Special Issue: Health Law

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GBJ Legals Departments 16 16 4 From the Editor-in-Chief What Every Attorney Should 6 From the President Know About Health Care Law 10 From the Executive Director by Tracy M. Field, Shannon L. Drake, Jessica Tobin Grozine and 14 From the YLD President Daniel M. Formby 46 Bench & Bar 24 52 Office of the General Counsel Limiting Law Firm Exposure to 54 Lawyer Discipline HITECH Act Liability: Do You 58 Law Practice Management Know Where Your Client’s 62 South Georgia Office 30 Protected Health Information Is? 64 Section News by H. Carol Saul 66 Casemaker 30 68 Writing Matters 38 Is Georgia Prepared 72 Professionalism Page for a Health Pandemic? 78 In Memoriam Legal Issues Regarding Emergency Preparedness and 80 CLE Calendar Declaration of Emergency 82 Notices Health Pandemic in Georgia 87 Classified Resources by Liz Schoen and Keith Mauriello 88 Advertisers Index GBJ Features 36 Duty and Friendship: John Sammons Bell and Judge Anthony A. Alamio by David E. Hudson 58 38 19th Annual Georgia Bar Media and Judiciary Conference by Stephanie J. Wilson 42 2009 “And Justice for All” State Bar Campaign for the Georgia 72 Legal Services Program “And Justice for All” 2010 State Bar Campaign for the Georgia Legal Services Program, Inc.

If they can’t afford an attorney, where do they go for legal assistance?

Fighting Foreclosure Mr. Farmer almost lost his home in a foreclosure, because he couldn’t pay the increase in his mortgage payments. He originally paid $407 in monthly mortgage payments and lived frugally. He had no phone, no cable, no heat other than firewood, and he used well water. FEMA (Federal Emergency Management Agency) recently determined the property was in a flood zone and required flood insurance, which the mortgage company purchased at a high price. This put Mr. Farmer’s monthly payments to $573, which was well over his meager income.

A GLSP lawyer negotiated with the mortgage company to rework the loan and lower the mortgage payments. Mr. Farmer was able to buy his own ﬂood insurance at a signiﬁcantly lower rate. The foreclosure sale was cancelled. Working together we can fulfill the promise of Justice for All. Georgia Legal Services Program® GLSP is a non-profit law firm recognized as a 501(c)(3) by the IRS.

This client story is used with permission. The photograph and name do not necessarily represent the actual client.

Give easily online at www.glsp.org (click Donate Now) or return this card with your check. ❏ Individual ❏ Firm Gift ❏ Mr. ❏ Ms. ❏ Mrs. ❏ Judge Name: 4PIHKIW PLEASE WRITE YOUR FULL NAME AS IT SHOULD APPEAR IN OUR DATABASE or HONOR ROLL Firm: ❏ I will pledge a gift. Please bill me on ______for a pledge of ______Address: (Final payments are due December 31st of this year.) I UNDERSTAND MY TAX-DEDUCTIBLE GIFT WILL PROVIDE LEGAL ASSISTANCE TO LOW-INCOME GEORGIANS. ❏ I am interested in learning more about the Yes! I support the Georgia Legal Services Program (GLSP). Georgia Legal Services Foundation. You may give by credit card at Enclosed is my check in the amount of $______www.glsp.org! Substantial gifts of $150 or more will be included in the Honor Roll of Contributors in the Georgia Bar Journal. Make checks payable to: ❏ Please keep my gift anonymous. Georgia Legal Services Program Editorial Board Quick Dial Donald P. Boyle Jr. Attorney Discipline 800-334-6865 ext. 720 Editor-in-Chief 404-527-8720 Robert Henry Beer Patricia Irene Lee Consumer Assistance Program 404-527-8759 Erika Clarke Birg Hollie G. Manheimer Conference Room Reservations 404-419-0155 Fee Arbitration 404-527-8750 John Clay Bush Olivia Orza CLE Transcripts 404-527-8710 Clayton Owen Carmack Susan Lee Rutherford Diversity Program 404-527-8754 Charles Madden Cork III Hale Elijah Sheppard ETHICS Helpline 800-682-9806 Bridgette Eckerson Paul Gregory Sherman 404-527-8741 Georgia Bar Foundation/IOLTA 404-588-2240 Lynn Gavin Jack P. Smith III Georgia Bar Journal 404-527-8791 Robert Frederick Glass Robert R. Stubbs Lawyer Assistance Program 800-327-9631 Michelle J. Hirsch Kristin H. West Lawyers Foundation of Georgia 404-659-6867 Law Practice Management 404-527-8773 Rajesh Kini Pamela Y. White-Colbert Law-Related Education 404-527-8785 Ronald Arthur Lowry Membership Records 404-527-8777 Editors Emeritus Meetings Information 404-527-8790 Pro Bono Project 404-527-8763 Marcus D. Liner, 04-07 Charles R. Adams III, 89-91 Professionalism 404-225-5040 Rebecca Ann Hoelting, 02-04 L. Dale Owens, 87-89 Sections 404-527-8774 Unlicensed Practice of Law 404-527-8743 Marisa Anne Pagnattaro, 01-02 Donna G. Barwick, 86-87 Young Lawyers Division 404-527-8778 D. Scott Murray, 00-01 James C. Gaulden Jr., 85-86 William Wall Sapp, 99-00 Jerry B. Blackstock, 84-85 Manuscript Submissions The Georgia Bar Journal welcomes the submission of unso- Theodore H. Davis Jr., 97-99 Steven M. Collins, 82-84 licited legal manuscripts on topics of interest to the State Bar L. Brett Lockwood, 95-97 Walter M. Grant, 79-82 of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 pages, double-spaced (includ- Stephanie B. Manis, 93-95 Stephen E. Raville, 77-79 ing endnotes) and on letter-size paper. Citations should conform to A UNIFORM SYSTEM OF CITATION (18th ed. 2005). William L. Bost Jr., 91-93 Please address unsolicited articles to: Donald P. Boyle Jr., State Bar of Georgia, Communications Department, 104 Marietta Officers of the State Bar of Georgia St. NW, Suite 100, Atlanta, GA 30303. Authors will be notified of the Editorial Board’s decision regarding publication. Bryan M. Cavan President The Georgia Bar Journal welcomes the submission of news S. Lester Tate III President-Elect about local and circuit bar association happenings, Bar Jeffrey O. Bramlett Immediate Past President members, law firms and topics of interest to attorneys in Georgia. Please send news releases and other information Kenneth J. Shigley Treasurer to: Sarah I. Coole, Director of Communications, 104 C. Wilson DuBose Secretary Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: Amy V. Howell YLD President 404-527-8791; [email protected]. Michael G. Geffroy YLD President-Elect Disabilities Joshua C. Bell YLD Past President If you have a disability which requires printed materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Communications Committee Headquarters Robert J. Kauffman Chair 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 800-334-6865, 404-527-8700, FAX 404-527-8717 Communications Staff Visit us on the Internet at www.gabar.org. Sarah I. Coole Director South Georgia Office Jennifer R. Mason Assistant Director 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Derrick W. Stanley Section Liaison 800-330-0446, 229-387-0446, FAX 229-382-7435 Stephanie J. Wilson Administrative Assistant Coastal Georgia Office 18 E. Bay St. Savannah, GA 31401-1225 877-239-9910, 912-239-9910, FAX 912-239-9970 Publisher’s Statement The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (February, April, June, August, October, December) with a special issue in November by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. ©State Bar of Georgia 2010. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in The opinions expressed in the Georgia Bar Journal Atlanta, Georgia and additional mailing offices. Opinions and conclusions expressed in articles herein are those of the authors are those of the authors. The views expressed herein and not necessarily those of the Editorial Board, Communications Committee, Officers or Board of Governors of are not necessarily those of the State Bar of Georgia, the State Bar of Georgia. Advertising rate card will be furnished its Board of Governors or its Executive Committee. upon request. Publishing of an advertisement does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. From the Editor-in Chief

Introduction to Special Health Law Issue his issue of the Georgia Bar Journal focuses on The recent outbreak of the H1N1 virus is the starting point for discussion of Georgia’s law on dealing the law of health care and other health-related with health pandemics in “Is Georgia Prepared for a Health Pandemic?” by Liz Schoen and Keith issues. Even before the enactment of the Patient Mauriello. The authors show that Georgia already T has a comprehensive statutory scheme in place to Protection and Affordable Care Act last month, there deal with such outbreaks, the Georgia Emergency Management Act of 1981. Under certain circum- already were significant statutes and regulations in effect stances, the governor may declare a state of emergency, under which the governor is empowered to that can impact the practice of Georgia attorneys. carry out emergency management programs that include broad powers to mitigate and repair harms In “What Every Attorney Should Know About through police agencies, emergency medical servic- Health Care Law,” Tracy M. Field, Shannon L. Drake, es, transportation services, public utilities, victim Jessica Tobin Grozine and Daniel M. Formby discuss services and other services for civilian protection. several issues that impact both litigation and business The authors point out some ambiguity in the law on transactions that either directly or indirectly involve whether a special session of the General Assembly health care providers, health care services or govern- would be required in the case of a pandemic influen- ment health care programs. Laws that protect medical za emergency, as opposed to another type of state information can limit what can be requested in discov- emergency. The authors also discuss federal laws ery from medical providers. Attorneys who receive and regulations, including some passed in the first personal-injury settlement amounts may be required to year of the Obama Administration, relating to H1N1. reimburse Medicare payments or be personally liable. Finally, the authors give guidance to hospitals on The authors explain how health care providers may be their duties under the Emergency Medical Treatment found liable under the False Claims Act, the Stark Law and Active Labor Act (EMTALA) in the event of a or the Anti-Kickback Statute. public health emergency. In “Limiting Law Firm Exposure to HITECH Act The statutes and regulations discussed in this special Liability,” H. Carol Saul discusses the recent passage of issue will remain timely and significant for Georgia the Health Information Technology for Economic and lawyers. Any transaction or lawsuit that may involve Clinical Health (HITECH) Act, a successor to the an individual’s health may trigger duties under these more familiar Health Insurance Portability and state and federal laws, so Georgia lawyers need to be Accountability Act of 1996 (HIPAA). The HITECH Act aware of them. expands the universe of entities that are required to preserve and guard “Protected Health Information.” Donald P. Boyle Jr. is the editor-in-chief This includes law firms. Georgia attorneys should take of the Georgia Bar Journal. He can be note of the HITECH Act’s requirements. Saul provides reached at [email protected]. recommendations on how Georgia attorneys can take concrete steps to make sure that they comply with the HITECH Act and the related federal regulations.

4 Georgia Bar Journal Please visit the ABA Retirement Funds Booth at the upcoming State Bar of Georgia Annual Meeting for a free cost comparison and plan evaluation. June 18-20, 2010 Amelia Island Plantation Amelia, FL

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The American Bar Association Members/State Street Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (877) 947-2272, by visiting the Web site of the American Bar Association Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the State Bar of Georgia as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. C09-1005-035 (10/09) From the President

by Bryan M. Cavan

Georgia Lawyers Do Make a Difference

or too many members of the public, the only One of the greatest pleasures I have had while serving in this position is the opportunity to witness and/or image they have of lawyers is rooted in the TV receive first-hand accounts of the good work our fellow lawyers and judges are performing in their communi- shows like L.A. Law or Ally McBeal, where ties all around state. Prime examples are the 10 recipi- F ents of the 11th annual Justice the lawyers spend their work- Robert Benham Awards for “One of the greatest pleasures Community Service, which were days making hefty fees on high- presented at the Bar Center on I have had while serving in this Feb. 16, including: profile cases, and the rest of position is the opportunity to ■ Jonathan Alderman of Macon, their time at posh country clubs, for his service in organizing First Choice Primary Care Inc., a med- trendy nightclubs or out on witness and/or receive first- ical facility that serves many uninsured persons, his leader- their yachts. hand accounts of the good ship in the Macon Rotary Club, Goodwill Industries of Middle Just as I learned long ago that work our fellow lawyers and Georgia and the Macon-Bibb few, if any, of us were able to pry County Workforce Investment confessions out of witnesses in judges are performing in their Board and his work with the the courtroom like Perry Mason, Human Rights Committee of I found these perceptions of communities all around state.” Wesley Glenn Ministries. lawyer lifestyles to be far from ■ William D. “Bill” Barwick of reality. My observations over the Atlanta, a past president of the past 10 months since taking office have further con- State Bar of Georgia, for his advocacy of Everybody firmed for me that, in the vast majority of cases, my fel- Wins! Atlanta, a student literacy and mentoring low lawyers fill their hours outside the courtroom and program, and his work with the High Museum of their client conferences in much more productive ways Art, Zoo Atlanta, Habitat for Humanity, Atlanta for their communities. Botanical Gardens, Atlanta History Center, Historic

6 Georgia Bar Journal Oakland Foundation and manship of the Georgia Brain time to civic organizations, non- Buckhead Baseball. and Spinal Injury Trust Fund profit groups, youth activities, the ■ Rockdale County State Court Commission. cultural arts, faith-based initiatives Judge Nancy Nash Bills of ■ Justin O’Dell of Marietta, for and other beneficial endeavors. Conyers, for her service in help- his work with the Cobb They are all deserving of recogni- ing develop a playground in the County Chamber of Commerce, tion and thanks (see page 72 for Hispanic community, her sup- Leadership Cobb, MUST additional information). port of the Students Against Ministries, Sweetwater Clinic, In addition to the exemplary com- Destructive Decisions organiza- Reconnecting Families, YWCA, munity service being carried out by tion in the local schools and her The Extension, the Marietta so many individual Georgia lawyers work with the Task Force Kiwanis Club and the Cobb and judges, a great deal of work is Against Family Violence, the Community Collaborative. also done through the collective United Way and the Rotary ■ Mark O. Shriver IV of efforts of our local and specialty bar Club, all in Rockdale County. Woodstock, for his service associations. This includes support ■ Angela M. Hinton of Fayette- as president of Optimist of existing community causes as ville, for her service on the International, one of the largest well as new projects spearheaded Fayette County Department of organizations in the world serv- and maintained under the auspices Family and Children Services ing youth, in addition to his of the local bar association. Board and her work with the local efforts in chairing the Here are just a few of the local Georgia Women Lawyers Optimist Club’s Peachtree bar initiatives that have been Foundation to help Promise Junior Road Race, co-sponsored brought to my attention this year: Place, a battered women’s shelby the Atlanta Track Club for ter in Fayette County, as well as more than 2,000 children. ■ The Douglas Bar Association host- Leadership Fayette and the Arts ■ Nancy J. Whaley of Atlanta, for ed a food drive and distribution; Leadership League of Georgia’s her service on the Georgia Breast ■ The Jesup Bar Association spon- Leadership Council. Cancer Coalition Fund Board of sored and presented an educa- ■ Michael D. “Mike” Hobbs Jr. Directors and as team captain tional scholarship; of Atlanta, for his leadership for the Susan G. Komen 3-Day ■ The Savannah Bar Association’s with Imagine It! The Children’s 60-Mile Walk for the Cure, indi- Young Lawyers Division hosted Museum of Atlanta, and his vidually raising $10,000 toward a golf tournament, using the pro- service to Hammonds House the cause, in addition to her 23 ceeds to make a significant con- Museum, Central Presbyterian years of service in the Air Force tribution to the Chatham County Church Outreach and Advocacy Reserves, where she achieved Superior Court’s guardian ad Center Inc., Georgia Lawyers the rank of lieutenant colonel. litem program; for the Arts and the Top Hat ■ The Gwinnett County Minority Soccer Club. While we are fortunate to have Bar Association co-hosted a ■ Amy J. Kolczak of Smyrna, for these honorees to inspire us with community event aimed at her leadership as president of the positive contributions they increasing public awareness of the Georgia Association of have made this year and in previ- the criminal justice system; Women Lawyers Foundation ous years through their volunteer ■ The Waycross Bar Association and its support of numerous efforts and community spirit, there completed its 13th annual worthy causes, as well as her are countless other Georgia lawyers Community Christmas Project, individual involvement with and judges who quietly and with- providing food, clothing and Atlanta Legal Aid’s Breast out acclaim devote their personal toys for families in need. Cancer Project, CHRIS Kids Inc., the Georgia chapter of the A Special Thank You to Jesse H. Diner National Multiple Sclerosis Society, Families First, Project I wish to thank Jesse H. Diner, president of The Night and the Nicholas House. Florida Bar for attending our Executive ■ Charles W. Lamb Jr. of Albany, Committee/Supreme Court Retreat, where he for his work with the Albany shared Florida’s struggle for judicial funding in Advocacy Resource Center, these tough economic times and some of his Leadership Albany, Leadership initiatives. It was a good reminder that Georgia is Lee, the Lee County Chamber not alone in this economic tsunami, as we all look of Commerce, the National for hard-to-find answers. Thank you, Jesse, for Rehabilitation Association and sharing with us, and you are most welcome to visit the Georgia Rehabilitation with us anytime. – Bryan M. Cavan Council, as well as his chair-

April 2010 7 Of course, there are many, many state who make possible the deliv- total of nearly 2.2 million readers. more examples. ery of legal services to the poor in When these letters are published, A major component of lawyers’ their areas. not only are the individual lawyers, service to the community at large Citizens across the state of judges or local bar associations is, of course, the pro bono contribu- Georgia also owe a debt of gratitude receiving well-deserved pats on the tions of professional service to fel- to those lawyers who make public back, it sends an important mes- low citizens who are unable to service their full-time jobs. Indeed, sage to the public about their afford the representation needed to all three branches of government at respective legal communities. realize the concept of equal justice. the local, state and federal levels The message is loud and clear: The State Bar’s Pro Bono Project is benefit from the expertise and dedi- Georgia lawyers are enlisted in the aided by our partners in this effort, cation of those who serve as judges, service not only of our clients, but Georgia Legal Services Program, prosecutors, public defenders, law of the public good as well. Now, Atlanta LegalAid Society, Atlanta clerks, county and city attorneys perhaps more than ever, following Volunteer Lawyers Foundation, and as legal counsel to any number the examples we have read or Clayton County Pro Bono Project, of public-sector agencies and heard about as well as those that Cobb Justice Foundation, DeKalb departments of government. take place behind the scenes, we Volunteer Lawyers Foundation, A few years ago, as an initiative should all recommit ourselves to Effingham County Victim Wit- of our Cornerstones of Freedom® that principle, which will result in a ness Program, Georgia Court public education program, we personal satisfaction that comes Appointed Special Advocates, began a practice of recognizing Bar from helping others and, at the Georgia Justice Project, Gwinnett members for good works in their same time, strengthen the public’s County Pro Bono Project, Pro Bono communities via a news release or perception of the legal profession Partnership of Atlanta, Southside letter from the State Bar president and trust in the justice system. Legal Clinic as well as the several to the editor of their local newspa- projects of our State Bar YLD. pers. I am proud to report that Bryan M. Cavan is the president Additionally, there are untold between July 2009 and February of the State Bar of Georgia and numbers of local bar associations, 2010, there have been at least 80 can be reached at volunteer lawyers’ organizations such publications in newspapers in [email protected]. and individual lawyers across the all corners of Georgia, reaching a

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April 2010 9 From the Executive Director

by Cliff Brashier YLD Delivering on Commitment to Public Service

cross the state over the past 10 months, Chapter on a Children’s Healthcare of Atlanta (Dunwoody) play date event in January. James also members of the State Bar of Georgia Young did a Casual for Charity fundraiser with his firm to raise money for the Haitian relief effort. Evan Kaine Lawyers Division (YLD) have been work- worked with Saks Fifth Avenue at Phipps Plaza on a A donation drive to collect gently used clothing to ing hard to respond to YLD President Amy Howell’s benefit the Atlanta Children’s Shelter in October. Rachel Krause worked on call to action for the 2009-10 a donation drive to benefit My House. Bar year. Each member of “The Georgia YLD has earned many Juanita Kuhner and Derek Littlefield participate the YLD Executive Council awards and an outstanding national in after-school tutoring at the Warren Holyfield Boys was charged with develop- reputation for the innovative & Girls Club in Atlanta. Jared Brandman leads his ing and implementing a programs, hard work and excellent law firm’s partnership with M.L. King Middle School service project supporting service of these committees.” in Atlanta and helped coordinate participation in this year’s “Children and the school’s career day. In October, Christopher Freeman worked on a Families” theme in the district they represent. toy drive for Children’s Healthcare of Atlanta. Anne Kaufold-Wiggins is completing a luggage drive for The challenge has been met with great success. Here Hillside Hospital in April, and DeAngelo Norris is help- are just a few examples of Georgia’s young lawyers ing support patients through Grady Hospital’s Social giving their time and leadership to serve others in Services Department. their communities. Renee Little worked on a legal education In Atlanta, James Clifton partnered with Sumeet program/summit for metro Atlanta teens and parents Shaw and the Florida Coastal School of Law Alumni in March that focused on instructing youth how to com-

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.LGV·DQG7HHQV·3URJUDPV 3URJUDPVGHVLJQHGVSHFLILFDOO\WRHQWHUWDLQFKLOGUHQDQGWHHQVZLOOEH DYDLODEOH UHJLVWHURQOLQHDW ([KLELWV 3OHDVHGRQ·WIRUJHWWRYLVLWWKHH[KLELWERRWKVDWWKH$QQXDO0HHWLQJ*HW ZZZJDEDURUJ \RXUH[KLELWRUFDUGVWDPSHGDQGWXUQHGLQWREHHQWHUHGLQWRDGUDZLQJ WRZLQDWZRQLJKWVWD\DW$PHOLD,VODQG3ODQWDWLRQ municate with law enforcement medical service personnel in fundraiser for a local family who officers. Ty Morrison and Tamera Colquitt County this summer. lost a 2-year-old child in a fire. Woodard circulated copies of the “I Matt Crowder raised funds to Christopher Smith volunteers with Have a Dream Too” educational purchase two movie cameras for the Boys & Girls Club of Savannah. program to area high schools. high schools in the Dublin area. In “The call to action on community Caroline Vann mentors an elemen- Clarkston, M. Khurram Baig service and supporting children tary school student in metro teamed up with the Give A Lift and families has received an enthu- Atlanta through the Everybody Foundation to conduct a food siastic response from the YLD mem- Wins! Power Lunch Program. drive. Through private donations bership,” said Matt Crowder, YLD Keisha Story and Ari Mathe are and the efforts of volunteers, 40 Executive Council member. “A helping with the 5K Run for refugee families from Somalia, wide range of initiatives has been Recovery race in Hall and Bosnia, Iraq and Afghanistan rolled out across the state aimed at Dawson counties in May. David received food kits. achieving this important goal.” Van Sant is working on a book In Macon, Ivy Cadle, Leslie In addition to these and many drive for Midway Elementary Cadle and Sarah White worked on other individual acts of community School in Forsyth County. Joshua the Bibb County Department of service, the YLD is collectively Dickinson worked on the food Family and Children Services delivering on its role as the “service rescue program with Second Holiday Drive during December. arm” of the State Bar. As it does Harvest, a non-profit serving Ivy also worked with the Central every year, the YLD sponsored the Greene and Putnam counties. Georgia Council of Boy Scouts on 2010 State Mock Trial Competition Malia Phillips-Lee is working projects concerning the local Scout for Georgia high schools, the finals with the Boys & Girls Club of properties. In February, Sarah, Ivy of which were held last month in Thomasville to establish a new club and Leslie all volunteered with the Lawrenceville. This program fur- in Cairo. She also volunteers with high school mock trial competition thers students’ understanding of the Miss Spirit of Georgia and Miss in Macon. Blake Sharpton is help- court procedures and the legal sys- Southwest Georgia Scholarship ing organize the Macon Golf for tem; improves basic skills such as Programs. Tommy Duck volun- Kids Spring Tournament. listening, speaking, reading and teered with the Southwest Georgia In Savannah, Ben Perkins raised reasoning; promotes better commu- Food Bank. Hamilton Garner will money for bicycle helmets for local nication and cooperation between provide pro bono will and power kids with a charity chili cook-off in the educational and legal commu- of attorney services for law January. Ben and Jacob Massee also nities; provides a competitive enforcement, fire and emergency brought in $1,600 through a event in an academic atmosphere; 2010 Annual Meeting CLE Opportunities

JUN 17 Nuts and Bolts of Military and Veterans Law JUN 18 The Challenges of a Changing World; 3 CLE Hours Avoiding Ethics Mishaps and Professional Lapses JUN 17 High-Tech Practice Management, Marketing 2 CLE hours with 1 Professionalism* and Ethics: Tips and Techniques for an and 1 Ethics Effective Practice 3 CLE Hours, including 1 Ethics Hour JUN 18 Casemaker 2.2 Training 3 CLE hours JUN 17 The Sandwich Generation: Legal Issues Affecting the Family Caregiver JUN 18 Diversity in a Down Economy: 3 CLE hours with 1 Professionalism* Is There a Point? 3 CLE Hours with 1 Professionalism* JUN 17 War Stories XI Plus Georgia Evidence Update 3 CLE hours with 1 Professionalism* (*Professionalism credit is self-reporting, and 3 Trial Practice using the optional self-report form)

12 Georgia Bar Journal and promotes cooperation among dren and families,” said YLD young people of various abilities President Amy Howell. “I am so SOUTH and interests. proud to be part of such an out- “Amy’s charge to the YLD standing group of lawyers, lead- GEORGIA ADR Executive Council to develop and ers and citizens.” implement projects benefiting chil- I have listed these many examples SERVICE, LLC dren and families represents clearly at the obvious risk of leaving some- her vision for fulfilling the YLD’s thing or someone out. In fact, as principles for service and leadership impressive as it is, we know that it MEDIATION and in the community,” YLD Service does not scratch the surface of all the ARBITRATION of personal Projects Chair Melissa Carter said. community and pro bono done each “The Executive Council members day by many of our 40,000 mem- injury, wrongful death, have responded enthusiastically bers. Even if this list is not complete, commercial, real estate and with creative projects designed to and with many other projects still in other complex litigation provide direct service to children progress, I wanted to give you an cases. Visit our website for and families in need, benefit understanding of the incredible fee schedules and existing non-profit organizations depth and breadth of the commit- biographies of our panel, and enhance public sector supports ment of Georgia’s young lawyers to comprised of experienced such as education and child protec- public service. Their actions are tion. The impact of these successful speaking loudly across this state. Middle and South Georgia efforts is felt statewide and in the If you are eligible for membership trial lawyers and judges. individual lives of people who have in the Young Lawyers Division benefited from the assistance of (those under age 36 or admitted to young lawyers.” your first bar for less than five years CHARLES R. ADAMS, III – Fort Valley Also, this year, YLD meetings are automatically members), I THOMAS C. ALEXANDER – Macon have incorporated a service project encourage you to get involved in the MANLEY F. BROWN – Macon in the communities where the organization and one or more of its JERRY A. BUCHANAN – Columbus meetings are held. During the 26 committees that offer a wide JOHN D. CAREY – Macon Executive Committee Retreat at range of opportunities for members WADE H. COLEMAN – Valdosta Lake Oconee in July, YLD members to serve the legal profession and JOHN A. DRAUGHON, SR. – Macon assembled tricycles, which were your community. You will make JAMES L. ELLIOTT – Valdosta then donated to the Greene wonderful new friends, greatly BENJAMIN M. GARLAND – Macon County Department of Family and enhance your career satisfaction, and HON. LORING A. GRAY, JR. – Albany Children Services. During the YLD bring honor to our profession. For ROBERT R. GUNN, II – Macon Summer Meeting in Asheville, more information, you can obtain JEROME L. KAPLAN – Macon N.C., in August, Georgia young the “How to Get Involved” brochure STANLEY M. KARSMAN – Savannah lawyers donated 100 teddy bears to on our website at www.gabar.org/ BERT KING – Gray patients at Mission Children’s young_lawyers_division/. You can T. KYLE KING – Jonesboro Hospital. In October, the YLD also join a committee on our website. HUBERT C. LOVEIN, JR. – Macon joined with the Savannah Bar The Georgia YLD has earned MICHAEL S. MEYER VON BREMEN – Albany Association YLD and Macon Bar many awards and an outstanding S. E. (TREY) MOODY, III – Perry Association YLD to raise and national reputation for the innova- PHILIP R. TAYLOR – St. Simons Island donate $1,000 in cash, toys and fur- tive programs, hard work and RONALD C. THOMASON – Macon niture for the children’s room at the excellent service of these commit- CRAIG A. WEBSTER – Tifton Savannah Area Family Emergency tees. The State Bar congratulates HON. TOMMY DAY WILCOX, JR. - Macon (SAFE) Shelter during Domestic you and thanks you for all you are F. BRADFORD WILSON, JR. – Macon Violence Awareness Month. doing. Keep up the great work! Currently, the YLD’s Law-Related As always, your thoughts and Education Committee is sponsoring suggestions are welcomed. My a statewide essay contest for Georgia telephone numbers are 800-334- 240 THIRD STREET students in grades 6 through 8 on 6865 (toll free), 404-527-8755 (direct MACON, GEORGIA 31201 the topic of “Democracy and the dial), 404-527-8717 (fax) and 770- (800) 863-9873 or American Family,” again reflecting 988-8080 (home). (478) 746-4524 the year-long theme of supporting FAX (478) 745-2026 children and families. Cliff Brashier is the executive www.southgeorgiaadr.com “It is humbling to witness how director of the State Bar of the YLD leadership has answered Georgia and can be reached at the call to serve Georgia’s chil- [email protected].

