. & Mrs. Jerry A. Shore In Memory of Lloyd C. Kirkland, Jr., Esq. Nicole Smith, Esq. Susan Stein In Memory of Lloyd C. Kirkland, Jr., Esq. Debra Stephens Linda & Gary Stooksberry In Memory of Lloyd C. Kirkland, Jr., Esq. Loretta Stubbs Christopher B. Sullivan, Esq. In Honor of Michael Stengel Wendy Sumner-Winter Stephanie Tasch, Esq. Glenn G. Taylor C. Anne Tipton, Esq. In Honor of Michael J. Stengel, Esq. Mary Wu Tullis, Esq. Freda Turner, Esq. Stephen W. Vescovo, Esq. In Memory of Lloyd C. Kirkland, Jr., Esq. Karen Walen H. Michael & Catherine Walsh In Memory of Lloyd C. Kirkland, Jr., Esq. Joshua Warren, Esq. Cuba Westbrooks Alexander C. Wharton, Esq. In Honor of Michael J. Stengel, Esq. André C. Wharton, Esq. In Honor of Michael J. Stengel, Esq. Pam White & Wendy Callahan Janika N. White, Esq. In Honor of Mike Stengel, Esq. Tomeka H. Wigginton, Esq. Tom & Judith Wilson In Memory of Lloyd C. Kirkland, Jr., Esq. Belinda Winston Anne Wulff & Brian Bendersky Angela Wynn Marques T. Young, Esq.

GRAY KNIGHTS

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Richard H. Allen, Jr., Esq. Chris M. Apalodimas, Esq. Honorable Robert S. Benham Stevan L. Black, Esq. Margaret G. Brakebusch, Esq. Louis P. Britt, Esq. Susan M. Callison, Esq. David M. Cook, Esq. W. H. Ewing, Jr., Esq. Michael E. Goldstein, Esq. Martin A. Grusin, Esq. James B. Jalanek, Esq. Bruce M. Kahn, Esq. Alan L. Kosten, Esq. Reva M. Kriegel, Esq. John E. Kruger, Esq. Michael G. McLaren, Esq. Jack S. Magids, Esq. Jerry E. Mitchell, Esq. Thad S. Rodda Jr., Esq. Henry C. Shelton, III, Esq. Stephen L. Shields, Esq. Ben G. Sissman, Esq. Bruce M. Smith, Esq. Shepherd Davis Tate, Esq. James C. Warner, Esq. Jeff Weintraub, Esq. Mayor A C Wharton, Jr. Ruby R. Wharton, Esq. Joseph Maxwell William, Esq.


Circuit Court Report by STEPHEN LEFFLER

L

et me take the opportunity of this abbreviated Court Report to explain why some cases are reported and others are not. When I took over the Court Report in 2012, the only cases that were reported were jury trials that went to verdict. The more cases that got mediated, the fewer jury verdicts there were to report.

One judge suggested that I report non-jury cases as well. I thought it was a good idea. Since then, I have reported all contested jury and non-jury cases that are tried to verdict. I do not report settlements, consent judgments or summary judgments. I also do not report divorces that are the result of a verdict, because the results are typically too complex to be compatible with the Court’s computerized reporting system. Some months a judge will have no cases during a reporting period. That does not mean that judge has had no cases; only that the judge has had no contested jury or non-jury cases that were tried to verdict (or mistrial). Those judges have had full dockets but all of their cases fall outside the parameters for inclusion in the Court Report. Covers May 2020 to January 2021 DIV. 1: FELICIA CORBIN-JOHNSON 1. CT-2565-20: 9-1-20, Lubin Property Management v. Adria Armstrong, Breach of Contract, Non-Jury, Derek E. Whitlock, for Plaintiff, Defendant pro se. Plaintiff verdict: $4,857.30. 2. CT-3474-20: 10-30-20, Millington Airport Authority v. Tiulsair Beechcraft/Memphis, Inc., Breach of Contract, Non-Jury, Michael R. Marshall and Regan s. Sherwood, for Plaintiff, John J. Heflin for Defendant. Plaintiff verdict: $177,341.12. 3. CT-4332-20: 11-25-20, Harpeth Financial Services LLC d/b/a Advance Financial v. Brittney Gale Nash a/k/a Brittney Jones, Breach of Contract (FED), Non-Jury, John R. Cheadle, Jr. and Mary Barnard Cheadle for Plaintiff, Defendant pro se. Plaintiff verdict: $6,676.20.

