2015 State Bar of Georgia Annual Meeting June 18-21

April 2015 Volume 20 Number 6

2015 State Bar of Georgia Annual Meeting June 18-21 | Stone Mountain, Ga. STATE BAR

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LTN Free to members of the State Bar of Georgia. #1 2010 Customer Satisfaction Survey Members of the State Bar of Georgia now have access to Fastcase for free. Unlimited search using Fastcase’s smarter legal research tools, unlimited printing, and unlimited reference support, all free to active members of the State Bar of Georgia. Log in at www.gabar.org and click the Fastcase logo. And don’t forget that Fastcase’s free apps for iPhone, Android and iPad connect to your bar account automatically by Mobile Sync. All free as a benefit of membership in the State Bar of Georgia. Quick Dial Editorial Board Attorney Discipline 800-334-6865 Editor-in-Chief ext. 720 404-527-8720 Bridgette E. Eckerson Consumer Assistance Program 404-527-8759 Members Conference Room Reservations 404-419-0155 Julia Anderson Jacob Edward Daly Fee Arbitration 404-527-8750 Donald P. Boyle Jr. Lynn Gavin CLE Transcripts 404-527-8710 Diversity Program 404-527-8754 Jacqueline F. Bunn Chad Henderson ETHICS Helpline 800-682-9806 John Clay Bush Michelle J. Hirsch 404-527-8741 Clayton Owen Carmack Michael Eric Hooper Georgia Bar Foundation/IOLTA 404-588-2240 Georgia Bar Journal 404-527-8791 David Gan-wing Cheng Hollie G. Manheimer Governmental Affairs 404-526-8608 James William Cobb Addison Johnson Schreck Lawyer Assistance Program 800-327-9631 Timothy Jerome Colletti Pamela Y. White-Colbert Law Practice Management 404-527-8773 Law-Related Education 404-527-8785 Membership Records 404-527-8777 Editors Emeritus Meetings Information 404-527-8790 Robert R. Stubbs, 10-12 William L. Bost Jr., 91-93 Pro Bono Project 404-527-8763 Professionalism 404-225-5040 Donald P. Boyle Jr., 07-10 Charles R. Adams III, 89-91 Sections 404-527-8774 Marcus D. Liner, 04-07 L. Dale Owens, 87-89 Transition Into Law Practice 404-527-8704 Rebecca Ann Hoelting, 02-04 Donna G. Barwick, 86-87 Unlicensed Practice of Law 404-527-8743 Young Lawyers Division 404-527-8778 Marisa Anne Pagnattaro, 01-02 James C. Gaulden Jr., 85-86 Manuscript Submissions D. Scott Murray, 00-01 Jerry B. Blackstock, 84-85 The Georgia Bar Journal welcomes the submission of unsolic- William Wall Sapp, 99-00 Steven M. Collins, 82-84 ited legal manuscripts on topics of interest to the State Bar of Theodore H. Davis Jr., 97-99 Walter M. Grant, 79-82 Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 pages, double-spaced (includ- L. Brett Lockwood, 95-97 Stephen E. Raville, 77-79 ing endnotes) and on letter-size paper. Citations should con- Stephanie B. Manis, 93-95 form to A UNIFORM SYSTEM OF CITATION (19th ed. 2010). Please address unsolicited articles to: Bridgette Eckerson, State Bar of Georgia, Communications Department, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303. Authors will be notified Officers of the State Bar of Georgia of the Editorial Board’s decision regarding publication. Patrise M. Perkins-Hooker President The Georgia Bar Journal welcomes the submission of news Robert J. Kauffman President-Elect about local and circuit bar association happenings, Bar Charles L. Ruffin Immediate Past President members, law firms and topics of interest to attorneys in Georgia. Please send news releases and other informa- Rita A. Sheffey Treasurer tion to: Sarah I. Coole, Director of Communications, 104 Patrick T. O’Connor Secretary Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: 404-527-8791; [email protected]. Sharri Edenfield YLD President Disabilities John R. B. Long YLD President-Elect If you have a disability which requires printed Darrell L. Sutton YLD Immediate Past President materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Communications Committee Headquarters Peter C. Canfield Co-Chair 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 Sonjui L. Kumar Co-Chair 800-334-6865, 404-527-8700, FAX 404-527-8717 Visit us on the Web at www.gabar.org. Communications Staff Coastal Georgia Office 18 E. Bay St., Savannah, GA 31401-1225 Sarah I. Coole Director 877-239-9910, 912-239-9910, FAX 912-239-9970 Jennifer R. Mason Assistant Director South Georgia Office Derrick W. Stanley Section Liaison 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Stephanie J. Wilson Communications Coordinator 800-330-0446, 229-387-0446, FAX 229-382-7435 Lauren M. Foster Administrative Assistant 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. Copyright State Bar of Georgia 2015. 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 Atlanta, Georgia and additional The opinions expressed in the Georgia Bar Journal mailing offices. Opinions and conclusions expressed in articles herein are those of the authors and not necessarily those of the are those of the authors. The views expressed herein Editorial Board, Communications Committee, Officers or Board are not necessarily those of the State Bar of Georgia, of Governors of the State Bar of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement its Board of Governors or its Executive Committee. does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. 8

April 2015 Volume 20 Number 6

GBJ Legal Departments 8 4 From the President 14 Georgia’s Public 6 From the YLD President Whistleblower Statute 42 Bench & Bar by Christopher A. McGraw 48 Office of the General GBJ Features Counsel 14 50 Lawyer Discipline Law Day Collaboration Repeats 54 Law Practice Management as National Award Winner 56 Member Benefits for Law Day 58 Writing Matters by Rita A. Sheffey 62 Professionalism Page 18 18 66 In Memoriam Atlanta Legal Aid: 68 CLE Calendar New Headquarters 70 Notices in Historic Building 95 Classified Resources by Paula Lawton Bevington 96 Advertisers Index 22 24th Annual Georgia Bar Media & Judiciary Conference 54 by Jennifer R. Mason 26 2014 Georgia Corporation and Business Organization Case Law Developments by Thomas S. Richey and Michael P. Carey 62 36 Georgia Legal Services Program “And Justice for All” Honor Roll of Contributors From the President

by Patrise M. Perkins-Hooker The Internationalization of the Practice of Law

e have heard a lot of discussion over of local businesses and industries which arguably have taken jobs to other countries, we also have benefitted the years about the international- from the lower cost of goods that are produced in places where the wage rate is much lower than that ization of the practice of law as a of the United States. The reality is that we are a global W society, and there are implications for our profession part of globalization. Businesses and industries in the as applicable business protocols are established in this “new world order.” United States and in countries The same companies that are “In addition to leading seeking ways to import or export around the world are eager to goods also want to use their the way with regulatory own attorneys from the coun- exchange goods and services tries in which they are located. Often, however, attorneys from with anyone, anywhere who issues regarding foreign other countries are not licensed to practice in any state in the can afford to purchase their attorneys, we have also United States. Several jurisdictions have turned a blind eye merchandise. Movements like developed alliances (both to this situation and have virtu- ally ignored the ramifications of this resulted in the passage of formal and informal) with international lawyers practicing in their states. The state bars the North American Free Trade bar associations in several in these jurisdictions have not focused on the reality that this Act (NAFTA) decades ago and countries.” is the beginning of the new world order and the need to influenced the passage of the adapt to protect the integrity of the practice of law in their states. General Agreement on Trade in Services (GATS). Years ago, Bill Smith, our former general counsel, began monitoring, tracking and informing the State Bar Many of us did not notice the impact that NAFTA of Georgia about this dynamic of foreign attorneys prac- had on the free movement of goods throughout the ticing law, often in ways that were not what we would world. And although our U.S. economy has sometimes consider “best practice.” He warned us to be proactive in suffered tremendously from the fallout of the closure addressing the challenges and threats to our standards

4 Georgia Bar Journal of practicing law. As a result of his  Use a process to obtain approv- Center. This year, at the urging of efforts, the State Bar of Georgia is al to be admitted on a pro hac members of the International Law one of just four states which have vice basis for a particular case. Section and its leader James C. created a way for foreign lawyers to Nobels Jr., the State Bar Executive handle transactions under the con-  Represent a corporate client Committee entered into a partner- trol and oversight of a regulatory for which they work. (Foreign ship association with the Barcelona agency. Bill, on behalf of the State Legal Counsel Rule) Bar Association. The agreement Bar of Georgia, also submitted writ- was executed in Barcelona on Jan. ten comments in opposition to the  Follow a process to obtain autho- 31. Elizabeth H. Eason, a member broad provisions of GATS which rization to practice law in Georgia of the International Law Section’s attempted to include legal services using the certifications for certain Executive Committee represented as a type of good or services which European countries that have a the State Bar at the execution. In late would be governed by a federal disciplinary process in place for February and early March, a del- treaty. Through the efforts of Bill regulation of attorneys. egation of attorneys from Georgia and others like him, they succeeded traveled to Brazil and Argentina to in having legal services removed  Participate in firms where non- meet with lawyers and judges in from inclusion in GATS. However, lawyers shareholders or part- these countries to begin to under- this has not stopped foreign law- ners share in fees or profits of stand the differences in the practice yers from providing legal services the firm. of law in these areas. One interest- to their clients without adherence to ing fact that we learned during our the standards imposed by state reg- Regulating these processes has visit to Buenos Aires, Argentina, ulatory agencies like our State Bar. positioned Georgia as a progressive, was that the Constitution of Over the years, I frankly had not foreign investment friendly state Argentina was formed based upon paid much attention to how pro- and our economy is better off for the Constitution of the United gressive our State Bar-approved our proactive regulation. Georgia States of America. They have the initiatives were until I had to make was one of 11 states in 2013 that same three branches of govern- a presentation in January at the exported more than $36.7 million in ment that we have! ABA meeting in Houston about goods and services to other coun- I hope that you are as proud our state’s best practices. Who tries. These exchanges would not of the work that the State Bar has knew that we were leading the have been possible or conducted as done and continues to do in this nation in finding ways to allow smoothly if we were not perceived area as I am. Please give Bill Smith foreign licensed attorneys to prac- as open for business and willing a pat on the back and congratulate tice law in a way that protected to allow those businesses to utilize him for his steadfast commitment Georgia citizens and our notions their attorney to handle import and to following up on this area of the of reciprocity and accommoda- export transactions. law for our State Bar and placing tions? I was so impressed that I In addition to leading the way the State Bar of Georgia on the felt that I must share this good with regulatory issues regarding world map! news with you as members of our foreign attorneys, we have con- State Bar. tinued to develop alliances (both Patrise M. Perkins-Hooker is Four states—Indiana, Virginia, formal and informal) with bar the president of the State Bar of Georgia and Pennsylvania—have associations in several countries. Georgia and can be reached at adopted rules or regulations which In November, we hosted a group [email protected]. allow foreign lawyers to: of judges from Brazil at the Bar THE GEORGIA BAR JOURNAL IS AVAILABLE ONLINE AT WWW.GABAR.ORG. April 2015 Volume 20 Number 6  Search the Georgia Bar Journal in its entirety by keywords.  Access all the information of the printed edition, but electronically.  Add “sticky notes” and “favorite” tabs to the copy you access.  Share the entire Journal or specific pages of the Journal with your colleagues by sending an email or posting it on social networking sites.  2015 State Bar of Georgia Link directly to advertisers within each issue. Annual Meeting June 18-21 | Stone Mountain, Ga. Try it now! www.gabar.org/newsandpublications/georgiabarjournal/

April 2015 5 From the YLD President

by Sharri Edenfield

Meeting the Succession Plan Challenge

riting in the May/June 2011 edi- For solo practitioners or firms where there are no younger partners ready to step forward, the questions tion of Law Practice magazine, Marcia can be more difficult:  What will I do with my practice when I retire? Pennington Shannon reported that an  How do I work on a plan to phase out of my W practice or reduce my hours without leaving my cli- estimated 65 percent of equi- ents in a lurch?  How can I continue ty partners in U.S. law firms “Are you ready to take the the legacy of outstanding legal services in my commu- would be reaching retirement first step toward a succession nity that I have built over the years? age over the next decade. plan for your practice? As I wrote in the Winter 2014 edition of The YLD Review, That was four years ago. Georgia is not immune to the Thus we are now in the midst Attorneys interested in “grey wave” descending on of a period in which signifi- the legal profession. Attorneys cant numbers of lawyers are participating in the program in the baby boom generation facing the challenge of how have begun to retire or slow and when to transition their may download an application down in large numbers, which clients and practices to the is especially worrisome in our next generation—if a next form at www.georgiayld.org.” small towns and rural areas. generation even exists in There are six Georgia counties their firms. with no lawyers at all and 60 According to Shannon, “Essentially, the challenge is counties with 10 or fewer lawyers. And in seven of those twofold. The firm must identify and support younger counties, all of the existing attorneys will be at least 65 partners as they grow into their roles of running a years old within 10 years. practice, and it must prepare and support the senior Older lawyers in these rural areas are often reluc- partners who will be transitioning away from their full- tant to fully retire because of the lack of younger time client responsibilities.” lawyers who can succeed them. At the same time,

6 Georgia Bar Journal new attorneys are understandably hesitant to hang their shingle in a small, rural town where their abil- PROLIABILITY ity to make a living is uncertain at best. But if attorneys wishing to enjoy their golden years away from LAWYERS PROGRAM the office could somehow be matched with younger Administered by Mercer PROTECT counterparts seeking to step into a successful practice, Consumer, a service of what you’ve these challenges could be turned into opportunities on Mercer Health & Benefits worked hard both ends. Administration LLC, with to build! That is why I am excited to report that the YLD more than 40 years’ has launched an effort to assist the growing number experience in providing of lawyers in our state who are seeking solutions to law firms with the protection the challenge of succession planning. We have joined they need and deserve. forces with the law schools in Georgia on a Succession HIGHLIGHTS: To obtain your Planning Pilot Program to link new and recent gradu- Professional Liability ates with seasoned attorneys who are working on suc- 50 State Solutions Insurance quote: cession plans. The program is based on a successful Exceptional Customer Texas model. VISIT Service To begin the process, we have created a brief form www.proliability.com/ for interested attorneys to complete, stating the char- Dedicated Account lawyers acteristics sought in a candidate. Your plan could Managers and Agents be to attract a law student who would act as a clerk CALL until he or she graduates and then transfers to your Easy to purchase — Apply practice. Or you may be ready to act sooner and seek and obtain coverage online at (866) 486-1946 a recent graduate considering solo practice and look- www.proliability.com/lawyers ing to pair with a seasoned attorney for referral work. AR Ins. Lic. #303439 | CA Ins. Lic. #0G39709 Or it could be to hire an associate who could eventu- In CA d/b/a Mercer Health & Benefits Insurance Services LLC ally take over the practice. The law schools in Georgia 70027, 70028, 70029, 70030, 70031, 70032 and the YLD stand ready to help you through the Copyright 2015 Mercer LLC. All rights reserved. transition process. 70027, 70028, 70029, 70030, 70031, 70032 I have already received positive feedback on (2015), LPL Ad Georgia the new program after The YLD Review article was Trim size: 3.555”x4.538” published. A young lawyer in southwest Georgia You Try CasesBleed size: NA Live Area: – 3.555”x4.538” wrote to say she wants to practice in a small town MERCER Colors 4C=(CMYK) or rural area and is interested in the Succession Plan We Appeal Them Program. She said she would be willing to commute State and Federal Criminal Appellate and up to an hour to practice in a county that is in need Post-Conviction Representation of rural services. Surely there are many more like her out there: ready, Over thirty years combined experience in willing and able to step in, learn the ropes from an Successful State and Federal: 70027 LPL Ad Georgia.indd 1 12/2/14 4:48 PM experienced attorney, work hard and, when the time • Motions for New Trial comes, successfully assume leadership of the practice. I look forward to witnessing the results of this program • Appeals as it starts to bear fruit. • Habeas Corpus Are you ready to take the first step toward a suc- • Parole Petitions cession plan for your practice? Attorneys interested in • Responsible and Respectful participating in the program may download an appli- Ineffective Assistance of cation form at www.georgiayld.org. If you have ques- Counsel Claims tions, please contact Stephanie Powell, Assistant Dean for Career Services at Mercer University’s Walter F. ~ ~ ~ George School of Law, at [email protected]. When It’s Time for a Change, Contact edu or 478-301-2615. She will be happy to discuss your individual needs and coordinate communication with Law Firm oF all Georgia law schools. Shein & BrandenBurg Sharri Edenfield is the president of the Young 2392 N. Decatur Road, Decatur, Georgia 30033 Lawyers Division of the State Bar of Georgia and can 404-633-3797 be reached at [email protected]. www.federalcriminallawcenter.com

April 2015 7

4-15gbj.indd 7 4/20/2015 9:42:22 AM A Look at the Law

Georgia’s Public Whistleblower Statute by Christopher A. McGraw

or more than 20 years a Georgia statute

has prohibited government employers from F retaliating against their “whistleblowing” employees. For most of that time the statute went largely unused by Georgia lawyers, but in recent years litigation under the state public whistleblower statute—O.C.G.A. § 45-1-4—has increased dramatically.

It is now a law that Georgia lawyers who represent public employees or employers need to understand.

When first enacted in 1993, the Public Whistleblower Statute was rarely the subject of lawsuits presumably because it was of limited scope1 and the only remedy it provided to an aggrieved whistleblower was reinstatement to his pre-retaliation employment position.2 In 2005, however, the General Assembly expanded the statute by applying it to more employers and employees and by increasing the available remedies to include various forms of damages.3 Litigation based on the statute has increased substantially in the years since. In fact, an online search of reported appellate decisions As they deal with this increase in whistleblower that have ruled on or substantively cited to the Public lawsuits, Georgia’s courts are still grappling with Whistleblower Statute revealed only three cases in the how these claims should be analyzed, particularly 12-year period between 1993 and 2005, but 11 cases in at the summary judgment stage. As discussed later the 10-year period since then with nine of those issued in this article, the Court of Appeals of Georgia has in the last five years. lately analyzed these cases in a format similar to the

8 Georgia Bar Journal burden-shifting paradigm created does not apply to whistleblowers concerning the possible existence by federal courts for analyzing in the private sector. of any activity constituting fraud, employment discrimination and In regulating interactions be- waste, and abuse in or relating retaliation claims. ween public employers and whis- to any state programs and oper- tleblowing employees, the Public ations under the jurisdiction of The Scope of Whistleblower Statute includes such public employer.”7 Any pub- O.C.G.A. § 45-1-4 two distinct parts that the Supreme lic employer who receives such Court of Georgia has held are to a complaint is prohibited from Of course, to understand liti- be read separately.6 One allows “disclos[ing] the identity of the gation involving the Public public employers to investigate public employee without the writ- Whistleblower Statute, one must complaints from employees about ten consent of such public employ- first understand the statute itself. fraud, waste and abuse in certain ee, unless the public employer It is critical to know that the stat- areas, and generally prohibits them determines such disclosure is nec- ute’s prohibitions and protections from disclosing the whistleblow- essary and unavoidable during only apply to “public employers” er’s identity. The other prohibits the course of the investigation.”8 and “public employees,” respec- public employers from retaliating In such an event, the employer is tively, as those terms are spe- against employees who disclose required to notify the employee in cifically defined in the first sub- violations of or noncompliance writing at least seven days before section of the statute. A “public with a law, rule or regulation. the disclosure.9 To date, there employer” is defined to include have been no court decisions—at all parts of the state government The Statute’s Non- least none that resulted in pub- or a local or regional governmen- Disclosure Provision lished opinions—to clarify what tal entity that receives funds from constitutes a situation in which the state or any of its agencies.4 O.C.G.A. § 45-1-4(b) authorizes it is “necessary and unavoid- A “public employee” is likewise public employers to “receive and able” for an employer to disclose defined as anyone employed by investigate complaints or informa- a whistleblower’s identity during such a public entity.5 The statute tion from any public employee its investigation.

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April 2015 9 The non-disclosure provision, lation of or noncompliance with a ation or within three years after found in subsection (c) of the stat- law, rule or regulation.14 the retaliation, whichever is ear- ute, applies only to allegations of lier.”20 Although the statute does “fraud, waste, and abuse” and not The statute unfortunately does not make clear precisely what it to “violation[s] of or noncompli- not define what it means for an means to “discover[] the retalia- ance with a law, rule, or regula- employee “to disclose” something. tion,” two courts have concluded tion.”10 Although there may be It does explain, though, that when that public employees were on overlap between the scenarios that an employee does disclose a vio- notice of the (alleged) retaliation would fit within those two phras- lation of or noncompliance with sufficiently to begin the running of es, a public employee’s allegations a “law, rule, or regulation,” that the one-year limitations period on must fit within the former descrip- may include “any federal, state, the date that they first learned of tion—“the possible existence of or local statute or ordinance or adverse employment actions that fraud, waste, and abuse”—in order any rule or regulation adopted their employers took against them. to ensure that the statute required according to any federal, state, or This was despite an argument that that his employer keep his identity local statute or ordinance.”15 The an employee was not aware of confidential. The non-disclosure Court of Appeals of Georgia has his employer’s true motivation at provision also applies only to alle- held that an employee must iden- that time.21 gations involving “state programs tify a specific law, rule or regu- The statute now provides the and operations under the jurisdic- lation that he believes has been following potential remedies to a tion of [the] public employer.”11 violated or not complied with. successful whistleblower-plaintiff: Reports of more general concerns injunctive relief; reinstatement to The Statute’s Prohibition about improper behavior will his previous position or an equiv- on Retaliation not suffice.16 alent position; reinstatement of Finally, even though a cov- fringe benefits and seniority rights; O.C.G.A. § 45-1-4(d) contains ered “public employer” must compensation for lost wages, the anti-retaliation provision of the receive funding from the state, benefits and other damages; and Public Whistleblower Statute. It is the Supreme Court of Georgia has reasonable attorney’s fees, court this provision that has been the explained that the alleged violation costs and expenses.22 The Supreme subject of the increasing amount or noncompliance need not have Court of Georgia has held that of litigation in recent years. This taken place within a state program the General Assembly successfully subsection provides that “[n]o pub- or operation. That requirement is waived the sovereign immunity lic employer shall make, adopt, contained only in the confidential- of applicable public employers via or enforce any policy or practice ity provision, not in the prohibition the monetary damages provision preventing a public employee from on retaliation.17 although the legislature did not disclosing a violation of or non- There are two stated excep- expressly state its intention to do compliance with a law, rule, or tions to the anti-retaliation pro- so.23 Because the statute defines regulation to either a supervisor or tections. First, the statute does public employers solely in terms of a government agency.”12 not protect purported whistle- governmental entities,24 there is no Perhaps more significantly, a blowers who make disclosures cause of action or remedy against public employer also shall not: despite knowing that their claims individual supervisors.25 are false or with reckless disre- Although Georgia’s appel- retaliate against a public gard for whether they are false, late courts have not yet defini- employee for disclosing a viola- are not protected.18 Second, the tively instructed how the Public tion of or noncompliance with a statute does not cover public Whistleblower Statute retaliation law, rule or regulation to either employees who violate “privilege claims are to be analyzed, there a supervisor or a government or confidentiality obligations rec- is a consensus forming in the case agency, unless the disclosure ognized by constitutional, statu- law. In a decision that is persua- was made with knowledge that tory, or common law.”19 sive authority, but not binding the disclosure was false or with on other panels of the Court of reckless disregard for its truth Retaliation Lawsuits Appeals,26 the majority in Forrester or falsity13 [or] Under O.C.G.A. § 45-1-4 v. Ga. Dep’t of Human Servs. held that Georgia courts should use the retaliate against a public employ- O.C.G.A. § 45-1-4 authorizes McDonnell Douglas27 burden-shift- ee for objecting to, or refusing to a public employee who believes ing paradigm federal courts uti- participate in, any activity, policy his public employer has retaliated lized in retaliation claims brought or practice of the public employer against him to bring a civil action under Title VII of the Civil Rights that the public employee has rea- in superior court “within one Act of 1964 and similar statutes.28 sonable cause to believe is in vio- year after discovering the retali- It explained that, for purposes of