April 2010 13 From the YLD President

by Amy V. Howell

Truth v. Honesty

ike most mothers, my mother taught me “if Indeed, I still recall all the names I was called as a child. While my parents successfully chose a first name that you don’t have anything nice to say, then provided no fodder for teasing, my maiden name of “Tuckett” failed miserably in that respect. Like many of don’t say anything at all.” Likewise, my us, I was teased as a child about many things. The sting L of being teased about my name, however, stands out mother also emphasized the importance of always from the everyday tribulations of being a child. Likely due to the popularity of the name “Amy,” I was forever telling the truth. In today’s denominated “Tuckett,” and the rhyming taunts connected to world, these lessons are often my identity still linger. “Taking up the cause and Certainly, I am now successful at odds with each other. and happy, but the flush I still advocating for the truth does feel today when reflecting on In this year’s legislative ses- those name-calling days is not sion of the Georgia House of not require us to become gone. While I am one who longs Representatives an anti-bully- for simpler days with old fash- ing bill was presented. bullies on behalf of others.” ioned values, modern science Although the bill is straight- has provided evidence that forward in nature—it seeks to childhood trauma can cause prevent and remedy bullying lasting harm. behavior among children at school—the debate sur- Despite being aware of the lasting psychological rounding the bill reflects the complexity of the issue. harm caused by mental or emotional abuse, we have Some question whether codifying punishment for sim- dulled ourselves into tolerating a certain degree of ple childish behavior is an appropriate approach. “acceptable” verbal abuse. In fact, cloaked in the guise Others suggest using the bullying behavior as an of seeking “the truth,” we observe political pundits opportunity to counsel both the bully and the victim. berate guests on news channels, we entertain ourselves While I am the first to advocate against criminalizing with the routine screaming matches of participants in youthful behavior, I readily acknowledge that the con- reality television, and we relish a good “interview-by- sequences for the things we say can be significant. ambush” where the private lives and struggles of pub-

14 Georgia Bar Journal lic people are laid bare on the on our obligations to the profession. ers in their absence. At the same couches of talk shows. It seems that In this reflection often comes the time, a commitment to open and we justify this bullying behavior in message of fair-dealing and profes- honest communication does not the name of seeking the truth, sional behavior among lawyers. mean that I spontaneously share and we saturate ourselves in mech- Between litigators, although the my every thought with everyone. anisms such as Twitter and issues are hard-fought and we act as There are some thoughts that are Facebook that allow us to immedi- zealous advocates for our clients, better left to pass and vanish, ately convey our thoughts about the legal issues are not personal because often, after time and con- “the truth” without careful con- issues, no matter how devoted we templation, our concept of what is templation. To be sure, in big and are to the cause. Similarly, those of true evolves or changes complete- small ways we model the abusive us who work on policy develop- ly. Thus, just as we caution our communication we see played out ment or on financial deals, our best clients to consider the lasting on television every day. work comes when we take up the implications of their written com- Just as a recent New York Times cause of our clients. Taking up the munications, i.e., the tone and commentary on parenting dubbed cause and advocating for the truth substance of their e-mails before “yelling the new spanking,” the ver- does not require us to become bul- they hit “send,” we should bal bullying in which we often lies on behalf of others. employ the same approach to the engage follows us into our lives not Please don’t get me wrong, the thoughts and words that we pub- just as parents, but also as lawyers. truth is important, and I am a lish to each other. Each year, as part of the State Bar of believer in being candid in all Georgia program on continuing communication, both personal Amy V. Howell is the president of legal education, we are asked to ful- and professional. Simply put, you the Young Lawyers Division of the fill our commitment to professional- should tell a person to their face State Bar of Georgia and can be ism—to take a moment and reflect that which you would say to oth- reached at [email protected].

April 2010 15

A Look at the Law

What Every Attorney Should Know About Health Care Law

by Tracy M. Field, Shannon L. Drake, Jessica Tobin Grozine and Daniel M. Formby

ealth care laws are increasingly relevant Health Care Law Applies to Litigation in both litigation and business transac- Attorneys working with clients involved in per- tions that have traditionally been sonal injury litigation or with a need to review H medical information relevant to certain legal mat- viewed as “outside” the health care arena. Although ters are likely already aware that federal privacy laws can affect their ability to obtain such confiden- it is often clear that a certain transaction or case will tial information. Over the past few years, the Supreme Court of Georgia has published opinions require careful navigation through a maze of health interpreting the impact of the federal laws on state proceedings. In addition, federal legislation passed care laws, recent evolution and expansion of many last year amended several aspects of the federal privacy laws and will impact attorneys and their prac- of these laws extends their application. tices. Finally, in considering personal injury cases in particular, new reporting obligations under the The purpose of this article is to provide an Medicare Secondary Payer laws will affect strate- overview of selected health care laws in order to gies for litigation and settlement. assist non-health care attorneys in advising clients that may be affected by these laws. Attorneys Privacy Laws: HIPAA and HITECH should be particularly attuned to these issues when and Your Clients advising clients who are involved in litigation or By now, health care providers and their counsel business transactions that either directly or indi- are well acquainted with obligations to protect rectly involve health care providers, health care patient information in accordance with the Health services or government health care programs. Insurance Portability and Accountability Act of

April 2010 17 1996 (HIPAA),1 as well as the HIPAA pre-empted O.C.G.A. § 31- accountants, attorneys and other Privacy and Security Rules prom- 33-2(a)(2) because a surviving consultants. Therefore, these entities ulgated under HIPAA. spouse was not appointed through were identified as “business associ- Disputes over how to conduct testamentary proceedings, the Court ates” who would be contractually discovery of patient information in held that a surviving spouse of an obligated by the covered entity to view of existing Georgia laws and intestate decedent could be a per- protect the PHI. In the event that the HIPAA regulations have led to two sonal representative under HIPAA business associate failed to protect key Supreme Court of Georgia deci- and obtain the decedent’s PHI. The that information, the covered entity sions. In 2008, the Court decided Court noted that HIPAA permits an could terminate the relationship. that in medical malpractice cases, executor, administrator or some Now, under the HITECH Act, the federal HIPAA Privacy Rule other person authorized to act on business associates are directly reg- precludes defense counsel from behalf of the decedent or his estate to ulated by the government and sub- informally interviewing a plaintiff’s obtain PHI. The Court reasoned that ject to the same enforcement scheme prior treating physicians.2 The O.C.G.A. § 31-33-2(a)(2) authorizes a as “covered entities.”6 Thus, clients Court focused on the issue of surviving spouse to obtain medical who have access to PHI in the whether defense counsel, after med- records on behalf of a decedent or performance of legal, actuarial, ical records were produced in accor- his estate and thus the surviving accounting, consulting, data aggre- dance with Georgia discovery and spouse is deemed to be a personal gation, management, administra- privacy rule standards, could representative under HIPAA. tive, accreditation and/or financial engage in ex parte communications Although the Supreme Court of services for covered entities will with the plaintiff’s treating physi- Georgia has addressed these issues need to implement policies and pro- cians. Ultimately, the Court con- in specific contexts, attorneys cedures that establish administra- cluded that although the Georgia should ensure that both the federal tive, physical and technical safe- practice had been that such com- HIPAA requirements and state laws guards to protect the PHI. Just as is munications were permitted, the are considered and satisfied in true for covered entities, business HIPAA Privacy Rule’s more strin- order to secure medical information associates will be subject to gent protections must be satisfied. regarding individuals. Moreover, as enhanced civil and criminal penal- These protections include requiring explained below, the federal priva- ties under HITECH. In preparing an individual’s authorization before cy laws have been amended to for this change, clients that are busi- his or her physicians may disclose include additional protections; thus, ness associates should be advised to their impressions. Thus, informal, ongoing monitoring of the require- verify insurance coverage for priva- ex parte communications that had ments is imperative. cy breaches, as this is clearly an area been typical practice for defense of increasing focus for individuals counsel prior to HIPAA were no HITECH Changes to HIPAA as well as government regulators. longer proper. In addition to important develop- Recently, the Supreme Court of ments in Georgia case law, on Feb. Reporting Personal Injury Georgia decided Alvista Healthcare 17, 2009, President Obama signed Settlements for Medicare Center, Inc. v. Miller,3 which held the federal stimulus package, offi- Beneficiaries that O.C.G.A. § 31-33-2(a)(2)(B) cially known as the American Attorneys working with clients authorizes a surviving spouse to Recovery and Reinvestment Act to settle personal injury litigation access the medical records on behalf of 2009 (ARRA).4 Importantly, that includes coverage for their of a deceased spouse or his estate, a provision of ARRA, the clients’ current and future health provided that an executor Health Information Technology for care costs should be aware that or administrator has not been Economic and Clinical Health there are new reporting require- appointed, without running afoul of Act (HITECH Act), substantially ments that must be satisfied if the HIPAA. The Court noted that 45 expands the reach of the HIPAA particular individual is a Medicare C.F.R. § 164.502(g)(4) requires a privacy laws in regulating how enti- recipient—at the time of settlement, covered entity to treat an executor, ties may use and disclose PHI.5 verdict, adjudication or any time administrator or other person with Previously, HIPAA regulated thereafter. This new requirement is “authority to act on behalf of a how “covered entities,” primarily designed to ensure that Medicare deceased individual” under applica- health care providers, clearinghous- only pays for services that are ble state law as the personal es and health plans, could use a not otherwise covered, including representative of the decedent. patient’s PHI. As part of the original health care services that are to be Personal representatives, for pur- Privacy Rule, the government recog- compensated from funds recovered poses of obtaining Protected Health nized that covered entities may con- as a result of personal injury settle- Information (PHI), are treated as if tract with third parties that need ments. As explained below, the law they were the individual patient. access to PHI to perform their serv- impacts plaintiffs and defendants, Although the provider asserted that ices, including billing agents, as well as their attorneys.

18 Georgia Bar Journal Background ciaries who participated in the set- for the responsible entity—the In the early 1980s, Congress tlement and who had received insurer or entity responsible for passed the Medicare Secondary Medicare-paid medical services for the payment. Thus, to avoid MSP Payer Statute (MSP) to make clear care related to injuries for which liability and fines, the responsible that the federal Medicare program the settlement had been litigated.12 entity must ensure that CMS has is a secondary payer to other insur- While the DOJ has previously pur- the data required. ance or coverage.7 In practical sued similar actions against plain- Although the MSP requirements terms, the MSP law provides that, tiffs and their counsel to recover have been in place for some time, although the Centers for Medicare conditional payments, this appears the new MMSEA reporting stan- & Medicaid Services (CMS), the to be the first instance where the dards and enforcement provisions federal agency that administers the federal government is seeking signal enhanced focus on the issue. Medicare program, may initially MSP recovery from insurance car- Therefore, attorneys working with pay a provider for performing riers and defense counsel involved both plaintiffs and defendants in services for Medicare beneficiaries, in the settlement of a mass tort lia- personal injury matters should if it is later discovered that the bility claim. Therefore, in the best understand the impact that these patient has another source of cov- interest of all the parties and attor- requirements will have in negotiat- erage for those health care services, neys involved in such settlements, ing settlements to properly satisfy Medicare will recoup funds from the payment source should be CMS standards. In structuring set- the other source. clearly identified. tlements, this new requirement The law provides that CMS may will have a substantial impact on “bring an action against any or all The New Reporting the administration and payment of entities that are or were required or Requirement claims for health care costs. responsible . . . to make payment Although the MSP laws have with respect to the same item or been in place for some time, CMS What’s in a Simple service . . . under a primary plan.”8 has had difficulties in identifying Contract? Alternatively, CMS “may recover those situations where there is under this clause from any entity another payer that is responsible for Attorneys assisting health care that has received payment from a pri- the beneficiary’s health care costs. providers in negotiating contracts mary plan or from the proceeds of a pri- Therefore, on Dec. 29, 2007, for services are likely well aware of mary plan’s payment to any entity.”9 President Bush signed into law the certain restrictions and regulatory The federal regulations imple- Medicare, Medicaid and SCHIP issues that can arise in the health menting the MSP specify that the Extension Act (MMSEA), which care context but are not otherwise government can recover primary includes a provision amending the implicated in general commercial payments from “a beneficiary, notice and reporting requirements contracts. Put simply, health care provider, supplier, physician, under the MSP relating to workers’ contracts are different from other attorney, state agency or private compensation, liability (including business agreements. If health care insurer that has received a primary self-insurance) and no-fault cases.13 contracts are not done correctly, payment.”10 Accordingly, any enti- Essentially, the law requires that the parties may receive something ty associated with a personal injury entities report settlements involving more than what they bargained settlement—attorneys, insurance payment for health care services for for—a government investigation. carriers, third-party administra- Medicare beneficiaries. CMS will tors—virtually anyone who han- then use this database as part of Stark Law and Anti-Kickback dles settlement proceeds and/or its claims payment process — if a Statute receives them as payment—could Medicare beneficiary has received a The Stark Law14 and the Anti- have MSP liability to CMS.11 reported settlement for his or her Kickback Statute15 are frequently On Dec. 1, 2009, the Department health care costs, then CMS will not implicated in health care contract- of Justice (DOJ), on behalf of reimburse the provider for the billed ing. Both laws were enacted to the Department of Health and amounts. The provider therefore ensure that medical decisions are Human Services (HHS) and CMS bills the beneficiary directly for the not clouded or compromised by commenced litigation against costs of those health care services. improper financial arrangements Monsanto Company, several of its These new reporting require- under which health care providers insurers and both defense and ments, which are still being final- are inappropriately profiting from plaintiff’s counsel involved in a ized by CMS, became effective July referrals. These laws and their cor- $300 million class action settle- 1, 2009, and CMS will require responding regulations are comment. The parties to the settlement claims reporting beginning Jan. 1, plex and must be evaluated in allegedly failed to reimburse 2011. Importantly, under the new conjunction with all financial Medicare for conditional pay- laws, failure to report can result in arrangements directly or indirect- ments paid by Medicare for benefi- a fine of $1,000 per day, per claim, ly involving health care providers

April 2010 19 If health care contracts are not done of prescribing particular medica- tions could be viewed as suspect correctly, the parties may receive some- and expose both the pharmaceutical company and the physician to thing more than what they bargained for— significant liability. Government Health Care a government investigation. Investigations The specter of a government or health care services. Although medical decisions are made in the investigation has increased dra- the two laws are both designed to best interest of the patient and are matically in recent years, and the avoid “abuse” and overutilization, not distorted by improper financial focus is unlikely to abate. On Sept. there are fundamental differences arrangements. Similar to the excep- 9, 2009, when President Obama between them. tions under the Stark Law, there addressed a joint session of The Stark Law, also known as are safe harbors to protect legiti- Congress to present his plan for the physician self-referral law, is a mate business arrangements. If an health care reform, he stated that civil statute that essentially pro- arrangement does not meet every “most of this plan can be paid for vides that a physician may not element of the Anti-Kickback Statute by finding savings within the exist- refer a patient to an entity with safe harbor, however, it may never- ing health care system, a system which the physician has an owner- theless be acceptable, since violation that is currently full of waste and ship interest or other financial or is intent-based.18 abuse.”19 In its 2007 financial compensation arrangement if pay- The Stark Law and the Anti- crimes report, the FBI estimated ments for the services furnished are Kickback Statute are implicated in that fraudulent billings to public made by Medicare or Medicaid. the event that a physician is a party and private health care programs Recent changes made to the Stark to a financial arrangement that account for anywhere from 3-10 Law have extended its reach involves a referral relationship, for percent of total health spending.20 beyond individual physicians to instance, between hospitals and This would amount to anywhere entities with physician ownership physicians, or if the physician seeks from $75–$250 billion in fiscal year (commonly referred to as the an ownership interest in a compa- 2009. On Nov. 19, 2009, the Justice “stand in the shoes” provision).16 ny that provides a related service, Department issued a press release Importantly, there are a number such as an MRI center. Given the stating that it recovered $2.4 billion of exceptions that exempt certain complexity of the Stark Law and in settlements and judgments in legitimate business arrangements Anti-Kickback requirements, as cases involving fraud against the from liability under the Stark well as other health care regula- government in fiscal year 2009.21 Law.17 Many of these exceptions tions designed to prevent fraud, In May 2009, the government require that the arrangement be where clients are directly or announced the creation of a new based on fair market value and be indirectly in referral relation- interagency group, the Health Care commercially reasonable apart ships, attorneys structuring these Fraud Prevention and Enforcement from referrals. Importantly, fair arrangements must ensure that the Action Team (HEAT) to combat market value must be ascertained relevant standards are satisfied. Medicare fraud.22 As part of through a valuation analysis rather Increasingly over the years, the HEAT, dedicated health care fraud than through simple contract nego- government has focused its strike forces have been established tiations. The Stark Law is a strict enforcement activities on other in major cities around the country. liability law. Thus, if a prohibited arrangements where the referral Because of increasingly aggres- arrangement does not fit within an relationship may not be as readily sive government investigations exception, liability will be found identifiable. For instance, when a into health care arrangements, regardless of intent. pharmaceutical company con- practitioners and those who con- The Anti-Kickback Statute is a tracts with recognized physician tract with them must understand civil and criminal statute that pro- experts to lecture at scientific those laws implicated in health hibits individuals or entities from meetings or to serve on company care contracting, including the knowingly or willfully offering, pay- advisory boards, there are regula- amended False Claims Act. ing, soliciting or accepting any type tory considerations that must be of remuneration in order to induce considered in structuring such The False Claims Act, as referrals for health services that are contracts. In particular, the gov- Amended by the Fraud reimbursable under any federal ernment is concerned that any Enforcement and Recovery health care program. Much like the payments for services be at “fair Act of 2009 Stark Law, the Anti-Kickback market value” and set in advance. Originally enacted in 1863, large- Statute was created to ensure that Otherwise, a physician’s practice ly as a means to fight war profi-

20 Georgia Bar Journal teering during the Civil War, the False Claims Act (FCA)23 was little used in health care enforcement activities until amendments in 1986 expanded its scope, increased penalties and significantly incen- tivized private lawsuits by individuals (called “qui tam relators”) on behalf of the government. Because the FCA provides for financial penalties per claim filed of up to $10,000 and treble damages, the government has used it to recover significant funds that were allegedly paid based on the presentment of a false claim for payment. Under the FCA, the government has Transportation Litigation recovered substantial funds from Thirty (30) years experience in Commercial Transportation health care providers as well as from pharmaceutical companies • DOT, EPA, OSHA, State & Local Regulations for allegedly causing false claims to • Maintenance Processes / Industry Recommended Practices be presented by providers for pay- • Company Polices / Safety Practices / Accident Investigation ment when the pharmaceutical company improperly promoted unapproved uses of its products. 912-571-9149 For example, in September 2009, http://www.mcbﬂeetmanagementconsulting.com/litigation/ Pfizer agreed to pay $2.3 billion to [email protected] resolve civil and criminal liability arising from the allegedly improper promotion of certain pharmaceutical products.24 This settlement N D L included a payment of $1 billion to Norwitch Document Laboratory resolve allegations under the FCA Forgeries - Handwriting - Alterations - Typewriting that Pfizer improperly promoted Ink Exams - Medical Record Examinations - “Xerox” Forgeries certain drugs and thereby caused false claims to be submitted to gov- F. Harley Norwitch - Government Examiner, Retired ernment health care programs to Court Qualified Scientist - 27 years. Expert testimony given in pay for those drugs when they excess of three hundred times including Federal and Off-shore should not have been covered claims. In May 2009, some hospi- 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 tals in Minnesota agreed to pay www.questioneddocuments.com more than $2 million to settle alle- Telephone: (561) 333-7804 Facsimile: (561) 795-3692 gations that they had submitted false claims when performing a medical procedure to treat certain spinal fractures.25 The government Earn up to 6 CLE credits for contended that the claims submit- authoring legal articles and ted for payment were false claims having them published. because the procedures were done on an inpatient basis to increase Submit articles to: Medicare billings even though the Donald P. Boyle Jr. procedure could have been accom- Georgia Bar Journal plished on an outpatient basis. As a 104 Marietta St. NW, Suite 100 final example, in August 2009, a Atlanta, GA 30303 hospital in Iowa paid $4.5 million Contact [email protected] to settle a government investiga- for more information tion where the hospital was alleged or visit the Bar’s website, www.gabar.org. to have improperly benefited by

April 2010 21 paying five physicians who were application to individuals and enti- of the complex web of laws that employed by the hospital and ties who deal in the health care affect virtually all of their day-to- referred patients to the hospital arena, directly or indirectly, as day operations and business deal- sums in excess of the fair market well as government contractors. ings; however, expansion of these value of their work.26 The govern- Therefore, clients who have arrange- laws, such as the FCA, the Stark ment alleged that such payments ments with health care providers Law and the Anti-Kickback Statute, violated the Stark standards. should be advised of these changes has resulted in these laws having a As part of the government’s focus to ensure vigilance in their relation- greater impact on business transac- on fraud enforcement, on May 20, ships and guard against allegations tions involving non health care 2009, President Obama signed the of FCA violations. entities and individuals. Attorneys Fraud Enforcement and Recovery Finally, the government contin- advising clients in transactions that Act of 2009 (FERA).27 FERA includ- ues to assert that technical viola- directly or indirectly involve health ed significant amendments to the tions of other health care laws, e.g., care providers or health care serv- FCA, which have expanded the the Stark Law or the Anti-Kickback ices should be mindful of the con- FCA’s application and effectiveness Statute, can render a claim “false” siderations under this complex regas a tool to prevent health care under the FCA. There are cases ulatory scheme. fraud. In one of the more important finding an FCA violation where the While this article highlights cer- amendments for purposes of this actual claim submitted was not tain issues for consideration, clear- article, FERA replaced the previous false but the provider falsely certi- ly, the area of health care law is intent language under the FCA with fied that it was in compliance with subject to ongoing change that a looser requirement that the false all applicable laws, including the must be monitored for the benefit statement be “material to” a false Anti-Kickback Statute.30 For exam- of attorneys and their clients. claim.28 After FERA, FCA liability ple, if a provider obtains referrals Where a case or transaction direct- no longer requires a direct connec- through an improper kickback ly or indirectly involves health tion between the intent of the false arrangement and, as required care services, a health care statement and the government’s under certain health care programs, provider or a health care benefit, payment of the claim—liability can that provider has filed certifications particular attention should be attach if a party’s statement has a that it has not violated the Anti- given to the scope and impact of “natural tendency to influence, or is Kickback Statute, the provider can federal and state health care laws capable of influencing” the pay- be held liable under the FCA even if and regulations. ment of government funds. the actual claim was medically nec- Therefore, clients who may have a essary and was not provided at an Tracy M. Field is a more remote relationship with artificially inflated price. partner in the health health care providers submitting care group at Arnall claims for reimbursement could be Conclusion Golden Gregory LLP. subject to enforcement actions It is impossible to predict the Her undergraduate under the revised law. outcome of health care reform, but, degree in human biol- Another key amendment under given the current health care focus, ogy is from Stanford University. FERA that has caused great concern the laws and regulations governing After obtaining her Masters for providers and their vendors is health care arrangements will con- Degree from the University of that the intentional retention of an tinue to expand and become California-Berkeley, she worked in overpayment is a “false claim” increasingly complex. As a result, clinical genetics and reproductive under the law.29 The revised FCA we will undoubtedly see increased biology for several years before creates liability when a party enforcement of these laws in the going to law school at Emory. “knowingly conceals or knowingly coming months and years. Field uses her clinical background and improperly avoids or decreases As noted above, attorneys and to assist clients with issues involv- an obligation to” pay money to the their clients continue to be affected ing regulatory matters for both government. “Obligation” includes by the ever evolving privacy and health care providers and life sci- “an established duty, whether or security rules under HIPAA and ences companies. She counsels not fixed, arising . . . from statute HITECH and should stay attuned hospitals, physicians and other or regulation, or from the retention to both Georgia and federal law to health care providers regarding of any overpayment.” Significantly, ensure ongoing compliance. In laws affecting their operations liability can arise once an overpay- addition, attorneys involved in and has spoken on a number of ment is knowingly concealed, even personal injury cases must be health care and FDA topics. She is in the absence of a false record aware of the current requirements past chair of the Health Law or statement. imposed by the MSP laws. Section of the State Bar of The expansion of the FCA will In the transactional arena, health Georgia and currently serves on undoubtedly lead to its increased care providers are generally aware its Executive Committee.

22 Georgia Bar Journal Shannon L. Drake is a see 45 C.F.R. pts. 160, 162 & 164 Joint-Session-of-Congress-on- member of Arnall (2009). Health-Care. Golden Gregory LLP’s 2. See Moreland v. Austin, 284 Ga. 20. Federal Bureau of Investigation, health care and life 730, 670 S.E.2d 68 (2008). Financial Crimes Report to the sciences group and 3. No. S09G1005 (Ga. Nov. 2, 2009). Public, Fiscal Year 2007, available 4. American Recovery and at http://www.fbi.gov/ the long term care Reinvestment Act of 2009 (ARRA), publications/financial/fcs_ defense team. His practice focus- Pub. L. No. 111-5, 123 Stat. 115 report2007/financial_crime_2007.htm. es on the representation of skilled (2009). 21. Press Release, Justice Department nursing facilities and other long 5. Id., Health Information Technology Recovers $2.4 Billion in False term care providers, hospitals and for Economic and Clinical Health Claims Cases in Fiscal Year 2009; physicians in claims of medical (HITECH Act), Title XIII of More than $24 Billion Since 1986 negligence and employment mat- Division A and Title IV of Division (Nov. 19, 2009). available at ters. He also advises health care B of ARRA. http://www.justice.gov/opa/pr/ clients on regulatory issues, 6. See 45 C.F.R. § 160.103 (2009). 2009/November/09-civ-1253.html. including Medicare and Medicaid 7. 42 U.S.C. § 1395y (2009). 22. Press Release, Attorney General reimbursement and civil monetary 8. Id. § 1395y(b)(2)(B)(iii). Holder and HHS Secretary 9. Id. (emphasis added). Sebelius Announce New penalty defense. He received his 10. 42 C.F.R. § 411.24(g) (2009). Interagency Health Care Fraud J.D. and B.A., magna cum laude, 11. See United States v. Harris, No. Prevention and Enforcement from the University of Georgia. 5:08CV102, 2009 WL 891931, at *3 Action Team (May 20, 2009), avail- (N.D. W.Va. Mar. 26, 2009) (hold- able at http://www.hhs.gov/news Jessica Tobin Grozine ing that plaintiff’s counsel who /press/2009pres/05/20090520a.html. is an associate in the prematurely disbursed settlement 23. 31 U.S.C. §§ 3729-3733 (2009). health care practice proceeds was individually liable 24. Press Release, Justice Department group of Arnall Golden for reimbursing Medicare Announces Largest Healthcare Gregory LLP. Her prac- because the government can Fraud Settlement in Its History tice focuses on regula- recover “from any entity that has (Sept. 2, 2009), available at tory compliance, operations, received payment from a primary http://www.justice.gov/opa/pr/ plan,” including an attorney”) 2009/September/09-civ-900.html. Medicare and Medicaid reimburse- (citing 42 C.F.R. § 411.24(g)). A 25. Press Release, Minnesota Hospitals ment, certificate of need, survey waiver of recovery may be grant- to Pay U.S. $2.28 Million to Settle and certification and change of ed where (1) a claimant is with- False Claims Act Allegations (May ownership for institutional health out fault and (2) recovery would 21, 2009), available at http://www. care providers as well as physicians either defeat the purposes of Title usdoj.gov/opa/pr/2009/May/ and physician groups. She received II or would be against equity and 09-civ-497.html. her J.D. from Georgia State good conscience. 42 U.S.C. § 26. Press Release, Covenant Medical University College of Law and a 404(b) (2009). Center to Pay U.S. $4.5 Million to B.A. from the University of Georgia. 12. United States v. Stricker, No. CV- Resolve False Claims Act Allegations 09-PT-2423-E (N.D. Ala. filed Dec. (Aug. 25, 2009), available at Daniel M. Formby is 1, 2009). http://www.usdoj.gov/opa/pr/ 13. Medicare, Medicaid, and SCHIP 2009/August/09-civ-849.html. of counsel in the Extension Act of 2007 (MMSEA), 27. Pub. L. No. 111-21, 123 Stat. 1617 health care and life sci- Pub. L. No. 110-173, 121 Stat. 2492 (2009). ences group at Arnall (2007). 28. The FERA change was made in Golden Gregory. Prior 14. 42 U.S.C. § 1395nn (2009). response to the Supreme Court’s to joining the firm, he 15. Id. § 1320a-7b(b). decision in Allison Engine Co., v. was a deputy attorney general and 16. 42 C.F.R. § 411.354(c) (2009). United States ex rel. Sanders, 128 S. director of the commercial trans- 17. See generally id. §§ 411.355(b) (in- Ct. 2123 (2008), which held that 31 actions and litigation division in office ancillary services exception); U.S.C. § 3729(a)(2) of the FCA the Georgia Attorney General’s 411.357(a) (space lease exception); required a plaintiff to prove that a office. His health care practice 411.357(c) (bona fide employment defendant intended the false state- focuses on Medicare reimburse- relationships exception); 411.357(d) ment to be material to the govern- (personal services exception); ment’s decision to pay or approve ment issues and appeals, hospital 411.357(e) (concerning physician the false claim. sale transactions and provider reg- recruitment). 29. See 31 U.S.C. § 3729(b)(3) (2009). ulatory matters. He received both 18. See id. § 1001.952. 30. See United States ex rel. Pogue v. his J.D. and A.B. degrees from the 19. Barack Obama, President of the Diabetes Treatment Ctrs. of Am., University of Georgia. U.S., Remarks to Joint Session of Inc., 238 F. Supp. 2d 258, 264 Congress on Healthcare (Sept. 9. (D.D.C. 2002); United States ex rel. Endnotes 2009), available at http://www. Thompson v. Columbia/HCA 1. Health Insurance Portability and whitehouse.gov/the_ press_office/ Health Care Corp., 20 F. Supp. 2d Accountability Act of 1996, Pub. L. Remarks-by-the-President-to-a- 1017, 1047 (S.D. Tex. 1998). No. 104-191, 110 Stat. 1936 (1996);

April 2010 23 A Look at the Law

Limiting Law Firm Exposure to HITECH Act Liability: Do You Know Where Your Client’s Protected Health Information Is?