DIV. 2: JAMES F. RUSSELL 1. CT-3620-20: 11-25-20, Empire Inc. d/b/a Truth and Chris Sanders v. A&M Partnership, Breach of Contract (FED), Non-Jury, David “Hawk” Allen for Plaintiff, Henry B. Talbot for Defendant. Defense verdict: A&M Partnership restored to immediate possession of property.

DIV. 3: VALERIE L. SMITH 1. CT-4691-19: 10-5-20, John McCommon v. Jeff Tompkins, Breach of Contract, Non-Jury, J. Kevin Cavender for Plaintiff, Defendant pro se. Plaintiff verdict: $2,992.50. 2. CT-3217-20: 11-20-20, FP Memphis, LLC v. Christoper Harris, Breach of Contract (FED), Non-Jury, S. Joshua Kahane for Plaintiff, Defendant pro se. Plaintiff verdict: $7,501.30. 3. CT-3982-20: 1-14-21, Cook Sales, Inc. v. Kerwin Lockett, Breach of Contract (Sale of portable building), Non-Jury, George F. Higgs for Plaintiff, Defendant pro se. Plaintiff verdict: $18,599.53.

DIV. 4: GINA C. HIGGINS No verdicts this reporting period. DIV. 5: RHYNETTE HURD No verdicts this reporting period. 33


DIV. 6: JERRY STOKES 1. CT-005776-18: 11-16-20, 495 Kings Stable, LLC v. Kimberly Pate, Breach of Contract (FED), Non-Jury, P. Preston Wilson for Plaintiff, Teresa Patterson for Defendant. Plaintiff verdict: $60,893.64

DIV. 7: MARY L. WAGNER 1. CT-1123-20: 5-12-20, Park Enterprise, Inc. d/b/a Highland Food Mart v. Alcohol Commission of Memphis, Certiorari to reverse a decision of the Memphis Alcohol Commission (by video teleconference), Non-Jury, John Parker for Plaintiff, Roane Waring III for Defendant. Plaintiff Verdict (City Ordinance § 7-8-16(1) contravenes state statutes and has no force of law). 2. CT-1882-19: 12-1-20, USA Auto, Inc. v. Courtne Gamble, Breach of Contract (Repossession and Deficiency), Non-Jury, Joe Barton for Plaintiff, Defendant pro se. Plaintiff Verdict: $8,824.00. 3. CT-2695-20: 12-14-20, David Barlow v. Rayfield Little, Breach of Contract (FED), Non-Jury, Both parties Pro Se. Plaintiff verdict for possession of premises only. 4. CT-4661-20: 1-21-21, Arbors of Century City Apartments v. Nakita Washington, Breach of Contract (FED), Non-Jury, Bruce L. Feldbaum for Plaintiff, Defendant pro se. Plaintiff Verdict: $12,103.11.

DIV. 8: ROBERT S. WEISS 1. CT-000951-17: 6-29-20, Four Twenty South Condominium Association Inc. v. Robert L J Spence, Jr. and Dorchelle T. Spence, Breach of Contract, NonJury, Peter D. Baskind for Plaintiff, Allan J. Wade for Defendant, Plaintiff Verdict: $26,862.00 Attorney Fee and $2,187.61 Costs. 2. CT-0310-19: 10-13-20, Jac-Co Services v. Edward Rothman, Breach of Contract, Non-Jury, George F. Higgs for Plaintiff, Defendant, pro se. Plaintiff Verdict: $2,995.91. 3. CT-4618-19: 10-15-20, Navy Federal Credit Union v. Onix, LLC, Breach of Contract, Non-Jury, Scott Lauck for Plaintiff, Defendant pro se. Plaintiff Verdict: $25,697.94. 4. CT-3017-19: 1-15-21, Linda Parham v. WRI Property Management, LLC, Breach of Contract (FED), NonJury, Kevin Snider for Plaintiff, Stephen C. Barton for Defendant. Plaintiff Verdict: $12,053.01 (Rescission of lease agreement; $3,943.51 Personal expenses; $8,109.50 Loss of personal property)