10 Georgia Bar Journal reviewing summary judgment motions in cases based on circum- stantial evidence, it would “apply the following analytical frame- Local and Voluntary work to claims brought under O.C.G.A. § 45-1-4 (d)(2):

(1) the plaintiff must establish a prima facie case of retalia- Bar Awards tion by a preponderance of the evidence; (2) if a prima facie case is established by the plaintiff, the employer must, nevertheless, articulate a legitimate, non-retaliatory reason for the adverse employment action taken; and (3) when such a reason is given by the employer, the plaintiff must demonstrate that the stated reason for the employer’s adverse action is pretextual.29

It then went on to explain that in order to meet the first element and establish a prima facie case of retaliation, the plaintiff-employee must have evidence that (1) his employer was a “public employer” as defined by the statute; (2) he dis- closed a “violation of or noncompliance with a law, rule or regulation to either a supervisor or government agency;” (3) he suffered an adverse employment action; and (4) there “is some causal rela- tion between” the disclosure and the adverse action.30 Attention all Local and Voluntary In subsequent decisions the Court of Appeals has nei- Bars in Georgia, it’s time to ther expressly adopted nor dis- avowed the Forrester panel’s use of submit your entries to be the McDonnell Douglas paradigm. Since then, however, the Court recognized for all your hard of Appeals has continued to rely extensively on federal employ- work! The deadline for entry this ment discrimination and retaliation case law to analyze a Public year is May 9, 2015. Whistleblower Statute claim in one case, and in others has utilized its various elements as they were set forth in Forrester. Visit www.gabar.org for categories and In Freeman v. Smith, the Court of entry forms. Or contact Stephanie Wilson at Appeals of Georgia cited numerous federal decisions when it ana- [email protected] or 404-527-8792. lyzed the causal connection and adverse employment action elements of the plaintiff’s case.31 It

April 2015 11 quoted federal Title VII decisions er-defendant’s] stated legal reason earned his bachelor’s degree in to hold that a plaintiff only has to was merely pretext for dismissing political science, cum laude, from prove that her protected activity her based on her whistleblowing Vanderbilt University and his law and adverse action were “not com- activity.”36 Without citing to feder- degree, magna cum laude, from pletely unrelated” and that that al law, these constructs still closely the University of Georgia School standard can be satisfied via “suf- resemble the three steps of the of Law. ficient evidence of knowledge of federal McDonnell Douglas burden- the protected expression” on the shifting paradigm.37 Endnotes part of the employer’s decision- Therefore, regardless of wheth- 1. For instance, its original version maker and “a close temporal prox- er the court analyzing the claim applied to most of the executive imity between this awareness and decides to utilize federal retalia- branch of state government but the adverse action.”32 It similarly tion case law expressly, a plain- not to the Governor’s Office or adopted federal case law holding tiff pursuing a claim for retalia- the judicial or legislative branches that “temporal proximity must tion under § 45-1-4 will have to of state government or to local governments at all. 1993 Ga. Laws be ‘very close,’” and that a three- present evidence to show that he p. 564, § 1. In the original version month gap of time in the interim suffered an adverse employment of the statute, public employee and will usually be too long without action that was somehow relat- public employer were the only other evidence of causation.33 The ed to protected whistle-blowing defined terms. Id. Currently, the Court then borrowed from fed- activity and that his employer’s statute contains six definitions. eral law to hold that in order to stated non-retaliatory reasons for O.C.G.A. § 45-1-4(a). establish an adverse employment the action are pretextual. 2. The only remedy that the 1993 action, a “plaintiff must show that version of the statute provided a reasonable employee would Conclusion was to “give the public employee have found the challenged action Georgia’s public wh istleblower a right to have [the retaliatory personnel] action set aside in materially adverse, meaning that anti-retaliation statute, O.C.G.A. a proceeding instituted in the it might well have dissuaded a § 45-1-4, has taken on increasing superior court.” 1993 Ga. Laws reasonable employee from making significance in recent years after p. 564, § 1. See also Hughes v. Ga. [the statutorily-protected disclo- the General Assembly substan- Dep’t of Corrections, 267 Ga. App. sure]. The actionable employer con- tially amended it. Members of the 440, 441, 600 S.E.2d 383, 385 (2004). duct must be ‘significant,’ rather State Bar of Georgia who prac- 3. 2005 Ga. Laws p. 899. The General than ‘trivial.’”34 tice employment law on behalf of Assembly did not make the In other Public Whistleblower either public employees or govern- 2005 amendments to the statute Statute cases, the Court of Appeals ment employers would be wise retroactive, so any claims that of Georgia has not directly relied on to become familiar with it and accrued prior to the effective date federal case law but still has relied to track future developments as of the amendments were governed by the pre-2005 provisions. Pattee on analogous evidentiary concepts. Georgia’s appellate courts contin- v. Ga. Ports Auth., 477 F. Supp. In a recent case, the majority in ue to address and clarify it. 2d 1253, 1270 (S.D. Ga. 2006). The Albers v. Board of Regents of the Univ. statute was further amended in Sys. of Ga. set forth the elements Christopher A. more minor ways in 2007, 2009, of a prima facie case to be estab- McGraw serves as a and 2012. 2007 Ga. Laws p. 298; lished by a plaintiff-employee that senior assistant 2009 Ga. Laws p. 745; 2012 Ga. is substantively the same as that attorney general for Laws p. 446. 35 4. O.C.G.A. § 45-1-4(a)(4). explained by the Forrester panel. the state of Georgia, The Court went on to analyze the 5. O.C.G.A. § 45-1-4(a)(3). practicing employment defendant-employer’s asserted 6. Colon v. Fulton County¸ 294 Ga. law in federal and state courts. reason for the challenged action 93, 96-100, 751 S.E. 2d 307, 310-13 (2013). See also Forrester v. Ga. and whether there was evidence He previously litigated Dep’t of Human Servs., 308 Ga. based on which a jury could con- employment and public accommodations cases in private App. 716, 723 n.25, 708 S.E.2d 660, clude that the plaintiff’s protected 666 n.25 (2011) (physical precedent activity rather than the defendant’s practice and served as a judicial only) See fn. 26. asserted reason was the defen- law clerk to a federal magistrate 7. O.C.G.A. § 45-1-4(b). dant’s true motivation. In Caldon judge at the U.S. District Court for 8. O.C.G.A. § 45-1-4(c). v. Board of Regents of the Univ. the Northern District of Georgia. 9. Id. Sys. of Ga., the Court of Appeals He has also taught legal research 10. Cf. O.C.G.A. § 45-1-4(b) with O.C.G.A. § 45-1-4(d). required the plaintiff-employee “to and writing on an adjunct basis at 11. O.C.G.A. § 45-1-4(b). present evidence to establish the Emory University School of Law existence of a fact issue, which 12. O.C.G.A. § 45-1-4(d)(1). and at Georgia Tech. McGraw 13. O.C.G.A. § 45-1-4(d)(2). could establish that [the employ-

12 Georgia Bar Journal 14. O.C.G.A. § 45-1-4(d)(3). the current version because it O’Neal v. Ferguson Constr. Co., 15. O.C.G.A. § 45-1-4(a)(2). “only prohibits retaliation by 237 F.3d 1248, 1253 (10th Cir. 16. Edmonds v. Board of Regents public employers,” the definition 2001); and citing Richmond v. of the Univ. Sys. of Ga., 302 Ga. of which does not include ONEOK, Inc., 120 F.3d 205, 209 App. 1, 6-7, 689 S.E.2d 352, 357 individuals. Skolweck v. Garden (10th Cir. 1997)). (2009); Brathwaite v. Fulton- City, Ga., No. 4:12-CV-227, 2012 34. 324 Ga. App. at 432, 750 S.E.2d DeKalb Hosp. Auth., 317 Ga. U.S. Dist. LEXIS 171236, at *5-6 at 744 (quoting Cobb v. City of App. 111, 114-15, 729 S.E.2d 625, (S.D. Ga. Dec. 3, 2012). Roswell, 533 Fed. App’x 888, 896 628-29 (2012) (physical precedent 26. Court of Appeals of Georgia (11th Cir. 2013)(per curiam); and only). Rule 33(a) provides, in pertinent Burlington N. & Santa Fe R. Co. v. 17. Colon v. Fulton County, 294 Ga. part: “If an appeal is decided by White, 548 U. S. 53, 67-68 (2006)) 93, 96-100, 751 S.E.2d 307, 310-13 a Division, a judgment in which (brackets in original). (2013). all three judges fully concur is 35. 330 Ga. App. 58, 61, ___ S.E.2d 18. O.C.G.A. § 45-1-4(d)(2). a binding precedent; provided, ___ (2014) cert. denied (Feb. 16, 19. O.C.G.A. § 45-1-4(d)(4). however, an opinion is physical 2015) (citing O.C.G.A. § 45-1-4(d) 20. O.C.G.A. § 45-1-4(e)(1). The precedent only with respect to and Forrester, 308 Ga. App. at statute originally provided no any Division of the opinion for 722; 708 S.E.2d at 666). Division 1 specific limitations period during which there is a concurrence in of the Albers decision analyzing which aggrieved plaintiffs had to the judgment only or a special the merits of the § 45-1-4 claim bring claims. See 1993 Ga. Laws p. concurrence without a statement is binding precedent. Division 2, 564. of agreement with all that is said.” which deals with the statute of 21. Tuttle v. Bd. of Regents of the One of the three judges on the limitations, is physical precedent Univ. Sys. of Ga., 326 Ga. App. panel in Forrester “concur[red] in only. See Ga. Ct. App. Rule 33(a). 350, 353, 756 S.E.2d 585, 587-88 judgment only.” 308 Ga. App. at 36. 311 Ga. App. 155, 159, 715 S.E. 2d (2014) (physical precedent only); 731, 708 S.E.2d at 672. 487, 490 (2011). See also Jones, 262 Stokes v. Savannah State Univ., 27. See also Reeves v. Sanderson Ga. App. at 81-82, 585 S.E.2d at 291 Fed. App’x 931 (11th Cir. Plumbing Prods., Inc., 530 U.S. 144. 2008). 133, 142-50 (2000); St. Mary’s 37. In a number of cases, federal 22. O.C.G.A. § 45-1-4(e)(2) and (f). Honor Ctr. v. Hicks, 509 U.S. courts have consequently cited to 23. Colon, 294 Ga. at 95-96, 751 502 (1993); Texas Dep’t of Cmty. the Court of Appeals’ decisions S.E.2d at 310. The Court held that Affairs v. Burdine, 450 U.S. 248 in Forrester and/or Freeman “implied waivers of governmental (1981); McDonnell Douglas Corp. to conclude that Georgia courts immunity should not be favored.” v. Green, 411 U.S. 792, 802-07 analyze § 45-1-4 claims under the Id. at 95, 751 S.E. 2d at 310 (quoting (1973). McDonnell Douglas framework. City of Atlanta v. Gilmere, 252 28. 308 Ga. App. at 721-29, 708 S.E.2d Those courts have determined Ga. 406, 409, 314 S.E.2d 204, 206 at 655-70. Title VII is codified at 42 that plaintiffs’ state whistleblower (1984)). “This does not mean, U.S.C. § 2000e, et seq. claims therefore should be however, that the Legislature 29. 308 Ga. App. at 722, 708 S.E.2d at reviewed in similar fashion to their must use specific ‘magic words’ 666 (citing McDonnell Douglas, federal retaliation claims under the such as ‘sovereign immunity is 411 U.S. at 802-06, and Bailey v. Age Discrimination in Employment hereby waived’ in order to create Stonecrest Condo. Ass’n, Inc., 304 Act, 29 U.S.C. § 621 et seq.; Title VI a specific statutory waiver of Ga. App. 484, 488, 696 S.E.2d 462, of the Civil Rights Act of 1964, 42 sovereign immunity.” Id. (citing 466-67 (2010)). U.S.C. § 2000d et seq.; Title IX of the Sawnee Elec. Membership Corp. v. 30. Id. (quoting O.C.G.A. § 45-1- Education Amendments of 1972, 20 Georgia Dep’t of Revenue, 279 Ga. 4(a)(4), (2), and (5) and citing U.S.C. § 1681; the Americans with 22, 25, 608 S.E.2d 611, 614 (2005); Pennington v. City of Huntsville, Disabilities Act, 42 U.S.C. § 12101 and City of Atlanta v. Barnes, 276 261 F.3d 1262, 1266 (11th Cir. et seq.; and the Rehabilitation Act, Ga. 449, 452, 578 S.E.2d 110, 113 2001)). 29 U.S.C. § 701 et seq. See e.g. Cobb, (2003)). 31. 324 Ga. App. 426, 430-33, 750 533 Fed. App’x at 897-98 (11th Cir. 24. O.C.G.A. § 45-1-4(a)(4). S.E.2d 739, 743-45 (2013), cert. 2013) (citing Forrester, 308 Ga. 25. The Court of Appeals of denied, Smith v. Board of Regents App. at 721, 708 S.E.2d at 665-66); Georgia held that there was no of the Univ. Sys. of Ga., 2014 Ga. Chaney v. Taylor County Sch. Dist., individual liability under the LEXIS 139 (2014). No. 4:11-CV-142 (CDL), 2014 U.S. original version of the statute 32. 324 Ga. App. at 431, 750 S.E.2d at Dist. LEXIS 284, at *6-9 (M.D. Ga. based on the lack of any remedy 743 (quoting Pennington, 261 F.3d Jan. 2, 2014) (citing Forrester, 308 other than reinstatement to the at 1266, and Higdon v. Jackson, Ga. App. at 722, 708 S.E.2d at 666); plaintiff’s previous job position. 393 F.3d 1211, 1220 (11th Cir. Powell v. Valdosta City Sch. Dist., Jones v. Board of Regents of 2004)). No. 7:13-CV-53 (HL), 2014 U.S. the Univ. Sys. of Ga., 262 Ga. 33. 324 Ga. App. at 431, 750 S.E.2d at Dist. LEXIS 157158, at *30-31 (M.D. App. 75, 82, 585 S.E.2d 138, 144 743 (quoting Clark County School Ga. Nov. 6, 2014) (citing Forrester, (2003). The United States District Dist. v. Breeden, 532 U. S. 268, 273 308 Ga. App. at 722, 708 S.E.2d at Court for the Southern District (2001); Thomas v. Cooper Lighting, 666; and Freeman, 324 Ga. App. at of Georgia reaffirmed that there Inc., 506 F.3d 1361, 1364 (11th Cir. 428-31, 750 S.E.2d at 741-43). is no individual liability under 2007); Higdon, 393 F.3d at 1220;

April 2015 13 GBJ Feature

Law Day Collaboration Repeats as National Award Winner for Law Day by Rita A. Sheffey

or the second consecutive year, the American

Bar Association has recognized a unique F collaboration of organizations from Georgia with an Outstanding Law Day Activity Award for excellence in programming and effectively conveying the Law Day theme. On Friday, Feb. 6, 2015, at a joint luncheon of the National Association of Bar Executives and the National Conference of Bar Presidents, 2014

Dream Team Law Day Co-Chairs Patrise M. Perkins-

Hooker and Rita A. Sheffey accepted the award, supported by a number of their Georgia colleagues.

Law Day, May 1, is a national day set aside to celebrate the rule of law. Law Day underscores how law and the legal profession contribute to the freedoms that all Americans share. Law Day also presents an opportunity to recognize the role of the courts in this democracy and the importance of jury service to maintaining the integrity of the courts. May 1 is the official Law Day designated by Congress in 1961, but many state and local bar associations celebrate before or after that date. The Dream Team celebrated Law Day in 2014 The 2014 Law Day theme was “American Democracy on April 22. and the Rule of Law: Why Every Vote Matters.” It

14 Georgia Bar Journal Photo by Laura Burlton, D Jones Photography (Left to right) State Bar President Patrise M. Perkins-Hooker, 2015 National Law Day Chair, American Bar Association, Stephen J. Curley and State Bar Treasurer Rita A. Sheffey. The 2014 Law Day co-chairs accept the Outstanding Law Day Activity Award at a joint luncheon of the National Association of Bar Executives and the National Conference of Bar Presidents on Feb. 6, 2015. afforded an opportunity to reflect Bar Association; the Atlanta she had taken depicting the lives of on the importance of a citizen’s Public Schools; the Chief Justice’s struggling Americans who defied right to vote and the challenges Commission on Professionalism; the post-emancipation status quo we still face in ensuring that all the Fulton County Superior Court; brought about by political, econom- Americans have the opportunity to the Gate City Bar Association; the ic, social and cultural domination participate in our democracy. It was Georgia Association for Women and exploitation. particularly appropriate on the eve Lawyers; the Georgia Association The students then explored the of the 50th anniversaries of the Civil of Black Women Attorneys; the importance of the right to vote Rights Act of 1964 and the Voting Georgia Asian Pacific American Bar through the history of voting rights Rights Act of 1965. Speaking on Association; the Georgia Hispanic and challenges facing tomorrow’s the Voting Rights Act, then-Presi- Bar Association; the Multi-Bar voters with a video by Rock the dent Lyndon B. Johnson observed, Leadership Council; the National Vote, an interactive exercise dem- “Every American citizen must have Center for Civil and Human Rights; onstrating when various groups of an equal right to vote. There is no the South Asian Bar Association of individuals first obtained the right reason which can excuse the denial Georgia; the State Bar of Georgia; to vote, and a trivia contest. They of that right. There is no duty which and the Stonewall Bar Association. heard from students involved in the weighs more heavily on us than the The award-winning program Voter Empowerment Collaborative, duty we have to ensure that right.” connected with high school students and faced the challenge of early When an eligible voter is deprived in Atlanta, Savannah and Tifton, as literacy tests. Finally, during lunch, of his or her opportunity to cast a well as lawyers, judges and the they had an opportunity to use the ballot, harm results to that voter as public in Atlanta. The morning was same voting machines that voters well as to our government which focused exclusively on the students use during elections, and eligible Abraham Lincoln proclaimed to be and was interactive, engaging and students registered to vote in the a “government of the people, by the informative. Civil Rights Activist, upcoming November election. It people, for the people.” The right to Artist and Educator Dr. Doris was exciting to all of us to facilitate vote is the very foundation of gov- Derby spoke about her experienc- the registration of new voters! ernment by the people. es in the Civil Rights Movement, The afternoon sessions featured This unique collaboration including as one of the organizers renowned speakers on the history of organizations, the “Dream of the 1963 March on Washington. of voting rights and the challeng- Team,” included: the Atlanta She shared numerous photographs es of maintaining a democracy.

April 2015 15 Photo by Don Morgan, Morgan Photography & Video (Left to right) Speakers for a program on the “History of Voting Rights in the United States and Recent Decisions” included Georgia State University College of Law Professor Eric Segall, Democratic Party of Georgia General Counsel Michael Jablonski and Republican Party of Georgia General Counsel Anne Lewis. Elisabeth MacNamara, the pres- O’Reilly, deputy executive direc- C.T. Vivian, dean, Urban Institute at ident of the League of Women tor for International Coordination the Interdenominational Theological Voters of the United States, mod- and Member Advocacy, Amnesty Center and a recent Presidential erated a panel discussion explor- International; Cynthia Tucker, visit- Medal of Freedom recipient. ing the history of voting rights ing professor, Charlayne Hunter- The program met the ABA’s six in the United States and recent Gault Distinguished Writer-in- criteria for an Outstanding Law court decisions regarding topics Residence, University of Georgia; Day Activity Award: such as voter ID laws and felon and David Vigilante, senior vice disenfranchisement. Panelists were president legal, CNN, and senior  Expanding the public’s aware- Michael Jablonski, general counsel vice president and associate general ness of the rule of law; of the Georgia Democratic Party; counsel for Turner Broadcasting  Highlighting the Law Day Anne Lewis, general counsel of System, Inc. theme; the Georgia Republican Party; and Following a reception and view-  Engaging the target audience; Eric Segall, the Kathy and Lawrence ing of Dr. Derby’s documentary  Forging partnerships with com- Ashe Professor of Law with Georgia photography, Deborah Richardson, munity groups, schools and the State University College of Law. executive vice president of the legal community; The National Education National Center for Civil and  Quality and innovation of the Coordinator of the U.S. Human Human Rights, spoke about the program; and Rights Network, Dr. Yolande Center’s mission and imminent  Impact extending beyond Law Tomlinson, moderated a panel opening. Award-Winning Atlanta Day. discussion on challenges nations Journalist Maria Saporta then facili- around the world face in maintain- tated a fascinating conversation on With two award-winning pro- ing a democracy: fair and open elec- perspectives on voting rights and grams behind them, the Dream tions; freedom of press; and recog- enforcement. The distinguished Team organizations are collabo- nition of human rights. Participants panelists were Georgia Secretary of rating once again for 2015. The included: Sarah Johnson, assistant State Brian P. Kemp; U.S. Attorney theme is “Magna Carta: Symbol director, Democracy Program, for the Northern District of Georgia of Freedom Under Law,” and this The Carter Center; Michael Sally Quillian Yates; and the Rev. Dr. year’s Dream Team Committee is

16 Georgia Bar Journal chaired by Melody Richardson. The program, which will be held April 21, will focus on Chapter 39 of the Magna Carta: “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers and the law of the land.” Students will learn that the Magna Carta influenced our Founding Fathers and that the right to a trial by jury that was incorporated into the Sixth Amendment of the U.S. Constitution was a concept that originated in 1215. Students from Therrell High School in Atlanta will perform a mock trial for the other high school participants in Atlanta, Photo by Don Morgan, Morgan Photography & Video Tifton and Savannah, who will be Student participants use the voting machines to cast their votes during the 2014 Law Day Program. placed on jury panels and asked to render a verdict. The jurors will be asked to explain the reason for their verdicts, and hopefully gain a better understanding of the Magna Carta’s influence on criminal law. Congratulations to all of the Dream Team organizations and thanks to everyone who made the 2013 and 2014 programs such a success.

Rita A. Sheffey, is the assistant dean for public service at the Emory University School of Law. Prior to joining Emory in January 2015, she was a partner with Hunton & Williams LLP, Photo by Don Morgan, Morgan Photography & Video where her practice focused on (Left to right) Program volunteers included Nefertari Kirkman-Bey, consultant, and Lula S. Dawit, attorney, Thomas Kennedy Sampson & Tompkins. complex litigation, primarily environmental, toxic tort, product liability, trademark infringement, and patent infringement litigation. Sheffey has served in numerous 2015 Law Day | April 21 leadership positions both in law-related and community nonprofit organizations, including Magna Carta: co-chair of the 2014 Law Day Dream Team. Sheffey currently Symbol of Freedom Under Law serves as treasurer of the State Bar of Georgia.

April 2015 17 GBJ Feature

Atlanta Legal Aid: New Headquarters in Historic Building

by Paula Lawton Bevington

he gates to justice, literally and figura-

tively, have opened wide at 54 Ellis St. in T downtown Atlanta. Dedicated to the memory of Margaret and Randolph Thrower, the recently restored wrought iron gates welcome the Atlanta

Legal Aid Society’s clients at the main entrance of its new headquarters.