by H. Carol Saul

awyers and law firms, like other vendors to to review the claims and load the documents, which include patient names and HIV status, onto a flash the American health care industry, take note: drive without encryption. Your courier is to deliver the flash drive to the consultant but stops at Starbucks as of mid-February 2010, many of you are for a coffee, where his car is stolen. The package con- L taining the flash drive is never recovered. You learn required to comply with large parts of the three months later that you are required to notify the hospital of the lost data. Administrative Simplification provisions of the Health What are the repercussions? The hospital is required to publish notice of this breach in the media Insurance Portability and Accountability Act of 1996 and to attempt to contact each of the 8,000 patients. It is also required to notify the Department of Health (HIPAA),1 will be subject to governmental and client and Human Services (HHS). The cost to the hospital, which includes legal fees of the competing law firm audits to verify compliance and will be subject to civil that the hospital hired to advise it and fines imposed for the hospital’s noncompliance with federal breach money penalties for a failure to comply. Lawyers also notification requirements, is more than $1 million. The client asks your firm to reimburse it, but your firm has face substantial indemnification claims by clients no insurance for the loss and looks to the courier company, which likewise has no insurance and files bank- whose protected health information (PHI) is lost, stolen ruptcy to avoid your claim. Not surprisingly, the hospital chooses another law firm. HHS begins an investi- or improperly accessed while in the lawyer’s custody. gation and determines that your firm’s transmittal of unencrypted PHI, coupled with the delay in notifying Not concerned yet? Let’s consider a hypothetical sit- the hospital, constitutes willful neglect and imposes a uation: It is June 2010. Your firm’s largest client is a civil money penalty of $250,000 against your firm. The hospital that is under investigation for health care press coverage causes your firm to lose its other two fraud. The allegations relate to billing for 8,000 largest health care clients. patients seen in the hospital’s outpatient HIV clinic This article is a cautionary tale. It discusses the direct over a six-year period. You engage a billing consultant impact on lawyers of a recent expansion of federal pri-

24 Georgia Bar Journal vacy and security law and recommends several steps that lawyers should take now. A portion of the American Recovery and Reinvestment Act of 2009 (ARRA),2 or the Stimulus Bill as it is commonly called, created the Health Information Technology for Economic and Clinical Health Act (HITECH Act or the Act).3 The Act imposes expansive new requirements on lawyers who serve as business associates of their clients and receive or access their clients’ protected health information. The Historical Perspective As with any new legislation, it is often best to start with an understanding of the law that preceded it, which in this case is the Health Insurance Portability and Accountability Act of 1996, or HIPAA. The HITECH Act does not replace HIPAA. Rather, it builds on HIPAA by providing additional security and privacy safeguards with respect to PHI. HIPAA was a product of the 1990s. At that time, Congress responded to a need to make health Until passage of the HITECH tomers and clients. As a conse- information more portable, as well Act, HIPAA directly impacted only quence, it is likely that many as to standardize the vocabulary of certain “covered entities,” which business associates, including various electronic systems that were included health care providers attorneys, took the position that conducting nonstandard health (e.g., hospitals and physicians) that the obligation to put a business care-related transactions, such as submit transactions electronically; associate agreement in place claims processing. Congress recog- health care plans (e.g., HMOs and rested with their clients, not nized a concomitant concern that self-insured health plans); and with them. Moreover, the little the privacy and security of health health care clearinghouses (e.g., enforcement historically and the information needed stronger pro- billing services and repricing com- relatively low statutory penalties tection than the patchwork of panies). Covered entities were likely resulted in widespread fail- state laws then in place. Thus, in required by HIPAA to extend pro- ure to monitor compliance or 1996, Congress passed HIPAA, the tections for PHI by entering into strictly abide by the protections first comprehensive federal privacy written agreements with their serv- required by the terms of the busi- law, and assigned to HHS the ice providers with whom they ness associate agreements. responsibility to promulgate and shared PHI, which are called busi- enforce regulations. ness associates.6 Business associ- That Was Then; HIPAA’s Privacy Rule, which ates include IT vendors, transcrip- This Is Now describes the appropriate uses and tion providers, billing agents, disclosures of protected health accountants and attorneys.7 With the passage of the HITECH information, became effective in Prior to the HITECH Act, busi- Act, however, business associates 2001, with compliance required by ness associates were not directly are now directly liable for April 2003.4 HIPAA’s Security subject to HIPAA. Business asso- HIPAA/HITECH violations. If a Rule, which establishes the policies ciates’ only exposure to HIPAA lawyer is certain that she will never and best practices for securing was through contractual liability represent a HIPAA-covered entity, health information, became law in for breach of the business associ- or never receive PHI from a covered 2003, with compliance required by ate agreement that they signed entity client, that lawyer can stop April 2005.5 with their covered entity cus- reading now. It should be noted,

April 2010 25 however, that attorneys in fields of may seek to shift the notice obliga- both are applicable. Currently, 45 law much broader than health law tion contractually via language in states, the District of Columbia, per se do from time to time repre- the business associate agreement. Puerto Rico and the U.S. Virgin sent covered entities. For example, At a minimum, covered entities are Islands have their own breach PHI may be shared between a cov- likely to seek to add indemnifica- notification requirements. Lawyers ered entity client and its litigation tion provisions to business associate should familiarize themselves with defense counsel, collection attor- agreements so that the business applicable state laws, including neys, employment lawyers or associate will be required to make timeframes for response and any ERISA counsel. Attorneys who the covered entity whole for its loss- additional elements to be included from time to time receive or access a es in connection with carrying out in the notice. In some states, the bur- covered entity client’s PHI should its breach notification obligations. den of providing notice of breach keep reading. may fall directly on the attorney.10 Security Breach Additionally, law firms should New Security Breach Action Items consider procuring insurance cov- Notification Requirements erage to protect themselves against What should a law firm do in losses should they experience a Effective Now light of the new breach reporting breach of unsecured PHI and as a On Aug. 24, 2009, HHS pub- obligations? Step one would be to result incur civil money penalties lished interim final regulations educate its personnel, including or be required to indemnify their establishing breach notification nonlawyer personnel, regarding covered entity client. Such losses requirements for unsecured PHI, the business associate’s obligation can be substantial. It is likely that which regulations were mandated to provide breach notification. If a covered entity clients will require by the HITECH Act,8 and, follow- briefcase containing PHI is lost but that their business associates, ing a grace period, covered entities no one beyond its owner is made including attorneys, provide evi- had until Feb. 22, 2010, to revise aware of it, the law firm cannot dence of such coverage. Attorneys their policies, put in place security meet its legal obligation to notify also should carefully review and incident response plans and train- the covered entity. where appropriate, narrow indem- ing and confer with their business Second, law firms should re- nification language in business associates about security breach examine and tighten their policies as associate agreements to foreclose response and modify business to permitted use, storage and trans- indemnification for indirect, conse- associate agreements accordingly. mittal of PHI. When PHI that has quential or special damages, such Upon discovery of a breach, and been encrypted in accordance with as damages to the client’s reputa- depending on the location and standards approved by HHS is lost tion flowing from a breach. number of individuals impacted by or improperly accessed, those events the breach, the security breach reg- are not deemed to be a breach of Required HIPAA Security ulations require that a covered enti- unsecured PHI, so no notice would be Rule Compliance as ty provide different types of notifi- required. HHS, on April 27, 2009, cation (i.e., to the affected individu- released guidance “specifying the of Feb. 17, 2010 als, the media and HHS) without technologies and methodologies The HITECH Act also requires unreasonable delay and in no cir- that render [PHI] unusable, unread- lawyer-business associates to com- cumstances later than 60 days fol- able, or indecipherable to unautho- ply directly with many of the lowing the discovery of the breach. rized individuals for purposes of the HIPAA security standards. Under The regulations specify in detail HHS breach notification for covered the HITECH Act, effective Feb. 17, the content to be included in the entities and their business associ- 2010, business associates are subject breach notification. ates.”9 As a general rule, no PHI to each of the administrative, physi- Under HHS’s security breach reg- should be transmitted by e-mail, cal and technical safeguard require- ulations, business associates are unless it is properly encrypted ments in the HIPAA Security Rule, required to report a breach of unse- before it is sent. If it is necessary to as well as requirements to maintain cured PHI only to the associated send PHI on some form of portable policies, procedures and documen- covered entity, which is then media (such as USB keys or hard tation of their security measures “in required to provide notification to drives) the information likewise the same manner that such sections the affected individuals. In some should be properly encrypted. apply to the covered entity.”11 instances, however, the business Because the federal security Although a thorough discussion associate who caused the breach breach notification requirements do of the Security Rule standards is may be better positioned to gather not preempt state notice laws, cov- beyond this article’s scope, attor- information about the breach and ered entities and their business neys should note the 18 standards, provide notice to the individual(s) associates will be required to which are further sub-divided into affected. Covered entities therefore comply with both sets of law, when 36 implementation specifications.

26 Georgia Bar Journal Each is labeled as (1) “required,” implementation. Written policies ed into the business associate meaning that implementation is and procedures must be developed agreement between the business mandatory; or (2) “addressable,” to establish guidelines to prevent, associate and the covered entity.”12 meaning that business associates detect, contain and correct security There is some debate currently must consider whether adoption of violations, and all personnel must regarding two possible interpreta- each implementation specification be trained on these policies and pro- tions of this HITECH Act language. is practical and warranted given cedures. Note that ARRA requires The first interpretation is that the the size and nature of their opera- the secretary of HHS to provide for additional requirements imposed tions; if not, the entity is required to periodic audits to determine the by the HITECH Act become part of adopt an alternative measure to compliance of both covered entities the business associate agreement as accomplish the standard and to and business associates with the a matter of law. The second interpre- document its reasoning for doing HITECH Act requirements. tation is that covered entities and so, or to document how the stan- their business associates are dard is otherwise met. Amendment of required by the HITECH Act to Business Associate amend their existing business asso- Security Rule Agreements ciate agreements to include—and Compliance Action Items to include in future business asso- Many law firms have already ciate agreements—the additional What should lawyers do to meet developed a form business associ- requirements imposed on covered their new Security Rule obligations ate agreement to use with their cov- entities and business associates by under the HITECH Act? The start- ered entity clients from whom they the HITECH Act. As of this writing point is conducting and docu- receive PHI, as has been required ing, HHS has not taken any formal menting a security risk assessment by the Privacy Rule since 2003. position on this issue. to identify vulnerabilities to the Lawyers now must decide whether security of PHI. That risk assess- to amend and renegotiate those Unique Issues for ment should be tailored to the stan- business associate agreements that Lawyers as Business dards and implementation specifi- are already in place with current cations in the Security Rule. A secu- clients. This is because the HITECH Associates rity official must be assigned Act provides that the additional Reconciling aspects of HIPAA responsibility for HIPAA security requirements “shall be incorporat- and the HITECH Act with the

April 2010 27 unique relationship between a such indemnification when it for all violations of a particular lawyer and his client is nebulous. appears in the lawyer’s own busi- type in a calendar year.17 Several requirements of the ness associate agreement. Criminal penalties also may HITECH Act, if followed literally, apply to a person, including an could result in breaches of the attor- Applicability of employee or other individual who ney-client privilege and work prod- Heightened Penalties obtains or discloses PHI without uct, or where recognized, the self- authorization. The penalties indi- evaluative privilege. For instance, and Enforcement to cate that an employer or other indi- the HITECH Act requires a busi- Business Associates vidual will not be fined more than ness associate that becomes aware Under the HITECH Act, busi- $50,000 and/or imprisoned not of a breach by its covered entity ness associates that violate the more than one year, unless the client under some circumstances to applicable HIPAA regulations, or offense is committed under false report that breach to HHS. who violate the terms of their pretenses, in which case the fine (Covered entities likewise are business associate agreements, will cannot be more than $100,000 required to “rat” on their business be subject to the same civil and/or imprisonment not more associates.)13 How does an attorney and criminal penalties as cover- than five years. If the offense is turn in his client without irrevoca- ed entities.15 The HITECH Act committed with intent to sell, bly damaging the relationship and calls for increased civil penalties transfer or use PHI for commercial possibly waiving a privilege? and enforcement.16 Prior to the advantage, personal gain or mali- Additionally, business associates HITECH Act, the secretary of HHS cious harm, then the fine cannot be are required to agree in their busi- was authorized to impose a HIPAA more than $250,000 and/or impris- ness associate agreements to make civil money penalty ranging from onment not more than 10 years.18 their books and records available to $100 to $25,000 per violation, pro- The HITECH Act requires that HHS so that HHS may determine vided that the violation was not a collected penalties and settlement the covered entity’s compliance criminal offense. As amended by dollars for HIPAA violations be with HIPAA.14 Must the lawyer the HITECH Act, however, the transferred to the Office of Civil then open its privileged files to potential civil penalties for HIPAA Rights to fund future enforcement HHS? Could doing so constitute a violations now have real teeth. initiatives.19 This self-perpetuating waiver of the attorney-client privi- The Act provides for tiered funding mechanism has prece- lege? Lawyers should consider penalties depending on the nature dence in the government’s fraud adding qualifying language to the of the violation. The first tier is for and abuse enforcement programs, business associate agreement that violations that were unknown or where the proceeds of civil money makes clear that no term should be by exercising reasonable diligence penalties are poured back into the construed as a waiver of any appli- would not have been known, and HHS Office of Inspector General to cable privilege. We will have to establishes a range of penalties fund future investigations of sus- leave it to the courts to determine from $100 for each violation up to pected Medicare fraud and abuse. whether privilege trumps the $25,000 for all identical violations Borrowing further from the gov- HIPAA/HITECH requirements, or in a calendar year. The second tier ernment’s fraud and abuse enforce- vice versa. includes violations due to reason- ment tactics, a portion of the civil The HITECH Act also can able cause and not willful neglect. money penalties collected for cause an uncomfortable dynamic The second tier range of penalties HIPAA violations will be paid between client and attorney as they is from $1,000 for each violation up to individuals harmed by the acts are adverse for purposes of negoti- to $100,000 for all such violations that constitute HIPAA offenses. ating the terms of the business asso- in a calendar year. The third tier Additionally, state attorneys gener- ciate agreement and the allocation covers violations due to willful al may commence civil actions on of risk for a security breach. neglect if they are corrected within behalf of citizens of the state in fed- Lawyers should consider including 30 days from knowledge of the eral district court with regard to a statement in the business associ- violation. The range of penalties is HIPAA violations, to the extent ate agreement, whereby the parties from $10,000 for each violation up that no federal action has been acknowledge that the lawyer is to $250,000 for all such violations instituted by HHS with respect to not representing the client in con- in a calendar year. The fourth tier the same violation. Under the state nection with such negotiations. is for violations due to willful neg- attorneys general enforcement Another awkward situation can lect that are not corrected. The powers, damages are relatively occur when the attorney has appro- range of penalties is from $50,000 low—up to $100 per separate viola- priately advised the client to seek for each violation up to $1.5 mil- tion or a maximum of $25,000 for indemnification clauses in its agree- lion for all such violations during a all violations of the identical ments with other vendor-business calendar year. For each tier, the requirement in a calendar year, associates, but declines to agree to maximum penalty is $1.5 million plus reasonable attorneys’ fees.20

28 Georgia Bar Journal The HITECH Act also permits the Epstein Becker & Green. She can 9. 74 Fed. Reg. 19,006 (Apr. 27, 2009) (to be codified at 45 C.F.R. pts. 160 Office of Civil Rights the discretion be reached at [email protected]. & 164). to impose corrective action plans on Endnotes 10. Georgia’s current breach notice law violators. Additionally, the Act is called the Georgia Personal requires the secretary to provide for 1. Pub. L. No. 104-191, 110 Stat. 1936 (1996); see 45 C.F.R. pts. 160, 162 & Identity Protection Act of 2005 periodic audits of covered entities 164 (2009). (GPIPA), and applies to personally and business associates to ensure com- 2. Pub. L. No. 111-5, 123 Stat. 115 identifiable information held by pliance with the HIPAA Privacy (2009). three types of entities: information and Security Rules.21 3. See id., Title XIII of Division A , brokers, data collectors and persons Title IV of Division B. or businesses that maintain comput- Conclusion 4. 45 C.F.R. pts. 160 & 164, subpts. A erized data on behalf of an informa- Although the overarching pur- & E. tion broker or data collector. O.C.G.A. §§ 10-1-910 to -912 (2009). pose of the HITECH Act is to pro- 5. Id. pts. 160, 162 & 164. Small health 11. HITECH Act § 13401(a) (codified vide a path for the federal govern- plans were given an additional twelve months to comply with the at 42 U.S.C. § 17931(a)). ment to achieve its goal of establish- 12. Id. ing widespread use of electronic Security Rule. 6. PHI or Protected Health 13. Id. § 17932(e)(3); 45 C.F.R. pt. health records by 2014, the HITECH Information means information 164.308(a)(6)(ii). Act’s reach extends more broadly that identifies an individual or 14. 45 C.F.R. pt. 164.504(e)(2)(ii)(H). than just health care entities and might reasonably be used to iden- 15. HITECH Act § 13401(b)-(c) (codi- electronic health records compa- tify an individual and relates to (1) fied at 42 U.S.C. § 17931). nies. The obligations, restrictions the individual’s past, present or 16. Id. § 13410 (codified at 42 U.S.C. and potential liability imposed on future mental or physical health; § 17939). lawyer-business associates under (2) the provision of health care to 17. Id. § 13410(d)(1)-(3) (codified at 42 U.S.C. § 17939). the HITECH Act are significant. the individual; or (3) the past, 18. 42 U.S.C. § 1320d-6. Lawyers should note these require- present or future payment for health care. 45 C.F.R. § 164.501. 19. HITECH Act § 13410(c). ments now and undertake the sub- 20. Id. § 13410(d)(2) (codified at 42 stantial burden of compliance. At 7. HITECH Act, § 13400(2) (codified at 42 U.S.C. § 17921) states that U.S.C. § 17939). least lawyers can now tell their cov- “business associate” has the same 21. Id. § 13411 (codified at 42 U.S.C. ered entity clients that they truly meaning as found in 45 C.F.R. § 17940). “feel their pain.” § 160.103. A business associate is “a person who, on behalf of a H. Carol Saul is a covered entity or organized member of the health healthcare arrangement, but care and life sciences other than in the capacity of a practice in the Epstein workforce member of such cov- Becker & Green, P.C.’s, ered entity or arrangement: per- Atlanta office. Saul’s forms or assists in the perform- practice focuses on regulatory ance of a function or activity involving the use or disclosure counseling for hospitals, academic of individually identifiable medical centers and home and health information … or any community-based service other function or activity regu- providers, including home health, lated by HIPAA; or provides hospice, infusion therapy, HME legal, actuarial, accounting, con- and assisted living. Her areas of sulting, data aggregation …, focus specifically include privacy management, administrative, and security matters, the Stark accreditation, or financial serv- Law, the Anti-Kickback Statute and ices to or for such covered enti- other federal and state fraud and ty [or arrangement] where the abuse laws, compliance counsel- provision of the services involves disclosure of individu- ing, HIPAA, health regulatory due ally identifiable health informa- diligence and Medicare/Medicaid tion from such covered entity or reimbursement matters. Saul is arrangement or from another certified in Health Care business associate of such cov- Compliance by the Health Care ered entity or arrangement to Compliance Association, serves on the person.” the ABA Task Force for HITECH Act 8. 74 Fed. Reg. 42,740-42,770 (Aug. compliance, and is the HIPAA 24, 2009) (to be codified at 45 Privacy and Security Officer for C.F.R. pts. 160 & 164).

April 2010 29 A Look at the Law

Is Georgia Prepared for a Health Pandemic? Legal Issues Regarding Emergency Preparedness and Declaration of Emergency Health Pandemic in Georgia

by Liz Schoen and Keith Mauriello

ver the last year, concerns over global

health pandemics, including the spread O of the H1N1 virus, forced federal and state authorities to consider how the public could respond appropriately to prevent or, if necessary, manage outbreaks. In a perfect world, the federal and state governments, their agencies, private and public organizations, legislatures, hospitals and other health care providers and individuals would have ample time to develop concise and thorough guidance on how to address and navigate through a pandemic crisis.

Unfortunately, although lessons have been learned in the wake of crises, for example with Hurricane Katrina, there remain significant practical and legal difficulties in preparing for an emergency pandemic.

30 Georgia Bar Journal Georgia is no exception. Being the home state for the Centers for Business Valuations Disease Control and Prevention (CDC) has offered some advan- Divorces ! Estate/Gifts ! ESOPs ! Disputes ! Fairness Opinions tage, particularly in the area of Family Limited Partnerships ! Intangible Assets communication, due to the prox- imity of CDC staff to various Mitchell Kaye, CFA, ASA Georgia players. Additionally, (770) 998-4642 Georgia’s Commissioner of the e-mail: [email protected] Department of Community Health American Society of Appraisers ! Past President, Atlanta Chapter (DCH) serves as the state health Chartered Financial Analyst officer, which has helped expedite serving appraisal clients since 1981 the planning and communication process in Georgia. This ad- Court Testimony / IRS Experience vantage was demonstrated by the foresight of the then current DCH Commissioner, Dr. Rhonda Medows, M.D., who predicted in early August 2009 the spread of the H1N1 virus as soon as public and private schools began. Dr. Medows asked the Georgia Hospital Association (GHA) to develop a draft executive order for her to present to the governor in the event that he were to declare a state of emergency as contemplated under law.1 There are a host of legal issues to consider at both the state and federal level with regard to emer- FORENSIC ACCOUNTING EXPERT gency health pandemics. This article focuses on two threshold M. Martin Mercer, JD, CPA, FCPA, CFE, CFF issues: (1) the scope of the state’s (404) 326-8958 authority to declare a state of CV at: www.MMartinMercer.com emergency and the processes nec- [email protected] essary to do so; and (2) federal government efforts in waiving cer- • Over 25 years of experience in fi nance, accounting and fi nancial fraud tain laws for providers and states • Licensed Attorney and CPA during pandemic emergencies. • Forensic CPA with the Society of Forensic CPAs Provided below is a summary of • Certifi ed Fraud Examiner (CFE), Association of Certifi ed Fraud Examiners these issues as well as other opera- • Certifi ed in Financial Forensics with the American Institute of CPAs tional concerns that health care providers may face during a declared state of emergency. Georgia’s Authority to Declare a Pandemic or Public Health Emergency The Georgia Emergency Manage- ment Act of 1981 (the Act)2 provides the state with certain powers in the event of an emergency situation, including a pandemic influenza or public health emergency. The Act designates the governor as the primary state official to exercise

April 2010 31 such emergency powers, and sets is important to understand the the termination of the public forth the basic parameters that scope of powers granted to the health emergency. must be followed when managing governor and his broad ability to an emergency event. delegate powers to various state In the event of a pandemic cri- The Act incorporates the concepts agencies, particularly DCH, in a sis, Georgia needs to be prepared of “pandemic influenza emergency” state of emergency for pandemic to respond to the demands, and and “public health emergency.” A influenza or public health con- effective planning and operations pandemic influenza emergency is cerns.7 In particular, the Act would likely assist in mitigating established when the World Health authorizes the governor to delegate such an emergency. Such plan- Organization declares at least a to DCH the power to quarantine ning and operations should be a Phase 5 Pandemic Alert for influen- and vaccinate individuals during a coordinated effort of various pub- za, or the CDC declares at least a state of emergency.8 lic and private entities within the Category 2 Pandemic Severity Index Before declaring a public health- state, which could best be initiat- for influenza.3 A public health emer- related state of emergency, the gov- ed and implemented by the DCH gency is broader in scope, defined as ernor must call for a special session Commissioner. Indeed, the gover- “the occurrence or imminent threat of the Georgia General Assembly nor may direct DCH to coordi- of an illness or health condition that for the purpose of concurring with nate all matters in responding is reasonably believed to be caused or terminating the public health to a public health emergency, by bioterrorism or the appearance of emergency.9 What is interesting including, among other things, a novel or previously controlled about this requirement is that it the planning and execution of or eradicated infectious agent or bio- only references a public health health emergency assessments, logical toxin and poses a high emergency, and makes no mention mitigation and response, the probability” of: (1) a large number of a pandemic influenza emer- coordination of federal and state of deaths; (2) serious or long- gency. While an argument could be responses, the collaboration with term disability for the population; or made that it is not necessary to call government and private entities (3) widespread exposure to an such special session for a pandemic and the organization of public infectious or toxic agent that poses a influenza emergency, such emer- information activities regarding significant risk of substantial future gency does seem to fall within the response operations.12 harm to a large number of people.4 definition of a public health emer- On its face, it would seem that a pan- gency, thus triggering a special ses- Federal Issues demic influenza emergency would sion. During a state of emergency, The federal government has also be considered a public health the governor may exercise many issued guidance and specific emergency due to the broader defi- emergency powers, some of which waivers to providers and states for nition, thus triggering both defini- likely would be implicated during the current H1N1 pandemic tions under the Act. a pandemic crisis, including, but in an effort to clarify and ease If threatened by a pandemic not limited to:10 some of the stringent federal regu- influenza or public health emer- latory restrictions to which health gency, in order to prevent or allevi- ■ Suspending any regulatory care providers must adhere on a ate the damage, loss, hardship statutes prescribing the proce- daily basis as well as to carve out or suffering, the governor may dures for conduct of state busi- some exceptions applicable during declare a “state of emergency,” ness, or orders, rules or regula- a state of national emergency.13 In which is a threat or occurrence of a tions of any state agency, if addition to raising awareness and disaster or emergency, in the gov- strict compliance would pre- concern of the current H1N1 crisis ernor’s judgment, that rises to the vent, hinder or delay necessary at the national and state levels, severity and magnitude warranti- action in coping with the emer- these efforts and declarations have ng extraordinary assistance by the gency or disaster;11 not only helped focus states on the state to assist with the efforts and ■ Commandeering private prop- issues, but, more important, seem available resources of the several erty if necessary; to be the starting point to ease legal localities and relief organizations.5 ■ Compelling a health care facili- restrictions in order to ensure that The governor is empowered under ty to provide services or use of adequate assistance is available. state law to carry out emergen- facilities if such services or use cy management programs that are reasonable and necessary Section 1135 Waivers include broad powers to mitigate for emergency response; and On Oct. 24, 2009, President and repair harms through police ■ Transferring the management Obama issued a proclama- agencies, emergency medical serv- and supervision of a health tion, pursuant to the National ices, transportation services, public care facility to DCH for a Emergencies Act,14 that the 2009 utilities, victim services and other limited or unlimited period of H1N1 influenza pandemic consti- services for civilian protection.6 It time not extending beyond tutes a “national emergency” and

32 Georgia Bar Journal that, if warranted, allowed for the When the president declares an health care program beneficiaries in waiver of certain statutory federal emergency or disaster under the the emergency area and that health requirements for medical treat- National Emergencies Act or the care providers delivering such ment facilities.15 In particular, the Robert T. Stafford Disaster Relief services in good faith can be reim- proclamation provided the secre- and Emergency Assistance Act,18 bursed and exempted from certain tary of the U.S. Department of and the HHS secretary declares a sanctions (absent any determina- Health and Human Services public health emergency under tion of fraud or abuse). Some exam- (HHS) the ability under section section 319 of the Public Health ples of § 1135 waivers or modifica- 1135 of the Social Security Act16 to Service Act, the HHS secretary is tions include, but are not limited to, waive or modify temporarily cer- then authorized to take certain conditions of participation, certifi- tain legal requirements that could actions in addition to her regular cation requirements for providers otherwise limit the nation’s health authorities.19 Specifically, under and sanction provisions under care system to respond to the section 1135 of the Social Security EMTALA and HIPAA. surge of patients with the H1N1 Act, she may temporarily waive or The federal requirements, how- virus. In early October 2009, modify certain requirements relat- ever, are not automatically waived, HHS Secretary Kathleen Sebelius ed to Medicare, Medicaid, and health care providers must also reinstated in response to State’s Children Health Insurance apply to operate under that author- the H1N1 virus a nationwide Program (SCHIP), Emergency ity when invoked by the HHS sec- public health emergency declara- Medical Treatment and Active retary. Requests are considered on tion pursuant to section 319 of the Labor Act (EMTALA) and a case-by-case basis, and the HHS Public Health Service Act, which Health Insurance Portability and secretary may choose to delegate allowed the secretary to engage in Accountability Act (HIPAA). The the decision-making authority to responsive action, including mak- goal of the waiver or modification the Centers for Medicare & ing grants, entering into contracts is to ensure that health care items Medicaid Services (CMS). Notably, and investigating various aspects and services are sufficiently avail- on Oct. 27, 2009, Secretary Sebelius of the disease.17 able to meet the needs of federal issued a § 1135 waiver and waived

April 2010 33 specific provisions for health care at off-campus, hospital-con- Although the fall 2009 outbreak providers unable to comply with trolled sites. of H1N1 provided many with a certain federal requirements as a ■ Communities may set up real-life test of readiness for a result of the H1N1 influenza.20 To screening clinics at sites not pandemic crisis, several experts take advantage of the waiver, how- under control of a hospital. believe that there will be another ever, providers had to seek wave in 2010 and that we will be approval from CMS. If these options prove unman- faced with the same issues and ageable, however, then the hospi- concerns swirling about as with EMTALA Guidance for tals will be relegated to actions the earlier outbreak. Thus, it is Hospitals in a Disaster available under a § 1135 waiver, imperative to continue the work CMS has issued various memo- which may include, among other that was started last year to ensure randa addressing the applicability things, an EMTALA waiver of cer- that systems are in place to of the EMTALA statute during any tain sanctions for redirecting or respond to a pandemic influenza disaster and the § 1135 waiver relocating individuals who come to and public health emergency. process specific for the H1N1 a hospital’s emergency depart- virus.21 These memoranda were ments to an alternative off-campus Liz Schoen works as developed to help hospitals and site for an MSE, in accordance with the associate general their communities in a disaster that a state emergency or pandemic counsel and vice presi- might cause a potential surge in the preparedness plan. dent of Compliance emergency department volume. If a § 1135 waiver is invoked by Services for the CMS has also clarified various the HHS secretary, it must include Georgia Hospital options that are permissible under a waiver of EMTALA require- Association (GHA). She provides EMTALA and reassured hospitals ments, and hospitals must request as well as community and public to be covered under the EMTALA legal assistance on all federal and health officials of the flexibility waiver. The duration of an EMTA- state grants as well as regulatory available under EMTALA. LA waiver in the case of a public and compliance support to GHA In general, EMTALA is a federal health emergency involving pan- staff and hospital members. law requiring all Medicare-partici- demic infectious disease should Schoen is the GHA representative pating hospitals with dedicated last until the termination of the who initiated, coordinated and emergency departments to per- public health emergency declara- edited GHA’s Recovery Audit form for all individuals who come tion. Otherwise, the duration will Contractor manual and GHA’s to their emergency departments, be 72 hours after the hospital has Federal and State Appeals regardless of ability to pay, an activated its disaster plan for the Handbook. She received her J.D. appropriate medical screening emergency at hand. degree from Emory University exam (MSE) to determine whether School of Law in 1990. She the individual has an emergency Conclusion medical condition (EMC).22 If the Global health pandemics such as received her B.A. in Anthropology hospital finds that there is no EMC, H1N1 require both the federal and and Spanish, with honors, from then its EMTALA obligations end. state governments to work in con- Connecticut College in 1985. But if there is an EMC, then the cert in order to provide adequate hospital must treat and stabilize and timely care. This article only Keith A. Mauriello is the patient within its capability or touches upon threshold concerns an associate with transfer the individual to a hospital for such emergencies. There are a Arnall Golden Gregory that has the capability. A basic whole host of other legal and prac- LLP and a member of principle behind EMTALA is to tical issues just as relevant, includ- the health care prac- ensure access to emergency servicing immunity and liability con- tice team. His practice es, and it should not be a barrier to cerns, the necessity of mandatory focuses on health care matters providing care during a disaster. vaccinations, altered standards of and involves representing all There are several options for care and scope of practice, avail- types of health care providers managing extraordinary emer- ability of health care practitioners gency department surges under the and various employment law con- including hospitals, long term existing EMTALA requirements cerns. Indeed, at the outset of care providers and physicians. He where no waiver would be the 2010 Legislative session, the represents and advises providers required. For instance: Georgia General Assembly already in matters ranging from opera- seems to be attempting to tackle the tions, regulatory compliance, ■ Hospitals may set up alterna- availability of volunteer health care Medicare and Medicaid reim- tive screening sites on campus. practitioners during an emergency bursement, certificate of need, ■ Hospitals may set up screening in introducing Senate Bill 315.