DIV. 9: YOLANDA R. KIGHT No verdicts this reporting period.

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United States District Court WESTERN DISTRICT OF TENNESSEE —WESTERN DIVISION by DEAN DECANDIA

Covers July to December 2020 MAYS (SENIOR STATUS) 1. USA v. Jeremy Fields: Jury selection on Oct 8. Trial from Oct 13 to 14. Indicted for felon in possession of firearm, felon in possession of body armor. Verdict: Guilty as indicted. Prosecution: Neal Oldham, Jennifer Musselwhite. Defense: Ned Germany, Robert Thomas.

MCCALLA (SENIOR STATUS) 2. USA v. Frederick Coleman: Trial from Oct 5 to 8. Indicted for 4 counts of Hobbs Act robbery, 4 counts of brandishing a firearm during the Hobbs Act robberies. Verdict: Guilty of 2 counts of Hobbs Act robbery, 2 counts of brandishing a firearm; mistrial on the remaining counts. Prosecution: Kevin Whitmore. Defense: James Jones.

NORRIS 3. USA v. Terry Benson: Trial from Nov 16 to 19. Indicted for theft of government property, mail fraud, passing a fictitious instrument. Verdict: Guilty as indicted. Prosecution: Damon Griffin, Lauren Delery, Eileen Kuo. Defense: Pro se with elbow counsel Lee Gerald.

PARKER 4. USA v. Ashley Hulbert: Trial from Oct 19 to 26. Indicted for Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, brandishing a firearm during the Hobbs Act robbery, carjacking, conspiracy to commit carjacking. Hung Jury. Prosecution: Elizabeth Rogers, Marques Young. Defense: Jack Irvine. 5. USA v. Anthony Carpenter: Trial from Nov 2 to 4. Indicted for felon in possession of a firearm. Verdict: Not guilty. Prosecution: Wendy Cornejo, Melanie Cox. Defense: Ned Germany, Robert Thomas.


AMBER FLOYD The Memphis-Shelby County Airport Authority (MSCAA) has announced the addition of Amber Floyd as its new General Counsel, effective April 5. Floyd will be responsible for overseeing Airport Authority legal matters including litigation, legal advice, claims, leasing and contracts and risk management. She will report to MSCAA President and CEO Scott Brockman. Floyd has been employed by the City of Memphis since 2019, most recently serving as Deputy City Attorney. Before joining the City of Memphis, she worked for more than eight years as a senior associate for Wyatt, Tarrant and Combs LLC in Memphis.

“Amber has a wealth of legal experience in both the private and public sectors,” said Brockman. “Her experience, achievements and community involvement make her an ideal addition to our leadership team.” Floyd earned a Bachelor of Science in Education from the University of Memphis, where she graduated with summa cum laude honors. She received her Juris Doctorate from the University of Memphis Cecil C. Humphreys School of Law. Floyd is a member of the Memphis Bar Association and the Tennessee Bar Association, as well as the Tennessee Supreme Court’s Access to Justice Commission. She also serves on the board of directors for the Ben F. Jones Chapter of the National Bar Association. Floyd was named one of the American Bar Association’s “On the Rise-Top 40 Young Lawyers” in 2017 and was the recipient of the National Bar Association’s Ben F. Jones Chapter’s President Award in 2020.