Randolph was a staunch supporter of Atlanta Legal Aid (Legal Aid) serving as board president in 1953, chairman of the first-ever Annual Campaign in 1983 and honorary chair of the Endowment Campaign in 2008-09. Along with many other generous donors in greater Atlanta’s legal community (individuals and firms), numerous Atlanta foundations and major metro corporations, the Throwers, their children, grandchildren and even great-grandchildren made significant gifts to the capital campaign. That diverse response permitted Legal Aid to buy the historic building. Shortly after the first day of spring this year, Legal Aid moved in and immediately began receiving the clients who account for the approximately 24,000 cases opened annually. Photo provided by Elks Lodge #78, Atlanta-Northlake Founded in 1924, Atlanta Legal Aid has made its Undated photo from Elks era. Note Elk head, center top at base of home in many locations, spending its first 55 years flag pole. somewhat nomadically, including for a time in space provided by Fulton County. In 1979, its principal first floor was completely built out, so Legal Aid built office—the “downtown” office—moved to 151 Spring offices on the second and third floors as well as the St. into a structure dating from the 1920s. Only the basement level. By early 2008, the aches and pains of

18 Georgia Bar Journal the aging edifice began to nag at its occupants. Embarrassingly, the building did not comply with the Americans with Disabilities Act, nor did it meet fire safety standards. The mechanical equipment was past ready for replacement. A building committee headed by J. D. Humphries III (then with Stites & Harbison, PLLC, now with Smith, Gambrell & Russell, LLP) thoroughly investigated renovation, only to find that the cost of upgrading could exceed the building value after renovation. Further, renovation of existing space would not solve the need for more room, an increasing concern as new programs, like services to veterans, developed. Despite these drawbacks, the committee concluded that renovation was preferable to the purchase of a different building. Photo by Nick Sakas Then serendipity intervened. A Blue skies and a blooming Bradford Pear; spring at Atlanta Legal Aid’s new headquarters. realtor’s ad landed on Executive Director Steve Gottlieb’s desk. Intrigued, he gave Dawn Atlanta Legal Aid Society Anderson, facilities and operations manager, the advertisement Capital Campaign Team announcing the availability of 54 Ellis. They both inspected the Co-Chairs Walter E. Jospin, building; both were smitten. A Phil Holladay, King & Spalding U.S. Securities and Exchange Commission cadre of real estate profession- Mark Wasserman, Ken Klatt, Delta als, Legal Aid staff and volun- Sutherland Asbill & Brennan LLP Linda Klein, teers formed to negotiate with the Baker, Donelson, Bearman, Caldwell Florida development group that Executive Committee & Berkowitz, PC had bought the property in 2007, Matt Calvert, Hunton & Williams LLP Elisa Kodish, just before the real estate implo- Bill Kitchens, Arnall Golden Gregory LLP Nelson Mullins Riley & Scarborough LLP sion. The downward slide in the Shayla Rumely, Community Volunteer Charlie Lester, real estate market made the build- Laura Thatcher, Alston & Bird LLP Sutherland Asbill & Brennan LLP ing attractive for reasons beyond Campaign Committee Teri McClure, United Parcel Service its grace. Josh Kamin and his dili- Gov. Roy Barnes, Barnes Law Group Frank McGaughey, Bryan Cave gent team at King & Spalding Jeff Bramlett, Mike Nations, Nations & Toman LLP provided many hours of pro bono Bondurant Mixson & Elmore LLP Joel M. Neuman, The Coca-Cola Company legal advice. Efforts to acquire Janine Brown, Alston & Bird LLP Teresa Wynn Roseborough, only 54 Ellis, leaving two other Steve Clay, The Home Depot buildings on the lot, failed. The Kilpatrick Townsend & Stockton LLP William Parker Sanders, two other buildings were a house Steve Forte, Smith Gambrell & Russell, LLP at 70 Ellis, occupied by Southern Smith Gambrell & Russell, LLP Frank Strickland, Ferro Concrete and then by Beers Lash Harrison, Ford & Harrison LLP Strickland Brockington Lewis LLP Construction; and 62 Ellis, the Judge William B. Hill Jr., Polsinelli John Wallace, Wallace Morrison & Casteel home of Curtis Printing. Randy Hughes, Bryan Cave Ryan Walsh, Another hunt for alternative J. D. Humphries III, Stites & Harbison PLLC Robbins Geller Rudman & Dowd LLP space ensued; at least 30 possibili- Charles S. Johnson III, Holland & Knight LLP ties were examined. The appeal of Weyman T. Johnson Jr., Paul Hastings LLP Staff 54 Ellis remained, and the daunt- Amanda B. Styles, Atlanta Legal Aid ing but rewarding decision was

April 2015 19 the celebrities who visited were Gen. John J. “Black Jack” Pershing and opera star Enrico Caruso. In 1927, the Salvation Army bought the building, designating it the Southern Territorial Headquarters. Union Mission purchased the building in 1956, occupying the space until the mid-1980s. The property was briefly occupied by a developer who rented office space in the building to lawyers before Beers acquired it. Bruce Harvey was among those building tenants. During his student days, Jeff Davis, current executive director of the State Bar of Georgia, worked as a law clerk for Harvey. Much of the building remained vacant until Beers’ acquisition. Beers leadership—first Lawrence

Photo by Nick Sakas L. Gellerstedt Jr. and then from Debris mounts as surplus buildings are razed. 1986-98, Lawrence L. Gellerstedt III—maintained their offices in the house at 70 Ellis. They believed that doing so sent a message to employees: top management wanted their blue collar workers to feel comfortable talking to the boss in that home-like space. Skanska acquired Beers in 1996, occupying the buildings on the property until the 2007 sale to the development group already mentioned. Those successive occupants of 54 Ellis had a commitment to community service in common. The Elks sponsor programs to “help children grow up healthy and drug- free” and they work to honor “the service and sacrifice” of veterans. The Salvation Army carries out a wide array of social programs to Photo by Nick Sakas assist those in need. Union Mission Terrace under construction at building rear, replacing damaged section of building. likewise extends a helping hand, made to bid for the entire lot. ment of respect and efficiency with special emphasis on helping Atlanta Legal Aid closed on the for clients, staff, board and visi- people who are homeless. Beers property on May 17, 2013, and tors. Another dynamic was also Construction was led by people design began immediately. at work: the building’s history. with well-tuned social consciences. The committee, board and In 1910, the Benevolent and That history burnishes the beauty Atlanta Legal Aid senior staff Protective Order of Elks broke of the building. had asked all the questions. ground at 54 Ellis St. for a building And the building is indeed They satisfied themselves that designed by J. R. MacEachron in beautiful, inside and out. Its 36,000 they had acquired property with what was described by a later owner square feet embrace four floors intrinsic value that was likely to as “high Victorian style with Tudor and a mezzanine. The other build- increase, would meet current and arches.” The Elks used the building ings on the property have been foreseeable future space needs as their club, holding civic recep- razed, making possible a land- and would provide an environ- tions and banquets there. Among scaped parking lot that accom-

20 Georgia Bar Journal modates 60 vehicles. The border occupy the remainder of the main of the property stretching to the level. In addition, office space on Tax Court Accepts east next to the city sidewalk is the main level as well as elsewhere Kaye Valuation fenced, with brick columns accen- is available for interns, volunteers tuating the fence every few yards. and other short-term colleagues. Affirmed by Trees Atlanta is partnering with Administrative offices, including Atlanta Legal Aid to provide trees that of the executive director, are on US Court of Appeals on site. Short term, Trees Atlanta the second level along with offices will help with tree maintenance, for the general law unit and family especially important as the trees law units. The third level is home Mitchell Kaye, CFA, ASA will be fairly mature. to the Senior Citizens Law Project, (770) 998-4642 Extensive interior work has the Georgia Senior Hotline and the transformed 54 Ellis from bottom Ombudsman offices. Those units to top. Anderson has overseen have previously operated from three that intensive effort, in addition different locations, assisting a similar Business Valuations to managing renovations at two client base from several perspectives. Divorces ! Estates ! Gifts of Legal Aid’s satellite offices and Working adjacent to one another ESOPs ! FLPs responding to innumerable fix-it- will enhance opportunities for prob- Intangible Assets ! Disputes now emergencies. She brought a lem-solving together, a synergy not wealth of big league experience possible until the move to 54 Ellis. Court Testimony and IRS Experience to her multi-faceted assignments. The fourth floor, whose 22-foot In the late 1990s, Anderson had ceilings permit the inclusion of a significant responsibilities coor- mezzanine, will serve as Atlanta serving appraisal clients since 1981 dinating the construction design Legal Aid’s first-ever conference www.MitchellKaye.com and development phases of New center and event hall, where the York’s Museum of Jewish Heritage board, various groups within Legal (working with Pritzker Prize win- Aid such as practice managers, and tiller. Phil Holladay and Mark ning architect Kevin Roche) and others will meet. The mezzanine Wasserman co-chaired that ambi- the museum’s subsequent expan- houses the law library. Every floor tious $6 million-plus effort. A roster sion. Shortly prior to joining Legal includes coffee/snack rooms and of the energetic, imaginative and Aid, she had senior project man- collaborative spaces suitable for relentless Capital Campaign com- agement responsibility for the con- small group discussions. mittee can be found on page 19. struction of Chattahoochee Nature Renovating 54 Ellis has shone a Atlanta Legal Aid looks forward Center’s Discovery Museum and spotlight on the building’s many with special pleasure to hosting Events Pavilion. She approached attractive aspects. Some of those the May meeting of the Executive the 54 Ellis project with an appre- features were a surprise: the Committee of the State Bar of ciation for the building’s storied pressed tin ceiling on the fourth Georgia at its new home. In many past and a realistic grasp of the floor and the columns and pillars respects, Legal Aid regards 54 Ellis challenges its renovation might— on the main level. The cherubs atop as an asset for the Bar in general, and did—hold. the columns in the event hall were and the community to enjoy. Most A tour of 54 Ellis would impress known all along and were a selling of all, Atlanta Legal Aid is deter- any visitor. The lower level fea- point. Every effort has been made mined that the headquarters will tures a mock courtroom. The Spring to save and to highlight the historic invite the confidence of the clients Street Café—the staff breakroom elements of the building. that equality before the law is a named with a tip of the hat to the One building asset that promises reality, a reality secured through long time offices at 151 Spring—a to become a favorite of everyone is well-prepared, concerned, compas- training room big enough to accom- the fourth floor terrace to the north sionate representation. modate 30 people and several of the event hall. After acquiring office spaces take up the rest of the the building, Legal Aid discovered Paula Lawton lower level. that a section that had been added Bevington, a Yale Law Visitors arriving on foot will to the rear of the building had School graduate, spent enter the lobby and reception suffered water damage. That por- most of her professional area on the main level, first going tion of the added-on structure was life with an energy through the elegantly classic gates dismantled, leaving an area now engineering firm, to justice. Those arriving by car converted into an open-air terrace. Servidyne. She is currently a part- will park in the entrance plaza to Amanda Styles in resource devel- the east of the building. The health opment has kept a calm and effi- timer at Atlanta Legal Aid, assisting law unit and operations offices cient hand on the Capital Campaign in resource development.

April 2015 21 GBJ Feature

24th Annual Georgia Bar Media & Judiciary Conference by Jennifer R. Mason

or the first time in its history, the Georgia

Bar Media & Judiciary Conference was held Fon a Friday instead of a Saturday and the response was overwhelming. The largest number of registrants, approximately 200 of Georgia’s attorneys, judges and journalists, attended the annual event that brings together panelists and speakers who discuss recurring and emerging issues and the law as it relates to the first amendment. The conference was once again hosted by the Institute of Continuing Legal Education in Georgia and offered 6 CLE hours, including 1 ethics hour and 1 professionalism hour. Photos by Jennifer R. Mason Citizens, Journalists and the Police Washington Post Editor Josh White presents the keynote address, “Watch Dogging the Media: The Turmoil at UVA.” The first panel of the day, “Citizens, Journalists and the Police,” provided a look at how social media and The panelists discussed how the world has changed technology has changed and will change the inter- radically in regards to the interaction between the face between reporting and policing. Moderated by police and the public, and the reporting of said inter- Bill Nigut, senior executive producer, Georgia Public action by seasoned media and citizen journalists with Broadcasting, Atlanta, the panel included Sen. Vincent the advent of social media. Specifically mentioned was Fort, Atlanta; Thomas M. Clyde, Kilpatrick Townsend how video can be used by the news media to fan the & Stockton LLP, Atlanta; Amber A. Robinson, assis- flames of discontent between the two groups. tant city attorney, City of Atlanta; and Joseph Spillane, Recent recorded events around the country have deputy chief, Atlanta Police Department. contributed to the notion that police/law enforce-

22 Georgia Bar Journal ment should wear body cameras to provide video documentation of events. Why? Because there is a movement throughout the country to transform how people and the community deal with police and the onset of social media helped bring about this change. When a private citizen records an event, it shows the action from their point- of-view, and in the case of multiple videos from different sources, it could potentially show conflicting viewpoints left subject to interpretation. Body cameras would show the incident from the officers’ point- of-view, which when taken and viewed along with other recorded sources, may provide a more Panelists for “Don’t Take My Child,” (left to right) Valerie Rogers, social worker, Roswell High School; Dr. Stephen A. Mesner, MD, Children’s Healthcare of Atlanta; Sharon L. Hill, policy complete picture. studies, Georgia State University; Ashley Willcott, director, Office of the Child Advocate; Diana Sen. Fort informed the audi- Rugh Johnson, Diana Rugh Johnson, P.C.; and Hon. Bradley Boyd, chief judge, Fulton County ence that he has introduced a bill Juvenile Court, walk attendees through the Fred-Friendly discussion led by Richard T. Griffiths, that would require Georgia law editorial director, CNN. enforcement to wear body cameras in an effort to bring people and police together and the city of Atlanta is working on developing a policy that would address potential privacy concerns that come with the use of body cameras. Sports and the Law The second panel, “Sports and the Law—Double Jeopardy: Who has Authority Over Athletes? The Courts, the Commissioners or Both?” addressed another timely topic: highly visible sports figures across all leagues who have recently been, or are currently dealing with, legal issues brought about by violating league policy, the law or both. The panel was moderated by (Left to right) Hon. Carol W. Hunstein, justice, Supreme Court of Georgia; Hon. James G. Ron Thomas, director, Journalism Bodiford, senior judge, Cobb County Superior Court; and Hon. Susan Edlein, judge, State Court and Sports Program, Morehouse of Fulton County, speak on the breakout panel “Between Us—A Candid Conversation About Communication Between Journalists, Judges and Lawyers.” College, Atlanta; and Jonathan Ringel, managing editor, Daily view of the NBA, NFL and MLB also spoke to the leadership roles Report, Atlanta. Panelists included league commissioners and unions of the commissioners. William Davis Cornwell St., Barnes and their roles in handling legal Jordan’s take on whether to lis- & Thornburg, Atlanta; D. Orlando issues that become public over- ten to an attorney or a commis- Ledbetter, member, Wisconsin Bar, night. Cornwall, who has repre- sioner when faced with a legal Atlanta Falcons beat writer, Atlanta sented athletes in these types of issue was that he would absolutely Journal-Constitution, Atlanta; and situations, stated that an attorney’s follow the advice of the attorney Brian Jordan, former player, Atlanta job is to manage the league, man- first then worry about the commis- Falcons and Atlanta Braves, current age the PR and manage themselves, sioner. The athlete’s first priority Fox Sports analyst, Atlanta. which requires a delicate balance is to get back on the field as soon The panelists reviewed current of understanding issues and objec- as possible and in order to do that, and past situations, gave an over- tives for that particular athlete. He the athlete should do whatever it

April 2015 23 takes to resolve the legal issue and State University, Atlanta; Kelly E. sexual violence at the University move on. Jordan also opined that Campanella, Georgia Department of Virginia and exposed major each professional sport should be of Law, Atlanta; Corey Johnson, reporting flaws in the story. White responsible for implementing pro- The Marshall Project, Atlanta; Holly spoke to why the Post covered the grams where they expose their ath- G. Manheimer, executive direc- story after it broke, citing a gut letes to lawyers the same way they tor, Stuckey & Manheimer Inc., reaction that things didn’t seem provide financial guidance and Decatur; and James Salzer, capi- right and that the Post felt the other resources. He feels that by tol investigative reporter, Atlanta story needed to be investigated providing access to attorneys, who Journal-Constitution, Atlanta, dis- further. According to White, “The in turn can share background on cussed pointers on how to navigate Washington Post believes it [sexual the legal consequences that come trouble spots and snafoos in the assault] is a serious issue that war- with certain decisions, the percent- laws and what one can do when rants careful coverage.” age of athletes who make poor the laws don’t work like they are White shared the timeline of decisions resulting in legal issues supposed to. events with conference attendees, would decrease. Track Three, “Scrubbing History beginning with the Rolling Stone or Protecting Privacy,” led by mod- story, how the Post featured it Breakout Sessions erator Shawn McIntosh, deputy on their website, and then how a Following the morning pan- managing editor/investigations series of events led the Post staff els, attendees had the opportu- and enterprise, Atlanta Journal- to review the initial story, research nity to choose from three break- Constitution, Atlanta, asked the deeper and write their own. He out sessions. Track One, “Between question, “Should information ended by sharing why thorough Us—A Candid Conversation and public records live forever, and careful reporting matters: About Communication Between even when they reflect unfavor- Journalists, Judges and Lawyers” ably on an individual?” Panelists  There are real people involved, was led by Hon. Carol W. Doug Ammar, executive director, on all sides of every story; Hunstein, justice, Supreme Court Georgia Justice Project, Atlanta;  Potentially millions of people of Georgia, Atlanta; Hon. James Dawn Diedrich, director, Office of will read these accounts; G. Bodiford, senior judge, Cobb Privacy and Compliance, Georgia  Being correct and responsible is County Superior Court, Marietta; Bureau of Investigations, Decatur; better than being fast; and Hon. Susan Edlein, judge, State Robert M. Williams Jr., editor and  The best stories don’t need to be Court of Fulton County, Atlanta; publisher, The Blackshear Times, embellished. and Don Plummer, president, Blackshear; Lee Rivera Williams, Social Media Matters, LLC, Powder assistant general counsel, CNN, The salient point is that news Springs. The main focus of the ses- Atlanta; and Jay Neal, executive media and reporters need to sion was a discussion of rules and director, Governor’s Office of be more responsible, not less. best practices of communicating Transition, Support and Re-entry, Facebook, Twitter and the Internet information with those who have Atlanta, discussed Georgia’s now are important, but not without been there. The court and judges broad expansion of expungement research and fact checking. need to educate the public about law. How far should Georgia go in how things work, improving the order to balance the right to true Georgia Civil Rights understanding of the judiciary and information versus privacy inter- Cold Cases Project how it operates. The judges agreed est? Also addressed was the “Right that if a reporter would read up on to be Forgotten” law in Europe, Moderator Hank Klibanoff, a case and get informed before they which requires that search engines Emory University, Atlanta, and write or report, it would go a long such as Google, Yahoo and Bing his panel of current and former way towards ensuring not only scrub their sites and remove links Emory University students gave a appropriate information is dissemi- to people and events upon request compelling presentation on Emory nated, but that there is less room for in certain circumstances. University’s “Georgia Civil Rights error, confusion or misinformation Cold Cases Project” and web- about a case. Watch Dogging the site that examines unsolved and Track Two, “Open Government— Media: The Turmoil unpunished racially motivated Tools for Public Access and How to murders from the modern civil Most Effectively Use Them,” pro- at UVA rights era in Georgia. The focus of vided an interactive and vigorous Lunch featured the keynote the project is less on the who-done- discussion of how the open records address, given by Washington Post it and more on the often-disturb- and meetings laws in Georgia work. Editor Josh White, who revealed ing roles that law enforcement, the Panelists David Armstrong, project how Post reporters unraveled an bar, the judiciary and the medical director, Georgia News Lab, Georgia explosive Rolling Stone article on establishment played in enabling

24 Georgia Bar Journal and supporting white supremacy reporting suspected child abuse for comment. Some of the param- in Georgia during the Jim Crow from the teacher, social worker, eters included in the rules are: period. The panelists included: doctor, DFACS, the assigned Brett Gadsden, professor, African- investigator, agency attorney and  No pilot’s license needed to American Studies and History, the judge, who ultimately has to operate, but a certificate will be Emory University, Atlanta; Mary make the request for shelter care required every two years Claire Kelly, former student; Erica for the child and any other chil-  Must fly at 500 feet or lower Sterling, student; Ross Merlin, stu- dren in the home. In this scenar-  Daylight hours only dent; and Nathaniel Mayersohn, io, the judge ultimately decides  Must report accidents within 10 student. Klibanoff began the pre- not to remove the child from the days sentation with an overview of the home, and the end result some project. Then each student, guided time later was that the child died. Vigilante spoke about CNN’s by questions from Klibanoff and Questions were then addressed partnership with Georgia Tech Gadsden, reviewed their part in as to what should be released to explore the media’s usage of the project and shared what they about the process to the public drones in U.S. airspace, specifi- learned personally throughout the and what responsibility should cally with live, breaking news. process. The project can be viewed the state bear? Rowland, who uses drones in his at coldcases.emory.edu. The second scenario, a 13-month- business, hopes they get safer and old, 16 lb. female is taken to the safer over time as it’s easier for Don’t Take My Child! doctor by her 19-year-old parents consumers to get involved with The process of investigating who are concerned by her lack drones and use them now than allegations of child abuse and the of interest in eating and fever. it has been in the past. Wilson is steps the state must take before a The doctor, having noticed that currently writing a certificate for child can be taken away from his the mother has a black eye her- public/government use of drones or her family was the topic of this self, determines that reporting to a and is helping Washington write year’s Fred-Friendly style panel, social worker is necessary, and the policy for drone usage. Attendees lead once again by Interlocutor audience is once again taken on a were left with the knowledge that Richard T. Griffiths, editorial direc- hypothetical ride with all the par- drones and the laws governing tor, CNN, Atlanta. Two fiction- ties who have to make determina- their usage will be a hot topic, and al scenarios were presented and tions on whether or not to further hotly-contested topic, for the fore- worked through by the panelists: the case down the line. seeable future. Hon. Bradley Boyd, chief judge, Fulton County Juvenile Court, Drones! Conclusion Atlanta; Valerie Rogers, social The final panel of the day The 2015 Bar Media and worker, Roswell High School, focused on the use and regula- Judiciary Conference once again Roswell; Sharon L. Hill, policy tion of the use of drones as a provided quality programming studies, Georgia State University, reporting tool. Led by moderator covering a wide-range of time- Atlanta; Diana Rugh Johnson, Lauren Linder, director, Business ly and interesting topics that Diana Rugh Johnson, P.C., Atlanta; and Legal Affairs, The Weather informed, entertained and edu- Ashley Willcott, director, Office Channel, Atlanta, the session cated the attendees. To the mod- of the Child Advocate, Atlanta; opened with a video showing vari- erators and panelists who shared and Dr. Stephen A. Mesner, MD, ous “do’s and dont’s” of drone use. their time and knowledge, thank Children’s Healthcare of Atlanta. Panelists Michael K. Wilson, avia- you. And congratulations to Peter Scenario one was set in the city of tion safety inspector, unmanned Canfield and the many others who Lizard Lick in Frog County, Ga., aircraft program manager, Federal planned and executed this well- where the teacher of a 9-year-old Aviation Administration, Atlanta; attended, informative and enter- male student notices that he is act- Ben Rowland, owner, Yonder Blue taining annual event. ing unlike himself and has bruises Films, Atlanta; and David Vigilante, on his neck and when questioned, senior vice president, legal, CNN, Jennifer R. Mason is states that his arm hurts. The stu- Atlanta, were then introduced and the assistant director dent is then questioned by the spoke about their experience with of communications for school social worker, who reviews the use of drones and to the future the State Bar of his record and finds evidence of of drone use in Georgia and across Georgia and can be past reports of bruising. As the the country. reached at jenniferm@ story continued to develop, with On Feb. 15, the FAA released gabar.org. pieces of information being sup- its proposed rules for drone usage plied by Griffiths, the audience in the states, which will apply to was taken through the process of drones weighing fewer than 55 lbs.,