34 Georgia Bar Journal change of ownership and civil need. The department shall give http://www.whitehouse.gov/ monetary penalty defense. special expedited consideration the-press-office/declaration-a- to such requests and may national-emergency-with-respect- Endnotes authorize such requests for 2009-h1n1-influenza-pandemic-0; 1. In response to Dr. Medows’s good cause. Once the state of see also U.S. Dept of HHS, President request, GHA formed a panel of emergency has been lifted, any Obama Signs Emergency Declaration attorneys as its Legal Rapid services offered by an affected for H1N1 Flu (Oct. 24, 2009), Response team to review the legal health care facility under this http://www.flu.gov/ standards and prepare the Draft subsection shall cease to be professional/federal/ Executive Order, which was sub- offered until such time as the h1n1emergency10242009.html. mitted to the governor’s office in health care facility that received 16. See 42 U.S.C. § 1320b-5 (Supp. 2009). September 2009. Members of the the emergency authorization 17. See id. § 247d (2003). panel included the co-authors, has requested and received a 18. See id. §§ 5121-5207 (2003 & Supp. DCH attorney Sharon Dougherty, certificate of need. For purposes 2009). and attorneys Michelle Williams of of this subsection, “good cause” 19. See id. § 1320b-5(a) & (g)(1) (Supp. Alston & Bird LLP and David Winkle means that authorization of the 2009); see also Emily McCormick, of Epstein Becker & Green, P.C. request shall directly resolve a Frequently Asked Questions about 2. O.C.G.A. §§ 38-3-1 to 38-3-72 (1995 situation posing an immediate Federal Public Health Emergency Law & Supp. 2009). threat to the health and safety of (Sept. 2009), 3. Id. § 38-3-3(4.1) (Supp. 2009). Note the public. The department shall http://www2a.cdc.gov/PHLP/ that on June 11, 2009, the World establish, by rule, procedures docs/FAQs%20Fed%20PHE% Health Organization raised the whereby requirements for the 20laws%20101409.pdf; Craig A. global pandemic alert level to a process of review and issuance Conway, H1N1 Now a “National Phase 6, its highest designation, of a certificate of need may be Emergency”: Examining Portions of because of the rapid spread of the modified and expedited as a Federal Public Health Emergency Law, H1N1 virus. result of emergency situations. Health Law & Policy Institute, 4. Id. § 38-3-3(6). Id. § 31-6-43(k) (2009). University of Houston Law Center, 5. Id. § 38-3-3(7). 12. Id. § 38-3-51(i)(1) (Supp. 2009). Health Law Perspectives (Nov. 6. Id. § 38-3-51. 13. For H1N1, in anticipation of con- 2009), http://law.uh.edu/ 7. O.C.G.A. § 38-3-51 outlines the cerns about this virus and in healthlaw/perspectives/2009/ governor’s emergency powers response to questions, the federal (CC)%20PHSA.pdf. under the Act. government has implemented a 20. See U.S. Dep’t of HHS, Waiver or 8. See id. § 38-3-51(i)(2). An interesting few helpful websites, Modification of Requirements Under point about this statutory provision http://www.cms.hhs.gov/H1N1/ § 1135 of the Social Security Act (Oct. is that an order imposing a quaran- and http://www.flu.gov, to offer 27, 2009), http://www.flu.gov/ tine or vaccination may be informational products to the gen- professional/federal/h1n1_1135 appealed, and the burden of proof eral public. Some additional waiver_10272009.html. to demonstrate that there is a sub- resources that are helpful in navi- 21. CMS Letter to State Survey Agency stantial risk of exposing others to gating this matter in general are: 1) Directors, Emergency Medical imminent danger is on the state; American Health Lawyers Treatment and Labor Act (EMTA- clear and convincing evidence must Publication: Community Pan-Flu LA) Requirements and Options for be proven for vaccination, and a Preparedness: A Checklist of Key Hospitals in a Disaster, Ref: S&C- preponderance of the evidence Legal Issues for Healthcare 09-52 (Aug. 14, 2009); CMS Letter must be proven for quarantine. Providers; 2) Indiana State to State Survey Agency Directors, 9. Id. § 38-3-51(a). Department of Health: Draft Emergency Medical Treatment and 10. Id. § 38-3-51(c) & (d). Altered Standards of Care Labor Act (EMTALA) Regulation 11. Note also that the Georgia Guidance with an Emphasis on Changes and H1N1 Pandemic Flu Certificate of Need laws have a Pandemic Influenza; 3) Utah and EMTALA Waivers, Ref: S&C- specific provision that contem- Department of Health: Utah 10-05-EMTALA (Nov. 6, 2009); see plates relaxation of such rules dur- Pandemic Influenza Hospital and also CMS Letter to State Survey ing a state of emergency, stating: ICU Triage; and 4) State of Agency Directors, 2009-H1N1 Notwithstanding other provi- Colorado Department of Public Influenza Presidential Emergency sions of this article, when the Health and Environment: Declaration and U.S. Department Governor has declared a state of September 2009 Guidance for of Health and Human Services § emergency in a region of the Alterations in the Healthcare 1135 Waiver Authorization, Ref: state, existing health care facili- System During a Moderate to S&C-10-06-ALL (Nov. 6, 2009). ties in the affected region may Severe Influenza Pandemic. 22. See 42 U.S.C. § 1395dd (Supp. 2009); seek emergency approval from 14. See 50 U.S.C. §§ 1601-1651 (2003). 42 C.F.R. § 489.24 (2009); CMS State the department to make expen- 15. See Office of the Press Secretary, Operations Manual (Pub. 100-07), ditures in excess of the capital The White House, Declaration of a Appendix V: Interpretive expenditure threshold or to National Emergency With Respect to Guidelines and Responsibilities of offer services that may other- the 2009 H1N1 Influenza Pandemic, Medicare Participating Hospitals in wise require a certificate of (Oct. 24, 2009), Emergency Cases (May 29, 2009).

April 2010 35 GBJ Feature

Duty and Friendship: Judge John Sammons Bell and Judge Anthony A. Alaimo

by David E. Hudson

ohn Sammons Bell was a native Georgian; his

father was a baptist pastor. He attended J Richmond Academy in Augusta and Mercer University. His family had been in the state for several generations and one of his ancestors was a

Confederate veteran.

Anthony A. Alaimo was born in Sicily and immi- grated with his family to Jamestown, N.Y. He was raised and educated in New York and Ohio. In World War II, Maj. Bell led a battalion of soldiers and was injured at the Battle of New Georgia in the Solomon Islands in the Pacific. American air power was diverted to meet a threat from an approaching Japanese fleet. With no air cover of their own, the American ground forces were at the mercy of Japanese aircraft. Bell remembered the planes, taking cover and seeing the bomb tear his radioman apart. The same bomb gravely injured Bell. The rest of his life his hand- shake showed the missing fingers, and scars marked his arm and side. In 1943, Lt. Alaimo piloted his B-26 bomber on a raid Photo from the Court of Appeals Georgia against German-occupied Holland. Every plane in the Hon. John Sammons Bell attack was shot down. Alaimo was shot through the shoulder and leg but was able to ditch his burning air- finally succeeded. He made his way from Germany to craft in the North Sea. He was the only one of the crew Northern Italy, then to Switzerland, and then home who survived. Alaimo was captured by the Germans, to America. treated in a hospital and then made a prisoner of war. Both Bell and Alaimo entered Emory University At the Stalg Luft III POW Camp, he helped the tunnel- School of Law after the war in 1945. They were Purple ers who broke out in the Great Escape. But before the Heart heroes, one the courtly native Georgian, and the breakout occurred, he was transferred with other other a skinny, black-haired Italian-American yankee. Americans to an adjacent compound in the camp. He Bell went on to become twice-chairman of the tried unsuccessfully to escape two more times before he Democratic Party of Georgia, and was appointed to the

36 Georgia Bar Journal Court of Appeals of Georgia where a federal office he served for two decades, serving holder, but his as chief judge for nine of those friend from law years. school, Hon. John Alaimo practiced law in Atlanta Sammons Bell. and eventually made his way to Thirty-five Brunswick where he established a years later, Bell successful plaintiff’s practice and was living in a became involved in community retirement home affairs. He led the rebirth of the in Amelia Island, Republican party in southeast Fla. Alaimo and Georgia and was the first republi- other judges and can elected to county office in Glynn lawyers from the County since Reconstruction. He Southern District later became legal counsel to the of Georgia were Georgia Republican Party. at a meeting at

Some 20 years after Bell and Amelia Island and Brunswick News Alaimo graduated from law school, invited Bell to President Nixon nominated Alaimo the Friday night to be a U.S. District Judge for the dinner. Bell, now Southern District of Georgia. A in his 90s, was handful of lawyers in the region driven to the din- opposed his nomination and gave ner by his daugh- unsatisfactory reports about him to ter. He struggled the American Bar Association from the car (ABA) evaluation team. The confir- and started mak- Photo provided by Bobby Haven of the mation process came to a halt and ing his way across Hon. Anthony A. Alaimo Alaimo waited in uncertainty. the parking lot When Bell, now Hon. John using a walker. clients at the trial court level in Sammons Bell of the Court of Alaimo, now 87 and recovering Georgia, South Carolina, Texas Appeals of Georgia, and Hon. from hip surgery, saw him coming and New York. He has also argued Griffin B. Bell (a Kennedy democrat and shuffled as fast as he could numerous appeals in the appellate then serving as a judge on the 5th to meet his friend. There they courts of Georgia, the U.S. Courts U.S. Circuit Court of Appeals) heard embraced and were heard to say to of this, they knew a great injustice each other “I love you, Tony,” and “I of Appeals for the 2nd, 5th and was about to take place. Together love you, John.” 11th Circuits, and a case before they contacted E. Smythe Gambrell Bell died in 2006 and Alaimo in the U.S. Supreme Court. Hudson of the Gambrell Russell firm in December 2009. These were noble received his A.B. from Mercer Atlanta who was a former president and heroic men. They devoted University, summa cum laude, and of the ABA. They persuaded their lives to their country and to his J.D. from Harvard Law School, Gambrell to intercede with the ABA the service of justice. Though they cum laude. He can be reached at and seek a re-evaluation of Alaimo. came from different backgrounds [email protected]. The ABA agreed and appointed and held different political alle- prominent lawyer Albert Jenner of giances, being loyal to a friend A-A-A the Chicago firm of Jenner & Block and doing what was right always to undertake the new evaluation. came first. ATTORNEY REFERRAL SERVICE Jenner came to Georgia during Need more clients? 1971 and investigated Alaimo both David E. Hudson is a AAA Attorney Referral Service with lawyers in Atlanta and in Georgia Bar Recognized since 1997 partner at Hull Barrett Florida Bar Compliant since 1997 southeast Georgia. Jenner and the in Augusta. He prac- Call Now (877) 669-4345 ABA found Alaimo to be excep- tices in the area of NEW ATTORNEYS tionally well-qualified. As a result, general civil litigation FOR TRUCKERS PROGRAM the president’s nomination was with an emphasis on CALL FOR OUR FREE 15 MIN OFFICE confirmed by the U.S. Senate and FRONT END ANALYSIS Alaimo became District Judge business and commercial disputes, Anthony Alaimo in 1972. At his media law and construction law. 24-hour paging: (888) 669-4345 investiture, the person he asked Hudson has been a trial lawyer [email protected] to administer the oath was not since 1974, and has represented

April 2010 37 GBJ Feature

19th Annual Georgia Bar Media and Judiciary Conference by Stephanie J. Wilson

n Feb. 27, lawyers, judges, decision mak-

ers and media professionals gathered at O the State Bar of Georgia for the 19th annual Georgia Bar Media and Judiciary Conference.

Each year, this ICLE event focuses on emerging First

Amendment issues and their influence on the law.

Everyone from the legal and media fields is invited for a full day of panel discussions dealing with the latest topics impacting the First Amendment.

The day began with the first session, “Managing Cases for the Public: New and Old Pressures and Practices Affecting Access to the Courts,” led by moderator Richard Belcher, WSB-TV. Panelists included the Hon. J. Owen Forrester, judge, U.S. District Court, Northern District of Georgia; the Hon. David E. Nahmias, justice, Supreme Court of Georgia; James N. Hatten, clerk, U.S. District Court, Northern District of Georgia; and Robin McDonald, Fulton County Daily Report. A few federal judges around the country, notably

Judge Forrester, are pushing back against the prolifer- Photos by Stephanie J. Wilson CNN’s Richard Griffiths served as interlocutor for the panel “Terror ation of sealed court filings. Meanwhile, national and the Courts: A Case Study.” security issues are testing the openness of criminal proceedings. This panel discussed the state of sealed increase in the number of protective orders requested court filings in Georgia. Hatten noted that the coincided with the ability to e-file. McDonald shared

38 Georgia Bar Journal 1,000 cases. By placing cameras in unobtrusive locations within the courtroom and having seasoned equipment operators, their main goal is to show the public at large what happens during a trial. Although some judges feel that cameras in the courtroom create chaos, veteran courtroom journalist and former prosecutor Politan argued that prohibiting cameras in the courtroom “does not kill the story or stop the chaos.” Chaos only increases when the public, who cannot view the case on TV, congregates outside the court- house. He cited examples such as the trials of Michael Jackson, Scott Peterson and Martha Stewart. Politan was quick to point out that of all the cases “In Session” has (Left to right) Georgia Speaker of the House David Ralston and Judge Melvin Westmoreland during the “Georgia’s Judicial System and the Recession” panel. covered, no verdict has ever been overturned because of cameras in her concern that “the burden is tor, CNN, launched the Fred- the courtroom. now being placed in the hands of friendly session “Terror and the The next panel presentation, the media to litigate to get records Courts: A Case Study.” Griffiths moderated by Nwandi Lawson, unsealed.” Most disconcerting is spun a fictitious tale involving co-anchor of Georgia Public that no national standard exists explosives hidden in beer kegs at Broadcasting’s “Lawmakers,” was for destroying electronic records. the Georgia capitol and conspira- titled “Georgia’s Judicial System The second session, “Where tors who fled the country but were and the Recession: Challenges and News Comes From,” moderated by captured. After being tortured and Issues.” Serving on this distin- Hyde Post, vice president– offering confessions on video, the media strategy, News Distribution conspirators waved extradition Network, took a look at the chang- and were flown to the United ing face of journalism and the States on an unmarked FBI plane. implications for the courts. The As the pieces of the story were panelists included Don Plummer, slowly disclosed by Griffiths, each public information officer, Fulton panelist offered their reaction to County Superior Court; Jim Walls, details in their area of expertise. editor, Atlanta Unfiltered; Lila The Hon. William S. Duffey, judge, King, senior producer, CNN U.S. District Court, Northern iReport; and Maryann Mrowca, District of Georgia; Mike Brooks, chief of bureau, Alabama-Georgia- HLN and “In Session” Law North Carolina-South Carolina, Enforcement Analyst, CNN; Jack The Associated Press. Martin, Martin Bros., P.C.; Robert Disrupted by the Internet and McBurney, assistant U.S. attorney, hobbled by the recession, the eco- Northern District of Georgia; and nomics of news gathering have Kevin Sack, national reporter, New changed almost as dramatically as York Times, served as panelists. how news reaches consumers. Vinnie Politan and Ryan Smith, Since 2001, about 150,000 or one- hosts, and Beth Karas and Jean third of all jobs in newspaper pub- Casarez, correspondents for “In lishing have disappeared. More Session,” CNN, appeared as speak- alarmingly, since December 2008, ers for the luncheon program, 14 newspapers have filed for bank- “Order in the Court: The View from ruptcy protection. Behind the Lens.” “In Session” (for- After a short break, interlocutor merly Court TV) has given “gavel Richard Griffiths, editorial direc- to gavel” coverage of more than

April 2010 39 Chief Justice Carol Hunstein served as a (Left to right) Gubernatorial candidates Thurbert Baker and Nathan Deal answered questions panelist for “Georgia’s Judicial System and during “An Open Forum with the Next Governor of Georgia.” the Recession.” guished panel were the Hon. for Georgia attorney general: Ken development and tort reform, Carol W. Hunstein, chief justice, Hodges, Baudino Law Group; Sam among others. This panel proved Supreme Court of Georgia; the Hon. Olens, Ezor & Olens, P.C.; Rob an exciting and informative way to Melvin K. Westmoreland, presi- Teilhet, Rogers Strimban & Teilhet; wrap up a fantastic day. dent, Council of Superior Court and Max Wood, U.S. Attorney’s The Georgia First Amendment Judges; Rep. David E. Ralston (R- Office, Middle District of Georgia. Foundation typically holds the Blue Ridge), speaker, Georgia The role of attorney general has Charles L. Weltner Freedom of House of Representatives; Sen. John always been pivotal in the enforce- Information Banquet in conjunc- J. Wiles (R-Marietta), Georgia State ment of Georgia’s open government tion with the conference. The Senate; and Bryan M. Cavan, presi- laws. What will the future hold Weltner award honors the dent, State Bar of Georgia. under Thurbert Baker’s successor? Georgian who has done the most The effects of the down economy Hollie Manheimer, executive direc- for freedom of information. It is can be felt all over the state, but the tor, Georgia First Amendment named for the former chief justice situation in Georgia’s courts grows Foundation, and Michael Smith, of the Supreme Court of Georgia more dire with each passing day. chief attorney, Clayton County, who championed freedom of Some of our courts, such as those in shared moderating duties. information and ethics in state Hall County and the Court of The final panel of the day was government. This year the ban- Appeals of Georgia, have begun “An Open Forum with the Next quet and award presentation will observing one furlough day each Governor of Georgia,” moderated be held at a later date. month. The judiciary operates on by Ed Bean, editor-in-chief, Fulton For more information about less than 1 percent of the state’s County Daily Report. Gubernatorial past, present or future Bar total budget but has been called candidates Thurbert Baker, Roy Media and Judiciary Conferences, upon by the governor and Barnes, Nathan Deal, John please visit www.gfaf.org/ Legislature to make multiple cuts. Oxendine, DuBose Porter and BarMediaConference.htm. When describing the courts’ efforts David Poythress were on hand to to make the mandated cuts to an field questions both from Bean and Stephanie J. Wilson is already barebones budget, Chief the audience. The candidates the administrative Justice Hunstein stated that, “We shared their wisdom, humor, assistant in the Bar’s are no longer looking for nickels in thoughts and platforms on a vari- communications the couch cushions; we are looking ety of topics including education, department and a con- for pennies.” transportation, water, unemploy- tributing writer for the Next on the agenda was a panel ment, the budget, open records Georgia Bar Journal. discussion with the four candidates request compliance, economic

40 Georgia Bar Journal A Non-Profit Organization 501(c)(3) VxÄxuÜtà|Çz DJ lxtÜá Éy fxÜä|vx

Clothing Drive for At-Risk Kids More than a half-dozen child safety 365 Ways to Keep Kids Safe 650,000+ items donated campaigns annually, including: Don Keenan’s nationally acclaimed child safety book Toy Safety Campaign “10 Most Dangerous Toys List”

Kathy Jo v. DFACS First US case to establish constitutional rights for foster children

Food for the Homeless Playground Safety Campaign 460,000+ turkey and cheese Survey of metro area playgrounds sandwiches distributed

Terrell v. DFACS Expanded constitutional rights for foster children

Other Foundation Projects: g{tÇ~ lÉâ àÉ à{x `tÇç x Tickets for Children’s Shows/Events x Ethics Speeches by Don Keenan iÉÄâÇàxxÜá tÇw WÉÇÉÜá4 x Annual Child Safety Campaigns x Law School Competition @ WÉÇ VA ^xxÇtÇÇ x Murphy House Project x Stars of the South

For more information about the foundation, volunteering and/or giving, please contact • 404-223-kids (5437) • www.keenanskidsfoundation.com • [email protected] • 2009 “And Justice for All” State Bar Campaign for the Georgia Legal Services Program