FAMILY OF ATTORNEY JAMES S. GILLILAND GIVES $500,000 ENDOWMENT GIFT TO UNIVERSITY OF MEMPHIS LEGAL CLINIC PROGRAM The former University of Memphis Legal Clinic is proud to announce that it is now the “James S. Gilliland Legal Clinic” and the recipient of a very generous $500,000 endowment gift from the family of nationally known Memphis attorney, James S. Gilliland. Jim Gilliland, who passed away in 2020, began his civilian legal career at the Memphis firm now known as Glankler Brown, PLLC, where he became a named partner. He remained with the firm for 30 years before being called to public service as the General Counsel of the U.S. Department of Agriculture. While actively engaged in law practice and after his retirement, he was a powerful force for access to justice and community building through his work on the boards of both local and

national nonprofit entities and in particular, his dedication to the development of the health law certificate program at the University of Memphis School of Law. His family made this extraordinary gift in honor of Mr. Gilliland’s exceptional commitment to our system of justice and to the education of a new generation of law students. As Law School Dean Kate Schaffzin expressed it, “The Gilliland family’s generosity will strengthen the Law School as a vehicle for social change and broaden the gateways to public service for students who will transform the world for the better. We are deeply grateful for the family’s commitment to propagating Jim’s values of equity, inclusion and justice.”

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BARBARA ROBBINS RETURNS AS LEGAL MARKET SPECIALIST WITH BANKTENNESSEE Since retiring in 2018, Barbara Robbins is returning to BankTennessee as legal market specialist. Robbins originally started working at BankTennessee in 1999 and served as senior vice president and branch manager of the Downtown Memphis office while managing the bank’s legal market specialty division. "Our 15-year partnership with the Memphis Bar Association and long history of serving the legal community gives us a recognizable level of experience. As a leading, locally-owned provider to many of the area legal professionals, we provide the specialized accounts and services that attorneys need,” said BankTennesee President and CEO Jim Rout.

BASS, BERRY & SIMS WELCOMES THREE MEMPHIS ATTORNEYS TO THE FIRM Michelle Chatfield brings more than 20 years of legal experience, most recently managing her own private practice focused on commercial real estate matters for regional businesses. She also served in in-house counsel roles at two publicly traded companies: Equity Inns, Inc. and AutoZone. Chatfield earned a law degree from the University of Memphis Cecil C. Humphreys School of Law (1994) and a B.S. from the University of Tennessee (1991). Nicole T. Milani joins as an associate and will counsel developers, landlord tenants and businesses and investors related to commercial real estate and debt financing transactions (as will Chatfield). Milani earned a law degree from the University of Memphis Cecil C. Humphreys School of Law (2020) and a B.A. from Rhodes College (2014). Alex Agee joins the firm’s litigation practice as an associate to represent clients in complex litigation, contract disputes and business torts, as well as government investigations and related civil and criminal proceedings. Agee earned a law degree from the University of Memphis Cecil C. Humphreys School of Law (2020) and a B.A. from Vanderbilt University (2017). 36

BUTLER SNOW ATTORNEY ANDRE B. MATHIS NAMED TO THE LEADERSHIP COUNCIL ON LEGAL DIVERSITY 2021 CLASS OF FELLOWS Butler Snow LLP attorney Andre B. Mathis has been selected as a member of the 2021 Class of Fellows, which is a landmark program created by the Leadership Council on Legal Diversity (LCLD) to identify, train and advance the next generation of leaders in the legal profession. A member of Butler Snow’s Commercial Litigation and Labor and Employment groups, Mathis is one of 418 new Fellows selected to participate in the career development program for diverse mid-career attorneys. “We are extremely proud to have Andre represent Butler Snow in the 2021 Class of Fellows,” said Christopher R. Maddux, chair of Butler Snow. “The LCLD Fellows program provides a one-of-a-kind leadership development experience for participants that will benefit Andre and the firm as he continues to progress in his already impressive career.” As a 2021 Fellow, Mathis will participate in a year-long, in-depth program focused on relationship building and leadership training and will receive extensive contact with LCLD’s prestigious members and teachers. In addition to the exclusive leadership and professional-development curriculum, Mathis will also receive access to a virtual event series, which will provide opportunities for small-group interaction and relationship building. Mathis is the fifth Butler Snow attorney to participate in the program. Attorneys Tray Hairston, Gadson William (Will) Perry, Ashley N. Wicks and Kathleen Ingram Carrington are also Fellows of LCLD. LCLD is a growing organization of more than 350 corporate chief legal officers and law firm managing partners who are committed to creating a more diverse and inclusive legal profession. The LCLD Fellows Program, which has trained nearly 2,000 mid-career attorneys in its 10-year history, is one of LCLD’s most important initiatives.