April 2015 25 GBJ Feature

2014 Georgia Corporation and Business Organization Case Law Developments

by Thomas S. Richey and Michael P. Carey

This article presents an overview from a survey of Georgia corporate and business organization case law developments in 2014. The full version of the survey, which can be downloaded or printed at http://www.bryancave.com/2014-ga-survey/, contains a more in-depth discussion and analysis of each case. This article is not intended as legal advice for any specific person or circum- stance, but rather a general treatment of the topics discussed. The views and opinions expressed in this article are those of the authors only and not Bryan Cave LLP.

his article catalogs case law developments banks and corporations. Other rulings handed down in 2014 involved the interpretation of buy-sell clauses in dealing with Georgia corporate and busi- shareholder agreements and the valuation of corporate stock as a marital asset; the transfer of assets by opera- ness organization law issues handed down tion of law in corporate mergers; the interpretation and T enforcement of corporate bylaws and LLC operating to date during 2014 by Georgia state and federal courts. agreements; and decisions on partnership formation and judicial dissolution. There were multiple decisions Several of 2014’s decisions have significant preceden- concerning the rights and liabilities of corporate officers and directors, partners, and LLC managers and tial value. Others address less momentous questions members throughout the year. The 11th Circuit Court of Appeals addressed the enforceability of the insured- of law as to which there is little settled authority. Even versus-insured exclusion in director and officer liability insurance policies. Other decisions in the litigation con- those cases in which the courts applied well-settled text concerned the effect of a failure to observe corporate formalities on a nonprofit corporation’s capacity to sue; principles are instructive for the types of claims and the close corporation exception to derivative action requirements; the rule against reverse piercing of the issues that are currently being litigated in corporate corporate veil; the determination of insider status for purposes of the Uniform Fraudulent Transfer Act; the and business organization disputes and how the courts nondischargeability of claims for misappropriation of business opportunities; the fiduciary shield doctrine; the are dealing with them. business records exception to the hearsay rule; corporate receiverships—and much more. The article also cov- In 2014, the Supreme Court of Georgia issued a ers several 2014 decisions from the Fulton County significant decision of first impression expounding on Business Court ruling on some of these same issues. the business judgment rule and its relationship to the The decisions are organized first by entity type— standard of care for directors and officers of Georgia those specific to business corporations, nonprofit

26 Georgia Bar Journal corporations, limited liability companies and partnerships. The remaining sections of the article deal with (1) transactional issues potentially applicable to all forms of business organizations, and (2) litigation issues, including secondary liability, jurisdiction and venue, evidence questions and insurance issues. Duties and Liabilities of Corporate Directors, Officers and Employees The year 2014 brought a landmark decision by the Supreme Court of Georgia recognizing the business judgment rule and explaining its impact on ordinary negligence claims against directors and officers that are premised on alleged violations of statutory standards of care. In FDIC v. Loudermilk, 295 Ga. 579, 761 S.E.2d 332 (2014), a unanimous Supreme Court held that the business judgment rule exists in Georgia and protects good faith decisions made by directors and officers from later challenges to the wisdom of those decisions. The Court explained, however, that the business judgment rule does not necessarily insulate directors and officers from liability for ordinary negligence where a lack of due care in the decision-making process is Northern District of Georgia and tors “shall discharge their duties in alleged. Shortly after Loudermilk Skow from the 11th Circuit. They are good faith and with that diligence, was decided, the Court reiterat- both cases brought by the FDIC as care, and skill which ordinarily ed its holding, once again unani- receiver for banks that failed during prudent men would exercise under mously, in FDIC v. Skow, 295 Ga. the financial crisis. The FDIC alleges similar circumstances in like posi- 747, 763 S.E.2d 879 (2014). In light that the defendants, who are former tions.” Section 7-1-490 is substan- of Loudermilk and Skow, it is now directors and officers of the failed tially similar to the Georgia Business clear that claims alleging a lack of banks, were negligent and grossly Corporations Code’s standards of due care in the decision-making negligent and breached fiduciary care applicable to directors and offi- process may overcome the busi- duties to the banks. Specifically, the cers (O.C.G.A. §§ 14-2-830 and 14-2- ness judgment rule even if they FDIC alleges that the defendants 842), as well as the standards appli- sound in ordinary negligence, negligently approved loans that cable to Georgia nonprofit corpora- while claims that do nothing more violated principles of sound lend- tions and limited liability compa- than challenge the wisdom of a ing as well as the bank’s internal nies. Recognizing this, the Supreme corporate decision or act can only loan policies, in furtherance of an Court made it clear that its holding overcome the business judgment unsustainable aggressive growth applied broadly to claims involving rule upon a showing of fraud, bad strategy. The FDIC’s ordinary neg- corporate fiduciaries and was not faith or an abuse of discretion. ligence claims are based on a sec- confined to the banking context. Both Loudermilk and Skow came tion of the Financial Institutions The Court did not decide wheth- to the Supreme Court on certi- Code of Georgia, O.C.G.A. § 7-1- er the specific claims before it— fied questions: Loudermilk from the 490, which provides that bank direc- i.e., the FDIC’s allegations that the

April 2015 27 defendants negligently approved the Department of Revenue could tified his corporate principal even loans or that they sought to grow therefore proceed against the officer though he used an acronym rather the banks too aggressively—could for the entire unpaid amount. In than the full corporate name, since be brought as ordinary negligence another case involving tax liability, under the circumstances, the acro- claims. It will be up to lower courts In re Shaw, 2014 WL 1401871 (Bankr. nym was a mere misnomer and did to determine what sorts of negli- N.D. Ga. Apr. 2, 2014), the bank- not substantially vary from the cor- gence allegations are sufficiently ruptcy court held that a local branch poration’s actual name. In Del Lago process-oriented to be viable. manager who claimed not to be Ventures, Inc. v. QuikTrip Corp., 330 In another major decision deal- an officer of the corporation could Ga. App. 138, 764 S.E.2d 595 (2014), ing with a standard of care ques- nonetheless be individually liable the fact that a corporation’s sole tion, the Supreme Court decided in for unpaid unemployment taxes owner signed his deceased mother’s Rollins v. Rollins, 294 Ga. 711, 755 under § 34-8-167(e), given evidence name to certain contracts did not S.E.2d 727 (2014), that when trust- showing that the defendant was the void the contract because the owner ees also serve as directors or man- person at the company who was subsequently ratified the contracts agers of business entities in which responsible for filing returns and and clearly had authority to do so. the trusts hold minority interests, paying taxes. Finally, in Hanover Insurance their conduct as corporate fiducia- There were multiple cases involv- Co. v. Hermosa Construction Group, ries should be evaluated under cor- ing signatures of contracts by corpo- LLC, ___ F. Supp. 3d ___, 2014 WL porate law principles rather than rate representatives, and their mean- 5486602 (N.D. Ga. May 1, 2014), trust law principles. This suggests ing and effect. In Buffa v. Yellowbook the district court applied the well- that persons acting in the dual role Sales & Distributing Co., Inc., 327 settled principle that an officer who of trustee of a trust and director of Ga. App. 639, 760 S.E.2d 644 (2014), personally participates in a tort a corporation can avail themselves the Court found that the defendant may be personally liable to injured of the business judgment rule became personally obligated under third parties without regard to alter when acting on behalf of the cor- a contract he claimed to have signed ego principles. poration. The Rollins case returned in his corporate capacity only, to the Court of Appeals, which because the signature block under Corporate Stock and then determined that it was unclear his signature read “Authorized Debt—Contracts and from the record whether the defen- Signature individually and for the dants’ acts were undertaken as Company.” In Progressive Electrical Valuation trustees or as managing partners of Services v. Task Force Construction, In Callaway v. Garner, 327 Ga. App. the family partnerships. See Rollins 327 Ga. App. 608, 760 S.E.2d 621 67, 755 S.E.2d 526 (2014), the Court v. Rollins, 329 Ga. App. 768, 766 (2014), the signature block did not of Appeals of Georgia affirmed an S.E.2d 162 (2014). Notably, since indicate that the signer was bound order granting specific performance certain of the business entities were individually, but the defendant was of an oral stock purchase agreement, partnerships rather than corpora- nonetheless held to be personally holding that a separate agreement tions, the Court of Appeals briefly bound due to language in the agree- allowing the purchaser time to sell considered whether the principles ment stating that every person sign- off real estate to obtain funds for the that had just been announced by ing the agreement on behalf of the purchase was an accommodation the Supreme Court in Loudermilk corporation was also signing the and not a condition precedent. The were applicable to managing part- agreement “in his or her personal Court also held that the defendants ners in a partnership. The Court and individual capacity.” In Patel v. had waived their right to enforce ultimately did not answer the ques- Patel, 327 Ga. App. 733, 761 S.E.2d the notice provisions of the operation but instead remanded the case 129 (2014), the Court of Appeals tive shareholders’ agreement, and to the trial court to resolve the found that there was a question therefore could not void the sale remaining questions of fact. of fact as to whether the corporate on the grounds that it violated the The courts heard a variety of officer signed an agreement in his agreement. In Sullivan v. Sullivan, other cases dealing with the conduct individual or corporate capacity, 295 Ga. 24, 757 S.E.2d 129 (2014), and liabilities of corporate direc- since the document itself lacked a the Supreme Court of Georgia tors and officers in 2014. In Georgia clear statement of his capacity, and addressed questions of proof of the Department of Revenue v. Moore, 328 in light of the general rule that a market value of stock in a closely- Ga. App. 350, 762 S.E.2d 184 (2014), single signature may be in either an held corporation, holding that stock the court addressed the nature of individual or representative capac- was not a marital asset because the an officer’s liability for the corpora- ity, but not both. In Courtland Hotel, party seeking an equitable division tion’s unpaid sales and use taxes LLC d/b/a Sheraton Atlanta Hotel v. of its appreciation had failed to as a “responsible person” under Salzer, 330 Ga. App. 264, 767 S.E.2d establish the value of the stock at O.C.G.A. § 48-2-52, holding that lia- 750 (2014), the Court of Appeals the date of marriage or the amount bility was joint and several and that held that an agent sufficiently iden- of appreciation thereafter.

28 Georgia Bar Journal Nonprofit Organization Decisions N D L Norwitch Document Laboratory There were two notable decisions Forgeries - Handwriting - Alterations - Typewriting involving nonprofit corporations in Ink Exams - Medical Record Examinations - “Xerox” Forgeries 2014. In Thunderbolt Harbour Phase II Condominium Assoc., Inc. v. Ryan, F. Harley Norwitch - Government Examiner, Retired 326 Ga. App. 580, 757 S.E.2d 189 Court Qualified Scientist - 35+ years. Expert testimony given in (2014), the Court of Appeals held excess of five hundred times including Federal and Offshore that a homeowners’ association’s sole director and officer owed fidu- 1 Offices in West Palm Beach and Augusta ciary duties to the association and www.QuestionedDocuments.com its members. In Rigby v. Flue-Cured Telephone: (561) 333-7804 Facsimile: (561) 795-3692 Tobacco Cooperative Stabilization Corp., 327 Ga. App. 29, 755 S.E.2d 915 (2014), the Court of Appeals affirming a 2013 trial court decision held that judicial dissolution of a held that the bylaws of a North which held that LLC members were joint venture pursuant to O.C.G.A. Carolina tobacco cooperative per- not liable for their alleged mis- § 14-8-32 was appropriate in light mitted the cooperative to purge its representations to a purchaser of of evidence showing a long his- members from time to time without a condominium unit because they tory of stalemate and deadlock the need for a hearing. The Court, were acting on behalf of the LLC. between the joint venturers. In First in ruling on a law choice issue, In a subsequent related decision, Benefits, Inc. v. Amalgamated Life noted that under North Carolina Osborne v. Drayprop, LLC, 2014 WL Ins. Co., 2014 WL 6956693 (M.D. law corporations owe fiduciary 4926284 (S.D. Ga. Sep. 30, 2014), the Ga. Dec. 8, 2014), the district court duties to their shareholders while district court held that two individ- held that there was sufficient evi- in Georgia they do not. uals who were alleged to have been dence to create a jury question personally involved in the creation as to whether a partnership was Limited Liability and distribution of sales materials formed, in the absence of a writ- Company Developments for the condominium were not per- ten partnership agreement, based sonally liable, again because they on testimony that the parties had In Gwinnett Community Bank were acting on behalf of the entities agreed to specific terms regard- v. Arlington Capital, LLC, 326 Ga. they served. For reasons that are ing the division of responsibilities App. 710, 757 S.E.2d 239 (2014), not explained, the courts did not and sharing of profits among them. the Court of Appeals held that address the well-established prin- In Godwin v. Mizpah Farms, LLLP, evidence of a limited liability com- ciple of Georgia law that a busi- 330 Ga. App. 31, 766 S.E.2d 497 pany’s negative net worth, without ness entity insider who personally (2014), the Court of Appeals held more, was insufficient to show that participates in an alleged fraud that a partner’s claim that he was the LLC was insolvent for purposes may be personally liable without fraudulently deprived of his inter- of determining whether its princi- regard to alter ego principles, see, est in the limited partnership was pal owed a fiduciary duty to credi- Hanover Insurance Co. v. Hermosa barred by the statute of limitations; tors. In Arnsdorff v. Papermill Plaza, Construction Group, LLC, supra. the documents that the plaintiff LLC, 326 Ga. App. 438, 756 S.E.2d In Inland Atlantic Old National signed—which he had a duty to 668 (2014), the Court of Appeals Phase I, LLC v. 6425 Old National, read—placed him on notice of the ruled that an LLC member was not LLC, 329 Ga. App. 671, 766 S.E.2d transfer of his interest. The Court entitled to commissions resulting 86 (2014), the Court of Appeals held applied a six-year statute of limi- from a lease entered into by the that an LLC member could owe tations for written agreements to LLC, holding that the operative fiduciary duties based on its man- both contract and tort claims. The LLC agreement required the mem- agement of the venture’s affairs, Court also found that there was a ber to formulate a development even if the operating agreement question of fact as to whether the plan as a condition to receiving expressly designated a different plaintiff remained a general part- payment and that this condition member as the managing member. ner, which would entitle him to file had never been satisfied. an application for dissolution. There was the usual variety of Partnership Law decisions concerning individual Developments Transactional Cases liabilities of LLC members. In Uhlig A divided seven-judge en banc v. Darby Bank & Trust Co., 565 Fed. The Court of Appeals in Maree Court of Appeals held in Legacy Appx. 883 (11th Cir. 2014), the 11th v. ROMAR Joint Venture, 329 Ga. Academy v. Mamilove, LLC, 328 Ga. Circuit entered a per curium order App. 282, 763 S.E.2d 899 (2014) App. 775, 761 S.E.2d 880 (2014) that

April 2015 29 parties to a franchise agreement against the company’s former ing claims of fraud and violations were entitled to rescind the agree- CEO and other shareholders were of the Uniform Deceptive Trade ment based on fraudulent oral mis- derivative and could not have been Practices Act, the court rejected the representations that induced them brought by the plaintiff directly. plaintiffs’ attempt to pierce the cor- to enter into the contract, even Two cases discussed a corpora- porate veil as to the two sharehold- though the contract contained a tion’s capacity to sue. In East Cobb ers of the family-run businesses specific disclaimer that the plain- Fastpitch, Inc. v. East Cobb Bullets alleged to have engaged in the tiffs had not received any such rep- Fastpitch, Inc., 2014 WL 3749216 wrongful acts, holding that while resentations, as well as containing a (N.D. Ga. July 29, 2014), the dis- the businesses may have been run merger clause. The majority found trict court rejected a defendant’s informally and sloppily, there was that there was sufficient evidence challenge to the plaintiff’s stand- no evidence that the defendants that the plaintiffs were prevented ing based on alter ego principles, abused the corporate form. A pair from reading the contract. In Roca holding that a non-profit corpora- of cases dealt with the definition Properties, LLC v. Dance Hotlanta, tion’s power to sue under O.C.G.A. of an “insider” for purposes of the Inc., 327 Ga. App. 700, 761 S.E.2d § 14-3-302(1) is not lost by its fail- Uniform Fraudulent Transfer Act. 105 (2014), the Court of Appeals ure to adopt bylaws or appoint In Target Corp. v. Amerson, 327 Ga. held that a factual dispute existed a board of directors. In Powder App. 110, 755 S.E.2d 556 (2014), regarding whether the plaintiffs Springs Holdings, LLC v. RL BB ACQ the Court of Appeals held that a were fraudulently induced into II-GA PSH, LLC, 325 Ga. App. 694, mid-level employee of a Fortune purchasing a dance competition’s 754 S.E.2d 655 (2014), the Court of 500 corporation was not an insid- assets. The Court resorted to parol Appeals held that a foreign LLC er under O.C.G.A. § 18-2-71(7)(A) evidence to resolve an issue regard- was entitled to institute legal pro- because she was not a “director, ing which assets were transferred. ceedings in a Georgia court without officer, or person in control” of There also were several cases a certificate of authority to do busi- the corporation. In In re Southern addressing the transfer of assets, ness in Georgia, noting that foreign Home & Ranch Supply, Inc., 2014 WL rights and liabilities by operation companies that do not transact any 4071901 (Bankr. N.D. Ga. Aug. 11, of law under O.C.G.A. § 14-2-1106 business in Georgia are exempt 2014), the bankruptcy court held following a merger. This issue has from the requirements of O.C.G.A. that a company wholly owned by seen a significant amount of litiga- § 14-11-711(a). a director and 20-percent owner tion in recent years due to the rise The Supreme Court of Georgia of the debtor was an “affiliate” of in foreclosures as well as the many held in Department of Transportation the debtor and therefore an insider bank failures and consolidations v. McMeans, 294 Ga. 436, 754 S.E.2d under O.C.G.A. § 18-2-71(7)(D). that occurred during the financial 61 (2014) that where a corpora- The rule against “reverse veil crisis. This year’s decisions did not tion owned a business operated on piercing,” in which creditors seek break any new ground; the settled property subject to a condemnation to reach a corporation’s assets in rule under § 14-2-1106 is that the action, the corporation, and not its order to satisfy the debts of a cor- successor entity has the authority sole shareholder, was the proper porate insider, was reaffirmed in to foreclose on a property without party to assert a claim for business In re Bilbo, 2014 WL 689097 (Bankr. the need for a formal assignment losses resulting from the condem- N.D. Ga. Feb. 5, 2014) and In re from the original holder of the nation. Finally, in Georgia Casualty Geer, 522 B.R. 365 (Bankr. N.D. Ga. security deed. See Clark v. PNC & Surety Company v. Excalibur 2014). Finally, in Functional Products Bank, N.A., 2014 WL 359932 (N.D. Reinsurance Corp., 4 F. Supp. 3d Trading, S.A. v. JITC, LLC, 2014 WL Ga. Feb. 3, 2014); Jackson v. Bank of 1362 (N.D. Ga. 2014), the district 3749213 (N.D. Ga. July 29, 2014), America, NA, 578 Fed. Appx. 856 court addressed a dispute over the the district court allowed the plain- (11th Cir. 2014); Wang v. Bank of location of a corporation’s princi- tiff to pierce the veil on the basis of America, N.A., 2014 WL 2883501 pal office, holding that it was the its allegations in the complaint, in a (N.D. Ga. June 24, 2014); Duncan v. office where the corporation per- case where the defendants default- Citimortgage, Inc., 2014 WL 172228 forms its executive functions for ed as a sanction for their failure to (N.D. Ga. Jan. 15, 2014). choice of law purposes. comply with discovery orders. Litigation Issues Fraudulent Transfer Liability Jurisdiction and Service of Corporate Insiders, Alter of Process Standing and Capacity to Sue Ego, Piercing the Corporate In Drumm Corp. v. Wright, 326 In Patel v. Patel, 2014 WL 5025821 Veil and Other Forms of Ga. App. 41, 755 S.E.2d 850 (2014), (S.D. Ga. Oct. 7, 2014) (unrelated Secondary Liability the Court of Appeals held that an to the Patel v. Patel case discussed In Smith v. Georgia Energy USA, out-of-state company that indirect- earlier), the district court held that LLC, 2014 WL 5643919 (S.D. Ga. ly owns a Georgia business and a 50-percent shareholder’s claims Nov. 4, 2014), a class action involv- pays taxes on its behalf does not

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Products sold and serviced by the State Bar of Georgia’s recommended broker, Member Benefits. The State Bar of Georgia is not a licensed insurance entity and does not sell insurance. “conduct business” in Georgia for one copy of the waiver form was Finally, in Thomas v. State Bank purposes of Georgia’s long-arm provided. In Stone v. Bank of New & Trust Company, 330 Ga. App. statute, O.C.G.A. § 9-10-91. In three York Mellon, 2014 WL 61480 (N.D. 274, 765 S.E.2d 443 (2014), another cases, the courts rejected arguments Ga. Jan. 8, 2014), the court held that Court of Appeals panel followed based on the “fiduciary shield” service of process against a foreign Greenstein in holding that the doctrine, which has no application corporation was insufficient; the plaintiff failed to prove that assets in Georgia. In Meyn America, LLC v. plaintiff had served a copy of the of the failed bank were transferred Tarheel Distributors, Inc. 36 F. Supp. summons and complaint on the to the plaintiff. In Thomas, the 3d 1395 (M.D. Ga. 2014), the district Georgia Secretary of State, but did plaintiff sought to show that the court held that an officer of a for- not deliver a copy to an officer notes were transferred via its pur- eign LLC was subject to personal of the defendant as directed in chase and assumption agreement jurisdiction in Georgia due to his O.C.G.A. § 14-2-1520(b)-(c). with the FDIC, but the court held alleged personal involvement in the that this agreement specified that decisions to misappropriate trade Evidence, Business Records Act the actual transfer of the notes secrets belonging to a Georgia LLC. There were some interest- would be accomplished through In Ralls Corporation v. Huerfano River ing decisions in 2014 address- a deed or bill of sale (and no such Wind, LLC, 27 F. Supp. 3d 1303 ing whether a bank had satisfied deed or bill had been produced). (N.D. Ga. 2014), the district court its burden to show that it was In a final notable case involving found that the plaintiff’s complaint the holder of a note it sought to the introduction of business records alleged sufficient facts to support enforce. All of these cases involved as evidence, the Court of Appeals in the exercise of personal jurisdic- promissory notes originally held Hayek v. Chastain Park Condominium tion over out-of-state defendants by banks that failed during the Association, Inc., 329 Ga. App. 164, based on their travel to Georgia to financial crisis. In Greenstein v. 764 S.E.2d 183 (2014) discussed the conduct business with the plain- Bank of the Ozarks, 326 Ga. App. admissibility of an account ledger tiff. In Websters Chalk Paint Powder, 648, 757 S.E.2d 254 (2014), a divid- submitted by a property manager in LLC v. Annie Sloan Interiors, Ltd., ed Court of Appeals, sitting en a case to recover unpaid condomin- 2014 WL 4093669 (N.D. Ga. Aug. banc, held that the plaintiff bank ium association fees. The property 18, 2014), the district court again failed to show sufficient evidence manager’s affidavit failed to comply rejected an argument invoking the that it was the holder of a note it with the requirements of either the fiduciary shield doctrine, but none- claimed to have obtained through old or new evidence code. While theless concluded that the out-of- a purchase and assumption agree- the court criticized the introduction state corporate representative had ment with the FDIC. The problem of the ledger as failing to meet the not personally participated in any was that prior to its closure, the requirements of O.C.G.A. § 24-8- conduct in Georgia that could sub- original holder of the note changed 803(6), it went on to consider the ject her to personal jurisdiction, nor its name and merged into the bank ledger in its review on the merits. did veil-piercing principles support that was eventually closed. While jurisdiction. the plaintiff’s evidence was suffi- Director and Officer Liability There also were multiple cases, cient to show that it had obtained Insurance Decisions all involving foreclosures, in which the note from the FDIC, it was The 11th Circuit issued a signifi- the courts considered the rules for not sufficient to establish these cant opinion concerning the appli- service of process on a corporation. earlier developments. The dissent- cation of an “insured vs. insured” In Simms v. Deutsche Bank National ing judges took the view that the exclusion to a lawsuit brought Trust Co., 2014 WL 273236 (N.D. plaintiff had succeeded in inter- by the FDIC as receiver for a Ga. Jan. 22, 2014), the district court est to the business records of the failed bank. In St. Paul Mercury held that a plaintiff’s attempt to failed bank, and therefore should Ins. Co. v. FDIC, 774 F.3d 702 serve a summons and complaint not have been required to produce (11th Cir. 2014), the 11th Circuit on a corporation by certified mail, a witness with personal knowl- held that a policy exclusion for without obtaining a waiver of per- edge of the name change and claims “brought or maintained sonal service, is insufficient under merger. In Ware v. Multibank 2009- by or on behalf of any Insured or Federal Rule 4 and O.C.G.A. § 9-11- 1 RES-ADC Venture, LLC, 327 Ga. Company” was ambiguous when 4. In Fitzpatrick v. Bank of New York App. 245, 758 S.E.2d 145 (2014), applied to the FDIC as receiver, Mellon, 580 Fed. Appx. 690 (11th a panel of the Court of Appeals and reversed a 2013 Northern Cir. 2014), the 11th Circuit held that held that the plaintiff’s business District of Georgia opinion which the plaintiff’s attempt to obtain a records were sufficiently authenti- held that the FDIC’s claims fell waiver of personal service from a cated and that they demonstrated within the exclusion. The deci- law firm was insufficient because that the plaintiff had received the sion resolves a conflict between it was sent to the firm itself rather notes in question from the FDIC the district court’s opinion and an than its agent, and because only as receiver for the original holder. earlier Northern District decision