A Salute to Our Friends! We are grateful to our loyal supporters who give generously to the Georgia Legal Services Program. The following individuals and law firms contributed $150 or more to the campaign from Apr. 1, 2009, to Feb. 11, 2010. PATRON’S CIRCLE Anderson, Walker Andrew H. Agatston Bryan M. Cavan Micah B. Fink ($5,000 & UP) & Reichert, LLP Douglas W. Alexander Verner F. Chaffin Thomas M. Finn Anonymous Donor (1) Thomas J. Anthony Robert L. Allgood Thomas C. Chambers III James P. Fleissner Business Law Section of the Alvan S. Arnall John J. Almond Douglas V. Chandler James C. Fleming State Bar of Georgia W. David Arnold Catherine A. Hora Anderson Lisa E. Chang John H. Fleming Hawkins & Parnell, LLP Anthony B. Askew Paul H. Anderson Jr. & William W. Buzbee Jennifer W. Fletcher The Legal Division William D. Barwick Janet M. Ansorge Michael L. Chapman Hon. Norman S. Fletcher of The Coca-Cola Company Joshua C. Bell Margaret L. Argent Sandra G. Chase Daisy H. Floyd Sutherland Paul R. Bennett Christopher W. Armstrong Harold J. Choate III Timothy W. Floyd Westmoreland, Patterson, Phil Bond Robert L. Ashe III James C. Cifelli Peter A. Fozzard Moseley & Hinson, LLP Hon. Alice D. Bonner Robert W. Ashmore Naeemah Clark Dorothy B. Franzoni The Wilson Family Phillip A. Bradley Douglas G. Ashworth Thomas H. Clarke Jr. Murray A. Galin Foundation & Catherine A. Harper Milton M. Avrett III Edward W. Clary John K. Gallagher Carroll F. Bray Jr. Sana M. Shoaib Ayubi John L. Coalson Jr. Robert B. Galloway BENEFACTOR’S CIRCLE John D. Christy Richard J. Azar Philip S. Coe Robert W. Galloway ($2,500 - $4,999) Randall A. & Hon. Jeffrey S. Bagley Katherine M. Cohen E. Reid Garrett Andrew M. Scherffius III Jacqueline S. Constantine Emily S. Bair Peter M. Cohen Catherine L. Gaylord Harold T. Daniel Jr. Marcus S. Ballew Hon. Susan S. Cole Georgia Hispanic PRESIDENT’S CIRCLE Mark F. Dehler E. Noreen Banks-Ware Arlene L. Coleman Bar Association ($1,500 - $2,499) Dorough & Dorough, LLC Hon. W. Leon Barfield Jeffery T. Coleman Kevin B. Getzendanner Atlanta Bar Association Hon. William S. Duffey Jr. Patricia T. Barmeyer Steven M. Collins James A. Glenn Jr. James W. Boswell III H. Mitchell Dunn Jr. Sharon C. Barnes Daniel R. Collopy Nancy Glenn Peter J. Daughtery Vickie Louise Arp Ford Charles W. Barrow Christopher S. Connelly Richard G. Goerss David H. Gambrell John P. Fry Ansley B. Barton Steven A. Cornelison Walter J. Gordon Sr. Eve Biskind Klothen Emmett L. Goodman Jr. Rhonda L. Bass Miles S. Cowan Patricia A. Gorham Strickland Brockington William S. Goodman Henry R. Bauer Jr. Thomas A. Cox Shelia M. Govan-Ugbesia Lewis LLP Susan S. Graddy Hon. Dorothy Toth Beasley Rev. John L. Cromartie Jr. Ronda K. Graham Weiner, Shearouse, Weitz, Edward J. (Jack) Hardin David H. Bedingfield Delia T. Crouch Mark P. Grant Greenberg & Shawe, LLP Harris & Liken, LLP Jacob Beil Raymond L. Crowell Elise O. Gray Eugene S. Hatcher Frank J. Beltran Rebecca R. Crowley Kevin C. Greene EXECUTIVE CIRCLE James I. Hay Bentley, Bentley & Bentley R. Alex Crumbley Richard G. Greenstein ($750 - $1,499) Philip C. Henry Michael R. Berlon Thomas W. Curvin Gina G. Greenwood Anonymous Donor (1) Clifford G. Hoffman Joseph J. Berrigan Charles M. Dalziel Jr. John W. Greer III Joel S. Arogeti Hoffman & Associates Bennie H. Black Marc E. D’Antonio William H. Gregory II Aussenberg Waggoner LLP Phyllis J. Holmen Evan J. Black Peter S. Dardi Charles C. Grile Mr. & Mrs. Aaron L. N.E.H. Hull Hon. James G. Blanchard Jr. Vincent M. D’Assaro Kay E. Gross Buchsbaum Sharon Jordan Martin J. Blank Hugh M. Davenport Emily G. Gunnells Chambless, Higdon, Elena Kaplan Charles & Lisa Bliss Gilbert H. Davis Stacey A. Haire Richardson, Katz Dorothy Yates Kirkley John W. Bonds Jr. Lee C. Davis F. Sheffield Hale & Criggs, LLP William H. Kitchens Emmet J. Bondurant Peter H. Dean Floyd C. Hale John A. Chandler Linda A. Klein David W. Boone Tracey L. Dellacona Wilbur G. Hamlin Jr. James A. Clark & Michael S. Neuren Mary B. Boone Foy R. Devine Avarita L. Hanson Cobb & Gardner, LLP Knott & Lemon P.C. Lynne Y. Borsuk Mary Irene Dickerson William B. Hardegree Murphy A. Cooper Timothy S. Lanier Gerald R. Boss Gregory J. Digel Ernest V. Harris Damon Elmore Troy A. Lanier Jesse G. Bowles III Melissa S. Dillon Jeanne D. Harrison C. Ben Garren Jr. Harold & Leslie Lewis Julie P. Bowling Nikola R. Djuric Sally A. Haskins John V. Hogan V Long & Holder, LLP Catherine M. Bowman Peter H. Dosik John C. Heath Richard & Mary Katz Long County David G. Brackett Sharon E. Dougherty Rachael G. Henderson Mr. & Mrs. Paul Kilpatrick Jr. Law Library Fund Jeffrey O. & Nancy Bramlett Derrell Dowdell Catherine C. Henson Kipler S. Lamar Angela K. McGowan L. Travis Brannon Jr. Bertis E. Downs IV Kenneth M. Henson Jr. Lawler Green Givelber Richard L. Menson Brent M. Bremer William M. Dreyer Mr. & Mrs. Wade W. Herring II & Prinz, LLC Richard C. Mitchell Deborah A. Brian Lucia B. Duncan Robert L. Hessman Michael N. Loebl Kimberly L. Myers Andrew I. Brown Charles J. Durrance Jonathan W. Hewett Macon Bar Association Kimberly J. Prior Kristine E. Orr Brown Willis A. Duvall Thomas H. Hinson II Katherine L. McArthur, LLC Rome Bar Association Sylvia F. Brown Robert L. Earnest Corey F. Hirokawa Jenny K. Mittelman Michael J. Rust William A. Brown R.M. Edmonds Frederick S. Hitchcock & William C. Thompson Thomas E. Scanlon Jamie M. Brownlee William A. Edmundson Inman G. Hodges Kenneth S. Nugent, P.C. Kenneth L. Shigley & David G. Russell Donald P. Edwards Rebecca A. Hoelting Pursley Lowery Meeks LLP William G. Snider Jay D. Brownstein Margaret P. Eisenhauer Franklin J. Hogue Sell & Melton, L.L.P. Thomas W. Talbot Robert C. Buck C. Ronald Ellington Laura D. Hogue Tonia C. Sellers Patrick F. Walsh Sheryl L. Burke Gregory S. Ellington Melinda C. Holladay & Seth Weissman Alex L. Zipperer Ginger R. Burton A. James Elliott William P. Holley III Silver & Archibald, LLP Burton Law Firm, P.C. Michael V. Elsberry Stephen N. Hollomon Smith, Hawkins, SUSTAINER’S CIRCLE L. Daniel Butler Anne S. Emanuel Stanley C. House Hollingsworth & Reeves, LLP ($250 - $499) Ivy N. Cadle Benjamin P. Erlitz Harry C. Howard Charles Surasky Anonymous Donors (3) Maureen A. Cahill William A. Erwin Neal H. Howard Eugene S. Taylor Alfred B. Adams III Elizabeth C. Calhoun Frances A. Estes David E. Hudson William A. Trotter III Hon. William P. Adams Samuel A. Cann Hon. Philip F. Etheridge Carolyn R. Huggins Adams, Hemingway Hon. Edward E. Carriere Jr. Monroe J. Feldman W. Stell Huie LEADERSHIP CIRCLE & Wilson, LLP Michael C. Castellon Eric R. Fenichel Hon. Willis B. Hunt Jr. ($500 - $749) Tara L. Adyanthaya Robert P. Catlin III R. Jeffrey Field Howard O. Hunter III Anonymous Donors (2) Thomas Affleck III B. Chan Caudell Willie L. Fields Jocelyn J. Hunter Charles D. Hurt Jr. Thomas E. McClamma Jr. Robert E. Ridgway III Thomas W. Tucker Mary T. Benton John M. Hyatt Julian B. McDonnell Jr. Lynn M. Roberson Richard Tunkle, LLC Sheri L. Bocher Thomas B. Hyman Jr. Kenneth P. McDuffie Haynes R. Roberts Jeanie K. Tupper Kevin R. Brehm Ronald S. Iddins Christopher J. McFadden Hon. Dorothy A. Robinson William A. Turner Jr. Joseph M. Brittain Jennifer N. Ide Brad J. McFall E. Gordon Robinson Michael W. Tyler E. Clay Bryant Jr. R. William Ide III James R. McGibbon Gail E. Ronan Gregory W. Valpey Carolyn C. Burch Robert D. Ingram Daniel R. McKeithen Joseph A. Roseborough Jennifer R. Van Ness Jeanette N. Burroughs J. Scott & Tanya Jacobson A. Montague Miller Teresa W. Roseborough Carl R. Varnedoe Bryon S. Burton Marshall H. Jaffe John B. Miller Jr. Susan W. Rouse K. Morgan Varner III Sybil K. Butterworth Mary B. James Martha A. Miller, PC Charles L. Ruffin Rex R. Veal Buzzell, Graham Scott James Mitchell C. Mobley Michael C. Russ Robert J. Veal & Welsh, LLP Hon. Sallie R. Jocoy Ann Moceyunas R. Bruce Russell Jorge Vega Jason J. Carter Forrest B. Johnson Philip H. Moise Jacquelyn H. Saylor Hon. Robert L. Vining Jr. Elsie R. Chisholm Frederick W. Johnson Michael L. Monahan Mark Schaefer Eric M. Wachter Robin F. Clark Billy N. Jones The Money Tree Neil C. Schemm David F. Walbert William B. Cody Pamela M. Jones of Georgia, Inc. Mary Jo Schrade Phillip J. Walsh David H. Cofrin Stan Jones & Bobbi David R. Montgomery Jason R. Schultz Bryan M. Ward George L. Cohen Cleveland Billy E. Moore David M. Schwartz Daniel J. Warren Cohen & Caproni, LLC G. McGregor Jordan Jr. James H. Morawetz Christopher B. Scott Thomas H. Warren John R. Coleman Jr. Judith A. Keeler George E. Mundy Scrudder, Bass, Quillian, Mark D. Wasserman Collier & Gamble, LLC Kirk W. Keene Brian M. Murphy Horlock, Taylor Joseph D. Weathers Brian G. Combs Michael B. Keene Heather E. Murphy & Lazarus LLP Robbie C. Weaver William T. Cook Daniel A. Kent Lesly G. Murray Shelley A. Senterfitt Jack M. Webb Jody & Lora Cooley William J. Keogh III Dorian Murry Jane R. Seymour David A. Webster Leslie F. Corbitt Richard P. Kessler Jr. Gretchen E. Nagy J. Ben Shapiro Jr. Mark Weinstein Daniel M. Covino Bennett L. Kight Jeffrey D. Nakrin H. Burke Sherwood Holle Weiss-Friedman Cathy A. Cox-Brakefield Hon. Patricia M. Matthew W. Nichols Daniel Shim James R. Westbury Jr. Bruce I. Crabtree Killingsworth Elizabeth J. Norman Edward M. Shoemaker Benjamin T. White Cramer & Peavy Daniel J. King Judith A. O’Brien James M. Sibley Eric C. White David S. Crawford Judy C. King Lynne R. O’Brien Arnold B. Sidman John A. White Jr. Hon. John D. Crosby Mr. & Mrs. Dow N. Karen P. O’Connor Beverlee E. Silva Larry J. White Hon. Wade M. Crumbley Kirkpatrick II Victoria A. O’Connor Silvis, Ambrose Larry Joe White Jackson L. Culbreth Frank J. Kralicek The Oldenburg Law Firm & Lindquist, P.C. David E. Wigley Thomas A. Cullinan Sid M. Kresses Suzanne R. Pablo Alexander J. Simmons Jr. Leigh M. Wilco Tomieka R. Daniel Lisa J. Krisher Leonard J. Panzitta M.T. Simmons Jr. Paul C. Wilgus Leonard Danley & John P. Batson Benjamin C. Pargman Joyce F. Sims Kristin B. Wilhelm Cedric B. Davis Edward B. Krugman Dianne P. Parker Hezekiah Sistrunk Jr. Wesley Williams Joseph W. Dent Rita J. Kummer W. Henry Parkman David C. Smith Charles J. Willis Margaret M. Dorsey Sarah H. Lamar Rudolph N. Patterson Matthew T. Smith James O. Wilson Jr. Anna C. Dougherty Hon. John T. Laney III Yingjun F. Peaden Hon. Philip C. Smith James T. Wilson Jr. Bryan A. Downs John L. Latham Albert M. Pearson III Richard A. Smith Hon. Anne Workman Drew D. Dropkin Thomas P. Lauth Darren W. Penn Cubbedge Snow Jr. Brian M. Worstell Kathleen V. Duffield Nancy F. Lawler Del Percilla Jr. Vanita Snow Christopher A. Wray James M. Dunn, P.C. Gregory G. Lawton Clifford C. Perkins Jr. Roy M. Sobelson W. Scott Wright Leah A. Epstein David N. Lefkowitz Patrise M. Perkins-Hooker Lawrence S. Sorgen Carla E. Young Katherine E. Fagan Guy E. Lescault Jerry G. Peterson John I. Spangler III Hon. Gordon R. Zeese Arthur C. Fahlbusch Jr. Leonard J. Lescosky Jr. Hon. Guy D. Pfeiffer Charles N. Spence Daniel D. Zegura J. Daniel Falligant Charles T. Lester Jr. Michel Phillips III Harvey R. Spiegel Kathryn M. Zickert Santana T. Flanigan Ralph B. Levy Kenneth S. Piernik & Ellen J. Spitz Jerome A. Zivan J. D. Fleming Jr. J. Curtis Lewis III Calder F. Pinkston E. Dunn Stapleton Frances A. Zwenig Anne E. Forkner David S. Lipscomb Jonathan A. Pope John D. Steel Thomas F. Forkner James H. Lokey Jr. Carmen V. Porreca Susan S. J. Steger DONOR’S CIRCLE Robert A. Freyre John B. Long Warren R. Power Mason W. Stephenson ($150 - $249) Julian R. Friedman Virginia L. Looney Jeffrey N. Powers James D. Stokes Anonymous Donors (11) Thomas P. Fritzsche Sarajane N. Love Jill A. Pryor Kice H. Stone C. Michael Abbott John B. Garland Linda S. Lowe Bonnie C. Puckett A. Thomas Stubbs Sarah H. Adams Evelyn D. & Don Gay J. Rodgers Lunsford III Lisa M. Putnam Michael A. Sullivan Kathelen V. Amos Andrew J. Gebhardt Charles W. Lykins Mary L. Webb Pyrdum Terrance C. Sullivan Stephen C. Andrews Rebecca A. Gelfand John F. Lyndon Mary F. Radford Sumner Law Offices Patricia K. Atwill Michael G. Geoffroy Daniel I. MacIntyre IV J. Marbury Rainer Jonathan E. Sureck Marc A. Avidano James D. Gibbs Leonard T. Marcinko Lynn Rainey Elizabeth V. Tanis David J. Bailey Charles L. Grattan Andrew H. Marshall Marie T. Ransley S. Lester Tate III Eric A. Ballinger Christine Green Rep. James C. Marshall Kimberly A. Reddy William O. Tate Marcia D. Bansley Nadeen W. Green & Camille L. Hope William D. Reeder Timothy P. Terrell Robin N. Bargeron Shelby S. Guilbert Jr. Hon. Beverly B. Martin Hon. Mae C. Reeves Nancy Terrill Hon. Patricia D. Barron Jessica J. Hagen Martin Luther King Jr. Michael G. Regas II Torin D. Togut Marshall B. Barton Stephen H. Hagler Observance Day Assoc., Inc. David F. Reid Mr. & Mrs. Daniel R. Donna G. Barwick Timothy W. Haley Hon. Johnny W. Mason Jr. Steven M. Reilly Tompkins III William R. Bassett Hon. Carolyn C. Hall Marie E. Massey Robert B. Remar David R. Toraya Tina G. Battle Warren R. Hall, LLC Caryn R. May Paula Reynolds Christopher A. Townley Thomas A. Bauer William M. Hames Larry S. Mayfield Robert E. Ridgway Jr. Brett N. Troughton Gaylen K. Baxter Richard J. Harris Sherry J. Hart Henry B. Napier Jason R. Sutherland Curtis Shane Dornburg H. Burke Sherwood Dewey Hayes Jr., P.C. Michael T. Nations M. Stuart Sutherland Elarbee, Thompson, Sapp Kazuma Sonoda Jr. Gregory K. Hecht Joseph R. Neal Jr. Francine I. Swan & Wilson, LLP Judith Stocker Robert E. Herndon Robert T. Neufeld John A. Tanner Jr. Kamal Ghali Venzella Stowers Theodore M. Hester James M. Ney Bernard Taylor Tracy L. Glanton Tami Cosby Tyler Jeffrey F. Hetsko Benjamin A. Nicholson B. A. Thomas, LLC Chadwick H. Greer Ruth White Ernest Hicks John L. North Patricia P. Thomas Michele R. Jones Leigh M. Wilco Daniel F. Hinkel Felipe M. Nunez Anthony Thomasson King & Spalding LLP Alice F. Hodges Leslie A. Oakes Jack D. Todd Kutak Rock LLP We appreciate our donors Lindsay M. Hodgson Mary Ann B. Oakley Robert L. Trivett John C. Morrison III and take great care in William E. Hoffmann Jr. Patrick T. O’Connor Kar Y. Tse Tiana Mykkeltvedt compiling the Honor Roll of Richard B. Holcomb Orr Brown Johnson, LLP William L. Tucker Brantley C. Rowlen Contributors. If we have James E. Honkisz Pandora E. Palmer Michael E. Utley Lisa D. Sneed inadvertently omitted your Foy S. Horne Jr. Mary L. Parker Chilton D. Varner Steven A. Wagner name, or if your name is Melissa R. Hourihan Mary B. Parks David M. Waldroup incorrect in the records, we David L. Hudgins Evita A. Paschall, P.C. Mark C. Walker VENDORS apologize and encourage James D. Hudson, P.C. W. Russell Patterson Jr. Susan M. Walls Frazier Design you to contact the Laura S. Huffman C. W. Pendergrass III Theron D. Warren III RGI Development Office at 404- Hon. G. Conley Ingram Cathy Peterson John P. Webb Simonson, Inc. 206-5175, so that we can Hon. James T. Irvin Loretta L. Pinkston Virginia Webb correct our records and Hon. Phillip Jackson John L. Plotkin Hon. A.J. Welch Jr. 2009 CAMPAIGN acknowledge you properly in Pamela S. James Ramon R. Plowden Andrew J. Welch III COMMITTEE the future. Some donors William D. James Timothy S. Pollock Robert G. Wellon Bryan M. Cavan have requested anonymity. J. Alexander Johnson Julia H. Powell William A. White President Howard H. Johnston Janette B. Pratt Anna J. Williams State Bar of Georgia The Georgia Legal Services Hon. Cliff L. Jolliff Gail S. Pursel Nathan T. Williams Program is a non-profit law & Elaine Gerke Diane Pye-Tucker Lorie L. Williams-Smith Jeffrey O. Bramlett firm recognized as a Theodore C. Jonas John H. Rains IV Kenneth R. Wiltberger Immediate Past President 501(c)(3) organization by Baxter P. Jones David N. Rainwater John W. Winborne III State Bar of Georgia the IRS. Gifts to GLSP are Frank C. Jones Tyler L. Randolph Lynn M. Winship tax-deductible to the fullest Kenneth J. Jones Judith A. Rausher Timothy W. Wolfe Cliff Brashier extent allowed by law. Melinda M. Katz Tera L. Reese-Beisbier Margaret Wong and Executive Director Gary M. Kazin Reinhardt Whitley Wilmot Associates Co. LPA State Bar of Georgia To make a contribution William W. Keith III, P.C. Summerlin & Pittman, P.C. Hugh C. Wood, LLC Go online at www.glsp.org, Crawley M. Kemp II W. Gene Richardson Daryl V. Yokely Brinda Lovvorn or mail your gift to Georgia Traci D. Kemp Joycia C. Ricks Director of Membership Legal Services Program, Delora L. Kennebrew Timothy D. Roberts HONORARIUM GIFTS State Bar of Georgia Development Office, 104 Kevin W. King William M. Roberts Michael G. Geoffroy Marietta Street, Suite 250, W. Thomas King Amelia T. Rudolph in honor of Joshua C. Bell Judy Hill Atlanta, GA 30303. Make Seth D. Kirschenbaum John T. Ruff Dallas P. Jankowski Assistant Dir. of Membership checks payable to the Christine A. Koehler Terri A. Rushing in honor of Tanna Nicholson State Bar of Georgia Georgia Legal Services Hon. Phyllis Kravitch Cornelia S. Russell Nancy J. Whaley Program. Thank you for Stanley E. Kreimer Jr. Phyllis S. Sadler in honor of Phyllis Holmen Georgia Legal Services your support. Mamie Kresses Stephen M. Schaetzel Program Board of Henry B. Levi Charity Scott MEMORIAL GIFTS Directors Jim & Joyce Lewis Chirag P. Shah Anonymous Donor Cicely N. Tabb Barber Joel I. Liss Stanton J. Shapiro in memory of Kay Y. Young James W. Boswell III Sarah E. Lockwood Rita A. Sheffey Tara L. Adyanthaya Gwenita M. Brinson Crawford B. Long John E. Simpson in memory of George Hibbs Kristine E. Orr Brown Erica M. Long Hon. Lamar W. Sizemore Jr. Hon. Dorothy Toth Beasley Sabrina Brown-Clay Malcolm Mackenzie III Sliz / Drake and Associates in memory of Hon. Stephen Thomas C. Chambers III Meghan H. 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Macon Merrill & Stone, LLC Don E. Stephens & Elmore, LLP Brad J. McFall Nobie Mitchell Michael P. Stevens Butler, Wooten Rev. Morris J. McKinney Jeanie Monk J. Lindsay Stradley Jr. & Fryhofer, LLP Dorian Murry Anne R. Moore C. Deen Strickland Jason J. Carter Adelina Nicholls Elizabeth A. Morgan Hon. Thurman O. Sturdivant III Edwin M. Cook Mark Schaefer Bench & Bar

Kudos For” in 2010. This year marks the 11th consecutive > Cantor Colburn LLP was recognized in IP Law & year Alston & Bird has made the list—a legal indus- Business’s annual survey of “Who Protects try first. Alston & Bird was named to the Fortune list Innovation in America?” The December 2009/ based on its commitment to providing the highest January 2010 issue identified law firms that protect quality client service, serving the communities in intellectual property for the country’s top companies. which it operates across the country and promoting IP Law & Business ranked Cantor Colburn LLP as tied a work environment that reflects the very culture for second out of 30 law firms with most mentions in that has been inculcated throughout the firm for “Patent Prosecution” and tied for fourth out of 36 more than a century. firms in “Most Mentions Overall” on its list, “Where the Top Companies Turn.” > Burr & Forman LLP announced that The firm was ranked 13th in Intellectual Atlanta partner Chip Collins was sworn Property Today’s annual list of “Top Patent Firms.” in as a Sandy Springs City Council This is the third consecutive year that Cantor member in January 2010. Elected in Colburn was ranked among the country’s top 20 November 2009, Collins represents firms for patents issued. District 3 on the council for a four-year term. Sandy Springs is the third largest city in metro > Atlanta and home to multiple Fortune 1000 companies, and it was recently ranked by Forbes as one of America’s “Top 25 Towns to Live Well.”

> Linda A. Klein, managing shareholder of Baker, Donel- Kadaba Perez Holmes Greene son, Bearman, Caldwell & Kilpatrick Stockton announced that Berkowitz, PC’s, Atlanta Wab Kadaba was named a 2009 Leading office, was nominated as the Law Firm Rainmaker by Diversity & The 2010 chair of the American Klein Sherman Bar. Kadaba was one of 14 attorneys Bar Association (ABA)’s across the nation to receive this presti- House of Delegates during the ABA’s 2010 Midyear gious honor. The rainmakers were cho- Meeting in Orlando, Fla. She will assume her post for Richardson sen from a pool of nominees suggested a two-year term at the conclusion of the 2010 ABA by leading firms from across the country. Each of the Annual Meeting in San Francisco in August. The selected attorneys maintains a regular book of busi- chair of the ABA House is the second-highest office ness that reaches or exceeds $2 million a year. in the association. The ABA’s House of Delegates is Associate Adria Perez was elected president of the policy-making body of the association and is the board of directors for ToolBank USA. ToolBank comprised of 555 members. Klein also received the is leading the national movement to equip non- Outstanding State Chair Award from the fellows of profits and their volunteers with the tools to more the American Bar Foundation at its 54th annual effectively create change. Awards Reception and Banquet in February. Partner Brenda Holmes was elected to serve as Scott N. Sherman, of counsel in the firm’s president of the board of directors for Women in Atlanta office, was appointed to the board of direc- Technology (WIT). Partner Jamie L. Greene serves tors of the Anti-Defamation League (ADL)’s as past president. WIT’s mission is to develop and Southeastern Region. He previously served on the promote women for success in technology in Georgia. Legislative Affairs Committee. The ADL fights anti- Partner Susan Richardson was selected to serve Semitism and bigotry though information, educa- on the board of directors of the Institute for tion, legislation and advocacy. Georgia Environmental Leadership (IGEL). IGEL Baker Donelson was ranked 77th on Fortune’s is a leadership program dedicated to building and 13th annual “100 Best Companies to Work For” list. sustaining a diverse network of environmentally educated leaders who will help resolve Georgia’s > Smith, Currie & Hancock LLP announced that environmental challenges. partner Charles Surasky received the 2009 Associate of the Year Award from the National > Alston & Bird LLP announced that it was named as Utility Contractors Association in January at the one of Fortune’s “100 Best Companies to Work Utility Construction EXPO ‘10. The award is pre-

46 Georgia Bar Journal Bench & Bar

sented annually to an associate member who has > Miles Patrick Hurley, founder of made a significant contribution on the national Hurley Elder Care Law in Atlanta, level to the industry and the association. received his elder law attorney certification from the National Elder Law > Pepperdine University School of Law Foundation. Hurley is one of only seven Prof. Tom Stipanowich received an certified elder law attorneys in Georgia award from the International Institute and one of fewer than 400 nationwide. for Conflict Prevention & Resolution in January. His article, “Arbitration: The > The Atlanta Bar Associa- ‘New Litigation,’” and “Arbitration and tion presented its annual Choice: Taking Charge of the ‘New Litigation,’” were Leadership Awards to the jointly named best professional article for 2009. This Hon. Clarence Cooper, U.S. marks the second time Stipanowich has received the District Court, and State Bar award, which is among the most prestigious writing of Georgia Past President Cooper Bramlett awards in the field of dispute resolution. Jeffrey O. Bramlett, Bondurant, Mixson & Elmore, LLP. The awards are > Fisher & Phillips LLP announced that presented to Atlanta Bar Association members who Sarah Hawk, chair of the firm’s global inspire by their example, challenge by their deeds immigration practice group, was listed and remind others of their debt to the profession in Who’s Who Legal 2010, which recog- and their community. nizes attorneys internationally for their law practices. Hawk was selected as On the Move being among 410 of the world’s leading corporate immigration lawyers. Who’s Who Legal identifies the In Atlanta foremost legal practitioners in 31 areas of business > law. The publication features more than 10,000 of the world’s leading private practice lawyers in more than 100 countries.

Matthew J. Calvert, a partner in the lit- > Bell Downs Edwards Martin igation and intellectual property practice in the Atlanta office of Hunton & Ford & Harrison LLP announced that Williams LLP, has been appointed Lilia R. Bell and Tiffany D. Downs board president of Atlanta Legal Aid were named partner. Bell focuses her Society, Inc. Founded in 1924, Atlanta practice on airline labor and employ- Legal Aid Society, Inc., is the primary provider of ment issues. Downs focuses her practice legal services to low-income people in Fulton, on employee benefits. Warnock DeKalb, Gwinnett, Clayton and Cobb counties. Heath H. Edwards, Matthew Blake Martin and Henry F. Warnock joined the firm as > Coleman Talley LLP announced the associates. Edwards’ practice centers on employ- appointment of partner Wendy S. ment litigation. Martin concentrates his practice on Butler to the State Road & Tollway representing management in labor and employ- Authority (SRTA) by the Office of ment matters. Warnock concentrates his practice on Georgia Speaker of the House of representing companies in all areas of employment Representatives. SRTA is best known as law. The office is located at 271 17th St. NW, Suite the organization that operates Georgia’s toll roads. 1900, Atlanta, GA 30363; 404-888-3800; Fax 404-888- 3863; www.fordharrison.com. > G. Lee Garrett, a litigation partner in the Atlanta office of Jones Day, was > Miller & Martin PLLC announced that named a “Client Service All Star” by Christopher E. Parker joined the firm as a member. the BTI Consulting Group. Only 165 Parker’s practice focuses on the representation and lawyers nationwide were given this counseling of companies in matters pertaining to recognition in the 2010 “BTI Client the workplace and the protection of their intellectu- Service All-Star Team for Law Firms” report. al property and trade secrets.

April 2010 47 Bench & Bar

Associates Michael Kohler and Timothy M. es his practice on counseling employers on virtual- Silvis were advanced to member status. Kohler ly every aspect of retirement and welfare plan practices general litigation, focusing in the areas of design, implementation, administration and termi- commercial, consumer and employment litigation, nation, as well as executive compensation and equi- product liability, insurance coverage and profes- ty incentives. The firm is located at 303 Peachtree St. sional malpractice. Silvis is a member of the firm’s NE, Suite 5300, Atlanta, GA 30308; 404-527-4000; corporate department. The firm is located at 1170 Fax 404-527-4198; www.mckennalong.com. Peachtree St. NE, Suite 800, Atlanta, GA 30309; 404- 962-6100; Fax 404-962-6300; www.millermartin.com. > Duane Morris LLP announced that William Barwick joined the firm as a > partner in its trial practice group. Barwick joins the firm from Sutherland. The firm is located at 1180 W. Peachtree St. NW, Suite 700, Atlanta, GA; 404-253- 6900; Fax 404-253-6901; www.duanemorris.com.

Causey Dosh Oliver Lowther > Ragsdale, Beals, Seigler, Patterson & Morris, Manning & Martin, LLP, welcomed four Gray, LLP, announced that Robert A. attorneys to its law practice. Of counsel Linnie W. Bartlett joined the firm as partner. Causey joined the firm as a member of the real Previously with McKenna, Long & estate development, residential real estate and ener- Aldridge, LLP, Bartlett specializes in com- gy and infrastructure finance practices. Associate plex corporate reorganizations and bank- Kristi A. Dosh joined the firm’s commercial lending ruptcies, commercial litigation and related non-litiga- and real estate development practices. Of counsel tion matters. The office is located at 2400 International Shannan Freeman Oliver and associate Patrick L. Tower, 229 Peachtree St. NE, Atlanta, GA 30303; 404- Lowther joined the firm’s litigation practice. The 588-0500; Fax 404-523-6714; www.rbspg.com. office is located at 1600 Atlanta Financial Center, 3343 Peachtree Road NE, Atlanta, GA 30326; 404- > Autry, Horton & Cole, LLP, announced 233-7000; Fax 404-365-9532; www.mmmlaw.com. that Cada T. Kilgore joined the firm as of counsel. Kilgore, previously a partner > David & Rosetti, LLP, elect- with Paul Hastings and Sutherland, prac- ed Chuck E. DuBose as tices in the areas of energy law, business a partner and welcomed and commercial law and electric coopera- Alissa C. Atkins as an tive financing and organization. The firm is located at associate. The firm repre- 3330 Cumberland Blvd., Suite 925, Atlanta, GA 30339; sents employers, insurers 770-270-6974; Fax 770-270-6970; www.ahclaw.com. DuBose Atkins and third party administra- tors in workers’ compensation matters throughout > Coleman Talley LLP announced Keith Georgia. The firm is located at 229 Peachtree St., A. Jernigan as partner in the firm. Suite 950, Atlanta, GA 30303; 404-446-4488; Fax 404- Jernigan practices in the areas of com- 446-4499; www.davidandrosetti.com. mercial lending, commercial real estate development, corporate law and master > Bondurant, Mixson & Elmore, LLP, elected Nicole G. planned community development. The Iannarone and Lisa R. Strauss as partners with the firm is located at 7000 Central Parkway NE, Suite firm. In addition to general business litigation, 1150, Atlanta, GA 30328; 770-698-9556; Fax 770-698- Iannarone’s practice includes a focus on professional 9729; www.colemantalley.com. liability concerning attorneys and accountants. Strauss’ practice focuses on representing corporations and indi- > Darren R. Hojnacki and K. viduals in business disputes. The firm is located at 1201 Julie Hojnacki announced W. Peachtree St. NW, Suite 3900, Atlanta, GA 30309; the opening of Hojnacki & 404-881-4100; Fax 404-881-4111; www.bmelaw.com. Hojnacki, LLC. The firm’s practice focuses on repre- > McKenna Long & Aldridge LLP announced that senting clients in consumer Sam Choy joined the firm as a partner. Choy focus- bankruptcy, bankruptcy alternatives and misde-

48 Georgia Bar Journal Bench & Bar

meanors. The firm is located at 201 17th St., Suite tion services statewide in disputes of all types. The 300, Atlanta, GA 30363; 678-538-6447; Fax 678-538- office is located at 699 Broad St., Suite 1400, 6501; www.hojnackilaw.com. Augusta, GA 30903; 706-823-4250; Fax 706-828- 4459; www.chadwickmediation.com. > Nall & Miller, LLP announced that Leena K. Sidhu joined the firm as an associate. In Dunwoody Sidhu’s practice concentrates in the areas > Whalen Kuller, former associate in of health care law and product liability. Jones Day’s Atlanta office, announced The firm is located at 235 Peachtree St. the opening of Kuller Law Group, NE, Suite 1500, Atlanta, GA 30303; 404- LLC, a transactional law firm focusing 522-2200; Fax 404-522-2208; www.nallmiller.com. on assisting small- and medium- sized businesses located in the > Baker, Donelson, Bearman, Caldwell greater Atlanta metropolitan area. The firm is & Berkowitz, PC, announced that located at 5588 Chamblee Dunwoody Road Rodney G. Moore joined the firm as a #165, Dunwoody, GA 30338; 770-837-2619; shareholder and a member of the busi- www.kuller-law.com. ness litigation department. Moore, whose practice focuses on labor and In Macon employment and business litigation, was the presi- > dent of the National Bar Association from 2008 to 2009. The office is located at 3414 Peachtree Road NE, Suite 1600, Atlanta, GA 30326; 404-577-6000; 404-221-6501; www.bakerdonelson.com.

Green Kennedy Anderson Horkan > Burr & Forman LLP announced Brad A. James, Bates, Baldwin and Kwende B. Pope & Spivey, Jones as partners in the LLP, announc- firm. Baldwin is a member ed Thomas M. of the creditors’ rights and Green and John Baldwin Jones bankruptcy practice groups. Flanders Ken- McMullen Nichols Senn Jones is a member of the financial services and com- nedy as partners mercial litigation practice groups. The office is locat- and Scott Eric Anderson, William P. Horkan, Ian ed at 171 17th St. NW, Suite 1100, Atlanta, GA 30363; McMullen, John Brown Nichols and Marty K. 404-815-3000; Fax 404-817-3244; www.burr.com. Senn as associates. Green practices in the areas of real estate, eminent domain, foreclosures of real > The Cochran Firm announced that Hezekiah and personal property and title litigation. Sistrunk Jr. was made a shareholder and equity Kennedy concentrates his practice in the areas of partner. His practice focuses on litigation of com- receivership law, business and commercial law, plex matters, contracts, physician and hospital lia- tort litigation, general civil litigation and trial bility, products liability, commercial and corporate practice, business advice and railroad defense. disputes and catastrophic personal injury. The firm Anderson practices in the areas of appellate, emi- is located at 27 Peachtree St., Atlanta, GA 30303; 404- nent domain and commercial, business and gener- 222-9922; Fax 404-222-0170; www.cochranfirm.com. al litigation. Horkan practices in the areas of insurance, business and commercial litigation, employ- In Augusta ment, construction and corporate. McMullen prac- > Raymond G. Chadwick announced the tices in the areas of real estate, banking, business opening of Chadwick Mediation and public and affordable housing. Nichols prac- Services, LLC. Chadwick is a member tices in the area of litigation and insurance. Senn of the executive committee of the practices in the areas of insurance, business and Dispute Resolution Section of the State commercial litigation, employment, construction Bar of Georgia and registered with the and corporate. The firm is located at 231 Riverside Georgia Office of Dispute Resolution as a mediator Drive, Macon, GA 31201; 478-742-4280; Fax 478- and arbitrator. He provides mediation and arbitra- 742-8720; jbpslaw.com.