SISKIND SUSSER PC ATTORNEYS PROMOTED TO PARTNER Ari Sauer has been with Siskind Susser PC since 2006 and has years of experience representing corporate and individual clients across all areas of immigration law. Ari has served on the Board of Governors of the American Immigration Lawyers Association (AILA) and is a past Chair of the AILA Midsouth Chapter. Ari regularly speaks about immigration law for AILA and the Federal Bar Association and has contributed a number of articles on immigration publications. Elissa Taub has been with Siskind Susser PC since 2007 and has years of experience specializing in physician immigration. Elissa also represents clients in the sports, entertainment and fashion industries. Elissa has authored several articles, spoken on panels related to physician and business immigration, and is regularly invited by clients to present on immigration matters. She also is a member of The Florida Bar and co-author of The Physician Immigration Handbook with Greg Siskind. Founding Partner Greg Siskind and Managing Partner Lynn Susser are excited to recognize the hard work and dedication both Elissa and Ari have shown to Siskind Susser. Ari Sauer and Elissa Taub have both garnered national reputations as thought leaders in key areas of immigration law.

Ari is known for taking on some of the most complex cases in our practice area such as when he fought for a "national interest waiver” for a client in a case that has become one of those immigration lawyers across the country rely on as they handle similar matters. And he's also known as a leading expert on immigration issues relating to children. Elissa Taub is known to every lawyer in the country who works on physician immigration matters. That's not surprising given she is the author of the leading treatise on the subject and works with health care employers in all 50 states. She's also known for her experience handling matters for artists and athletes and has handled cases for many clients who have enhanced the culture of the United States,” Siskind said. “Elissa, an expert in physician immigration, has managed our healthcare practice for a number of years. Through creative marketing and excellent client service skills she has led the growth of this practice group. Under her stewardship, the lawyers and paralegals on Elissa"s team have also become subject matter experts in the complicated field of physician immigration. Ari’s practice focuses on small businesses and family immigration. He has a loyal following of family run businesses that depend on his expertise to guide them through the complications of a system that was designed for large companies. Internally, we depend on Ari to know the answers, or at least where to find them, to the most complex questions that run the gambit from I-9 compliance to child citizenship and everything in between,” Susser said.

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 kswan@memphisbar.org.

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Now is the time to buy that new home!

100% Financing Home Purchase Program • Financing is available for up to 100% of the contract sales price with a maximum loan amount of $400,000. • The home financed is limited to one primary residence and must be located in a county or an adjacent county with a BankTennessee branch location. • The borrower pays normal closing costs, and escrow of taxes and insurance are included in the monthly payment. • No private mortgage insurance (PMI) is required. • Auto-draft of the monthly loan amount from a BankTennessee checking account is required. • Approval of this home financing program is subject to the bank’s credit and underwriting Barbara Robbins guidelines.* Legal Market Specialist NMLS #556836

Michelle McLaughlin Downtown Manager NMLS #1118119

The Bank for the Legal Community PROUD PARTNER OF THE MEMPHIS BAR ASSOCIATION SINCE 2006

30 North Second at Court Square

901.525.5533

We also have offices in East Memphis, Germantown, Collierville, Munford & Ripley. *Contact us for terms and conditions. BankTennesse NMLS 441426. Member FDIC

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www.banktennessee.com

Profile for Memphis Bar Association

Memphis Lawyer Magazine Vol. 38 Spring 2021  

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