32 Georgia Bar Journal which had found nearly identical Non-dischargeability of Breach vided services to the corporation language to be ambiguous in the of Fiduciary Duty Claims or that they supervised any of the context of another suit brought In In re Pervis, 512 B.R. 348 work that was done. by the FDIC as receiver for anoth- (Bankr. N.D. Ga. 2014), the bank- er failed bank. In fact, the 11th ruptcy court held, following a trial, Corporate Receiverships Circuit found the conflict between that a debtor’s liability for mis- In Considine v. Murphy, 327 Ga. the two district court decisions to appropriation of corporate oppor- App. 110, 755 S.E.2d 556 (2014), a be compelling evidence that the tunities was non-dischargeable in shareholder challenged the appoint- language was ambiguous. bankruptcy. The opinion contained ment of a corporation as a receiver, In other decisions involv- a detailed analysis and application contending that under O.C.G.A. ing D&O liability insurance, the of the rules governing corporate § 9-8-1, corporations may not serve Northern District of Georgia in In opportunity disputes. The court as receivers and that O.C.G.A. re Gafford, 2014 WL 689074 (N.D. also ruled that a non-compete pro- § 14-2-1432 did not apply because Ga. Feb. 4, 2014), lifted a bankrupt- vision in the shareholders’ agree- she had not sought dissolution of cy stay to allow the FDIC to pursue ment for the debtor’s business was the corporation. The court did not claims against a former officer of a unenforceable under Georgia law. decide these issues because it found failed bank where the sole source that the shareholder had waived of recovery would be the applica- Professional Liability her challenge when she previously ble D&O policy. And in Onebeacon In Hays v. Page Perry, LLC, 26 had agreed to the appointment in Midwest Ins. Co. v. FDIC, 2014 WL F. Supp. 3d 1131 (N.D. Ga. 2014), a consent order. In SEC v. Quest 869286 (N.D. Ga. Mar. 5, 2014), the the district court held that a cor- Energy Management Group, Inc., district court denied a motion to poration’s outside law firm did 768 F.3d 1106 (11th Cir. 2014), the reconsider its earlier order dismiss- not have a duty to report the cli- 11th Circuit held, in a case of first ing an insurance carrier’s declara- ent’s wrongdoing to regulators, impression, that corporate officers tory judgment action against the and that the firm’s principals were enjoined from acting on behalf of FDIC on the grounds that the not liable to the corporation for a corporation could not appeal the action was barred by FIRREA’s alleged malpractice absent any injunction in the corporation’s name anti-injunction provision. evidence that they directly pro- without leave of court or a stay of

April 2015 33 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. the injunction, since the appeal itself him to a share of the corporate Thomas S. Richey has violated the injunction. profits. In Fouse v. Dow, No. 2014- concentrated his cv-242868 (Ga. Sup. Ct. Fulton Co. practice in corporate, Superior Court of June 4, 2014), the court addressed securities, banking and Fulton County Business a dispute between the two share- financial litigation, and Court Decisions holders of corporate entities over insurance coverage at the method of valuation to be used Bryan Cave LLP. He serves on the In Frazier v. Liotta, No. 2014-cv- in a buyout following the termina- State Bar of Georgia’s Corporate 244363 (Ga. Sup. Ct. Fulton Co. tion of one of the shareholders. The Code Revision Committee. Richey Aug. 28, 2014), the court held that court interpreted the shareholders’ is co-author of a chapter on breach of fiduciary duty, misap- agreement to require the value of “Director and Officer Liability” in a propriation of corporate opportu- the departing shareholder’s shares nity and other claims brought by a to be calculated according to an book published in 2013, Georgia member of an LLC against the only agreed-to formula based on annual Business Litigation (Daily Report other member could be brought net earnings, over the departing 2013). He has also published directly rather than derivatively, shareholder’s objections that the annual surveys of Georgia since all interested parties were formula did not apply to the sale corporate and business before the court and the reasons of shares on termination of a share- organization case law for the general rule requiring a holder’s employment and that developments for the years 2005- derivative suit did not apply. The the shares were worth far more 2013, copies of which are court dismissed claims for breach than that. Finally, in Homeland Self available on request to tom. of the LLC’s operating agree- Storage Management, LLC v. Pine [email protected]. ment given the broad discretion it Mountain Capital Partners, LLC, granted to defendants as manager No. 2014-cv-246999 (Ga. Sup. Ct. Michael P. Carey and majority owner. In Sullivan v. Fulton Co. Nov. 21, 2014), the Torchia, No. 2013-cv-229283 (Ga. court denied a motion to dismiss practices corporate, Sup. Ct. Fulton Co. Jul. 24, 2014), fraud and breach of fiduciary duty securities and other the court denied a motion for sum- claims brought against a former complex litigation at mary judgment asserting that a chief financial officer of an LLC. Bryan Cave LLP, with a corporation’s chief executive offi- Notably, the court held that the focus on director and cer had no ownership interest in plaintiffs’ allegations were suf- officer liability issues. Carey is the subject corporation; the court ficient to overcome the business co-author of a chapter on held that the absence of any stock judgment rule under the recent “Director and Officer Liability” in a certificates was not dispositive and Loudermilk decision because the book published in 2013, Georgia that there was evidence that the allegations could support a find- Business Litigation (Daily Report plaintiff had formed a partnership ing of bad faith or a breach of the 2013). He can be reached at with the defendants which entitled duties of care and loyalty. [email protected]. Do You Work with a Partner You Like and Trust? As a partner, we deliver: • Superior financial stability • Accessibility • Quality educational programs • Industry veterans to assist you with underwriting support needs • A commitment to attorney closings

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Hecht Richard L. Menson William H. Arroyo Elizabeth C. Calhoun C. Ronald Ellington Rachael G. Henderson Lesly G. Murray Robert L. Ashe Callaway, Braun, Riddle Gregory S. Ellington Philip C. Henry Mark D. Oldenburg Robert W. Ashmore & Hughes, P.C. Anne S. Emanuel Carlton M. Henson Mary Margaret Oliver Richard J. Azar Michael H. Campbell Hon. Edgar W. Ennis Jr. Catherine C. Henson Bernadette Olmos Ryan W. Babcock Fern D. Carty Benjamin P. Erlitz Kenneth M. Henson Jr. Harry A. Osborne Bridget B. Bagley Jennifer R. Cave Frances A. Estes Robert E. Herndon Carl and Kathy Pedigo Hon. Jeffrey S. Bagley Thomas C. Chambers III Hon. Philip F. Etheridge Caroline Whitehead Herrington Patrise M. Perkins-Hooker Juanita P. Baranco Michael L. Chapman Patrick C. Fagan William H. Hess Jeffrey N. Powers Sharon C. Barnes Socheat Chea Eric R. Fenichel Theodore M. Hester Professional Liability Section Susan D. Barrett John D. Christy R. Jeffrey Field G. Lemuel Hewes of the State Bar of Georgia William D. Barwick Sean D. Christy Leigh B. Finlayson Jonathan W. Hewett Jill A. Pryor Rhonda L. Bass Cara Clark Kevin D. Fitzpatrick Megan J. Hilley Gail S. Pursel William R. Bassett Wendi L. Clifton John H. Fleming Daniel F. Hinkel John H. Rains IV Tina G. Battle Thomas M. Clyde T. Michael Flinn Daniel M. Hirsh Mary B. Robbins Thomas A. Bauer Katherine M. Cohen Warren C. Fortson Frederick S. Hitchcock Sacred Heart Catholic Church Hon. Thomas H. Baxley Robert M. Coker Ira L. Foster Inman G. Hodges Charity Scott Jacob Beil Arlene L. Coleman Peter A. Fozzard Rebecca A. Hoelting and Evans Harrell Lamont A. Belk Victoria and Dorothy Black Franzoni Richard B. Holcomb Ethelyn N. Simpson Richard W. Bell Charles M. Cork III George H. Freisem III Melinda C. Holladay Harvey R. Spiegel Frank J. Beltran Steven A. Cornelison J. Randall Frost Philip E. Holladay Jr. and Ellen J. Spitz Mary T. Benton Arturo Corso Murray A. Galin William P. Holley III Sutton Law Group, LLC Tracee R. Benzo Hon. Martin L. Cowen III David A. Garfinkel Shawn R. Holtzclaw Thomas W. Talbot David S. Bills Stephen S. Cowen J. Michael Garner J. David Hopkins III Evelyn Y. Teague Bennie H. Black Hon. Frank R. Cox E. Reid Garrett Catherine A. Hora Anderson Hon. Hugh P. Thompson Evan J. Black George C. Creal Jr. Michael G. Geoffroy Matthew A. Horvath Troutman Sanders, LLP Hon. James G. Blanchard Jr. Terrence L. Croft Rachel G. George Lisa K. Hoskin VOYA Foundation Mr. and Mrs. Charles R. Bliss Raymond L. Crowell Cynthia Gibson Melissa R. Hourihan J. Marcus E. Howard J. Alvin Leaphart Terry L. Nevel Charles W. Ruffin Allan J. Tanenbaum George M. Hubbard III David N. Lefkowitz Gwyn P. Newsom M. Shayla Rumely Elizabeth V. Tanis Laura S. Huffman Robert N. Leitch Charles L. Newton II Michael C. Russ Timothy P. Terrell Edward M. Hughes Guy E. Lescault Sam G. Nicholson Michael J. Rust Michael B. Terry Ruth A. Hughes Charles T. Lester Jr. John A. Nix Todd S. Salter G. William Thackston Jr. William H. Hughes Jr. Ralph B. Levy Elizabeth J. Norman James E. Sanders Mark W. Thomas David W. Hull Keith L. Lindsay Shirley F. Norris Hon. W. Louis Sands Jeffrey J. Toney Hon. Willis B. Hunt Jr. Stephanie R. Lindsey David C. Nutter Robert A. Schapiro Christopher A. Townley Howard O. Hunter III David S. Lipscomb Victoria A. O’Connor Steven R. Schefstad Laura B. Traylor Charles D. Hurt Jr. Catherine E. Long O’Kelley & Sorohan, LLC Neil C. Schemm Thomas W. Tucker James W. Hurt Mary B. Long Pamoja B. Pagnotta Ryan A. Schneider David L. Turner John M. Hyatt Long & Holder, LLP Jonathan B. Pannell and Jennifer B. Tourial Timothy J. Turner Thomas B. Hyman Jr. Sarajane N. Love Dianne P. Parker Jason R. Schultz Esther M. Tyde Jennifer N. Ide Linda S. Lowe Mary L. Parker Haley A. Schwartz Gregory W. Valpey Barry G. Irwin J. Rodgers Lunsford III Gene A. Parris Hon. Leah Ward Sears Rex R. Veal J. Scott Jacobson Charles W. Lykins Sonya Y. Pass Laura M. Shamp Willard R. Via Jr. Mary B. James Daniel I. MacIntyre IV W. Russell Patterson Jr. Kenneth L. Shigley Hon. Robert L. Vining Jr. Patrick D. Jaugstetter Rosser A. Malone Hon. George and Daniel Shim Eric M. Wachter Tanya D. Jeffords Leonard T. Marcinko Mrs. Anne Peagler Lois D. Shingler Rose Marie Wade Frederick W. Johnson Edwin Marger James E. Peavy Helen A. Shockey Michael S. Wakefield J. Alexander Johnson Aaron P. Marks Lars-Uwe Pera Edward M. Shoemaker Waldon Adelman Castilla Todd M. Johnson Barbara H. Martin Milton L. Petersen Ann A. Shuler Hiestand & Prout Theodore C. Jonas Hon. Beverly B. Martin Jerry G. Peterson Arnold B. Sidman Carol Walker James C. Jones III Hope L. Martin Lesjanusar D. Peterson Beverlee E. Silva Homer J. Walker III Donald W. Jordan LaRee K. Martin Hon. Guy D. Pfeiffer Claude M. Sitton Susan M. Walls Sharon Jordan Hon. Johnny W. Mason Jr. Hon. Herbert E. Phipps Sliz/Drake/Estes Phillip J. Walsh William H. Jordan Suzanne G. Mason Therese C. Piazza Associates Law Firm LLC Jeffrey S. Warncke Robert N. Katz Jackson R. Massey Frederic H. Pilch III Charles E. Sloane Daniel J. Warren Marcus G. Keegan Hon. James E. Massey Russell L. Pirkle III Ben T. Smith Jr. Thomas H. Warren Kirk W. Keene Marie E. Massey Warren R. Power Hon. J. D. Smith Janet G. Watts Michael B. Keene Stuart C. Mathews Ryan G. Prescott John H. Smith Joseph D. Weathers Richard W. Kelleman C. James McCallar Jr. Elizabeth A. Price Margaret R. Smith Jack M. Webb Crawley M. Kemp II Wes R. McCart Barbara D. Pye-Tucker Matthew T. Smith David A. Webster Traci D. Kemp M. Faye McCord Daniel S. Rader Hon. Philip C. Smith Mark Weinstein Richard P. Kessler Jr. Julian B. McDonnell Jr. Mary F. Radford Kevin S. Sobel Hon. Melvin K. Westmoreland Carol B. Kiersky Kevin J. McDonough Norman J. Radow Roy M. Sobelson Benjamin T. White Cada T. Kilgore III Kenneth P. McDuffie Marie T. Ransley Lawrence S. Sorgen John A. White Jr. Cada T. Kilgore IV Timothy I. McEwing Kimberly A. Reddy Robert M. Souther Damon A. Wiener William R. King Angus N. McFadden Mr. and Mrs. Albert P. Rita C. Spalding Robert J. Wilder Mr. and Mrs. Dow N. James R. McGibbon Reichert Jr. John I. Spangler III Paul C. Wilgus Kirkpatrick II Daniel R. McKeithen Jaimi A. Reisz Steven L. Sparger Kristin B. Wilhelm Lawrence P. Klamon Marci W. McKenna Robert B. Remar John H. Spillman Jr. David S. Wilkin Rhonda L. Klein Elizabeth McLeod Joseph T. Rhodes Stephen O. Spinks Connie L. Williford Paul M. Knott Rod G. Meadows Thomas S. Richey Samantha E. St. John William R. Willis III Kaye Kole David M. Meezan Sumner E. Riddick II John T. Stamps III John D. Wilson Sid M. Kresses Christopher Meisenkothen Robert E. Ridgway Jr. Charles T. Staples L. Matt Wilson Edward B. Krugman C. Robert Melton Robert E. Ridgway III E. Dunn Stapleton Deborah J. Winegard Sonjui L. Kumar Tinsley R. Merrill Lynn M. Roberson Mason W. Stephenson Susan E. Wolf Vincent T. Kung Lester M. Miller Caprice L. Roberts and David J. Stewart Timothy W. Wolfe Salu K. Kunnatha Walter W. Mitchell Andrew M. Wright J. Douglas Stewart Joel O. Wooten Jr. Jennifer A. Kurle James H. Morawetz Tina S. Roddenbery Mary J. Stewart Christopher A. Wray Sarah B. LaBadie Steven J. Mudder Richard B. Roesel A. Thomas Stubbs Peter M. Wright David A. LaMalva Brian M. Murphy Gail E. Ronan Michael A. Sullivan W. Scott Wright Benjamin A. Land Heather E. Murphy Joseph A. Roseborough David W. Sumner Carla E. Young John L. Latham Roger E. Murray Teresa W. Roseborough Malcolm S. Sutherland Hon. Gordon R. Zeese Nancy F. Lawler Jeffrey D. Nakrin Michael Rosenbloum Hon. David R. Sweat Kathryn M. Zickert Allegra J. Lawrence-Hardy Michael T. Nations George C. Rosenzweig Michael J. Tafelski Alex L. Zipperer Jerome A. Zivan John H. Gaines III Melissa K. Orme Paul Kilpatrick Jr. Nancy R. DeVetter in Frances A. Zwenig D. A. Garner Paul W. Painter III Linda A. Klein memory of Edward W. Broker Evelyn D. Gay John P. Partin Charles T. Lester Jr. Hon. Edgar W. Ennis Jr. DONOR’S CIRCLE Jerry L. Gentry Bradley J. Patten Charles L. Ruffin in memory of Hon. George B. ($150 - $249) Wendy J. Glasbrenner Heather K. Peck Kenneth L. Shigley Culpepper III Anonymous (2) Andrew M. Greene Oscar N. Persons J. Douglas Stewart George H. Freisem III in David Addleton Divida Gude Daniele Petkovicz-Tedesco Irwin W. Stolz Jr. memory of Larry A. Foster David J. Bailey Rebecca A. Haltzel-Haas Hon. Patsy Y. Porter Gainesville Northeastern HONORARIUM GIFTS Emily S. Bair Clinton A. Harkins Alan F. Pryor Georgia Bar Association in Anonymous donor Eric A. Ballinger Kathleen J. Harris Ernest C. Ramsay memory of Wyc Orr in honor of Lisa Krisher Joseph R. Bankoff Abbott S. Hayes Jr. Mary K. Rawls Langga Gay in memory Anonymous donor Marcia D. Bansley Tony Hedge John D. Reeves of Edward W. Broker in honor of Mike Monahan Robin N. Bargeron Jeffrey F. Hetsko Jeffrey P. Richards Wendy J. Glasbrenner in Hon. Dorothy T. Beasley Hon. Patricia D. Barron Susan Hirsch Brian D. Rogers memory of John Riemer in honor of A. James Elliott Marshall B. Barton Clifford G. Hoffman Robert Rosenblum The Gordon Law Firm in Charles Boortz John P. Batson April L. Hollingsworth Walter P. Rowe memory of Walter Leggett in honor of Katy Boortz Kenneth I. M. Behrman David S. Hollingsworth Cornelia S. Russell Earline L. Ham in memory of Thomas M. Clyburn Jr. John C. Bennett Keith W. Holman Randi E. Schnell Hon. George B. Culpepper III in honor of Jim Hiers Yahn W. Bernier Jonathan S. Howell David M. Schwartz Hon. Tommy R. Hankinson Hon. Susan S. Cole Hon. Stanley F. Birch Jr. David L. Hudgins Stanton J. Shapiro in memory of in honor of Nancy Terrill Barbara L. Blackford Rachel E. Hudgins H. Burke Sherwood Sr. Capt. John A. Zimmerman III Dare Dukes Sheri L. Bocher Mr. and Mrs. David E. Hudson Udai V. Singh Judy Hauck in memory in honor of Robert Bush Joseph I. Bolling Sean C. Hyatt Hon. Lamar W. Sizemore Jr. of Andrew D. Lee Mr. and Mrs. David E. Hudson Bakari M. Brock James Bates Brannan George B. Smith IV Philip C. Henry in memory in honor of Hon. William M. Burnette Law, P.C. Groover LLP George B. Smith III of George Hart Fleming Jr. Jeanette Burroughs Vicki and Frank E. Jenkins III Daniel B. Snipes Melyssa Jan in memory Katherine M. Kalish Michael R. Casper Gwendolyn L. Johnson Don E. Stephens of Edward W. Broker in honor of Phil Bond Fred L. Cavalli Lester B. Johnson III Hon. Michael B. Stoddard Richard P. Kessler Jr. in Kara Peterson Martha J. Church Kenneth J. Jones Joseph L. Stradley Jr. memory of Kathleen Kessler in honor of Callan Wells Michelle R. Clark Robert J. Kauffman Matthew T. Stricklans Kaye Kole in memory Judith F. Ruffin William B. Cody Gary M. Kazin Tara C. Stuart of Aaron Buchsbaum in honor of John B. Long Jeffery T. Coleman Seth D. Kirschenbaum Robert A. Susor Lillie D. Lang in memory Neal Weinberg John G. Conger Lynn S. Koch Cherie O. Taylor of Edward W. Broker in honor of Phil Bond Linnis I. Cook James M. Koelemay Jr. Elizabeth F. Thompson Joni Lukes in memory Nancy J. Whaley Sarah I. Coole Hon. Jean Miller Kutner Thomas W. Tobin of Edward W. Broker in honor of Phyllis J. Holmen Leslie F. Corbitt Darlene G. Lackey-Rushing Valerie G. Tobin Jeanne O’Brien in memory J. Michael Cranford John Lamberski Torin D. Togut of Edward W. Broker MEMORIAL GIFTS Kenneth B. Crawford Troy A. Lanier Robert L. Trivett Donna Pollet in memory Melinda P. Agee in memory Lynda M. Crouse Matthew W. Levin Nicki N. Vaughan of Andrew D. Lee of Kay Y. Young Jackson L. Culbreth Andrew J. Liebler Bryan M. Ward Jamie B. Rush in memory Hon. Lanier Anderson III Thomas A. Cullinan Joel I. Liss Hon. Margaret Gettle of Edward W. Broker and Mrs. Nancy Anderson in Deryl D. Dantzler L. Joseph Loveland Jr. Washburn Dorothy W. Russell in memory of Robert L. Anderson William D. DeGolian Peter C. Lown Rickey Watson memory of Dean Booth Wanda Andrews in memory Christian L. Deichert Alfred S. Lurey Neal Weinberg Kevin J. Street in memory of Edward W. Broker Mary Irene Dickerson Samuel M. Matchett Rev. Bruce W. Wilkinson of Lloyd J. Street Heidi Behnke in memory Ronald J. Doeve James J. McAlpin Jr. Clarence Williams Nancy F. Terrill in memory of of Edward W. Broker J. Michael Dover Hon. H. Arthur McLane James O. Wilson Jr. Hon. George B. Culpepper III Lamont A. Belk in memory Ralph A. Dowell Hon. Jack M. McLaughlin Katherine K. Wood Cheri Vanbrackle in memory of Lucille Wright John W. Dozier John T. Mitchell Jr. of Edward W. Broker Jeanette N. Burroughs in Lester Z. Dozier Jr. Neil A. Moskowitz PAST STATE BAR memory of Edward W. Broker Julie I. Edelson Yolanda M. Mott PRESIDENT’S CIRCLE IN-KIND GIFTS Robert W. Bush in memory William H. Ferguson Kimberly P. Mullins William D. Barwick Alston & Bird LLP of Edward W. Broker Julia F. Fisher Scott P. Newland Richard Y. Bradley Dianne Cook Fern D. Carty in memory James C. Fleming Benjamin A. Nicholson Jeffrey O. Bramlett The Daily Report of Mr. Malcolm and Mrs. Wilhelminia H. Ford Leslie A. Oakes Harold T. Daniel Jr. Jewel Carty Joseph H. Fowler Mary Ann B. Oakley Benjamin F. Easterlin IV Hon. and Mrs. Marion Robert A. Fricks Stephanie L. Oginsky A. James Elliott Cummings in memory John P. Fry Amalia B. Olmos David H. Gambrell of Hon. Willard Henry Chason 2014 ASSOCIATES’ build an endowment to sustain Phyllis J. Holmen Paul S. Kish Rosemary M. Bowen CAMPAIGN FOR LEGAL the work of the Georgia Hunter, Maclean, Exley William H. Kitchens Thomas A. Bowman SERVICES Legal Services Program for & Dunn, P.C. Leslie and Judy Klemperer Barbara S. Boyer Ryan W. Babcock generations to come. Inglesby, Falligant, Horne, Rita J. Kummer John H. Bradley Bondurant, Mixson Courington & Chisholm, P.C. John F. Lyndon Daryl Braham & Elmore, LLP Building a Foundation Mary B. James Celeste McCollough Thomas B. Branch III King & Spalding LLP for Justice D. Wesley Jordan Jane and Randy Merrill Dianne Brannen Lauren J. Miller The following individuals and Paul Kilpatrick Jr. Caitlin Miller Bill Broker Alison Berkowitz Prout law firms are contributors to Mr. and Mrs. Lawrence Jenny K. Mittelman Brooks Law Firm Jane D. Vincent the “Building a Foundation for P. Klamon and William C. Thompson The Brown Firm, LLC Justice Campaign” launched Linda A. Klein Patrick T. O’Connor George E. Butler II VENDORS in 2001 by the Georgia Legal and Michael S. Neuren The Oldenburg Law Firm John D. Carey Barracuda Networks Services Foundation. Catherine E. Long Carl S. Pedigo Jr. John R. Carlisle ACC Business Willis L. Miller III Hon. George and Thomas D. Carr CDW JUSTICE BUILDER’S CIRCLE Roger E. Murray Mrs. Anne Peagler Hon. Edward E. Carriere Jr. Cisco Networks ($1,000 & Up) Gretchen E. Nagy J. Robert Persons Nickolas P. Chilivis Colotraq Anonymous (4) Charles L. Newton II Steven L. Pottle Edward B. Claxton III Digital Concierge at She’s Robert L. Allgood Kenneth S. Nugent, P.C. Jill A. Pryor James H. Coil III Wired Joel S. Arogeti Thomas E. Prior Robert B. Remar Arlene L. Coleman FastNeuron Inc. Mr. and Mrs. R. Lawrence Hon. Mae C. Reeves Udai V. Singh Mary C. Cooney Frazier Marketing and Design Ashe Jr. Robbins Geller Rudman J. Lindsay Stradley Jr. Hon. Lawrence A. Cooper Hewlett Packard Alice H. Ball & Dowd LLP UNUM Group Philip B. Cordes InfoExpress Joseph R. Bankoff Alan F. Rothschild Jr. Patrick F. Walsh Hon. John D. Crosby Microsoft Patricia T. Barmeyer Sanford Salzinger David D. and Robert M. Cunningham PSTI The Barnes Law Group, LLC J. Ben Shapiro Jr. Melody Wilder Wilson John D. Dalbey Peachtree Benefits Group Ansley B. Barton Silver & Archibald, LLP Dalton Regional Office of PrintTime James L. Bentley III Ethelyn N. Simpson DONOR’S CIRCLE the Georgia Legal Services RGI Jean Bergmark Hon. Philip C. Smith Anonymous (8) Program StormWood Lynne Borsuk and Robert Charles W. Surasky Anthony H. Abbott Hugh M. Davenport Techbridge Smulian Sutton Law Group, LLC Bettye E. Ackerman Thomas C. Dempsey Unidesk James W. Boswell III Michael H. Terry Aaron I. Alembik Joseph W. Dent Vmware Bouhan, Williams Randolph W. Thrower Evan M. Altman Mary Irene Dickerson & Levy, LLP William A. Trotter III Peter J. Anderson Gregory J. Digel 2014 CAMPAIGN COMMITTEE Phil Bradley Thomas W. Tucker Wanda Andrews Robert N. Dokson Patrise M. Perkins-Hooker and Cathy Harper Weissman, Nowack, Curry Janet M. Ansorge John L. Douglas President, State Bar Jeffrey and Nancy Bramlett & Wilco, P.C. Anthony B. Askew J. Michael Dover of Georgia James J. Breen William F. Welch Cathy and Bucky Askew Lester Z. Dozier Jr. Charles L. Ruffin William A. Brown Derek J. White Bruce and Lisa Aydt Dozier Law Firm, LLC Immediate Past President, Mr. and Mrs. Aaron L. Diane S. White S. C. Baird Terri H. Duda State Bar of Georgia Buchsbaum Timothy W. Wolfe Michelle R. Barclay Kathryn Durham, J.D., P.C. Brinda Lovvorn Sheryl L. Burke Robert A. Barnes Randy J. Ebersbach Director of Membership, Business Law Section of the JUSTICE PARTNER’S Charles H. Battle Jr. Robert G. Edge State Bar of Georgia State Bar of Georgia CIRCLE Henry R. Bauer Jr. William A. Erwin Judy Hill Thalia and Michael C. Carlos ($500 - $999) Hon. T. Jackson Bedford Jr. Roslyn S. Falk Assistant Director Foundation, Inc. Anonymous (2) Lamont A. Belk William H. Ferguson of Membership, John A. Chandler Renee C. Atkinson Hubert J. Bell Jr. Karen J. Fillipp State Bar of Georgia James A. “Jock” Clark JWP Barnes Kevin E. Belle Isle Thomas M. Finn Georgia Legal Services and Mary Jane Robertson Paul R. Bennett William T. Bennett III Dean Daisy H. Floyd Board of Directors David H. Cofrin Wendy C. Breinig Bentley, Bentley & Bentley Ira L. Foster State Bar of Georgia Harold T. Daniel Jr. Mary Jane Cardwell Harvey G. Berss Samuel A. Fowler Jr. Benjamin S. Eichholz, P.C. Steven M. Collins Paula L. Bevington Paula J. Frederick Georgia Legal Services J. Melvin England Randall A. Constantine Terry C. Bird Christine A. Freeman Foundation James C. Fleming John H. Fleming Martin J. Blank Gregory L. Fullerton The Georgia Legal John P. Fry Kevin B. Getzendanner David J. Blevins Peter B. Glass Services Foundation is a David H. Gambrell R. William Ide III Mr. and Mrs. Charles R. Bliss Susan H. Glatt separate 501(c)(3) nonprofit Edward J. Hardin Forrest B. Johnson Marcia W. Borowski Hon. Martha K. Glaze organization with a mission to Harris & Liken, LLP Mary and Rick Katz Edward E. Boshears Judy Glenn Yvonne K. Gloster Harry S. Kuniansky A. Sidney Parker G. William Thackston Allegra J. Lawrence-Hardy Morton J. Gold Jr. Steven J. Labovitz Mr. and Mrs. Dianne P. Parker Daniel R. Tompkins III John B. Long Alan B. Gordon L. Robert Lake John P. Partin William L. Tucker Evelyn Y. Teague Kevin R. Gough Kipler S. Lamar G. Cleveland Payne III, PC Leslie W. Uddin Thomas W. “Tommy” Tucker Mark P. Grant Clifford S. Lancey Cathy Peterson Frederick D. Underwood Thomas S. Gray Jr. Joseph Lannucci Hon. Albert M. Pickett Joseph M. Ventrone We appreciate our donors and Gary G. Grindler Allegra J. Lawrence-Hardy Loretta L. Pinkston and Jeanne Broyhill take great care in compiling Divida Gude Gregory G. Lawton John L. Plotkin Jennifer B. Victor the Honor Roll of Contributors. Stephen H. Hagler Hon. Kelly A. Lee Linda L. Holmen Polka Rose Marie Wade If we have inadvertently Nedom A. Haley Stanley M. Lefco Jeffrey N. Powers Christopher A. Wagner omitted your name, or if Warren R. Hall Jr. Mrs. Esther and Thompson T. Rawls II Hon. Ronit Z. Walker your name is incorrect in the Christopher Harrigan Mr. Kristian Leibfarth Michael S. Reeves Walker Wilcox Matousek LLP records, we apologize and Deborah H. Harris Zane P. Leiden Clinton D. Richardson Ellene Welsh encourage you to contact Kirk E. Harris, Esq. R. O. Lerer Ritter Law Firm, LLC Brian W. Wertheim the Development Office at Jeanne D. Harrison Lightmas & Delk Timothy D. Roberts Brian K. Wilcox 404-206-5175, so that we Alexsander H. Hart Jack N. Lincoln Richard B. Roesel Mark Wilcox can correct our records and James A. Hatcher J. Rodgers Lunsford III Carmen Rojas Rafter Robert J. Wilder acknowledge you properly in Karen G. Hazzah Herman O. Lyle James H. Rollins Frank B. Wilensky the future. Some donors have Gregory K. Hecht Dennis J. Manganiello Charles L. Ruffin Paul C. Wilgus requested anonymity. Philip C. Henry Edwin Marger David A. Runnion Kathryn B. Wilson Kenneth M. Henson Jr. Andrew H. Marshall Dorothy W. Russell Norman D. Wilson The Georgia Legal Services Mr. and Mrs. Andrew M. H. Fielder Martin Phillip B. Sartain Bob and Lynda Wilson Program is a nonprofit Hepburn Jr. Raymond S. Martin Christopher G. Sawyer William N. Withrow Jr. law firm recognized as a Sharon B. Hermann F. P. Maxson Otis L. Scarbary Leigh M. Wilco 501(c)(3) organization by Chris Hester James McBee Cathy L. Scarver and Carolyn C. Wood the IRS. Gifts to GLSP are Jeffrey F. Hetsko Elizabeth L. McBrearty S. Alan Schlact Brian D. Wright tax-deductible to the fullest Charles F. Hicks Mary F. McCord Bryan D. Scott Hon. Lawrence D. Young extent allowed by law. Jon E. Holmen Robert L. McCorkle III Claude F. Scott Jr. Daniel D. Zegura Matthew A. Horvath James T. McDonald Jr. Janet C. Scott Norman E. Zoller The Georgia Legal Services Edward M. Hughes Jane S. McElreath Martin J. Sendek (GLS) Foundation is Hon. Carol W. Hunstein Christopher J. McFadden Mark A. Shaffer 2014 HONORARIUM GIFTS recognized as a 501(c)(3) Cindy Ingram James B. McGinnis Hon. Marvin H. Shoob Bob and Lynda Wilson in honor nonprofit organization by Initial Public Offering McKenney & Jordan Ann A. Shuler of Michael J. Bowers, Esq. the IRS. Gifts to the GLS Securities Litigation Hon. Jack M. McLaughlin Viveca Sibley Brian D. Wright in honor Foundation are tax-deductible Hon. James T. Irvin Merrill & Stone, LLC Silvis, Ambrose of Richard Wright to the fullest extent allowed Hon. Phillip Jackson Metropolitan Regional & Lindquist, P.C. by law. Cathy Jacobson Information Sysytem Inc. Douglas K. Silvis 2014 MEMORIAL GIFTS Mr. J. Scott Michael S. and Ethelyn N. Simpson Hubert J. Bell Jr. in memory To make a contribution and Mrs. Tanya Jacobson Peggy Meyer Von Bremen John E. Simpson of Aubrey L. Coleman Jr. Go online at www.glsp.org, Jackson & Schiavone Garna D. Miller George B. Smith James C. Fleming in memory or mail your gift to Georgia Jaurene K. Janik Martha A. Miller Jay I. Solomon of Gov. Carl E. Sanders Legal Services, Development W. Jan Jankowski Terry L. Miller David N. Soloway Office, 104 Marietta St., Suite Weyman T. Johnson Jr. C. Wingate Mims John D. Sours Georgia Legal Services 250, Atlanta, GA 30303. Howard H. Johnston John T. Minor III Thomas A. Spillman Foundation Jane M. Jordan R. Carlisle Minter State Bar of Georgia Board of Directors Lise S. Kaplan Mitchell & Shapiro, LLP Mason W. Stephenson Joseph R. Bankoff Melinda M. Katz Ann Moceyunas Michael P. Stevens Patricia T. Barmeyer Robert N. Katz H. Bradford Morris Jr. Michael B. Stoddard Lynn Y. Borsuk Lisa Kennedy Diane M. Mosley Joseph F. Strength James W. Boswell III Robbman S. Kiker Jerold L. Murray C. Deen Strickland Phillip A. Bradley Vicky Kimbrell The National Association Jay L. Strongwater Paul T. Carroll III Jeff S. Klein of Realtors David R. Sweat James A. “Jock” Clark Jonathan I. Klein NAR Legal Affairs Robert E. Talley Harold T. “Hal” Daniel Jr. Thank you for your support. Simone V. Kraus James A. Neuberger Jeffrey D. Talmadge C. Ben Garren Jr. Hon. Phyllis A. Kravitch Amber L. Nickell Susan C. Tarnower Edward J. Hardin Alex Kritz Lynne R. O’Brien Jackie Taylor Kathleen Horne Edward B. Krugman Rakesh N. Parekh, PC William M. Tetrick Jr. Mary Mendel Katz Bench & Bar