April 2010 49 Bench & Bar

> John Christopher Clark and In Savannah Michael Morgan Smith > Peter D. Muller joined Goodman established the Clark & McGuffey Lindsey & Johnson LLP as Smith Law Firm LLC. Their the managing partner of the firm’s new practice focuses on personal Savannah office. The firm, which spe- injury. The office is located cializes in defense litigation, is based in Clark Smith at 3402 Vineville Ave., Suite Atlanta and also has an office in A, Macon, GA 31204; 478-254-5040; Fax 478-254- Orlando, Fla. The new office is located at 530 5041; www.clarksmithlaw.com. Stephenson Ave., Suite 300, Savannah, GA 31405; 912-355-6433; Fax 912-355-6434; www.gmlj.com. > L. Robert Lovett and Matthew M. Myers, former- ly of Lovett, Cowart & Ayerbe, LLC, announced In Miami Lakes, Fla. the formation of Lovett & Myers, LLC. The firm > Matthew C. Kotzen announced the relocation of focuses its practice of general litigation in the areas Marinello & Kotzen, PA. The firm represents of administrative, business and commercial, envi- clients throughout Florida in construction and gen- ronmental, health care, land use and zoning, per- eral liability matters. The firm’s new office is locat- sonal injury and wills, trusts and estates. The ed at 14361 Commerce Way, Suite 304, Miami firm is located at 530 Forest Hill Road, Suite Lakes, FL 33016; 305-821-5554; Fax 305-821-5054; A, Macon, GA 31210; 478-476-4500; Fax 478-476- www.makslaw.com. 9090; www.lovettandmyers.com. In Spartanburg, S.C. In Marietta > Ford & Harrison LLP announced that > The family law firm of Stearns- Matthew J. Gilley was named partner. Montgomery & Associates announced Gilley focuses his practice on discrimi- that Ryan Proctor was named partner, nation and harassment litigation, litiga- and that the firm name changed tion and advice related to restrictive to Stearns-Montgomery & Proctor. covenants and protection of proprietary Proctor practices in the areas of family information and on wage and hour matters. The law and criminal law. The office is located at 291 office is located at 100 Dunbar St., Suite 300, Alexander St., Marietta, GA 30060; 678-905-8492; Spartanburg, SC 29306; 864-699-1100; Fax 864-699- Fax 770-426-1809; www.stearns-law.com. 1101; www.fordharrison.com.

The Law-Related Education Program of the State Bar of Georgia wishes to recognize the DeKalb Bar Association for its ﬁ nancial support of Cedar Grove High School’s Journey Through Justice on March 3, 2010.

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April 2010 51 Office of the General Counsel Potential Client on Line One

by Paula Frederick

“ here’s a woman on line one who wants to talk

to you about a divorce,” your assistant tells T you. “I’ve got all her intake information.” “How can I help you?” you ask as you answer the telephone. “I need your help!” the caller exclaims. “My husband is cheating and I’ve had enough! I’ve had a private investigator tailing him for a month. I’ve started moving money out of our joint account so he can’t cut me off when he finds out I’m on to him. Sammy has no idea what he’s in for.” “Sammy’s your husband, I take it?” you ask with a sinking feeling. “What’s your name?” “Linda Karpman. It was Linda Brentwood, but I refuse to use that weasel’s name any more! My husband is…” “Sammy Brentwood,” you finish the sentence for her. “Ma’am, I can’t help you—I represent him.” You leave Ms. Karpman sputtering as you hang up the telephone. “How did that happen?” you ask your assistant. “I thought you said you’d done a conflicts check!” information to make an informed decision about waiv- “I goofed,” your assistant admits, checking her com- er. Besides, if I can’t use what I learned from Linda to puter entries. “She told me her name was Karpman, help Sammy, it’s just as well that I get out now—it and her husband’s name was Samuel. I put Samuel would be hard not to tell him everything.” Karpman into the system as the potential adverse A lawyer owes a duty of confidentiality to a poten- party, so Sammy Brentwood didn’t come up.” tial client who in good faith seeks help with a legal “Now what?” you ask. “I really want to keep Sammy matter. In this case you had in place a system that as a client, but Linda will probably have a fit! I guess should have worked—your assistant gathered essen- I’ll call the Ethics Helpline.” tial, but very limited, information from the prospective A quick call to the helpline leaves you shaking your client and ran a conflicts check before your interview. head in disgust. “Just as I suspected—I have to with- Some lawyers warn potential clients not to divulge draw from representing Sammy!” you exclaim. “It was confidential information during a consultation, and only a two minute phone call, but Linda gave me con- thus seek an advance waiver of confidentiality. As with fidential information that I’m not allowed to reveal. many ethics issues, the effectiveness of such a waiver Now I can’t represent Sammy because his interests are would depend upon the circumstances. adverse to hers in the same case.” “Can’t you continue to represent Sammy if Linda Paula Frederick is the general counsel for says it’s OK?” your assistant asks hopefully. “Maybe the State Bar of Georgia and can be she’ll waive the conflict.” reached at [email protected]. “The Bar says that won’t work in this case,” you explain. “Since I can’t tell Linda what Sammy has told me and vice versa, I can’t give either of them enough

52 Georgia Bar Journal 730-( 033/783 8,)032+692

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Discipline Summaries (Dec. 12, 2009 through Feb. 19, 2010)

by Connie P. Henry

Voluntary Surrender/Disbarments Edward Wright (State Bar No. 685977) on Feb. 1, 2010. Steven E. Zagoria While acting as closing attorney for a number of Marietta, Ga. loans, Wright prepared documentation falsely show- Admitted to Bar in 1979 ing that the loans were secured by a first lien position On Jan. 25, 2010, the Supreme Court of Georgia accept- in property owned by the borrower, when he knew ed the Petition for Voluntary Discipline for Disbarment that the borrower did not have clear title and that the of Steven E. Zagoria (State Bar No. 784212). While lenders were not receiving a first lien position securi- employed with a law firm, Zagoria forged the signature ty interest. He also issued false title insurance opin- of one of the firm’s principals on checks payable to the ions and policies in connection with these loans. firm for attorney’s fees and deposited the checks in his personal account. The total sum stolen was $343,639.54, Sabrina Kaye Bozeman and Zagoria used these funds to pay his mortgage, cred- Decatur, Ga. it card bills and college tuition. He also gave some of the Admitted to Bar in 1990 funds to his wife for the purchase of a second home. On Feb. 8, 2010, the Supreme Court of Georgia dis- Although Zagoria entered into a consent agreement barred Attorney Sabrina K. Bozeman (State Bar No. for complete restitution to resolve the firm’s civil action 073565). Bozeman was served by publication but failed against him, there were no indications of mitigating cir- to file a Notice of Rejection of the Notice of Discipline. cumstances. In aggravation, the record shows that The following facts are admitted by her default. Zagoria previously received a Review Panel reprimand. A client retained Bozeman in October 2007 to represent her in a personal injury case. In February 2008 Howard Geoffrey Slade Bozeman settled the case, signed the client’s name to Fayetteville, Ga. the settlement check without authority and failed to Admitted to Bar in 1973 notify the client that she had received the settlement The Supreme Court of Georgia accepted the Petition funds. Bozeman then commingled the settlement for Voluntary Surrender of License of Howard funds with her personal funds; converted the money Geoffrey Slade (State Bar No. 651150) on Feb. 1, 2010. to her own use; and failed to pay the third-party Slade received $80,000 on behalf of a client in a person- medical care providers. Bozeman failed to return al injury matter, but he failed to deposit the funds in his numerous calls from the client. Bozeman falsely rep- trust account, give the funds to the client or otherwise resented to the Office of the General Counsel that she account for them. delivered the settlement proceeds to the client in In another matter he received $238,000 from a client, March 2008. but he did not deposit the funds in his trust account. When the client cancelled the transaction and sought Suspensions return of the funds, Slade wrote her a check that was Marcus L. Vickers returned for insufficient funds. He did not deliver the Ellenwood, Ga. funds to the client or otherwise account for them. Admitted to Bar in 2001 The Supreme Court of Georgia accepted the Petition Trent Edward Wright for Voluntary Discipline of Marcus L. Vickers (State Bar Cumming, Ga. No. 727392) on Jan. 25, 2010, and ordered that he be sus- Admitted to Bar in 2000 pended from the practice of law pending the outcome of The Supreme Court of Georgia accepted the an appeal of his criminal convictions. On Aug. 21, 2009, Petition for Voluntary Surrender of License of Trent Vickers was convicted of three felonies in the U.S.

54 Georgia Bar Journal District Court of the Northern effort to make the client whole. In The Court noted that while District of Georgia, Atlanta Division. aggravation of discipline, in 2007 Martin showed poor judgment, it Bagwell received a Formal Letter appeared to be an isolated incident Patrick Joseph Smith of Admonition. and no client funds or matters Rockville, Md. Bagwell’s reinstatement to the were involved. Admitted to Bar in 1978 Bar is conditioned upon certifica- On Feb. 1, 2010, the Supreme tion of his fitness to practice law. Stanley J. Kakol Jr. Court of Georgia ordered that Atlanta, Ga. Patrick J. Smith (State Bar No. Review Panel Admitted to Bar in 1985 662146) be suspended from the Reprimands The Supreme Court of Georgia practice of law in Georgia for six accepted the Petition for Voluntary months. This reciprocal disciplinary Sylvia Ann Martin Discipline of Stanley J. Kakol Jr. action arose out of Smith’s six- Atlanta, Ga. (State Bar No. 406060) on Feb. 1, month suspension in the state of Admitted to Bar in 1988 2010, and ordered that he receive a Maryland for falsely representing to On Jan. 25, 2010, the Supreme Review Panel reprimand with con- a state’s witness in a criminal prose- Court of Georgia accepted the peti- ditions. Kakol represented a client cution that he was a police officer. tion for voluntary discipline of in a pending Chapter 13 bankrupt- Sylvia Ann Martin (State Bar No. cy proceeding that originally was Benjamin Lanier Bagwell 006660), and ordered that she filed by another attorney. The Gainesville, Ga. be administered a Review Panel Chapter 13 plan was confirmed by Admitted to Bar in 1992 reprimand. Martin allowed her the Bankruptcy Court but the On Feb. 8, 2010, the Supreme operating account to be used client fell behind on her payments Court of Georgia accepted the peti- even though legal services were and the court granted relief from tion for voluntary discipline of not provided. the automatic stay for the mort- Benjamin Lanier Bagwell (State Bar The grievance initiating this gage company to foreclose on the No. 031480) and ordered that he be action was filed by Martin’s hus- client’s home. Kakol agreed to help suspended from the practice of law band’s former business partner. In the client avoid foreclosure and in Georgia for two years with con- September 2008 Martin’s husband accepted $1,000 from the client on ditions for reinstatement. Chief used his business American the condition that he would return Justice Hunstein dissented from Express (AMEX) card to obtain a it in full if he was not able to pre- the majority’s opinion. cash advance from the business. vent the foreclosure. Kakol did not Five clients filed grievances Martin had a merchant account have an escrow account at that against Bagwell. In his representa- with AMEX that allowed her to time (he generally accepted filing tion of these clients he failed to accept payment from AMEX card- fees in cash and delivered the communicate with them and he holders. If she made a transaction funds to the court), so he gave the failed to pursue the legal matters with an AMEX cardholder, then the $1,000 to a friend employed in entrusted to him. As a result of his cardholder’s AMEX account was another law office to hold; Kakol misconduct, three of the clients debited and the funds were credit- did not reclaim the funds for his had adverse rulings entered ed into Martin’s business operating personal use. During the bank- against them. Bagwell offered in account. Martin’s husband had the ruptcy proceedings the Chapter 13 migration that he acknowledged cash advance he took from his Trustee asked Kakol if he had the consequences of his miscon- AMEX business account deposited accepted a fee to represent the duct; that he demonstrated a coop- through Martin’s AMEX merchant client and he disclosed the $1,000; erative attitude toward discipli- account into her attorney operating he believes he told the Trustee they nary proceedings; and that he account. Civil litigation currently is were being held “in escrow” but was laboring under impairments. pending between the partners the Trustee stated that Kakol said Bagwell has been diagnosed with regarding disposition of the funds the funds were in “an escrow bipolar disorder, attention deficit as well as other business assets. account.” Kakol filed an entry of hyperactivity disorder, major In mitigation of discipline the appearance on the client’s behalf depressive disorder and general- Court noted that Martin has been in the bankruptcy case and an ized anxiety disorder, and has a member of the State Bar since emergency motion to reimpose the undergone inpatient psychiatric 1988 and has no prior disciplinary automatic stay. He also filed evaluation. Additionally, he has history; she made full and free amended schedules and a pro- been under mental and emotional disclosure and displayed a coop- posed modification to the Chapter strain as a result of marital difficul- erative attitude toward these pro- 13 plan. The court granted the ties. Bagwell refunded retainers to ceedings; and she has good motion to reimpose the stay but, his clients and in one instance vol- moral character and reputation in finding that Kakol did not file a untarily paid a client $12,000 in an the community. statement under Rule 2016 (b) with

April 2010 55 GET PUBLISHED

EARN CLE CREDIT The Editorial Board of the Georgia Bar Journal is in regular need of scholarly legal articles to print in the Journal. Earn CLE credit, see your name in print and help the legal community by submitting an article today!*

Submit articles to Sarah I. Coole, Director of Communications, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 or [email protected]. If you have additional questions, you may call 404-527-8791.

*Not all submitted articles are deemed appropriate for the Journal. The Editorial Board will review all submissions and decide on publication. respect to the $1,000, ordered Kakol to refund the money to the client, which he did. The court also limited Kakol to filing no more than two new bankruptcy cases per month for 18 months; ordered him to complete a specified number of hours of continuing legal education on consumer bankruptcy law, ethics and professionalism, and to submit a report upon com- pletion; and directed him to consult with the State Bar to obtain assistance with practice management issues. Kakol complied with the court’s directives. Kakol has closed his solo prac- employment with the Sandberg render his license and no longer tice and now works as an associate Law Firm LLC for at least 24 will be entitled to practice law in in a consumer bankruptcy law firm months following the Court’s the state of Georgia. where he does not have responsi- order, where his practice will be bility for caseload management, fil- limited to meeting and interview- Gary Gilbert Guichard ing of documents or advocacy in ing new clients, researching legal Denver, Co. court. Kakol voluntarily sought issues and consulting with clients Admitted to Bar in 1993 counseling from a licensed psy- and attorneys on various strategies The Supreme Court of Georgia chologist to assist him with focus that might be used in seeking debt accepted the Petition for Voluntary and organizational skills and has relief, but not signing and filing Discipline of Gary Gilbert continued that counseling. In pleadings, appearing at hearings Guichard (State Bar No. 315107) aggravation of discipline the court or handling financial issues for the on Feb. 1, 2010, and ordered that found that Kakol had prior disci- law practice; and these restrictions he receive a Review Panel repri- pline in the form of a 1984 public will apply if Kakol leaves his cur- mand. During Guichard’s employ- reprimand, a three-year suspen- rent firm and works for any other ment with the Metro Conflict sion in 1998, and a letter of admo- law practice during the 24-month Defender’s Office he represented nition in 2007. In mitigation of dis- period; (2) for a period of 24 three indigent clients. He did not cipline, however, the court found months following entry of the adequately explain matters to the that Kakol’s prior discipline did Court’s order Kakol will continue clients, did not reasonably keep not involve trust fund issues; there treatment with Dr. James A. them informed and did not com- was no selfish motive on Kakol’s Howard (or another board-certi- ply with their reasonable requests part with respect to the matter at fied psychiatrist or licensed psy- for information. issue here as Kakol merely was chologist) on at least a monthly attempting to assist a client in a basis, and will place himself under Interim Suspensions precarious legal situation and gave the jurisdiction of the State Bar’s Under State Bar Disciplinary a moneyback guarantee; the client Lawyer’s Assistance Program Rule 4-204.3(d), a lawyer who did not file a grievance; there was (LAP) for evaluation and monitor- receives a Notice of Investigation no allegation of misappropriated ing within 120 days of the Court’s and fails to file an adequate funds; and Kakol returned the order, will waive confidentiality, response with the Investigative money. The court also noted that and during the two-year period Panel may be suspended from the Kakol was cooperative with disci- will submit reports from his treat- practice of law until an adequate plinary authorities; that he sought ing psychiatrist or psychologist to response is filed. Since Dec. 12, and implemented interim rehabili- the Office of the General Counsel 2009, six lawyers have been sus- tation; that he voluntarily moved and LAP every six months certify- pended for violating this Rule and to an associate position; and that he ing that he remains mentally fit to none have been reinstated. was subjected to penalties and practice law, and will follow any sanctions by the Bankruptcy Court, additional recommendations that Connie P. Henry is the whose requirements he fulfilled. the LAP deems appropriate; and clerk of the State Besides receiving a Review (3) if, upon the State Bar’s motion, Disciplinary Board and Panel reprimand, Kakol must com- it is shown that Kakol has failed to can be reached at ply with the following conditions: comply with any of the foregoing [email protected]. (1) he will remain in his present conditions, he will voluntarily sur-

April 2010 57 Law Practice Management

Slaying Paper Dragons in Your Law Practice: Document Management for Today’s Practitioner

by Natalie R. Kelly

This article previously appeared in the June 2001, Vol. 6, No. 6 issue of the Georgia Bar Journal. It is reprinted here with updated notes for 2010 as a part of the Law Practice Management Program’s 15th Anniversary.

ometimes it seems that paper gets the best

of us. Y2K has come and you were probably S thinking that by this time lawyers would be working from sleek, silver workspaces via voice-activated systems and paper would be nowhere in sight.

Well, we all know how untrue that is. Now we can only wonder what things might be like when Y3K rolls around. Well, regardless of what shows up in our personal crystal balls, we have to realize that if it has anything at all to do with a law practice, paper will undoubtedly be involved.

So exactly how do we deal with all of this paper? Where do we store it? How can we find it? What if we really do want it to disappear from our workspaces and have a paperless office? How can we slay these paper dragons in our law offices? Below I have outlined some concepts and provided some tips that

58 Georgia Bar Journal might arm you with the lance and armor you need to get started. Attention all Local and Document Creation Mommy, where do documents come from? When Voluntary Bars in your firm first creates a document, it probably does so using either Corel WordPerfect or Microsoft Word. Sometimes documents are not simply word processing Georgia, it’s time to files though. They may also be spreadsheets, video clips, scanned images, voice files, etc. Regardless of its submit your entries to format, a document created on the PC (or Mac) can be saved and then the document’s creator or another per- be recognized for all son can retrieve the document from its saved location. This is usually where the problem begins for most firms. A document can’t be found. It can’t be located in your hard work! the physical file (office) or on the computer. Losing the entire file is a whole other article. Saving Documents Let’s examine the saving of documents as computer files. Start by asking, “Where should documents be saved and under what file names?” Here are some tips on saving documents:

■ Local and Have everyone save documents to the proper place on your computer network. ■ If documents are saved to local hard drives in your office and not to your network, make sure that those Voluntary who need access to the documents are aware of their locations, can open the documents, and if required, be able to make changes to the documents ■ Make documents read-only files if you need to protect them from unwanted changes (Use Save and Bar Awards Save As options in both Word and WordPerfect or use Publish to PDF (portable document format) in WordPerfect) Enter Today! ■ Strictly adhere to your firm’s file naming conventions (What do you mean your firm doesn’t have any conventions? Okay, see the next item.) ■ Create a mandatory file naming convention for the firm ■ Add the filename to the bottom of each document (Often firms place the filename in small font on the The deadline for entry document or include it as a footer.) (Note: Make the footer invisible or leave it off entirely if you do not want to divulge any confidential computer setups, is May 7, 2010. file generation information or file locations on your network.) ■ Use long file names (We are no longer stuck with the old eight-three setup (xxxxxxxx.xxx) anymore so For more information, make the names as descriptive as possible, i.e. john contact Stephanie Wilson, doe divorce complaint 12 31 00.wpd or john doe complaint.doc) (Note: Do not use periods or slashes [email protected] or throughout the file name, i.e. use “12-31-00” or just “12 31 00”, but not “12.31.00” as computers can get call 404-527-8792. hung up on the period and look for an application extension to follow immediately. This can also create some problems for some backup systems.)

April 2010 59 ■ Complete document sum- Lanier, Ricoh and Bowne, provide http://marketcenter.findlaw.com/ maries—under the File/Pro- the scanning, indexing and even software.html for a listing of the perties—for every document storage of documents for law firms. current online legal and general you create (This useful feature Along with the national vendors, document management products is available in most applica- you can also find online services and vendors. You can also find tions, not just word processors.) that will serve as an offsite reposito- downloadable programs to man- ■ Use the Windows file and fold- ry for your documents. Nowadays, age documents. One to check out is er structure effectively (A sam- electronic Bates numbering and called Wilbur, and it can be down- ple setup might include making bar coding can be found, too. loaded for free (at the time of this a folder for each practice area in The following are some Bates article) from www.redtree.com. X1, which you work and a subfold- numbering products and sites: Google Desktop Search and er within the practice area fold- VisionShape, www.visionshape. Copernic are also good options er for each client. All documents com; Image Access, www.image these days. created on behalf of that client access.com; XibiTag, www.xibitag. would then be saved to the com. Outsourcing services can Staying Organized client’s subfolder.) differ from vendor to vendor, so If you are still a little shy about ■ Use WordPerfect’s Index shop wisely before signing up for technology or outsourcing services Manager and Word’s Advanced the outsourcing of your document and prefer to deal with actual Find features to quickly locate management projects. paper, remember that organization documents is key. Use indexes just like the ■ Attach documents to existing Retrieving Documents document management software matters/cases/files in your Retrieval is the next major systems do. Prepare an index for practice/case management soft- process for documents. After the all of the documents you create ware programs document has been saved and is (even within client files) and use needed again, it must be retrieved. them to track where you have Scanning Documents So what is involved with finding saved documents. Also, for litiga- Some documents are generated and retrieving documents? Mainly, tion practices make use of good fil- outside of the firm. So how do those there is the process of locating doc- ing notebooks. A company called documents get saved? How are they uments via a profiling and index- Bindertek has some interesting indexed within our internal docu- ing process or document manage- products to check out, including ment management systems? This is ment software system. In these sys- sample files for organizing and where scanning and OCR (optical tems, each document is profiled managing litigation file docu- character recognition) comes into (document summary information ments. See www.bindertek.com. the process of document manage- including descriptive keywords The “paperless” law office will ment. A good scanner and software and identifiers is generated) and probably only exist in fairy tales that includes OCR will allow you to then indexed. A full text searchable as my friend and noted legal save external documents internally database is sometimes created from technologist, Ross Kodner, sug- as images that can then be treated as this information. Today’s litigation gests with his revised concept, if you had created the document in support software will sometimes the “PaperLESSTM Office.” (See house. Good scanners are avail- have some of these features built in his materials on the topic, now able from Visioneer and Hewlett as well. located at www.microlaw.com/ Packard. (Fujitsu (Scansnap) and Some of the most popular docu- cle-downloads.html.) Paper is other national name brands are ment management programs cur- simply a necessary dragon for law also good and lead the market rently on the market are Worldox, firms. To slay the paper dragons, these days.) Caere’s (now Nuance) GroupWise (not as widely used you simply have to continually OmniPage and Visioneer’s scanning now), iManage (now Interwoven), implement and use proper docu- software is also very reliable and and PC Docs (now OpenText). ment management solutions. If compatible with word processors These programs are not all you need help with choosing the and case managers. (Note: Nuance’s designed alike or suited for all proper solution, contact our pro- PaperPort product is now a leading firms. They have different hard- gram at 404-527-8770. system for OCR functionality and is ware requirements and even differ- built into many newer scanners.) ent feature sets, so be sure to Natalie R. Kelly is the Some firms have projects for consult with our program or director of the State scanning that would expend all of other certified technology consult- Bar of Georgia’s Law its resources and still not get the job ants before purchasing any of these Practice Management done, so they turn to outsourcing systems. If you are in need of an Program and can be for the answer. Several national immediate solution and need to reached at vendors like IKON, Quorum begin your search now, visit [email protected].

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Speaker Spotlight— Excellent Presenters Abound in South Georgia

by Bonne D. Cella

ttorneys in South Georgia enjoy a wide vari-

ety of informative opportunities as evi- A denced by a variety of topics presented by a variety of speakers. A dean, professor, judge and doctor have presented programs to Bar members in the area.

Recent programs included a reception, a CLE opportunity, a seminar and a first person account of Haiti days after the devastating earthquake.

Dean Rebecca White, University of Georgia School of Law, was the speaker at a reception in Tifton for UGA Law School Alumni. John Carlton Jr. of Moultrie, Al Corriere of Albany, and Bob Reinhardt and Greg Sowell of Tifton hosted the event celebrating 150 years of leadership at UGA. White proudly told alumni the U.S. Supreme Court has chosen UGA School of Law interns for four of the last five years and the law school will continue to compete for the best and brightest students. Sowell, president of the University of Georgia Law School Association, encouraged alumni to give to the Georgia Law School Fund. Photos by Bonne D. Cella The Dougherty Bar Association hosted “Georgia Hon. R. Rucker Smith, superior court judge in Americus, during his session at the Southwest Georgia Public Defender Seminar in Tifton. Evidence” with Paul S. Milich, professor of law and

62 Georgia Bar Journal Tifton Orthopedic Surgeon Dr. James “Jim” (Left to right) Scotty G. Mann, Director of Development, UGA School of Law; Dean Rebecca Scott speaks to members of the Tifton Judicial White, UGA School of Law, and alumni Al Corriere and Gregory Sowell, president, University of Circuit Bar about his recent trip to Haiti. Georgia School of Law Association, during the reception for UGA School of Law alumni in Tifton. director of the litigation program, was most proud to be an American save a limb if there were time for Georgia State University College of on this trip.” Local Tifton business- additional surgeries on a patient. If Law. The three-hour CLE was well es donated 1,800 pounds of medical more than one procedure was attended by Dougherty Bar mem- supplies and in a matter of days called for, the decision had to be bers and attorneys from nearby after the disaster, Scott and long- amputation. He noted that an circuits. Milich addressed topics time friend, orthopedic nurse Paula untold amount of prosthetics are including: privileges and work Spicer were in Haiti. “I just decided needed in Haiti. “It was hell,” he product and impeachment and to go—I did not think too much said of the experience, but when cross-examination. Dougherty Bar about it,” he said of the asked if he would ever go back, he President Gail Pursel is diligent in dangerous journey. said, “Yes, I would go back—there anticipating the needs of her mem- “Our U.S. Army knows how to go is so much need.” He realized the bers and delivering the opportuni- camping and believe me it was good demand for all professions to parties for successful programming. to see them over there—with no ticipate in pro bono activities The Hon. R. Rucker Smith, supe- functioning government, crime and where they are needed most. rior court judge in Americus, was a chaos are rampant. There are so When Dougherty Bar President guest speaker at the Southwest many lost and hurt people—chil- Gail Pursel heard about Scott’s Georgia Public Defender Seminar dren that can’t find parents—parents presentation to the Tifton circuit in Tifton. Smith offered partici- that can’t find children. America has bar, she contacted him and volun- pants “Ten Tips on Dealing With sent so many supplies but you can’t teered to go back with him to Your Judge.” After the program, find what you need in all of the dis- Haiti. Pursel, who has been on Smith made the following observa- order. Another sad problem is the mission trips before, is the kind of tion, “Smaller regionalized contin- animals—they are suffering, too.” person Scott was talking about uing education programs like this Scott and Spicer were sent on a when he spoke about being proud one in Tifton improve local cama- Black Hawk Army helicopter to to be an American. raderie, while conserving the par- Gonaives to help many victims wait- The South Georgia Office of the ticipants’ travel time and maximizing for medical attention. They were State Bar of Georgia is available ing use of the taxpayer’s dollar.” greeted by U.N. troops that were to help your bar association with Tifton Orthopedic Surgeon, Dr. called in before the disaster due to speakers and programs. James “Jim” Scott was guest speak- the unrest and gang activity in the er for the Tifton Judicial Circuit Bar. area. At this camp, Scott was paired Bonne D. Cella is the Scott, a friend to the local with a French anesthesiologist and office administrator at bar, holds several patents in ortho- although they did not speak the the State Bar of pedics and is considered an expert same language, they were still able Georgia’s South in sports medicine. He is also a to communicate effectively. Georgia Office in humanitarian. Having just returned One of the most difficult aspects Tifton and can be from Haiti, he told the group: “I for Scott was knowing he could reached at [email protected].

April 2010 63 Section News

Section-Sponsored Events Now Feature Online Registration by Derrick W. Stanley

ne feature that has been requested by sec- like to attend, click the register button. The system will require you to log in if you have not already done so. tion members over the past few years is On the next screen, you will need to verify your information and click the “Next” button (see fig. 2). the ability to register for events online Please note that changes made on this page will not O update your information in the database. If this infor- and to pay with a credit card. Thanks to the implemen- mation is incorrect, please click on the “My Account” button in the upper right hand corner of the website to tation of a new database, the State Bar of Georgia is update your member record (see fig. 2). After clicking the “Next” button, you will need to select pleased to announce that online registration will now the number of tickets you need (see fig. 3). The nonmem- ber rate is for those who are not a member of the section. be the norm for section sponsored events. To attend The next screen is simply a summary of what has been registered for and the amount that will be charged. these events, you will no longer have to go through the By clicking the “Next” button, you will be taken to the credit card payment screen (see fig. 4). After entering process of requesting a check and then mailing it to the your information and clicking the “Next” button, you will be taken to a confirmation screen. You will also be Bar with a form. You can simply log in to the State Bar provided with a receipt by e-mail. By registering online for events, you can guarantee website, click a few buttons and use your credit card to your spot and have an immediate record of your transaction. Of course you will still be able to submit register for the event. your registration by mailing the registration form and check to the address listed on the bottom of the The process is outlined below and assumes that you registration form. have already logged in to the website. If you have not, As always, should you require assistance in register- visit www.gabar.org for instructions to do so. Section ing for a meeting or have questions that are not cov- members will receive an e-mail with a link to the meet- ered in this article, please visit www.gabar.org/ ings page; however, that link is not required to register sections or contact Derrick Stanley at 404-524-8774 or for the meeting. Simply go to https://www.members. [email protected]. gabar.org/Core/Events/Events.aspx to see a list of events and register for an upcoming section meeting Derrick W. Stanley is the section liaison (see fig. 1). for the State Bar of Georgia and can be Select the event you would like to attend by clicking reached at [email protected]. the orange arrow next to it (see fig. 1). Once you have selected the event, a description will appear on the screen. If this is the event you would

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April 2010 65 Casemaker

CASEMAKERdigest: The Latest Addition to Casemaker

by Sheila M. Baldwin

ASEMAKERdigest is the newest service CASEMAKERdigest allows you to save your searches via both RSS feeds and bookmarking. RSS feeds pro- provided to help lawyers keep abreast of vide a constant flow of up-to-date information on cases which conform to the saved criteria. Bookmarks save a recent developments in Georgia Caselaw. snapshot of the results of a specific search request. The C “Save” feature allows the user to output the results of Cases are summarized as soon as they are made avail- a specific search to an RSS feed. RSS feeds can be read using any RSS reader, such as a web browser, a desk- able and separated into several categories for ease of top application or mobile-device (see fig. 3). Currently, CASEMAKERdigest only searches over the searching. This upgraded feature is available to all of selected week to give you the fastest access possible (see fig. 4). If you wish to see your search applied to the entire our members. archive, simply save that search as an RSS feed. This will allow you to see all cases from the archives which meet You may wonder how accurate and reliable this fea- those search criteria, while keeping you up-to-date on ture is. According to Casemaker developers, “Our any new developments under the specified parameters. information comes directly from the courts. These CASEMAKERdigest allows you to add filters in sev- cases are then reviewed, summarized and categorized eral ways. You can type in a search filter using the pro- by our team of attorneys in a thorough and timely fash- vided box. You can select from any of the guided cate- ion. We stand by the accuracy and reliability of our gories (Areas of Practice, Court or Judges) by clicking content 100 percent.” on the button next to those terms (see fig. 5). Cases are summarized and posted within two days Additionally, any terms underlined in blue can be of receiving them from the court. Occasionally a delay added as filters by clicking on them. To remove an can occur between processing a case and the posting of unwanted filter, click the button next to the term you that case. When this occurs, a summary, if available, wish to remove from your search. will be posted so that attorneys will know that the case Subscribing to RSS feeds gives the user access to a will be arriving on the site shortly. constant feed of the 50 most current cases published on Cases from the previous week are displayed by the site (see fig. 6). Unlike the “save search” option, these default so that the site is populated with data when results are not filtered and each case will be sent to the you arrive, even at the beginning of the week. As feed as soon as it is added. This allows the user to stay cases are processed they are added to the current up-to-date on all developments in Georgia Caselaw. week. These can be accessed by choosing “Current If you have any Casemaker questions, please call Week” from the left-hand column or by RSS feed 404-526-8618 or e-mail [email protected]. (see fig. 1). By selecting any of the terms displayed on the right- Sheila Baldwin is the member benefits hand column of the site, results are instantly refined to coordinator of the State Bar of Georgia return only those cases which match the chosen terms and can be reached at [email protected]. (see fig. 2). Additional terms can be selected from the categories or entered via the search window to further hone your results.