Kudos > Nelson Mullins Riley & Scarborough > Chamberlain, Hrdlicka, White, Williams & LLP announced that partner Richard Aughtry announced the release of the second edi- Herzog was elected to the membership tion of “Georgia Construction Law.” Chamberlain of The American Law Institute (ALI). Hrdlicka’s Atlanta-based construction law team, Candidates for membership must dem- including shareholders Michael P. Davis, Nicholas onstrate excellence in the law, high S. Papleacos, Seth R. Price and Gina M. Vitiello, character, be willing to contribute to the work of the and Senior Counsel Jill R. Johnson, served as institute, and committed to clarifying and improv- authors for the book, published by HLK Global ing the law. The ALI drafts, discusses, revises and Communications, Inc. The guide serves as a con- publishes Restatements of the Law, model statutes struction law handbook for industry leaders with and principles of law that are influential in the projects in Georgia. courts and legislatures as well as in legal scholar- ship and education. > Kilpatrick Townsend & Stockton LLP announced > DLA Piper announced that partner M. that partner Jamie Graham Maxine Hicks was re-elected to a two- was selected as a member of year term as secretary of the Buckhead the 2015 Class of Fellows to Coalition. The Buckhead Coalition is

Graham Deal participate in a landmark an influential nonprofit civic associa- program created by the tion, much like a chamber of com- Leadership Council on Legal Diversity (LCLD) to merce, for this affluent northern quadrant of the identify, train and advance the next generation of city of Atlanta. Its membership is limited to 100 leaders in the legal profession. The LCLD Fellows CEOs of major area firms, by invitation. Its mission Program offers participants “an extraordinarily rich is to “nurture the quality of life and help coordi- year of relationship-building, virtual and in-person nate an orderly growth.” training, peer-group projects, and extensive contact with LCLD’s top leadership.” > Rita A. Sheffey, assistant dean for pub- Associate Jennifer Fairbairn Deal was named lic service at Emory University School to the Atlanta Volunteer Lawyers Foundation’s of Law and current State Bar of Georgia (AVLF) Junior Board. AVLF was created in 1979 treasurer, was chosen as the recipient of through the joint efforts of the Atlanta Legal Aid the 2015 Ben F. Johnson Jr. Public Society, the Atlanta Bar Association, the Atlanta Service Award. The award is presented Council of Younger Lawyers and the Gate City Bar annually by Georgia State University’s College of Association to offer lawyers an opportunity to pro- Law to a Georgia attorney whose overall accom- vide civil legal representation for the poor. AVLF plishments reflect the high tradition of selfless pub- develops and coordinates programs that provide lic service that founding dean, Ben F. Johnson Jr., legal representation, education and advocacy for exemplified during his career and life. at-risk, low-income individuals by tapping the enthusiasm and commitment of volunteer legal On the Move professionals to address the unmet civil legal needs in the Atlanta community. Atlanta > Burr & Forman LLP announced that Bryan T. > At its 2015 annual meeting in Athens, the Glover, Erin Richardson Ward and Patrick B. Council of Superior Court Judges award- Webb were elevated to partnership. Glover is a ed Hon. Lawton E. Stephens the fourth member of the firm’s creditors’ rights and bank- annual Emory Findley Award for ruptcy practice group. Ward advises lending insti- “Outstanding Judicial Service.” Stephens tutions, real estate developers and investors in vari- has served as a Western Judicial Circuit ous aspects of commercial real estate transactions. superior court judge for more than 23 years. The Webb practices in the firm’s banking and real estate award is named for the late Atlantic Judicial Circuit group. The firm is located at 171 17th St. NW, Suite superior court Judge Emory Findley, who served in 1100, Atlanta, GA 30363; 404-815-3000; Fax 404-817- that role from 1976-1994. Findley died in 2004, still 3244; www.burr.com. serving as a senior judge. The annual award is given to honor a judge who exemplifies Judge Findley’s virtues of visionary leadership, resolve and dedication.

42 Georgia Bar Journal Bench & Bar

> Morris, Manning & Martin, LLP, > Emory University School of Law announced that Charles Beaudrot Jr. announced that Rita Sheffey, a veter- returned to the firm as a senior partner an litigator with a career-long commit- in the tax and real estate capital markets ment to public service and current practice groups. Beaudrot helped build treasurer of the State Bar of Georgia, the tax aspect of the firm’s real estate was named assistant dean for public investment trust practice (REIT), which grew to service. In the newly created position, Sheffey will handle some of the largest REIT transactions in the build upon the law school’s well-established pub- nation. In 2012, he was appointed chief judge of the lic service programs. Sheffey will advise the Emory Georgia Tax Tribunal, the state’s first tax court. The Public Interest Committee, oversee the law school’s firm is located at 1600 Atlanta Financial Center, Pro Bono Program, increase post-graduate place- 3343 Peachtree Road NE, Atlanta, GA 30326; 404- ment opportunities in federal and state clerkships, 233-7000; Fax 404-365-9532; www.mmmlaw.com. and advise students with career interests in government or with public interest organizations. > Emory University School of Law is located at 1301 Clifton Road NE, Atlanta, GA 30322; 404-727-6816; www.law.emory.edu.

> Bondurant Mixson & Ghosh Obeidin Wilcox Sherman Elmore LLP Nelson Mullins Riley & announced that Scarborough LLP an- Jason J. Carter,

nounced that Sanjay Ghosh, Carter Giovinazzo Prout Christoper T. Kinan Obeidin and Suzann Giovinazzo Wilcox were elected to and Alison B. Prout were named partners with the the partnership, Scott N. firm. Carter represents clients in high stakes trial McKee Effiong Sherman joined the firm as a and appellate business litigation. Giovinazzo and partner, Elizabeth “Beth” McKee was promoted to Prout represent plaintiffs and defendants in com- of counsel and Nkoyo-Ene Effiong joined the firm as plex litigation and business disputes. The firm is an associate. Ghosh focuses his practice in the areas located at 1201 W. Peachtree St. NW, Suite 3900, of product liability litigation, pharmaceutical and Atlanta, GA 30309; 404-881-4100; Fax 404-881-4111; medical device litigation, and commercial litigation. www.bmelaw.com. Obeidin practices in the areas of corporate law, financial institutions and real estate. Wilcox focuses her > Hall Booth Smith, P.C., practice in the area of education law. Sherman focus- announced the election es his practice in complex business and securities liti- Duane Cochenour and gation. McKee focuses her practice in the area of Michael Williams to part- immigration law. Effiong focuses her practice on ner. Cochenour is a litigator education law. The firm is located at 201 17th St. specializing in the represen- Cochenour Williams NW, Suite 1700, Atlanta, GA 30363; 404-322-6000; tation of medical profes- Fax 404-322-6050; www.nelsonmullins.com. sionals and is the leader of the firm’s insurance coverage practice group. Williams represents cli- > Stites & Harbison, PLLC, ents in complex, high-damage litigation matters, announced that Walker with a particular emphasis in defending catastroph- Entwistle was elected to ic loss claims. The firm is located at 191 Peachtree membership, and Melissa St. NE, Suite 2900, Atlanta, GA 30303; 404-954-5000; J. Davey was promoted to Fax 404-954-5020; www.hallboothsmith.com.

Entwistle Davey of counsel. Both Entwistle and Davey are members of > Levine Smith Snider & Wilson, LLC, the firm’s creditors’ rights & bankruptcy service announced that David A. Garfinkel group. The firm is located at 2800 SunTrust Plaza, joined the firm as of counsel. Garfinkel 303 Peachtree St. NE, Atlanta, GA 30308; specializes in complex divorces, high- 404-739-8800; Fax 404-739-8870; www.stites.com. asset property division, alimony and child-custody and support issues. The

April 2015 43

Bench & Bar

firm is located at One Securities Centre, 3490 ernment and public policy litigation, public con- Piedmont Road NE, Suite 1150, Atlanta, GA 30305; tract and procurement issues, political law, and 404-237-5700; Fax 404-237-5757; www.lsswlaw.com. governmental and regulatory affairs matters. Markham focuses her practice on commercial real > Kilpatrick estate. Vinson’s practice concentrates primarily on Townsend & state and local issues, particularly campaign and Stockton LLP election law, economic development and legisla- announced tive action. The firm is located at 303 Peachtree St. that Charles NE, Suite 5300, Atlanta, GA 30308; 404-527-4000; Hooker, Bob Fax 404-527-4198; www.mckennalong.com. Hooker Stupar Swaja Stupar and Daniel Swaja were elected to partnership. Hooker > Swift, Currie, is a member of the firm’s trademark and copyright McGhee & team. Stupar is a member of the firm’s real estate Hiers, LLP, finance and capital markets team. Swaja is a mem- announced that ber of the firm’s construction and infrastructure Ashley W. team. The firm is located at 1100 Peachtree St. NE, Broach, Ann M. Broach Joiner Lee Suite 2800, Atlanta, GA 30309; 404-815-6500; Fax Joiner and 404-815-6555; www.kilpatricktownsend.com. Pamela N. Lee were named to the firm’s partnership. Broach is a civil litigator, whose practice focuses pri- > marily on product liability, premises liability and mass tort defense. Joiner practices primarily in the area of workers’ compensation defense. Lee practices in the firm’s litigation section. The firm is located at 1355 Peachtree St. NE, Suite 300, Atlanta, GA 30309; 404- 874-8800; Fax 404-888-6199; www.swiftcurrie.com. Pound Pardue Simcoe Myles Owen, Gleaton, Egan, Jones & Sweeney, LLP, > Hoffman & Associates announced that announced the addition of Theodore E.G. Pound as Kim Hoipkemier became a partner of a partner, David Pardue as of counsel and the firm. She currently specializes in the Kathleen W. Simcoe and Joshua Myles as associ- areas of wills, trusts, estate administra- ates. Pound’s practice focuses on civil litigation tion and probate. The firm is located at and trial practice, including defense of health care 6100 Lake Forrest Drive, Suite 300, providers in professional liability litigation and Atlanta, GA 30328; 404-255-7400; Fax 404-255-7480; representation of plaintiffs and in a wide range of hoffmanestatelaw.com. other personal injury cases. Pardue’s practice focuses on business, intellectual property and real > Carlock, Copeland & Stair, LLP, estate litigation. Simcoe’s practice focuses on medi- announced that Erica L. Parsons was cal malpractice defense, health care law and corpo- elected as partner. She practices in the rate matters. Myles’ practice includes employment areas of general liability defense, insur- litigation, business litigation, intellectual property ance coverage and bad faith across the litigation, professional liability, insurance cover- Southeast. The firm is located at 191 age, governmental liability matters and general Peachtree St. NE, Suite 3600, Atlanta, GA 30303; 404- civil litigation. The firm is located at 1180 Peachtree 522-8220; Fax 404-523-2345; carlockcopeland.com. St. NE, Suite 3000; Atlanta, GA 30309; 404-688-2600; Fax 404-525-4347; www.og-law.com. > > McKenna Long & Aldridge LLP announced that Jeremy Turner Barbaree Moeller Zeldin Berry, Wendy Markham and Littler Mendelson added Daniel E. Turner, Tracey Berry Markham Vinson Ben Vinson T. Barbaree, Beth A. Moeller and Lauren H. were elected to partnership. Berry focuses on gov- Zeldin as shareholders. The group, which joined

April 2015 45 Bench & Bar

Littler from the Atlanta office of Ogletree Deakins, ers with human resources and employment-related brings decades of employment law experience and litigation matters, including wrongful termination a strong reputation in Atlanta and nationally for claims, sexual harassment, employment discrimina- successfully resolving numerous employment liti- tion, employment contracts and non-compete agree- gation matters. The firm is located at 3344 Peachtree ments. The firm is located at 191 Peachtree St. NE, Road NE, Suite 1500, Atlanta, GA 30326; 404-233- Suite 4800, Atlanta, GA 30303; 404-881-1300; Fax 0330; Fax 404-233-2361; www.littler.com. 404-870-1732; www.ogletreedeakins.com.

> Flynn + Peeler + Phillips, LLC, > announced that Kenneth B. Hodges III joined the firm as of counsel, opening their new Atlanta office near Buckhead. Hodges specializes in business and commercial, as well as personal injury and Boyd Drakulich Kazi Hitt criminal law. He also currently serves on the Executive Committee of the State Bar of Georgia. The firm is Fish & Richardson named Brian Boyd, Corrin located at 2719 Buford Highway, Atlanta, GA 30324; Drakulich and Aamir Kazi as principals in the firm’s 800-646-8799; Fax 229-446-4884; www.fpplaw.com. intellectual property litigation group and Tracy Hitt as a principal in its patent group. Boyd continues his pat- > Duane Morris LLP announced that ent litigation practice across a wide range of high-tech Alison Haddock Hutton was promoted and telecommunications industries. Drakulich repre- to partnership. She practices in the area sents plaintiffs and defendants in cases spanning a of intellectual property law with an wide range of technologies, including medical devices, emphasis on patent litigation. The firm life sciences, health care and manufacturing. Kazi con- is located at 1075 Peachtree St. NE, Suite tinues to focus his litigation practice on patent, trade- 2000, Atlanta, GA 30309; 404-253-6900; Fax 404-253- mark and trade secret litigation, high-tech commercial 6901; www.duanemorris.com. litigation, due diligence, licensing and intellectual property counseling. Hitt focuses his practice on client > Taylor English Duma LLP announced counseling, patent prosecution, due diligence, patent the addition of Katherine M. Koops to post-grant proceedings and patent-related opinions. the firm’s corporate and business prac- The firm is located at 1180 Peachtree St. NE, 21st Floor, tice. Formerly with Bryan Cave LLP, Atlanta, GA 30309; 404-892-5005; www.fr.com. Koops brings more than 25 years of experience representing financial institu- > MendenFreiman announced that Jeffrey tions and other businesses in banking, corporate and J. Meek joined the firm as a senior asso- securities matters. The firm is located at 1600 ciate. As a member of the firm’s busi- Parkwood Circle, Suite 400, Atlanta, GA 30339; 770- ness, estate planning, and trust and 434-6868; Fax 770-434-7376; www.taylorenglish.com. estate administration practice areas, Jeff will provide comprehensive business, > Hamilton, Westby, Antonowich & tax and estate planning counsel to high-net-worth Anderson, LLC, announced that Holly J. individuals and families, as well as privately held Portier became a partner with the firm. businesses. The firm is located at Two Ravinia Drive, Her practice primarily focuses on insur- Suite 1200, Atlanta, GA 30346; 770-379-1450; Fax 770- ance defense (including workers’ com- 379-1455; www.mendenfreiman.com. pensation and liability defense) and commercial litigation. The firm is located at 600 W. > Polsinelli welcomed Brian F. McEvoy Peachtree St. NW, 17th Floor, Atlanta, GA 30308; 404- to the firm as a shareholder. He is a 872-3500; Fax 404-872-1822; www.hwaalaw.com. member of the firm’s government investigations and compliance-civil and > Ogletree, Deakins, Nash, Smoak & criminal practice. McEvoy is a former Stewart, P.C., announced that Greg federal prosecutor who works on white Hare was selected as the managing collar criminal defense and health care fraud mat- shareholder of the firm’s Atlanta office. ters. The firm is located at 1355 Peachtree St. NE, Hare will continue his varied labor and Suite 500, South Tower, Atlanta, GA 30309; 404-253- employment practice, assisting employ- 6000; www.polsinelli.com.

46 Georgia Bar Journal Bench & Bar

> Hall, Arbery, Gilligan, 602 N. Liberty St., Waynesboro, GA 30830; 706- Roberts & Shanlever LLP 554-3460; Fax 706-554-3462. announced that Michelle LeGault joined the firm as > Matthew W. Franklin was sworn-in as the new counsel and Wes McCart solicitor general for Burke County State Court joined the firm as an asso- in December 2014, and took office Jan. 1. Franklin LeGault McCart ciate. LeGault focuses her practices law at Matthew W. Franklin, LLC, in practice on restrictive covenant and trade secret Waynesboro. The solicitor general’s office is litigation and defending employers against located at 195 Court St., Waynesboro, GA 30830; claims of discrimination. McCart’s practice 706-437-0464. focuses on labor and employment matters and commercial litigation. The firm is located at In Savannah Tower Place 100, Suite 1900, 3340 Peachtree > HunterMaclean announced that Road NE, Atlanta, GA 30326; 404-442-8776; Fax Rebecca F. Clarkson joined as an asso- 404-537-5555; www.hagllp.com. ciate in the firm’s corporate practice group. Clarkson’s legal background is In Dalton in financial services, creditors’ rights > Robert A. Cowan was appointed as the and real estate. The firm is located at new judge of the Dalton Municipal 200 E. Saint Julian St., Savannah, GA 31401; 912-236- Court. He officially took the bench in 0261; Fax 912-236-4936; www.huntermaclean.com. January. The Dalton Municipal Court is located at 535 N. Elm St., Dalton, GA In Charlotte, N.C. 30721; 706-278-1913; Fax 706-275-8946. > Nelson Mullins Riley & Scarborough LLP announced that Thomas Farnen In Jonesboro joined the firm as a partner in its > Christie Cross Barnes was appointed Charlotte office. He focuses his practice chief staff attorney of Clayton County in environmental law. The firm is locat- by the Clayton County Board of ed at 100 N. Tryon St., 42nd Floor, Commissioners. The staff attorney’s Charlotte, NC 28202; 704-417-3000; Fax 704-377- office serves as legal counsel to the 4814; www.nelsonmullins.com. board of commissioners, county departments, certain boards and authorities, constitution- In Washington, D.C. al officers and employees in the scope of their > Tully Rinckey PLLC announced that employment. Barnes is the first woman to hold this Larry D. Youngner was named manag- position. The office is located at 112 Smith St., ing partner of the firm’s Washington, Jonesboro, GA 30236; 770-477-3207; Fax 770-473- D.C., office. Youngner’s practice focus- 5969; www.claytoncountyga.gov. es on military law and national security clearance representation. The firm is In Macon located at 815 Connecticut Ave. NW, Suite 720, > Harris & James, LLP, announced that Washington, DC 20006; 202-787-1900; Fax 202-640- Taylor S. Brown joined the firm as an 2059; www.tullylegal.com. associate. His practice areas include eminent domain and business litigation. The firm is located at 3573 Vineville WANT TO SEE YOUR Ave., Macon, GA; 478-745-9661; Fax 478-745-9824; www.harrisjames.com. NAME IN PRINT? In Waynesboro If you are a member of the State Bar of Georgia and you > Jackson E. Cox was appointed judge of Burke County State Court by Gov. Nathan Deal in have moved, been promoted, hired an associate, taken on November 2014, to fill the vacancy left by the a partner or received a promotion or award, we would passing of Hon. Jerry Daniel in January. Cox was like to hear from you. sworn-in December 2014 and immediately took For more information, please contact Lauren Foster, office. He had served as solicitor-general of Burke 404-527-8736 or [email protected]. County since 2001. The state court is located at

April 2015 47 Office of the General Counsel

That’s Not Fair! by Paula Frederick

“ ook what popped up when I did a web

search on the firm name!” your assistant L groans as she enters your office. “Somebody has blasted your work on their criminal case!”

You literally feel the hair on the back of your neck stand up as you read. “Mr. Smith did not return my phone calls and he lost my case. Now I’m in prison for something I didn’t do.—[email protected]” “That almost has to be Joe Doakes! He’s the only criminal case I’ve had for months,” you realize. “And you didn’t lose his case,” your assistant points out. “You gave that trial everything you had, but the evidence against him was overwhelming!” On the other hand, you do not violate the rules by “Didn’t return phone calls,” you grouse. “How was I posting a response that provides a general denial with supposed to call him back—he was in prison!” language like “We are unable to respond to angry@ “There goes our online marketing,” your assistant reidsville without revealing confidential information laments. “This is the first thing that pops up when you about his case. We at Smith & Smith return client tele- do a search on the firm name.” phone calls within 24 hours.” Review the tone of your Most people don’t hire a lawyer without doing response carefully to be sure you do not sound angry an internet search, so your online reputation is more or defensive. important than ever. What’s a lawyer to do when hit If a post contains information that you can prove is with a negative online review? untrue, you may be able to persuade the host site to Before you do anything, think about doing nothing. remove it. Decide whether the negative review is really going to Some experts suggest fighting a negative review by harm your business. Does the reviewer come across as creating your own positive content on websites that malicious, unreasonable or unstable? People are accus- will supersede a negative review when a potential tomed to online venting by sore losers, so potential client does an internet search. The theory is that with clients may ignore an isolated negative review. You more and newer content the negative review gets might even call more attention to it by responding to it. bumped lower and lower in the search results so that it If you feel the need to respond you might think it is less likely anyone will see it. best to post a detailed denial of the review. The eth- If all else fails seek professional help. There are com- ics rules make that tricky, but there is an exception panies that can help “fix” your online reputation for a to the confidentiality rule1 which allows a lawyer to fee if the problem becomes serious. reveal otherwise confidential information “to establish a . . . defense on behalf of the lawyer in a contro- Paula Frederick is the general counsel for versy between the lawyer and the client . . .” based the State Bar of Georgia and can be upon the lawyer’s reasonable belief that the revelation reached at [email protected]. is necessary. Unfortunately, reasonable minds can differ on how much information a lawyer may reveal under the exception. Lawyers can get themselves into disciplin- Endnote ary trouble when they fight back against a negative 1. Please remember that Georgia’s Rule 1.6 is different review with information that identifies the client and from the ABA Model Rule, so the advice could be reveals embarrassing details about the case. different in other jurisdictions.

48 Georgia Bar Journal How does your firm face risk?

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Attorney Discipline Summaries (Dec. 19, 2014 through March 18, 2015)

by Connie P. Henry

Disbarments/Voluntary Surrenders ent asked that Thompson return her $15,000, but he refused. Thompson did not keep the client’s funds in Rand Jason Csehy his attorney trust account and falsely claimed that the Roswell, Ga. $15,000 was payment for additional legal services. Admitted to Bar 1997 On Feb. 2, 2015, the Supreme Court of Georgia dis- Douglas Grant Exley barred attorney Rand Jason Csehy Jr. (State Bar No. Springfield, Ga. 199756). In April 2014, Csehy pled nolo contendere Admitted to Bar 2003 to two counts of possession of a controlled substance On Feb. 16, 2015, the Supreme Court of Georgia and one count of possession of a firearm during the disbarred attorney Douglas Grant Exley (State Bar No. commission of a crime. He was sentenced as a first 253555). The following facts are admitted by default: offender. Csehy filed a petition for voluntary discipline Exley accepted $500 to represent a client in a divorce seeking a one-to-two-year suspension. The State Bar action. Exley then failed to communicate with the client objected to Csehy’s petition. The Court denied the peti- or to take any action on his behalf. Exley was served tion and subsequently disbarred Csehy for his viola- by publication and mail with a Notice of Investigation, tion of Georgia Rule of Professional Conduct 8.4(a)(2). but he failed to file a timely sworn response and was suspended by the Supreme Court on April 14, 2014. Robert T. Thompson Jr. In another matter Exley accepted $1,000 to represent Atlanta, Ga. a client in a divorce action. Exley initially failed to com- Admitted to Bar 1975 municate with or to take any action on her behalf. The On Feb. 2, 2015, the Supreme Court of Georgia dis- client asked a friend to call Exley and pose as a new barred attorney Robert T. Thompson Jr. (State Bar No. client, and he returned the call from the client’s friend. 709750). The following facts are deemed admitted by When the client asked Exley why he had not been in default: In March 2012, a client hired Thompson to file communication, he stated that he was preparing to file an action on her behalf against JP Morgan Chase Bank. her divorce action. Although Exley mailed the docu- The client paid Thompson a flat fee of $5,000. In April ments to the client’s husband, he delayed in sending the 2012, the Superior Court granted a temporary restrain- documents to the client, despite repeated requests, and ing order against the foreclosure of the client’s house failed to file the signed documents with the Superior and required the client to pay $1,000 into the registry Court. Exley then failed again to communicate with the of the court. Thompson paid the money into the court’s client, abandoned representation of her and failed to registry, and the client reimbursed him. JP Morgan refund any of the fee. Exley again was served by pub- removed the case to federal court, and the client paid lication and mail with a Notice of Investigation, but he an additional $5,000 flat fee. Thompson instructed the failed to file a timely sworn response. client to pay $1,000 monthly into his trust account in order “to show good faith.” The client made $15,000 Rodd Walton in payments to Thompson’s trust account. In February Atlanta, Ga. 2013, the federal district court granted JP Morgan’s Admitted to Bar 2001 motion to dismiss. In the meantime, the client nego- On Feb. 16, 2015, the Supreme Court of Georgia dis- tiated a loan modification with JP Morgan. The cli- barred attorney Rodd Walton (State Bar No. 736490).

50 Georgia Bar Journal The following facts are admitted by default: A client retained Walton in 2012 for representation regarding the investigation of a second mort- gage on property awarded to the client’s ex-wife in a divorce. The client paid Walton $1,000. Walton failed to The Georgia High School Mock Trial provide any documentation to indicate that he performed the work. Program would like to express our Nevertheless, in July and August 2012, the client paid Walton addi- sincerest gratitude to the Georgia legal tional fees of $11,600. Those fees community for their support during the were for representation regarding a contempt action against the client, 2015 season. except that $5,000 was to be placed in escrow for use in hiring an attor- More than 500 Georgia attorneys and judges gave a ney in North Carolina, if necessary, tremendous amount of their time serving local schools as on a probate matter. No funds were attorney coaches for one of the 141 teams who registered paid to the North Carolina attorney for the season. as his services were not needed. In November 2012, the client provided Twenty-one attorneys and judges spent numerous hours a cashier’s check in the amount of preparing for and conducting the regional and district $24,000 to Walton that was to be competitions this past spring. We thank not only them for used as follows: $15,000 was to be their time, but their firms (and families) as well, for giving paid to an opposing party to obtain them this time to make these competitions happen. the release of an automobile that was in dispute in civil litigation; Lastly, we thank the hundreds of attorneys and judges $7,000 was to be paid to the client’s across the state that served as evaluators or presiding ex-wife to resolve contempt issues; judges for our competitions. During the season, we had and $2,000 was for additional attor- to find enough volunteers from the legal community to ney fees to Walton. Walton did not fill 332 courtrooms for all levels of the competition. appear for the final contempt hearing, and the client was incarcerated The result is that more than 1,600 high school students had for failing to pay the $15,000 per a the opportunity to compete in one of the most public programs prior consent order. Walton failed of the State Bar of Georgia. Without your support, they would to account for the funds that were to be paid to other parties, converted not have had this opportunity. those funds to his own use, and abandoned his law practice. The 2015 State Champion Team is from In another matter a client retained Northview High School in Johns Creek. Walton in 2010 to represent her regarding a June 2010 automobile The State Champion Team will represent Georgia at the accident in which she suffered inju- ries. Walton sent a demand letter to National High School Mock Trial Championship the insurer in May 2011, itemizing in Raleigh, N.C., May 15-16. special damages in the amount of $97,086.26 and demanding settle- For more information about the program or to make a donation to the state champion team to support their participation at nationals, ment in the amount of $320,384.06. please contact the mock trial office: In July 2011 the client signed a 404-527-8779 or toll free 800-334-6865 ext. 779; limited release for settlement in Email: [email protected] the amount of $25,000, but she had no further substantive communication from Walton despite repeated efforts to contact him. Walton did not provide the client with any information as to his receipt of the settlement proceeds or disburse- ment and he did not communicate

April 2015 51 with her regarding the status of sessory proceeding and attempt- and did not properly terminate his efforts to seek compensation ed to negotiate a resolution that the representation. under her underinsured motor- would allow them to remain in In another matter Sakas was ist coverage. The client has not their home. The bank removed the retained to seek additional com- received any settlement proceeds, case to federal court and filed a pensation for unpaid special dam- and her medical bills have not motion to dismiss. Hill concluded ages in connection with an auto- been paid. that the case would not survive mobile accident after the client had the motion to dismiss, but he did already received a settlement from Joseph Citron not respond to the motions or tell the at-fault driver. Sakas filed suit Atlanta, Ga. his clients that the case had been against the client’s insurer, but Admitted to Bar 1997 removed; instead, he led them failed to answer discovery, and the On March 2, 2015, the Supreme to believe the case was still in suit was dismissed. Court of Georgia accepted the peti- state court and that he was taking In a third matter Sakas was tion for voluntary surrender of actions to protect their interests. retained to pursue a negligence license of attorney Joseph Citron The family eventually was evicted. action against two defendants. (State Bar No. 126289). Citron pled Hill also failed to respond to a fee Sakas filed suit in Clayton County, nolo contendere in Pennsylvania arbitration dispute, and an award but was unable to perfect service on to nine felony violations of per- was entered in favor of the clients the defendants. Sakas subsequently jury, eight misdemeanor violations in the amount of $4,700. Hill stated became aware that the defendants of perjury and one misdemeanor that he suffers from mental health were located in DeKalb County, violation of unsworn falsification. issues and that he ceased practic- so he dismissed the Clayton action Citron made false statements about ing law in May 2013, and moved and re-filed in DeKalb. He made his professional background to bol- to South Carolina to focus on his exhaustive attempts to serve the ster his credibility as a testifying health. Hill is remorseful, has sat- defendants, but was unable to do expert witness. isfied the arbitration award and so, and the trial court dismissed has no prior discipline. Prior to the action. Suspensions reinstatement, Hill must submit a In another case Sakas failed to Lyle Vincent Anderson psychological evaluation indicat- respond to discovery on behalf of Dalton, Ga. ing that he no longer suffers from a client, and the client was sanc- Admitted to Bar 2001 an impairment that affects his abil- tioned $750 by the trial court. On Feb. 16, 2015, the Supreme ity to practice law. The record shows the following Court of Georgia accepted the peti- in mitigation: At the time Sakas tion for voluntary discipline of Melissa Jill Starling was suffering a disability caused attorney Lyle Vincent Anderson Ocilla, Ga. by a combination of factors. Since (State Bar No. 017722) and imposed Admitted to Bar 1989 receiving treatment and resolving a suspension pending the appeal of Pursuant to a Petition for his personal conflicts, he is now his felony conviction for forgery in Emergency Suspension filed by able to function as a practicing the first degree, and further order the State Bar, the Supreme Court attorney. The record also reflects of the Supreme Court. of Georgia suspended attorney that Sakas is deeply remorseful; Melissa Jill Starling (State Bar No. that he has taken the initiative of Wesley Kent Hill 676630) on Feb. 18, 2015, until fur- having his cases monitored by Atlanta, Ga. ther order of the Court. experienced legal staff to insure Admitted to Bar 2008 that he will avoid the mistakes he On Feb. 16, 2015, the Supreme Public Reprimands has made; that his medical issues Court of Georgia accepted the Jeffrey L. Sakas are under control and well-treated; petition for voluntary discipline of Atlanta, Ga. that at the time of these occur- attorney Wesley Kent Hill (State Admitted to Bar 1973 rences, he was a sole practitioner, Bar No. 211062) and imposed a On March 2, 2015, the Supreme but that since resolving his medical suspension of no less than six Court of Georgia accepted the problems, he formed a partnership months with conditions for rein- petition for voluntary discipline with two other lawyers and now statement. A couple paid Hill a of attorney Jeffrey L. Sakas (State benefits from both full- and part- $3,000 retainer and agreed to pay Bar No. 622250), and ordered the time legal assistants and a fully- $300 a month during the course imposition of a Public Reprimand staffed office. Sakas has entered of the proceedings regarding the for his neglect of matters involving into financial settlements with the foreclosure of their home. Hill four clients. Sakas agreed to repre- affected clients. He must notify the filed a complaint for injunctive sent a client in connection with a State Bar as he finalizes the finan- relief to set aside the foreclosure, personal injury claim, but did not cial settlements and completes the represented the clients in a dispos- take action on behalf of the client required payments.