66 Georgia Bar Journal 1 2

3 4

5 6

We offer Casemaker training classes four times a month. Upcoming training classes can always be found on the State Bar of Georgia’s website, www.gabar.org, under the News and Events section. Onsite Casemaker training can also be requested by local and specialty bar associations. Writing Matters

Writing Matters: Sounds Like Greek to Me

by Karen J. Sneddon and David Hricik

he English language is a mongrel combina-

tion of Germanic, Celtic, Anglo-Saxon, T French, Greek and Latin words. It became so during the journey from Old English to Middle

English to Modern English. For example, these words came from French: contract, crime, proposal, schedule, terms, conditions, policy, alias, action, appeal, claim, complaint, defendant, evidence, indictment, plaintiff, plea, sue, summon and quash.1 The word

“law” came from Old Norse.2 “Other times, French and Old English components combined to form a new word: French gentle (gentil) and the Germanic man formed gentleman.”3

This means that the English language is one ugly mutt. As a result, English often has two, three or more words that mean the same thing, but which originate from different languages. The evolution, of course, continues as new words are created and others adopted from foreign languages every day. Spanish is obviously having an enormous influence today, and who knows what the future holds.4

68 Georgia Bar Journal This affects legal writers in two desist.” No lawyer would ever ways: we often use two words send simply a “cease” letter to a Common when one will do—often one trademark infringer, even though Anglo-Saxon word and the other the lawyer would be satisfied if Redundant either French or Latin in origin— the accused infringer ceased what and we use a longer word when a it was doing. Similarly, we say Pairings shorter, often Anglo-Saxon one, will that contracts are “null and void” often do just fine. But the French or when certainly a void contract is a appropriate and proper Latin words sound “fancier” or nullity. Yet, these redundant pair- all and sundry more educated.5 Although these ings permeate legal writing. any and all problems permeate our language, One word will often—not always, bind and obligate legal writers in particular infuse but often—do. But which one? cancel, annul, and set aside their writing with unnecessary deem and consider duplication and length—which is Use the Anglo-Saxon not helpful. This installment Word, not the Usually due and payable addresses those problems. final and complete Longer French or Latin free and clear Use One Word, Not Two Derivative indemnify and hold harmless As English began to grow in the Often, there is an English word name, constitute, and appoint courts of England and replace derived from French or Latin that new and novel French and Latin, lawyers were is synonymous with an English afraid to drop the French and Latin word of Anglo-Saxon origin, but is ordered, adjudged, and decreed out of fear that “some of the high- longer, more abstract or both. See, power and authority ly specialized meanings of the good and take are Anglo-Saxon right, interest, and title legal vocabulary would be lost.”6 derivatives, and mean in many total and entire Some of this no doubt made sense, contexts the same thing as their true and correct because using synonyms derived non-Anglo-Saxon counterparts, from the different languages perceive, benevolent and appropriate.9 would help if the reader only Sometimes there are three words of use the Latin or French derivative, knew one of the languages.7 But different origins.10 rather than its Anglo-Saxon coun- the practice persisted long after “As a (very rough) general rule, terpart. As George Orwell wrote French and Latin were gone from words derived from the Germanic over half a century ago: the English countryside.8 ancestors of English are shorter, Although French and Latin are more concrete and more direct, Bad writers, and especially sci- gone even from England, U.S. whereas their Latinate counter- entific, political and sociological lawyers still live with this fear parts are longer, more abstract and writers, are nearly always haunt- today. Legal writing still often are regarded as more elegant or ed by the notion that Latin or contains pairs of redundant educated.”11 Yet, in an effort to Greek words are grander than words. For example, “cease and appear smart, lawyers will often Saxon ones, and unnecessary EXCELLENT QUALITY not EXCESSIVE COST

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April 2010 69 Lawyer Assistance need Program Conſ dential help Hotline ? 800-327-9631 Lawyers Recovery Meetings: The Lawyer Assistance Program holds meetings every Tuesday night from 7 p.m. to 9 p.m. For further information about the Lawyers Recovery Meeting please call the Conſ dential Hotline at 800-327-9631.

he Lawyer Assistance Program 2009-10 (LAP) provides free, conſ dential Lawyer Assistance assistance to Bar members whose personal problems may be Committee

interfering with their ability to Chairperson Tpractice law. Such problems include stress, Robert T. Thompson Jr., Atlanta chemical dependency, family problems, Vice Chairperson and mental or emotional impairment. Charles B. Pekor Jr., Atlanta Through the LAP’s 24-hour, 7-day-a-week Members conſ dential hotline number, Bar members *Michael D. Banov, Marietta Henry R. Bauer Jr., Atlanta are offered up to three clinical assessment Frederick Victor Bauerlein, Marietta and support sessions, per issue, with a Robert A. Berlin, Macon counselor during a 12-month period. All *Steve Brown, Atlanta Allan Legg Galbraith, Atlanta professionals are certiſ ed and licensed N. Wallace Kelleman, Stone Mountain mental health providers and are able to *Joanne Max, Atlanta respond to a wide range of issues. Clinical Robert E. Mulholland, Atlanta Homer S. Mullins, Princeton assessment and support sessions include *William W. Porter, Marietta the following: Darrell P. Smithwick, Lawrenceville A. Thomas Stubbs, Decatur • Thorough in-person interview with the Jeffrey David Talmadge, Roswell attorney, family member(s) or other Lemuel Herbert Ward, Atlanta qualiſ ed person; Executive Committee Liaison • Complete assessment of problems Michael G. Geoffroy, Covington areas; Advisors Mary S. Donovan, Macon • Collection of supporting information Calvin S. Graves, Atlanta from family members, friends and the *George W. Martin Jr., Atlanta LAP Committee, when necessary; and Staff Liaison • Verbal and written recommendations *Sharon L. Bryant, Atlanta regarding counseling/treatment to the *denotes non-attorney person receiving treatment. words like expedite, ameliorate, Chinese, Spanish, English and probably other dialects. In some predict, extraneous, deracinated, ways, this is already true. clandestine, subaqueous and hun- 5. Arguably, it can be traced back to dreds of others constantly gain 1362, when England adopted a ground from their Anglo-Saxon statute requiring that pleadings be opposite numbers…12 written in English, not Latin or French. See http://www. Obfuscation should be abjured. languageandlaw.org/TEXTS You should also try to be clear. STATS/PLEADING.HTM. Because lawyers generally are 6. Stephen Wilbers, Does anybody striving to convey complex infor- know why lawyers write the way mation efficiently and effectively, they do?, available at http://www.wilbers.com/ big words do not help.13 In fact, LegalWriting.htm they hinder. So, for instance, 7. See generally Zechariah Chaffee, using just the Anglo-Saxon derived Jr. The Disorderly Conduct of word “sell” is better than using Words, 41 COLUM. L. REV. 381, 382 “bargain” or “convey.” (1941). English is a dynamic, rich lan- 8. For further discussion, see BRYAN guage that offers lots of options. A. GARNER, THE REDBOOK: A Recognizing the origins of the lan- MANUAL ON LEGAL STYLE 192-93 (2d guage can help a writer be deliber- ed. 2006); MARK PAINTER, THE ate in their choice of words. LEGAL WRITER: 40 RULES FOR THE ART OF LEGAL WRITING 87-89 (2005); Karen J. Sneddon is RICHARD C. WYDICK, PLAIN ENGLISH FOR LAWYERS (5th ed. 2005). an assistant professor 9. http://www.pairofsachs.net/ at Mercer Law School literature/pdfs/Linguistics_Paper.pdf. and teaches in the 10. “There are many sets of triplet syn- Legal Writing Program. onyms from Anglo- Saxon/Latin/Greek and also David Hricik is an asso- Anglo-Saxon/Norman French/ ciate professor at Latin-Greek like cool-calm-collect- Mercer Law School ed and foretell-predict-prophesy.” who has written several http://dictionary1.classic. books and more than a reference.com/features/word dozen articles. The traveler30.html 11. M. Birch, Anglo-Saxon and Latinate Legal Writing Program at Mercer Words, available at Law School has consistently been http://www.translationdirectory. ranked as one of the nation’s Top com/article991.htm. This recom- Legal Writing Programs by U.S. mendation dates at least to the sev- News & World Report. enteenth century when “John Dryden was already advocating a Endnotes shift toward a middle style, a more 1. See Adil Bouharaoui, Some Lexical ‘natural,’ less Latinate style in both Features of English Legal Language, vocabulary and syntax.” DONA J. available at http://www. HICKEY, DEVELOPING A WRITTEN translationdirectory.com/ VOICE 128 (1993). articles/article1763.php; John F. 12. George Orwell, Politics and the Rohe, The Arrows in Our Quiver, 79 English Language (1946). MICH. B.J. 842 (July 2000). 13. JOSEPH M. WILLIAMS, STYLE: LESSONS 2. DAVID MELLINKOFF, LANGUAGE OF IN CLARITY AND GRACE 8 (9th ed. THE LAW 34 (1963). See also 2007) (“[S]ome writers plump up FREDERICK A. PHILBRICK, LANGUAGE their prose to impress those who AND THE LAW: THE SEMANTICS OF think complicated sentences indicate FORENSIC ENGLISH (1949). deep thinking.”). Professor Williams 3. http://www.translationdirectory. goes on to write, “when we want to

com/article991.htm hide the fact that we don’t know www.gabar.org 4. In the film Bladerunner, the author what we’re talking about, we typical- envisions a language that is, to us, ly throw up a tangle of abstract Site on the Web. Working Hardest an odd-sounding mixture of words in long, complex sentences.”

April 2010 71 Professionalism Page

Honoring Outstanding Community and Public Service by Avarita L. Hanson

he State Bar of Georgia and the Chief

Justice’s Commission on Professionalism T (CJCP) presented the 11th annual Justice Robert Benham Awards for Community Service on

Feb. 16 at the Bar Center. Since 1998, these awards have been presented to honor lawyers and judges in Georgia who have made significant contributions to their communities and demonstrate the positive contributions of members of the State Bar of Georgia beyond their legal or official work.

The auditorium at the Bar Center was filled with relatives, friends and colleagues from around the state. The 10 honorees received their awards from Chief Justice Carol Hunstein, Justice Robert Benham, State Bar President Bryan M. Cavan, Patrise Perkins-Hooker, committee chair and Avarita Hanson, executive director of the CJCP. A special charge to the honorees on the significance of community and public service was given by

keynote speaker, Bill Liss, financial, consumer and legal Stanley Photos by Derrick W. editor for Atlanta’s WXIA-TV and selection committee member (remarks reprinted on page 73). Many thanks to Melissa Davey, Nicole Leet, Sumeet Shah and April YLD President Amy Howell and the following members Williams. We also acknowledge the assistance of the of the Young Lawyers Division’s Community Service staff of the Chief Justice’s Commission on Committee for their assistance during the evening of the Professionalism: Terie Latala, assistant director, Nneka awards presentation: Shatorree Bates, Shiriki Cavitt, Harris-Daniel, administrative assistant and Sharon

72 Georgia Bar Journal Obialo, intern. As they munched William J. “Bill” Liss, Financial, and mingled after the presentations, Consumer and Legal Editor for honorees, presenters and guests WXIA-TV, Atlanta enjoyed the sounds of Elevate the (reprinted remarks from the 11th annual Justice Quest, a jazz collective whose pur- Robert Benham Awards for Community Service) pose is to elevate the quest for life I am flattered to be asked to speak for a brief through music. moment about community service—some- Awards were presented to the thing we have been doing rather publicly on following eight attorneys and two television for a decade or more—with an audience clearly aware that an attorney is behind judges from judicial districts across the effort (my identity as an attorney has been the state. clearly stated on-air). When it comes to community service, the reality is that it’s not bill- Judicial District 2 able, but the good news is that it will be the

Charles W. Lamb Jr., the Lamb most rewarding thing you will do outside a Photo provided by WXIA-TV Law Firm, P.C., Albany, is an courtroom or away from a negotiating table. It active member of the National is a mandate for every lawyer to have as part of his or her resume. Rehabilitation Association and was As professionals—as lawyers—we are looked up to as leaders. As an example, using a member of the American Bar the word “lawyer” in my television work in dealing with community issues sends out Association’s Commission on a strong message that resonates with the audience. I am a journalist, yes, but I am Mental and Physical Disability Law also an attorney. The words “lawyer” or “attorney” carry a badge of respect. They from 2002-05 and the National carry a badge of perceived influence and knowledge. This gives a much added edge Spinal Cord Injury Association. He in serving our community, pro bono, openly and with an added authority. currently serves as a member of the The Bar, for example, sponsors The Great Day of Service, Law Day and a number Georgia Rehabilitation Council and of law-related programs in schools to foster legal education—mentoring students, as chairman of the Georgia Brain chairing mock trials and bringing law closer to the reality of the audience. But, the and Spinal Injury Trust Fund Great Day of Service and Law Day are single events—meaningful and important in Commission. Lamb is a member their own rights—but just the tip of the iceberg. The key to lawyer-community vol- of the board of the Albany unteer success is longevity: getting programs started and keeping them going on a regular and continuing basis, so the audience—the community—knows this is a true Advocacy Resource Center, long-term commitment. Leadership Albany, Leadership Lee and Lee County Chamber of Take, for example, Judge Jackson Bedford of Fulton County Superior Court and former president of the Atlanta Bar Association. He wakes before dawn on Christmas Commerce. He served as a member morning (every year for decades), dresses as a convincing Santa Claus, then goes to of the Albany Area Chamber of each of Metro Atlanta’s three children’s hospitals to visit every patient (some 400), Commerce, Southwest Georgia before joining me at Atlanta Hartsfield-Jackson International Airport at the USO to Therapeutic Riding Center and a bid farewell to troops deploying for Iraq and Afghanistan. Below his tunic and out of Partner in Excellence with the Lee sight are the medals he was awarded for service as a naval officer in Vietnam. Primary School “Bee A Champ” Take, for example, the law firms in Atlanta that encourage pro bono activity and Spelling Bee Sponsor. After gradu- give lawyers the time to do it. Take, for example, the number of nominations we ating from the University of Georgia get every year for the prestigious Justice Robert Benham Community Service School of Law in 1998, Lamb Awards. The information they contain is the highest tribute anyone can give to long- returned to southwest Georgia and term community involvement and action. It shows a commitment that continues worked in the state court system day-in and day-out for years. and with a local law firm before We, as lawyers—as professionals, have an obligation not only to recognize what the opening his own practice in 2005, State Bar says are ethical and professional dilemmas and to prioritize values and focusing on helping those who have implement judgments, but equally we must serve our communities. That does not suffered serious personal injuries. necessarily mean building houses, mowing lawns, painting furniture or preparing food on holidays, but it does mean offering yourself as a highly respected profes- Judicial District 3 sional on a regular basis as a volunteer, expecting nothing in return. Your sense of Jonathan A. Alderman, partner, pride in yourself will speak volumes for what you do, whether it’s mentoring, giving legal aid where none is otherwise available, or perhaps doing the physical chores Anderson, Walker & Reichert, LLP, that are also so important. Your being there and doing something for the communi- Macon, organized, served as presi- ty is what it’s all about. dent and is now the chairman of the board of First Choice Primary Care, At the Community Service Awards program, you hear how your colleagues at the Bar have recognized the importance of community service and how they have com- Inc. He brought success to this med- mitted themselves to take the practice of law and commitment to the community to ical facility that now serves a broad a higher level. They have and will continue to serve their communities as we all patient base, including many unin- should, expecting nothing in return—except the enormous satisfaction that comes sured persons. He is a board member from giving back. of Macon’s Rotary Club, serving as

April 2010 73 These awards recognize the commitment of Georgia lawyers to volunteerism, encourage all lawyers to become involved in community service, improve the quality of lawyers’ lives through the satisfaction they derive from helping others and raise the public image of lawyers. president in 2006-07. Presently, he County Advisory Board and a Michael “Mike” D. Hobbs Jr., serves as a member and secre-tary of member of the DeKalb Technical partner, Troutman Sanders LLP, the Macon-Bibb County Workforce College Law Enforcement Academy Atlanta, currently serves on the Investment Board, volunteers with advisory board and the Truancy board and as general counsel for the Human Rights Committee of Reduction Protocol committee. An Imagine It! The Children’s Museum Wesley Glen Ministries and has active member of Rockdale County of Atlanta. He serves on the board served on the board and as president Rotary Club, she has served on of trustees for the Hammonds of Goodwill Industries of Middle many of its committees, serving as House Museum, as a pro bono vol- Georgia, Inc., and its subsidiary, president in 2007-08. A member of unteer with Georgia Lawyers for Good Vocations, Inc., providing Crosspoint Christian Church, she the Arts, on the boards of work opportunities and training to serves in its kitchen ministry and the Central Presbyterian Church disabled workers. A deacon and was its nursery director and middle Outreach and Advocacy Center, trustee of First Baptist Church of school leader. Inc., while serving as an elder in his Christ, he has taught Sunday school home church, Trinity Presbyterian. for the last 15 years, driven the Judicial District 5 From 1996 to 2002, he served on the church bus for 20 years, sings in the William “Bill” Barwick, partner, board and as chair of the Trinity choir and currently serves on the Duane Morris LLP, Atlanta, is a Early Learning Center. Hobbs stewardship committee, the planned member of the board of directors coaches soccer and is the pro bono giving and internet/electronic giv- of Everybody Wins! Atlanta, a attorney for the Top Hat Soccer ing subcommittees and as the nationally recognized literacy and Club. He was a member for eight church’s pro bono attorney. He was mentoring organization. Ten years years of the Carl E. Sanders named the Macon Bar Association’s ago he brought the program to his Buckhead YMCA board of directors “Lawyer of the Year” for 2009. former law firm and convinced and served as a judge from 1996 to them to provide financial support 2004 for the Saul Lefkowitz Moot Judicial District 4 and to urge its lawyers and staff to Court Tournament. Hon. Nancy Nash Bills, judge, volunteer as mentors. Due to Amy J. Kolczak, partner, Owen, State Court, Rockdale Judicial his efforts, Sutherland mentors Gleaton, Egan, Jones & Sweeney, Circuit, Conyers, played a major have read aloud to hundreds LLP, Atlanta, serves as president of role in helping plan, dedicate of students first at Lakewood the Georgia Association for Women and open a playground in Elementary, then Mary Bethune Lawyers Foundation and oversees Rockdale’s Hispanic community. Elementary schools. His decade- and assists in all its activities and She supported the Rockdale County long involvement in the program projects, including its scholarship Public School’s Students Against encouraged Sutherland lawyers in program for women law students Destructive Decisions Chapter, the Washington and New York in Georgia as well as partnerships championed a drug-free communi- offices to join this important effort with The Giving Tree, Inc., Visions ty for the youths, proved instru- which improves student learning Anew Institute, Eating Disorders mental in creating a website with and book drives. Atlanta commu- Information Network, GOAL, Inc., crisis information for people seek- nity institutions that have Perkerson Playground Project, ing help, served school lunches, benefited greatly from his service National High School Mock Trial, passed out water bottles to students include the High Museum of Art, Brain Tumor Foundation for and attended many meetings to Zoo Atlanta, Habitat for Children, Sexual Assault Center of help oversee policymaking and Humanity, Atlanta Botanical Northwest Georgia, Cool Girls, Inc., implementation of programs. Bills Gardens, Atlanta History Center and Decatur Preservation Alliance, chairs the Rockdale County Task and the Historic Oakland among others. Kolczak has also Force Against Family Violence, is Foundation. He is a member of been involved with the Atlanta the past board chair and leadership First United Methodist Church of Legal Aid’s Breast Cancer Project, donor of United Way of Rockdale Atlanta and Buckhead Baseball. CHRIS Kids, Inc., Georgia Chapter

74 Georgia Bar Journal of the National Multiple Sclerosis Breakfast and provides pro bono Lawyers Foundation. Before relo- Society, Families First, Project legal services. Most recently, she cating to Fayetteville, Hinton Night and Nicholas House. She was team captain for the Susan G. practiced in Savannah and served spearheads all of her firm’s com- Komen 3-Day. A past president as the liaison to the Savannah- munity service activitis. She is a of the Georgia Association for Chatham County Domestic member of the St. Thomas Catholic Women Lawyers, she currently Violence Task Force. She also Church in Smyrna. serves on its advisory board. She is worked as a life skills instructor Lt. Col. (Ret.) Nancy J. Whaley, a past chair of the community serv- with the Magdelene Women and Office of Nancy J. Whaley, ice committee for the State Bar of Children’s Program at Union Standing Chapter 13 Trustee, Georgia Young Lawyers Division. Mission and with the Martin de Atlanta, is an effective advocate She has been a member of the Pones Society working to uplift and leader for the betterment of Junior League of Atlanta and Delta children in poverty. She joined the those afflicted with cancer, their Zeta Sorority. boards of the Savannah Union families and friends. Diagnosed Mission, serving from 1997-2002, with cancer at age 38, Whaley Judicial District 6 and the Community Health- became involved with the Young Angela M. Hinton, senior assis- care Center for the unemployed Survival Coalition (YSC) and just tant attorney, City of Atlanta Law and underemployed. three years after her diagnosis, she Department, Fayetteville, was became an officer of its Atlanta appointed to the Fayette County Judicial District 7 Chapter and chaired the YSC’s first DFACS Board in 2006 and elected Justin B. O’Dell, partner, Atlanta fundraiser, a fashion show as its vice chair in 2009. To Cauthorn, Nohr & O’Dell, Marietta, and cocktail reception called “BUS- support the women in Promise has been a member of Cobb TIQUE.” She has served on the Place, Fayette county’s battered Chamber of Commerce since 2004. board for the Georgia Breast women’s shelter, she initiated a He was in the Leadership Cobb Cancer Coalition Fund since 2005 professional clothing drive to Class of 2006-07, served on its pub- and is currently its nominating provide suitable outfits for reentry lic safety committee and the 2008 committee chair. She also assists into the workplace through the social services committee. Active with the Georgia Legislative Georgia Association for Women with the Marietta Kiwanis Club, he

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April 2010 75 (Left to right) Angel M. Hinton, Hon. Nancy Nash Bills, Justin B. O’Dell, William “Bill” D. Barwick, Jonathan A. Alderman, Amy J. Kolczak, Michael “Mike” D. Hobbs Jr., President Bryan M. Cavan, Chief Justice Carol W. Hunstein, Nancy J. Whaley and Mark O. Shriver IV (not pictured, Charles W. Lamb Jr.). has worked to inform members of has made extraordinarily positive for legal aid programs, community needs of the county’s underprivi- contributions on behalf of children, development, health, education, leged and earn their support for not just in Woodstock or Cherokee sports, recreation and the arts. A worthy projects. He serves as the county, but throughout Georgia and short video biography of each director of the Cobb Community the world. He currently serves as recipient is available on the State Collaborative, for which he chairs president of Optimist International, Bar’s website: http://www.gabar. its business advisory council, and one of the largest organizations in org/news/11th_annual_justice_ as director for Cobb Housing, Inc., the world serving youths. More than robert_benham_awards/. for which he serves on its market- 5,000 Georgia children are benefit- These awards recognize the ing, bylaws and finance commit- ting from Optimist Club projects commitment of Georgia lawyers tees. A founding member and pro because of his efforts to start at least to volunteerism, encourage all bono attorney, he spearheads his seven new clubs. A lifelong and avid lawyers to become involved in firm’s support for Reconnecting marathon runner, Shriver chairs his community service, improve the Families, the official nonprofit Optimist Club’s Peachtree Junior quality of lawyers’ lives through organization that supports the Road Race. He has served at every the satisfaction they derive from Cobb County Juvenile Drug Court level of the Optimist Club—interna- helping others and raise the public and Cobb County Family tionally as vice president of the image of lawyers. Members of the Dependency Treatment Court. A board of directors and on various Bar, public and representatives of member of and Sunday school committees, statewide as a distin- organizations that the judges and teacher at First Baptist Church of guished district governor and local- attorneys serve are invited to Marietta, O’Dell serves wherever ly as the club president for three nominate lawyers and judges each he sees a need, including collecting different clubs. fall for these awards. Interested diapers for children in the homeless These deserving Bar members persons can contact Nneka Harris- shelters on Cobb County Diaper have served a wide range of com- Daniel at [email protected] for Day, raising funds for cancer munity organizations, govern- further information. research at the at the Swordsmen’s ment-sponsored activities and Ball and serving food to residents humanitarian efforts. Their fields Avarita L. Hanson is at The Extension, Cobb County’s of service include: youth athletics the executive director homeless shelter. and mentoring programs, literacy of the Chief Justice’s programs, social and support serv- Commission on Judicial District 9 ices, church and religious activities, Professionalism and Mark O. Shriver IV, partner, politics, conservation and the envi- can be reached at Shriver & Gordon, P.C., Woodstock, ronment, promotion and support [email protected].

76 Georgia Bar Journal

In Memoriam

he Lawyers Foundation of Georgia Inc. sponsors activities to promote charitable, scientific and educational purposes for the public, law students and lawyers. Memorial contribu- T tions may be sent to the Lawyers Foundation of Georgia Inc., 104 Marietta St. NW, Suite 630, Atlanta, GA 30303, stating in whose memory they are made. The Foundation will notify the family of the deceased of the gift and the name of the donor. Contributions are tax deductible.

John Richard Collins Robert B. Langstaff Jerrell Paul Rosenbluth Atlanta, Ga. Albany, Ga. Atlanta, Ga. Duke University School of Law University of Georgia School University of Michigan Law (2006) of Law (1955) School (1966) Admitted 2006 Admitted 1955 Admitted 1966 Died December 2009 Died February 2010 Died November 2009

Milton Morgan Ferrell Jr. Gilbert Michael Malm John H. Ruffin Jr. Miami, Fla. Atlanta, Ga. Atlanta, Ga. Mercer University Walter F. Emory University School of Law Howard University School of Law George School of Law (1975) (1989) (1960) Admitted 1975 Admitted 1989 Admitted 1961 Died November 2008 Died August 2009 Died January 2010

Charles Jacob Greenisen Ben J. Miller G. William Speer Atlanta, Ga. Thomaston, Ga. Atlanta, Ga. University of Georgia School University of Georgia School Duke University School of Law of Law (1985) of Law (1965) (1965) Admitted 1985 Admitted 1964 Admitted 1965 Died January 2010 Died December 2009 Died November 2009

George Brock Haley Jr. Fred Willard Minter James Hargrove Wilson Jr. Atlanta, Ga. Decatur, Ga. Atlanta, Ga. Harvard Law School (1951) Atlanta Law School (1949) Harvard Law School (1947) Admitted 1951 Admitted 1949 Admitted 1947 Died January 2010 Died November 2009 Died April 2009

Stephen P. Harrison Richard P. Murphy Mary Young-Cummings McDonough, Ga. Augusta, Ga. Albany, Ga. Woodrow Wilson School of Law University of Michigan Law Howard University School of Law (1977) School (1980) Admitted 1972 Admitted 1977 Admitted 1993 Died January 2010 Died February 2010 Died January 2010 The Hon. John H. George L. Howell John L. O’Connor Ruffin Jr. was born in Atlanta, Ga. Tucker, Ga. December 1934 in Howard University School of Law Woodrow Wilson School of Law Waynesboro, Ga., to (1968) (1960) John H. Ruffin Sr. and Admitted 1969 Admitted 1977 the late Anna Louise Died February 2010 Died October 2008 Davis Ruffin. He died in January 2010. In 1953, he graduated from James Louis Jordan Richard Dawson Phillips Waynesboro High and Industrial College Park, Ga. Ludowici, Ga. School. He received degrees from University of Illinois College University of Georgia School Morehouse College and Howard of Law (1961) of Law (1963) University School of Law in Admitted 1961 Admitted 1962 Washington, D.C. He was admitted to Died January 2010 Died February 2010 the State Bar of Georgia in July 1961.

78 Georgia Bar Journal A child born on the heels of the Circuit in 1986 by Gov. Joe Frank with a ceremony for the unveiling of Great Depression, he was taught Harris. In addition to being the first his portrait. Ruffin’s portrait hangs that Christian principles, academic African-American superior court in the Court of Appeals courtroom. excellence, hard work and thrift judge for the Augusta Judicial Waynesboro, his hometown, has were to be valued. With much sup- Circuit, Ruffin was also the first also hung his portrait in its court- port and encouragement Ruffin African-American member of the room. While serving on the Court of excelled in school. He learned early Augusta Bar Association. He was Appeals, Ruffin established a resi- of his African-American heritage elected without opposition in 1988 dence in Atlanta. He made many and of the plight of equality for the and continued to serve as superior friends and attended Friendship poor and undereducated, personal- court judge until his appointment Baptist Church. Since his retirement ly experiencing the sting and to the Court of Appeals of Georgia. from the Court of Appeals, he humiliation of injustice. At an early He became the 62nd judge of the remained active, volunteering in age, he joined Thankful Baptist Court of Appeals of Georgia when community and civic projects and as Church in Waynesboro, becoming he was administered the oath of an instructor at his alma mater, involved in activities including office by Gov. Zell Miller in August Morehouse College. Sunday school, Junior Missionary, 1994 after 33 years of practicing Baptist Training Union and choir. law. As chief judge in 2005-06, Counseling for Attorneys He could be depended upon to Ruffin became the first African- assume leadership roles. American to hold that position. Depression Growing up, time spent with During his tenure as chief judge, he Anxiety/Stress Ruffin was never boring. He had spearheaded the court’s Centennial Life Transitions the innate ability to use humor, wit Year Celebration in 2006. In addi- Career Concerns and intellect to confound his young tion to his membership in the State Couples Counseling relatives, friends and even adults. Bar of Georgia, he was admitted to Relationship Conflicts Though he had strong convictions the Supreme Court of Georgia, U.S. and enjoyed good debate, he came Supreme Court, 11th Circuit U.S. Elizabeth Mehlman, J.D., Ph.D. to realize the need to be flexible and Court of Appeals and U.S. District www.GeorgiaPsychologist.com willing to hear and consider Courts for the Southern and (404) 874-0937 diverse points of view. Throughout Middle Districts of Georgia. Midtown Atlanta his life, Ruffin’s sense of humor, Ruffin had many professional, attention to detail and “calling the civic and religious affiliations. shots” as he saw them without Some of these included: Council excuses were constantly evident. of Superior Court Judges of He lived life with purpose bol- Georgia; Council of Juvenile Court stered by hope, girded with deter- Judges of Georgia; 10th Judicial mination, a strong work ethic and a Administrative District; chairman, steadfast desire to foster and build Board of Trustees, Institute of a better community. Continuing Judicial Education; His crusade for justice on behalf of Georgia Commission on Gender children is legendary. His mentor- Bias; Court Reform Committee, ing, advising and teaching con- Governor’s Conference on Justice tributed to the development of in Georgia; Georgia Association countless legal minds. As a young of Criminal Defense Lawyers; attorney, he met Judith Fennell, a Georgia Advisory Council to the Spelman College graduate from Legal Services Program; Judicial Bath, S.C. After a whirlwind Nominating Commission; Georgia courtship, they were married in 1967 Conference of Black Lawyers, Inc.; and made their home in Augusta. To State Bar Judicial Compensation this union, their son, Brinkley, was Committee; American Judicature born. Ruffin and his family became Society; National Bar Associa- loyal members of Tabernacle Baptist tion; American Bar Association; Church in Augusta. Ruffin never Augusta Bar Association; and the sought the limelight or recognition, Atlanta Bar Association. He also but he graciously and gratefully lectured at professional seminars appreciated the many well deserved and at the National Judicial honors accorded him. College, Reno, Nev. He was appointed a superior The Court of Appeals of Georgia court judge of the Augusta Judicial honored Ruffin in September 2008

April 2010 79 CLE Calendar

April-June APR 8 NBI, Inc. APR 20-21 Ali-Aba Advanced Family Law Arbitration Fundamentals and Best Atlanta, Ga. Practices for New AAA Arbitrators 6.7 CLE Hours Atlanta, Ga. 13.3 CLE Hours APR 8 Stewart Title Guaranty Company Georgia Probate and Title Insurance APR 21 ICLE Roswell, Ga. Sports Law Update 1 CLE Hours Atlanta, Ga. See www.iclega.org for location APR 9 ICLE 6 CLE Hours LLCs and LLPs Atlanta, Ga. APR 23 ICLE See www.iclega.org for location Nuts & Bolts of Business Law 6 CLE Hours Atlanta, Ga. See www.iclega.org for location APR 15 ICLE 6 CLE Hours Child Welfare Attorney Training (Tentative) APR 23 ICLE Atlanta, Ga. Business Immigration Law See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours APR 15 ICLE Employment Rights Law APR 29 ICLE Atlanta, Ga. Tax Law See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours APR 16 ICLE Special Needs Trusts APR 30 ICLE Atlanta, Ga. Foreign Corrupt Practices Act See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours APR 16 ICLE Corporate Internal Investigation MAY 5 Lorman Education Services Atlanta, Ga. Commercial and Real Estate Loan See www.iclega.org for location Documents 6 CLE Hours Atlanta, Ga. 6 CLE Hours APR 20 Lorman Education Services Affordable Housing MAY 5 NBI, Inc. Atlanta, Ga. Bankruptcy—Law and Litigation 6 CLE Hours Atlanta, Ga. 6 CLE Hours

Note: To verify a course that you do not see listed, please call the CLE Department at 404-527-8710. Also, ICLE seminars only list total CLE hours. For a breakdown, call 800-422-0893.

80 Georgia Bar Journal CLE Calendar

MAY 6-8 ICLE MAY 26 NBI, Inc. Real Property Law Institute Estate Planning Basics Destin, Fla. Atlanta, Ga. See www.iclega.org for location 5 CLE Hours 12 CLE Hours MAY 27 NBI, Inc. MAY 7 ICLE Estate Planning Basics Dispute Resolution Savannah, Ga. Augusta, Ga. 5 CLE Hours See www.iclega.org for location 6 CLE Hours MAY 27-29 ICLE Family Law Institute MAY 7 ICLE Destin, Fla. Federal Criminal Practice See www.iclega.org for location Atlanta, Ga. 12 CLE Hours See www.iclega.org for location 6 CLE Hours JUN 10 ICLE Elder Law Training (Tentative) MAY 7 ICLE Macon, Ga. Animal Cruelty Cases See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours JUN 18-20 ICLE Child Welfare Attorney MAY 10 NBI, Inc. Trial Techniques Training Managing Construction Project Risk Emory University School of Law Atlanta, Ga. Atlanta, Ga. 6 CLE Hours (Contact [email protected] for appliction and scholarship info.) MAY 11 ICLE 12 CLE Hours Group Mentoring Atlanta, Ga. JUN 24-27 ICLE See www.iclega.org for location Georgia Trial Skills Clinic 3 CLE Hours Athens, Ga. See www.iclega.org for location MAY 14 ICLE 24 CLE Hours Employment Law Atlanta, Ga. JUN 25-26 ICLE See www.iclega.org for location Southeastern Admiralty Law Institute 6 CLE Hours Charleston, SC See www.iclega.org for location MAY 14 ICLE 9 CLE Hours Georgia DUI Law Update Atlanta, Ga. See page 12 for Annual Meeting See www.iclega.org for location 6 CLE Hours CLE opportunities.

April 2010 81 Notices First Publication of Proposed Formal Advisory Opinion No. 08-R5

Pursuant to Rule 4-403 (c) of the Rules and ing the lawyer’s services is known and the scope of the Regulations of the State Bar of Georgia, the Formal particular engagement overall can be foreseen and Advisory Opinion Board has made a preliminary taken into account when the fee for services is mutual- determination that the following proposed opinion ly agreed. The principal ethical considerations guiding should be issued. State Bar members are invited to file the agreement are that the lawyer must be competent comments to this proposed opinion with the Formal to handle the matter (Ga. R.P.C. 1.1) and the fee Advisory Opinion Board at the following address: charged must be reasonable and not excessive. See Ga. R.P.C. 1.5(a). State Bar of Georgia 104 Marietta Street, NW Analysis suggests that the ethical considerations that Suite 100 bear on the decision of a lawyer to enter into a fixed fee Atlanta, Georgia 30303 contract to provide legal services can grow more com- Attention: John J. Shiptenko plex and nuanced as the specific context changes. What if, for example, the amount of legal services to be pro- An original and one (1) copy of any comment to the vided is indeterminate and cannot be forecast with cer- proposed opinion must be filed with the Formal tainty at the outset? Or that someone else is compen- Advisory Opinion Board by May 15, 2010, in order for sating the lawyer for the services to be provided to the the comment to be considered by the Board. Any com- lawyer’s client? It is useful to consider such variations ment to a proposed opinion should make reference to along a spectrum starting from the relatively simple the request number of the proposed opinion. Any com- case of a fixed fee paid by the client who will receive ment submitted to the Board pursuant to Rule 4-403(c) is the legal representation for a contemplated, particular for the Board’s internal use in assessing proposed opin- piece of legal work (e.g., drafting a will; defending a ions and shall not be released unless the comment has criminal prosecution) to appreciate the growing ethical been submitted to the Supreme Court of Georgia in com- complexity as the circumstances change. pliance with Bar Rule 4-403(d). After consideration of comments, the Formal Advisory Opinion Board will 1. A Sophisticated User of Legal Services Offers to make a final determination of whether the opinion Retain a Lawyer or Law Firm to Provide It With an should be issued. If the Formal Advisory Opinion Board Indeterminate Amount of Legal Services of a determines that an opinion should be issued, final drafts Particular Type for an Agreed Upon Fixed Fee. of the opinion will be published, and the opinion will be filed with the Supreme Court of Georgia. In today’s economic climate experienced users of legal services are increasingly looking for ways to curb PROPOSED FORMAL ADVISORY the costs of their legal services and to reduce the uncer- OPINION NO. 08-R5 tainty of these costs. Fixed fee contracts for legal services that promise both certainty and the reduction of QUESTION PRESENTED: costs can be an attractive alternative to an hourly-rate Ethical Considerations Bearing on Decision of fee arrangement. A lawyer contemplating entering into Lawyer to Enter into Flat Fixed Fee Contract to Provide a contract to furnish an unknown and indeterminate Legal Services. amount of legal services to such a client for a fixed fee should bear in mind that the fee set must be reasonable OPINION: (Ga. R.P.C. 1.5(a)) and that the lawyer will be obligated Contracts to render legal services for a fixed fee are to provide competent, diligent representation even if implicitly allowed by Georgia Rule of Professional the amount of legal services required ultimately makes Conduct (Ga. R.P.C.) 1.5 (a)(8) so long as the fee is rea- the arrangement less profitable than initially contem- sonable. It is commonplace that criminal defense plated. The lawyer must accept and factor in that pos- lawyers may provide legal services in return for a fixed sibility when negotiating the fixed fee. fee. Lawyers engaged in civil practice also use fixed-fee contracts. A lawyer might, for example, properly This situation differs from the standard case of a charge a fixed fee to draft a will, handle a divorce, or fixed-fee for an identified piece of legal work only bring a civil action. In these instances the client engag- because the amount of legal work that will be required

82 Georgia Bar Journal is indeterminate and thus it is harder to predict the time gent manner (Ga. R.P.C. 1.3), even if the work becomes and effort that may be required. Even though the diffi- less profitable than anticipated. culty or amount of work that may be required under such an arrangement will likely be harder to forecast at 2. A Third-Party Offers to Retain a Lawyer or Law the outset, such arrangements can benefit both the Firm to Handle an Indeterminate Amount of Legal client and the lawyer. The client, by agreeing to give, Work of a Particular Type for a Fixed Fee for Those for example, all of its work of a particular type to a par- the Third-Party Payor is Contractually Obligated ticular lawyer or law firm will presumably be able to to Defend and Indemnity Who Will Be the Clients get a discount and reduce its costs for legal services; the of the Lawyer or Law Firm. lawyer or law firm accepting the engagement can be assured of a steady and predictable stream of revenue This situation differs from the last because the third- during the term of the engagement. party paying for the legal services is doing so for another who is the client of the lawyer. An example of There are, moreover, structural features in this this situation is where a liability insurer offers a lawyer arrangement that tend to harmonize the interests of the or law firm a flat fee to defend all of its insureds in client and the lawyer. A lawyer or law firm contem- motor vehicle accident cases in a certain geographic plating such a fixed fee agreement will presumably be area. Like the last situation, there is the problem of the able to consult historical data of the client and its own indeterminacy of the amount of legal work that may be experiences in handling similar matters in the past to required for the fixed fee; and, in addition, there is the arrive at an appropriate fee to charge. And the client new factor that the lawyer will be accepting compen- who is paying for the legal services has a direct finan- sation for representing the client from one other than cial interest in their quality. The client will be the one the client. harmed if the quality of legal services provided are inadequate. The client in these circumstances normally Several state bar association ethics committees have is in position to monitor the quality of the legal servic- addressed the issue of whether a lawyer or law firm es it is receiving. It has every incentive not to reduce its may enter into a contract with a liability insurer in expenditures for legal services below the level neces- which the lawyer or law firm agrees to handle all or sary to receive satisfactory representation in return. some portion of the insurer’s defense work for a fixed Accordingly, such fixed-fee contracts for an indetermi- flat fee. With the exception of one state, Kentucky,1 all nate amount of legal services to be rendered to the the other state bar associations’ ethics opinions have client compensating the lawyer for such services are determined that such arrangements are not per se pro- allowable so long as the fee set complies with Ga. R.P.C. hibited by their ethics rules and have allowed lawyers 1.5(a) and the lawyer fulfills his or her obligation to pro- to enter into such arrangements, with certain caveats.2 vide competent representation (Ga. R.P.C. 1.1) in a dili- It should be noted that all of the arrangements

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April 2010 83 approved involved a flat fee per case, rather than a set fee Ga. R.P.C. 1.7(a) provides that: regardless of the number of cases. A lawyer shall not represent or continue to represent Although the significance of this fact was not direct- a client if there is a significant risk that the lawyer’s ly discussed in the opinions, it does tend to reduce the own interest or the lawyer’s duties to another client, risks arising from uncertainty and indeterminacy. Even a former client, or a third person will materially and though some cases may be more complex and time-con- adversely affect the representation of the client, suming than the norm, others will be less so. While the except as provided in (b) [which allows client con- lawyer will be obligated under the contract to handle sent to cure conflicts in certain circumstances]. each matter for the same fixed fee, the risk of a far greater volume of cases than projected is significantly Ga. R.P.C. 1.7(c) makes it clear, however, that client reduced by a fixed fee per case arrangement. The consent to cure a conflict of interest is “not permissible lawyer or law firm can afford to increase staff to handle if the representation . . . (3) involves circumstances ren- the work load, and under the law of large numbers, a dering it reasonably unlikely that the lawyer will be larger pool of cases will tend to even out the average able to provide adequate representation to one or more cost per case. of the affected clients.”

In analyzing the ethical concerns implicated by When a lawyer agrees to handle an unknown and lawyers entering into fixed-fee contracts with liability indeterminable amount of work for a fixed fee, inade- insurers to represent their insureds, several state bar quate compensation and work overload may result. In association ethics opinions have warned of the danger turn, such effects could not only short-change compe- presented if the fixed fee does not provide adequate tent and diligent representation of clients but generate compensation. An arrangement that seriously under- a conflict between the lawyer’s own personal and eco- compensates the lawyer could threaten to compromise nomic interests in earning a livelihood and maintaining the lawyer’s ability to meet his or her professional obli- the practice and effectively and competently represent- gations as a competent and zealous advocate and ing the assigned clients. See Comment [6] to Rule 1.7: adversely affect the lawyer’s independent professional “The lawyer’s personal or economic interests should judgment on behalf of each client. not be permitted to have an adverse effect on representation of a client.” As Ohio Supreme Court Board of Commissioners Opinion 97-7 (December 5, 1997) explains it: As other state bar ethics opinions have concluded, this situation does not lend itself to hard and fast cate- If a liability insurer pays an attorney or law firm a gorical answers. Nothing in the Georgia Rules of fixed flat fee which is insufficient in regards to the Professional Conduct would forbid such a fee agree- time and effort spent on the defense work, there is a ment per se. But “it is clear that a lawyer may not accept risk that the attorney’s interest in the matter and his a fixed fee arrangement if that will induce the lawyer to or her professional judgment on behalf of the insured curtail providing competent and diligent representa- may be compromised by the insufficient compensation of proper scope and exercising independent pro- tion paid by the insurer. An attorney or law firm can- fessional judgment.” Michigan Bar Ethics Opinion RI- not enter into such an agreement. 343 (January 25, 2008). Whether the acceptance of a fixed fee for an indeterminate amount of legal work The same point was echoed in Florida Bar Ethics poses an unacceptable risk that it will cause a violation Opinion 98-2 (June 18, 1998) in which the Florida board of the lawyer’s obligation to his or her clients cannot be determined that such flat fixed-fee contracts are not answered in the abstract. It requires a judgment of the prohibited under the Florida Rules but cautioned that lawyer in the particular situation. the lawyer “may not enter into a set fee agreement in which the set fee is so low as to impair her independent A structural factor tends to militate against an out- professional judgment or cause her to limit the repre- sized risk of compromising the ability of the lawyer to sentation of the insured.” provide an acceptable quality of legal representation in In addition to the Georgia Rules referenced above, a these circumstances just as it did in the last. The indem- Georgia lawyer considering entering into such an nity obligation means the insurer must bear the judg- agreement should bear in mind Ga. R.P.C. 1.8(f) and ment-related financial risk up to the policy limits. 5.4(c) as well as Ga. R.P.C. 1.7(a) and its Comment [6]. Hence, “the duty to indemnity encourages insurers to Rule 1.8(f) cautious that “A lawyer shall not accept defend prudently.”4 A liability insurer helps itself – not compensation for representing a client from one other just its insured – by spending wisely on the defense of than the client unless. . . (2) there is not interference cases if it is liable for the judgment on a covered claim. with the lawyer’s independence of professional judg- Coupled with the lawyer’s own professional obligation ment or with the client-lawyer relationship. . .3 to provide competent representation in each case, this

84 Georgia Bar Journal factor lessens the danger that the fixed fee will be set at Accordingly, as compared to the other examples, the so low a rate as to compromise appropriate representa- risk that inadequate compensation and case overload tion of insureds by lawyers retained for this purpose by may eventually compromise the adequacy of the legal the insurer. representation is heightened in these circumstances. A lawyer entering into such a contract must assess care- 3. A Third-Party Offers to Retain a Lawyer or Law fully the likelihood that such an arrangement in actual Firm to Provide an Indeterminate Amount of Legal operation, if not on its face, will pose significant risks of Work for an Indeterminate Number of Clients non-compliance with Ga. Rules of Professional Where the Third-Party Paying for the Legal Conduct 1.1, 1.3, 1.5, 1.8(f) and 1.7. Service Has an Obligation to Furnish the Assistance of Counsel to Those Who Will Be In this regard, a fee arrangement that is so seriously Clients of the Lawyer But Does Not Have a Direct inadequate that it systematically threatens to under- Stake in the Outcome of Any Representation. mine the ability of the lawyer to deliver competent legal services is not a reasonable fee. Ga. R.P.C. 1.5 Comment A situation where a third party that will not be [3] warns that: harmed directly itself by the result of the lawyer’s representation is compensating the lawyer with a fixed fee An agreement may not be made, the terms of which to provide an indeterminate amount of legal services to might induce the lawyer improperly to curtail servic- the clients of the lawyer may present an unacceptable es for the client or perform them in a way contrary to risk that the workload and compensation will compro- the client’s interest. For example, a lawyer should not mise the competent and diligent representation of those enter into an agreement whereby services are to be clients. Examples might be a legal aid society that con- provided only up to a stated amount when it is fore- tracts with an outside lawyer to handle all civil cases of seeable that more extensive services probably will be a particular type for a set fee for low-income or indigent required. . . . clients or a governmental or private entity that contracts with independent contractor lawyers to provide legal And Comment [1] to Ga. R.P.C. 1.3 reminds that “A representation to certain indigent criminal defendants. lawyer’s work load should be controlled so that each matter can be handled adequately.” In contrast to the earlier sets of circumstances, several structural factors that might ameliorate the danger of A failure to assess realistically at the outset the vol- the arrangement resulting in an unmanageable work ume of cases and the adequacy of the compensation and load and inadequate compensation that could compro- to make an informed judgment about the lawyer’s abil- mise the legal representation are absent in this situation. ity to render competent and diligent representation to First, and most obviously, there is a disconnection the clients under the agreement could also result in pro- between the adequacy of the legal service rendered and hibited conflicts of interest under Ga. R. P.C. 1.7(a). If an an impact on the one paying for the legal representation. un-capped caseload forces a lawyer to underserve some The one paying for the legal services is neither the client clients by limiting preparation5 and advocacy in order itself nor one obligated to indemnify the client and who to handle adequately the representation of other clients therefore bears a judgment-related risk. While the third- or the fixed fee systematically confronts the lawyer with party payor is in a position to monitor the adequacy of choosing between the lawyer’s own economic interests the legal representation it provides through the lawyers and the adequate representation of clients a conflict of it engages and has an interest in assuring effective rep- interest is present. Ga. R. P. C. 1.7 (c) makes it clear that resentation, it does not bear the same risk of inadequate a conflict that renders it “reasonably unlikely that the representation as the client itself in situation No. 1 or the lawyer will be able to provide adequate representation liability insurer in situation No. 2. to one or more of the effected clients” cannot be under- taken or continued, even with client consent. Second, and perhaps less obviously, this last situation is fraught with even greater risk from indetermina- It is not possible in the abstract to say categorically cy if there is no ceiling set on the number of cases that whether any particular agreement by a lawyer to pro- can be assigned and there is no provision for adjusting vide legal services in this third situation violates the the agreed-upon compensation if the volume of cases Georgia Rules of Professional Conduct. However, turns out to far exceed what was contemplated. Sheer arrangements that obligate lawyers to handle an workload can compromise the quality of legal services unknown and indeterminate number of cases without whatever the arrangement for compensation. But, any ceiling on case volume or any off-setting increase in where the payment is set at a fixed annual fee rather compensation due to the case volume carry very signifi- than on a fixed fee per case basis, the ability of the cant risks that competent and diligent representation of lawyer to staff up to handle a greater-than-expected clients may be compromised and that the lawyer’s own volume with increased revenue is removed. interests or duties to another client will adversely affect

April 2010 85 with diligence.); Ohio Supreme Court Board of the representation. Lawyers contemplating entering into Commissioners on Grievances and Discipline Opinion such arrangements need to give utmost attention to these 97-7 (December 5, 1997) (Fixed fee agreement to do all of concerns and exercise a most considered judgment about liability insurer’s defense work must provide reasonable the likelihood that the contractual obligations that they and adequate compensation. The set fee must not be so will be accepting can be satisfied in a manner fully con- inadequate that it compromises the attorney’s profes- sistent with the Georgia Rules of Professional Conduct. sional obligations as a competent and zealous advocate); A lawyer faced with a representation that will result in Oregon State Bar Formal Ethics Opinion No. 2005-98 the violation of the Georgia Rules of Professional (Lawyer may enter flat fee per case contract to represent Conduct must decline or terminate it, Ga. R. P. C. insureds but this does not limit, in any way lawyer’s 1.16(a)(1)6, unless ordered by a court to continue.7 obligations to each client to render competent and diligent representation. “Lawyer owes same duty to ‘flat fee’ Endnotes clients that lawyer would own to any other client.” “Lawyers may not accept a fee so low as to compel the 1. Kentucky Bar Association Ethics Opinion KBA E – 368 conclusion that insurer was seeking to shirk its duties to (July 1994). This opinion prohibiting per se lawyers from insureds and to enlist lawyer’s assistance in doing so.”); entering into set flat fee contracts to do all of a liability Wisconsin State Bar Ethics Opinion E-83-15 (Fixed fee for insurer’s defense work was adopted by the Kentucky each case of insurance defense is permissible; attorney Supreme Court in American Insurance Association v. reminded of duty to represent a client both competently Kentucky Bar Association, 917 S.W.2d 568 (Ky. 1996). and zealously.) The result and rationale are strongly criticized by 3. Rule 5.4(c) similarly commands that: “A lawyer shall not Charles Silver, Flat Fees and Staff Attorneys: permit a person who recommends, employs, or pays the Unnecessary Casualties in the Continuing Battle Over the lawyer to render legal services for another to direct or Law Governing Insurance Defense Lawyers, 4 Conn. Ins. regulate the lawyer’s professional judgment in rendering L. J. 205 (1997-98). such legal services.” 2. Florida Bar Ethics Opinion 98-2 (June 18, 1998) (An attor- 4. Silver, note 1 at 236. ney may accept a set fee per case from an insurance com- 5. Ga. R. P. C. 1.1 requires that a lawyer “provide compe- pany to defend all of the insurer’s third party insurance tent representation to a client.” Comment [5] spells out defense work unless the attorney concludes that her the thoroughness and preparation that a lawyer must independent professional judgment will be affected by put forth, noting that “[c]ompetent handling of a particu- the agreement); Iowa Supreme Court Board of lar matter includes inquiry into and analysis of the factu- Professional Ethics and Conduct Ethics Opinion 86-13 al and legal elements of the problem, and use of methods (February 11, 1987) (agreement to provide specific pro- and procedures meeting the standards of competent fessional services for a fixed fee is not improper where practitioners. It also includes adequate preparation. service is inherently capable of being stated and circum- (emphasis added). scribed and any additional professional services that 6. See ABA Formal Opinion 06-441 (May 2006) titled become necessary will be compensated at attorney’s reg- “Ethical Obligations of Lawyers Who Represent Indigent ular hourly rate.); Michigan Bar Ethics Opinion RI-343 Criminal Defendants When Excessive Caseloads Interfere (January 25, 2008) (Not a violation of the Rules of With Competent and Diligent Representation,” suggest- Professional Conduct for a lawyer to contract with an ing that if a caseload becomes too burdensome for a insurance company to represent its insureds on a fixed lawyer to handle competently and ethically the lawyer fee basis, so long as the arrangement does not adversely “must decline to accept new cases rather than withdraw affect the lawyer’s independent professional judgment from existing cases if the acceptance of a new case will and the lawyer represents the insured with competence result in her workload becoming excessive.” and diligence.); New Hampshire Bar Association Formal 7. “. . . When ordered to do so by a tribunal, a lawyer shall Ethics Opinion 1990-91|5 (Fixed fee for insurance continue representation notwithstanding good cause for defense work is not per se prohibited; but attorney, no terminating the representation.” Ga. R. P. C. 1.16(c). matter what the fee arrangement, is duty bound to act Notice of and Opportunity for Comment on Amendments to the Rules of the U.S. Court of Appeals for the Eleventh Circuit.

Pursuant to 28 U.S.C. ‘ 2071(b), notice and opportu- www.ca11.uscourts.gov. A copy may also be obtained nity for comment is hereby given of proposed amend- without charge from the Office of the Clerk, U.S. Court ments to the Rules of the U.S. Court of Appeals for the of Appeals for the Eleventh Circuit, 56 Forsyth St. NW, Eleventh Circuit. Atlanta, Georgia 30303 [phone: 404-335-6100]. Comments A copy of the proposed amendments may be obtained on the proposed amendments may be submitted in writ- on and after April 1, 2010, from the court’s website at ing to the Clerk at the above address by April 30, 2010.

86 Georgia Bar Journal Classified Resources

Books/Office Furniture & Equipment LegalEats, A Lawyer’s Lite Cookbook: is a fun legal- themed cookbook, with easy to prepare gourmet recipes, targeted to the legal community. A “must” for any lawyer with a demanding palate, “LegalEats” makes a great gift and is a welcome kitchen shelf addition. Available at leading online bookstores such as Barnes & Noble and Amazon.com. Property/Rentals/Office Space OFFICE AVAILABLE IN EXISTING FIRM. GREAT LOCATION, GREAT ATMOSPHERE. I-85 at N. Druid Hills in the Druid Chase complex. Large office features wall of windows overlooking trees. Practice Lawyers Foundation with experienced attorneys, free parking, conference space, receptionist. Below market. Call 404-321-7733. of Georgia Inc. Practice Assistance 104 Marietta St. NW, Suite 630 Appeals, Briefs—Motions, Appellate & Trial Courts, Atlanta, GA 30303 State, Civil & Criminal Cases, Post Sentence T: (404) 659-6867 Remedies. Georgia brief writer & researcher. Reasonable rates. 30+ years experience. Curtis R. F: (404) 225-5041 Richardson, attorney; 404-377-7760 or 404-825-1614; fax 404-337-7220; e-mail: [email protected]. References upon request. Memorial Gifts The Lawyers Foundation of Georgia furnishes the Mining Engineering Experts Extensive expert witness Georgia Bar Journal with memorials to honor experience in all areas of mining — surface and under- deceased members of the ground mines, quarries etc. Accident investigation, State Bar of Georgia. injuries, wrongful death, mine construction, A meaningful way to honor a loved one or to com- haulage/trucking/rail, agreement disputes, product liability, mineral property management, asset and min- memorate a special occasion is through a tribute eral appraisals for estate and tax purposes. Joyce and memorial gift to the Lawyers Foundation of Associates 540-989-5727. Georgia. An expression of sympathy or a celebration of a family event that takes the form of a gift to Handwriting Expert/Forensic Document Examiner the Lawyers Foundation of Georgia provides a last- Certified by the American Board of Forensic Document ing remembrance. Once a gift is received, a written Examiners. Former Chief, Questioned Documents, U.S. acknowledgement is sent to the contributor, the sur- Army Crime Laboratory. Member, American Society of viving spouse or other family member, and the Questioned Document Examiners and American Georgia Bar Journal. Academy of Forensic Sciences. Farrell Shiver, Shiver & Nelson Document Investigation Laboratory, 1903 Lilac Information Ridge Drive, Woodstock, GA 30189, 770-517-6008. For information regarding the placement of a MEDICAL MALPRACTICE. We’ll send you to a memorial, please contact the Lawyers Foundation physician expert you’re happy with, or we’ll send your of Georgia at (404) 659-6867 or 104 Marietta money back. We have thousands of testimony experi- St. NW, Suite 630, Atlanta, GA 30303. enced doctors, board certified and in active practice.

April 2010 87 Classified Resources

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State Bar of Georgia ANNUAL

2010 MEETING June 17-20 Amelia Island Plantation Amelia Island, FL (more details on page 11.)

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