52 Georgia Bar Journal Review Panel months after he was appointed; he Murble Anita Wright Reprimands only saw his client at the motion Jonesboro, Ga. for new trial hearing; due to a new Admitted to Bar 1993 Tanya Yvette Brockington job, he filed a motion to withdraw Homewood, Ill. before the motion for new trial was On March 16, 2015, the Supreme Admitted to Bar 2010 ruled on without discussing it with Court of Georgia determined that On Jan. 20, 2015, the Supreme his client or serving the client with attorney Murble Anita Wright (State Court of Georgia ordered attorney a copy of the motion to withdraw; Bar No. 778525) had complied with Tanya Yvette Brockington (State Bar he did not know whether the court all of the conditions for reinstate- No. 259287) to receive a Review granted the motion and did not ment following her suspension, and Panel reprimand. The following have any further contact with his reinstated her to the practice of law. facts are admitted by default: A client nor provide him with a new client hired Brockington to repre- address and telephone number or Interim Suspensions sent her in an immigration mat- his file and transcripts; and he did Under State Bar Disciplinary Rule ter. The client paid Brockington not file a timely sworn response 4-204.3(d), a lawyer who receives a retainer and filing fee to pre- to the Notice of Investigation. a Notice of Investigation and fails pare and file a “stand alone” I-601 Brown received an Investigative to file an adequate response with waiver. Brockington did not real- Panel reprimand in 2008 and an the Investigative Panel may be sus- ize that the waiver could not be interim suspension in this mat- pended from the practice of law filed as a “stand alone” and that ter in 2007 for failing to timely until an adequate response is filed. an I-130 application must be filed file a sworn answer to the Notice Since Dec. 19, 2014, one lawyer has as a companion to the I-601, which of Investigation. been suspended for violating this the immigration judge explained In mitigation, the special master Rule and one has been reinstated. to Brockington at the November noted the absence of a selfish or dis- 2012 hearing. Brockington subse- honest motive. The special master Connie P. Henry is the quently attempted to file the I-130, found that Brown’s failure to consult clerk of the State but neglected to include the fil- with his client and serve him a copy Disciplinary Board and ing fee so the U.S. Department of of the motion to withdraw was due can be reached at Immigration and Customs Service to a misunderstanding of his profes- [email protected]. returned the proffered filing to her. sional responsibility and inattention. The client called Brockington sever- During this time Brown lost a sig- “He who is his own lawyer al times to inquire about the matter, nificant portion of his practice due has a fool for a client.” but Brockington did not return the to changes in how Fulton County calls. Brockington did not appear handled appointment of counsel for at another hearing before the judge indigent defendants. Although he in March 2013, because of the dis- did not reply to the grievance in this Warren R. Hinds, P.C. pute about the amount of attorney’s matter, after the formal complaint “An Attorney’s Attorney” fees required to handle the matter, was filed, Brown cooperated with t Bar Complaints thus causing further delay of the disciplinary authorities and admit- t Malpractice Defense client’s case. The client discharged ted the conduct. The special master t Ethics Consultation Brockington and hired new counsel. also noted that Brown demonstrated Brockington had no prior discipline. a good reputation in the community and that he was remorseful for Maurice Brown his conduct. Marietta, Ga. Admitted to Bar 1996 Reinstatements On Jan. 20, 2015, the Supreme Granted Court of Georgia accepted the petition for voluntary discipline of John B. Tucker attorney Maurice Brown (State Bar Newnan, Ga. No. 088853) and ordered that he Admitted to Bar 1984 receive a Review Panel Reprimand. On Jan. 13, 2015, the Supreme Brown was appointed to represent Court of Georgia determined that a client in post-conviction matters attorney John B. Tucker (State Bar 1303 Macy Drive in a criminal case; he filed a motion No. 717750) had complied with all Roswell, Georgia 30076 for new trial and an amended of the conditions for reinstatement Call (770) 993-1414 motion but did not advise his cli- following his suspension, and rein- www.warrenhindslaw.com ent of the appointment until 10 stated him to the practice of law.

April 2015 53 Law Practice Management

Managing the Dreaded Technology Upgrade

by Natalie Robinson Kelly

hether it’s the inability to click on

the button you were so accustomed W to or being lost in your “shiny new” system, change can be hard when it comes to technology. Upgrading and keeping up seem to be the order of the day for maintaining working systems, and even social status. It’s just how our society has evolved. We click and go quickly!

For the legal profession, upgrading technology can be much trickier. It may not be wise to simply upgrade every time something new is out. The viability of a law practice when technology is done wrong or something with technology goes wrong can be negatively affect-  Software is incompatible with or will not run with ed. Upgrading can be painful and costly, hence the another software program you just updated. dread. Below are tips for dealing with the times you’ll  And just for fun—you can’t find a company that inevitably be told, “You have to upgrade.” sells your type or brand of typewriter ribbon!

Why Upgrade—Nothing’s Broken It may be true that nothing is broken—yet. In larger The dilemma always seems to be that there seems to firms, IT staffs are typically aware of the need to be nothing wrong with your systems, yet the vendor upgrade on a regular cycle, and the lawyers will never or consultant recommends an upgrade. For hardware know about the shift until they are trained on the subtle and software, there are some clear signs that indicate changes that accompany the new system or software. you must come to terms with an upgrade to a newer For smaller firms and solos, the general rule of thumb system. For instance: is that it should be assumed that no new system will continue to run without problems of a software or  Hardware is breaking down or malfunctioning. hardware nature within three years. While this time  Software is so outdated it is no longer being sup- frame is not scientific, the calls and inquires of the Law ported. Practice Management Program suggests this timing is  Software is incompatible with or will not run on the about right. Lawyers must be ready to upgrade within hardware you just updated. three years of a purchase in a worst-case scenario, and

54 Georgia Bar Journal with newer traditional software these individuals face-to-face is programs requiring annual mainte- that they may not always speak Earn up to 6 CLE nance and support plans, this time your language. Ask for the lay ver- has been shortened to an almost all- sion of what they are doing to your credits for inclusive purchase of these plans systems. Avoid those whom you for an annual upgrade. can’t understand. Also, always ask authoring legal Other standard wear and tear for references of any other law firm articles and realities also abound in law offices. clients they may have. Upgrades Firms are often guilty of not keep- are not always straightforward, but having them ing up with required updates and every upgrade should start with a service release patches, not per- backup of your system and know- published. forming maintenance on a regular ing where to get support in the basis, or keeping track of errors or process as needed. other things that go wrong with the Submit articles to: systems. This can make for disas- You Mean We Have Bridgette Eckerson trous results, e.g., lost data! To Do This Again Georgia Bar Journal 104 Marietta St. NW, I’m In the Cloud— Nothing lasts forever, and this I Don’t Worry About is definitely true for the intersec- Suite 100 tion of technology and law office Atlanta, GA 30303 Upgrading operations. Despite the valiant Upgrades are usually invisible efforts of many lawyers to hang Contact [email protected] to cloud users, but that doesn’t onto the tried and true copies of for more information mean it’s a good thing. While older software, the time comes or visit the Bar’s website, cloud users are not responsible when the upgrade must hap- www.gabar.org. for conducting the upgrades, they pen—again. To soften the blow, will have to live with the results. a lawyer can make plans by cre-  Have access to all system pass- Sometimes this could mean an ating a reasonable budget and words during the upgrade. inadvertent shift in where things timeline for managing technol-  Get/make list of times when are input or having to live through ogy upgrades. Yes, there will be computer use may need to be multiple bug fixes. So, while the a time in the not so distant future restricted or forbidden during overall landscape for upgrades to when an upgrade will be needed, the upgrade process. cloud systems rarely have an in- and with proper planning your  Have key phone numbers of the your-face result until they’re done, firm will be more than ready for it. personnel to be involved in the cloud users must be vigilant about Use this quick checklist to keep upgrade. making sure they know of what’s the IT upgrade process manage-  Know who to call for support been added or taken away during able in your practice. during the upgrade process. the upgrade process.  Document each step in the  Review the firm’s IT budget upgrade process and make this Support—We Don’t for software and equipment information available for future Need No Stinkin’ Support upgrades and training. upgrades.  Make sure the firm’s backup Trust us. You need support. The and restore routine is in place For additional assistance with good news is that support options and works properly. getting through an upgrade of your are available in many formats. Now  Read all installation guides and technology, contact us. Even if it’s that companies can easily remote related technical documenta- just to complain about how awful into networks using the Internet, tion before proceeding with the it was. We will listen and help with remote access support for upgrades upgrade. resources to make it more bearable can be completed relatively easily.  Verify the hardware and soft- in the future! Legal software vendors and local ware requirements for the computer companies will now upgrade. Natalie Robinson log into your network to upgrade  Check for the required number Kelly is the director of software applications and perform of licenses and formats of the the State Bar of other related maintenance. While systems to purchase. Georgia’s Law Practice this access is straightforward, some  Download all required installa- Management Program upgrades will necessitate a visit tion files and information. and can be reached at from a consultant or other expert.  Notify everyone in the firm of [email protected]. Remember when working with the upcoming upgrade.

April 2015 55 Member Benefits

What’s New with Fastcase by Sheila Baldwin

ith any app or software, keeping  Time-outs are great for sports, but terrible for apps. We’ve optimized network responsiveness things updated is important. As of issues—results should time-out much less fre- quently now. early February, Fastcase Version 3.0  Thanks, but no thanks. We turned off auto-correct W so it doesn’t interfere with Boolean searches. for iOS 8 is now available in the App Store! You don’t  Fixed logout bug. Clicking “Logout” now logs you out! (We’ve also changed the logout button color to need to do anything new—just download the update a less offensive shade of red.)  Fixed scrolling to most relevant paragraph. when you see it on your smartphone or device, or in  Footnotes are now clickable, although still sometimes inscrutable, but that’s not really our fault. the iTunes store. Why should you update? Fastcase You can update the app on your iPhone or iPad Blog Team at www.fastcase.com/blog/ explains why through the App Store, or you can update in the iTunes store (see fig. 1). in this recent post: Using Chrome as Your Browser Apple’s iOS 7 release interfered with the Fastcase If you use Chrome as your browser, you will notice iPad app login, and iOS 8 broke Fastcase’s app alto- advanced features that appear within Fastcase. If you gether. This update makes Fastcase for iPhone and are new to Chrome, take a minute to learn how to cus- iPad compatible with iOS 7 and 8. Additionally, it tomize the features by going to the upper right hand squashes some known bugs. corner (look for the three horizontal lines) and open “About Google Chrome.” If you misspell a word, Here’s the changelog for Version 3.0: Chrome will point it out with red squiggly lines and if you right click on the misspelled word, the correct  Compatible with iOS 8 (100% less crashy!) spellings is offered along with an option to add it to  Do you like entering your username and password your dictionary, ask for suggestions or automatically each time you log in? We don’t. We’ve fixed this by correct the spelling (see fig. 2). To make use of the enabling keychain access. advanced spell check features, open “settings” and  Added retina display graphics and icons—more enable spell checking and custom spell checking dic- pixels, same low price. tionary. Another great feature is using “Control + F”  Fixed iPad login crash bug—now clicking “Login” to enable a search within the page you are viewing logs you in! (see fig. 3).

56 Georgia Bar Journal Folders Organize Your cases, statutes or journal articles to to learn about new features as they Favorite Documents your favorites, you will be able to are added. Please call or contact me sort them into the folders with a at [email protected] or 404-526- By popular demand, Fastcase simple click, drag and drop. Select 8618 with any questions or for help now gives you the option to sort “New Folder” to create a new place with your research. your favorite documents into dif- for these documents, or highlight ferent research folders. Simply an existing folder before clicking Sheila Baldwin is the open up your Favorite Documents “New Folder” to create new sub- member benefits (My Library >> Go to Favorite folders (see fig. 4). coordinator of the Documents) and begin organiz- The folks at Fastcase hope you State Bar of Georgia ing your search results into fold- like the improved Favorites page, and can be reached at ers labeled by Client or Case one of many enhancements with [email protected]. names, Topics, Type or however more on the way. Keep your eye on you would like. After adding new the Fastcase blog or Facebook page

1 2

3 4

Fastcase training classes are offered four times a month at the State Bar of Georgia in Atlanta for Bar members and their staff. Training is available at other locations and in various formats and will be listed on the calendar at www.gabar.org. Please call 404-526-8618 to request onsite classes for local and specialty bar associations. Writing Matters

Georgia Judges on iPads: Brief-Writing for the Screen (Part One)

by Jennifer Murphy Romig

he e-filing revolution continues to spread Georgia has mandated e-filing for attorneys since 2013, and as of Jan. 1, 2015, the Court of Appeals of Georgia across Georgia, with a ripple effect on the mandates e-filing for attorneys as well.2 The Superior Courts are moving on a circuit-by- way Georgia judges are able to access and circuit basis toward e-filing of PDFs and online case T management as well, according to Douglas County read parties’ briefs. The era of the accordion folder is Superior Court Judge David Emerson, vice-chair of the Statewide Judicial Civil E-filing Committee. The giving way to the era of the searchable PDF viewed on Senate Unified Court Technology Study Committee will recommend a market-based solution so that state an iPad or other tablet. Georgia lawyers now should judicial circuits may select providers from a competi- tive bidding process, according to Emerson. A formal consider whether they should do anything differently: step toward this process was the Judicial Council of Georgia’s adoption, in September 2014, of Statewide is a brief just a brief whether it’s printed and bound or Minimum Standards for Electronic Filing.3 Whatever the provider, courts and clerks from opened on a PDF reader on the judge’s tablet? “Writing across Georgia and nationally agree on the need for secure, accessible systems: Matters” will explore this question in two parts. This Judicial tools should be intuitive and get judges installment addresses e-filing news in Georgia and quickly to their information with touch screen technology and/or a minimum of clicks or navigation. the implications of screen reading on typography and Software is needed that is device independent and will work on computers, laptops, tablets, and smart- headings. The next installment will address the use of phones without difficult setup and costly overhead.4 images, citations and links. It is safe to say that Georgia courts will see more technology investments allowing more Georgia judges E-Filing Spreads Across Georgia to access case materials on screens.

The first step toward the proliferation of judges on What Does This Mean for Legal iPads is, of course, e-filing. July 2015 will mark 10 years Writers? since mandatory e-filing made its first appearance in Georgia, when the U.S. District Court for the Northern Georgia legal blogger Scott Key recognized this District of Georgia implemented the first e-filing man- question back in 2010, as he phrased it in his head- date within state borders.1 The Supreme Court of line: “Should Appeals Lawyers Write for the Screen

58 Georgia Bar Journal or Page?”5 It may be tempting to reject the question as a false choice. “In some ways, digital reading is just like paper reading: We are reading the same alphabet, and our eyes are moving from left to right as we read the words.”6 However, reading on a screen can be more difficult because the device provides no physical cues such as pages to turn. Reading on screen may also be more distract- ing because of links within the text as well as other apps and activities enabled by the device itself.7 But reading on a tablet brings advantages as well. Most obvious- ly, documents become paperless and therefore more easily portable. Judges Stephen Dillard and Carla McMillian of the Court of Appeals of Georgia both mentioned porta- bility as a key advantage of e-filed documents. Judge Dillard usually uses his iPad to read briefs before This means adhering to manda- Observe Traditions oral arguments. Judge McMillian tory practices that are ideal for from Paper-Based uses her iPad to access briefs when the printed page, such as double away from chambers. (She men- spacing. But Georgia court rules Writing tioned that other judges use types increasingly allow for some screen- Lawyers often don’t know how of tablets other than iPads.) friendly practices. The Supreme a particular judge prefers to read. The other advantage is the Court of Georgia and Court of Some will continue to print and opportunity to enlarge, annotate, Appeals allow single spacing of read even when the most power- bookmark and otherwise inter- block-quotes and footnotes.8 ful screen-based tools are available. act with the document on screen. Federal rules allow single-spaced And some, such as Judges Dillard Searchable PDFs allow the judge headings as well. and McMillian, use a “hybrid” of to search the text for a particular Court rules generally require screen reading and hard-copy read- word, phrase, citation or anything e-filed briefs to take the form of ing depending on the situation. else. Judge Dillard uses an app a searchable PDF. Thus attorneys The good news is that much called PDF Expert to do all of these should not print, sign and scan advice about legal writing general- things. Similar apps proliferate hard copies to create an image- ly applies equally if not even more including Goodreader, iAnnotate, based PDF. Directly converting a so when writing to a potential Adobe Reader and others. word-processing document to a screen reader. For example, writ- The bottom line is that more courts PDF using the court’s applicable ers should give a quick persuasive will use e-filing and more judges will rules for electronic signatures will roadmap of each point before pro- have the opportunity to read briefs better comply with court rules and viding detailed support.9 Whether on screens. Thus writers should try create a more useful document. the judge is reading on a tablet or to seize the advantages and mini- Lawyers should learn the best on paper, it is just common cour- mize the potential disadvantages. way to convert documents to tesy for legal writers to summarize The rest of the article focuses on PDFs for e-filing, Judge McMillian their key points concisely before Georgia legal writers’ decisions advised. Court of Appeals of supporting them with detail. about the text, including headings. Georgia Director of Technical Using legal terms consistently Services John Ruggeri seconded is critical for effective legal writ- Follow the Applicable this advice. And, according to ing. Writers should avoid “elegant Court Rules Judge Dillard, “If lawyers are variation,” which means using dif- unsure about the rules, they should ferent words to mean the same “The No. 1 priority is that law- call the clerk. This is one mistake a thing in the hope of sounding more yers absolutely need to follow lot of advocates make, in not call- elegant or interesting.10 Elegant the rules,” advised Judge Dillard. ing the clerk.” variation is even more problem-

April 2015 59 atic in digital writing because PDF Once a writer has settled on Georgia, lawyers have two choices: searching allows a judge to type logical, persuasive headings, Courier or Times New Roman.18 in a term and find every instance those headings should be format- Judge McMillian has spoken public- where it appears—but only if it ted for visual impact within the ly on her preference for Times New appears exactly the same as the document such as through bold Roman, and sees it almost exclusive- search term.11 Judge McMillian type. If possible under the court ly in the Court of Appeals now, even recalled instances of using the rules, they should be single-spaced. in government briefs. “Everyone search function in just this way, Particularly for briefs that may be uses Times New Roman,” she said. retrieving all mentions of a key read on a tablet, writers should Judge Dillard noted that the Court term or particular case name. align headings to the left and never of Appeals’ Rules Committee may Thus writers should also contin- center them.14 Left-aligned head- expand the list of acceptable fonts in ue to observe the useful formatting ings help the reader skim the text a future rule change. conventions of paper-based writing. more efficiently than centered In the Northern District of Legal writers should know to avoid headings do. Georgia, writers may choose “widows and orphans,” a phrase It may be tempting to resort from a list of several acceptable referring to headings stranded at to older brief-writing conventions fonts for electronic documents.19 the bottom of page, away from the such as ALL CAPS or underlining In the 11th Circuit, briefs must accompanying text on the next page or “Initial Caps for Most Words in be formatted in a “plain roman as well as awkwardly stranded half- the Headings Except Articles and font” of 14 point or larger, which lines at the top of a page. Widows Prepositions.” These conventions opens the door to Times New and orphans may persist as a prob- are not viewed as the most modern Roman and a number of roman lem for digital readers as well: any approach to typographic design, equivalents such as New Century judge who reads on an app that either for print or screen, because Schoolbook or Garamond.20 arranges pages horizontally from they impair readability.15 left to right (rather than vertically) Federal Rule of Appellate Conclusion will still see the bottom of the page Procedure 32(a)(5)(A) allows head- Writing thoughtfully, thorough- as an important spatial cue.12 ings to be set in a sans serif font ly and empathetically for the judi- such as Arial (shown here) or cial reader is the essential rule of Structure and Helvetica (shown here). “Mixing thumb. Writers can achieve this Format Headings to fonts” may seem unconventional, goal in part by following court but sans serif fonts are widespread rules and anticipating both types Emphasize Them in web design. Any judge who of readers (print and screen). They Headings are critically impor- surfs the web would have read web should also use effective headings, tant in briefs regardless of medium. material in a sans serif font, likely summarize points clearly, use terms Headings are “essential markers” much smaller than 14 point. consistently and select screen- that “reduc[e] the mental workload friendly typography. Writing with required of the reader.”13 These Choose Modern the needs of the judicial reader in markers are absolutely crucial for Typography mind will lead to more effective screen readers. They should con- briefs regardless of which judges tinue to be structured with care to Parallel with the e-filing move- are assigned to the case and what emphasize the logic and persuasive ment, court rules have been mov- technology they may bring—or not theme of the argument. ing away from ancient typogra- bring—to the process. Writers may be tempted to phy. Courier fonts have certain think more is better with head- advocates but make briefs look Part two of this series will examine ings, especially for judges who like they were produced on a additional issues with legal writing to read on screens. However, Judge “last-century Smith Corona,” as judges on tablets, with a focus on the McMillian warned that too many Linda Berger wrote in “Document use of images and hyperlinks. headings break up the flow of a Design for Lawyers: The End of the brief. “It’s hard to get into the flow Typewriter Era,” published here Jennifer Murphy of the argument when you’re inter- in February 2011.16 Our brothers Romig teaches legal rupted by another heading,” she and sisters at the bar in Alabama writing at Emory Law said. Judge McMillian suggested are among the last in the country School. She would 17 that writers focus at least as much to be required to use Courier. like to thank on writing effective transitions. Thus, where the rules permit, Elizabeth Christian She also reinforced the value of writers should choose a font that for research assistance. Also she using numerical signposts in the is attractive both in print and on text (“First, . . .”, “second, . . .” and screen. In the Supreme Court of is grateful to Judges Dillard, “third, . . .”). Georgia and Court of Appeals of McMillian and Emerson for

60 Georgia Bar Journal taking time to speak with her the Message? Unleashing the Power of and be quoted in this article. E-Communication in the Twenty-first Century, Legal Communication & Endnotes Rhetoric: J. ALWD (forthcoming 1. In re Electronic Case Filing Standing 2015) (“[J]udges from the Second, Order No. 04-01 and Administrative Third, Fifth and Ninth Circuit Procedures (June 1, 20014), http:// Courts of Appeals report that they www.gand.uscourts.gov/pdf/ primarily use iPads for reading NDGARulesAppH_Updated.pdf briefs.”). 2. Order of the Georgia Supreme 7. Id. at 52. Court Order (June 12, 2013) 8. Georgia Supreme Court Rule 16; available at http://www. Georgia Court of Appeals Rule gasupreme.us/rules/amended_ 1(c). rules/ORDER_Rule13_15_27_ 9. See Beazley, supra note 6, at 66. MANDATORY_FINAL.wpd. 10. Richard Wydick, PLAIN ENGLISH JJOIN pdf; Georgia Court of Appeals FOR LAWYERS 69 (5th ed. 2005). JOIN US! Rule 46, effective January 1, 11. See Beazley, supra note 6 at 62. 2015, available at http://www. 12. According to the author’s gaappeals.us/announce2. unscientific experiment with her php?title=Electronic%20Filing%20 iPad, GoodReader is one popular of%20Documents%20effective%20 app that shows PDFs in a left- January%201,%202015. to-right fashion. The iPad’s own 3. Judicial Council of Georgia, PDF viewing capabilities (such as Statewide Minimum Standards opening a PDF out of the standard for E-filing (September 25, 2014), Mail app) shows PDF pages in gabar.org https://georgiacourts.gov/files/ a vertical scroll, as does the app RFI%20Statewide/Statewide%20 iAnnotate. Minimum%20Standards%20 13. Linda Berger, Document Design for for%20E-filing%209.25.2014.pdf Lawyers: The End of the Typewriter 4. National Center for State Courts, Era, 16 Ga. Bar. J. 62, 64 (Feb. Joint Technology Committee, 2011). Making the Case for Judicial 14. Wayne Scheiss, Writing for Tools 8 http://www.ncsc. Screen Readers, LEGIBLE: A BLOG org/~/media/Files/PDF/ FROM LEGALWRITING.NET BY About%20Us/Committees/JTC/ WAYNE SCHEISS (December 27, USS!S Judicial%20Tools%2010.ashx. The 2012), http://sites.utexas.edu/ Administrative Office of the Courts legalwriting/2012/12/27/writing- of Georgia discussed this report and for-screen-readers/. other technology-related issues at 15. Ruth Anne Robbins, Painting with @StateBarofGA its December 2014 meeting as noted Print: Incorporating Concepts of in the meeting minutes available Typographic and Layout Design into @GeorgiaYLD at http://w2.georgiacourts.gov/ the Text of Legal Writing Documents, journal/index.php/component/ 2 Leg. Communc’n & Rhetoric: J. content/article/58-january- ALWD 108, 118 (2004). /statebarofgeorgia 2015/310-report-from-the-director. 16. Berger, supra note 13, at 64. /GeorgiaYLD 5. Scott Key, Should Appeals 17. John Ruch, Modern Typefaces v. Lawyers Write for the Screen or The Massachusetts Court System, the Page?, Georgia Criminal Boston Globe (November 2, Appellate Law Blog (December 2014), http://www.bostonglobe. /statebarofgeorgia 31, 2010), http://www. com/ideas/2014/11/01/ /yld georgiacriminalappellatelawblog. modern-typefaces- com/writing/should-appeals- massachusetts-court-system/ lawyers-write-for-the-screen-or- PEx8IKSWOINdAUnf5fv1OJ/ the-page/. story.html. /StateBarofGeorgia 6. Mary Beth Beazley, Writing (and 18. Georgia Supreme Court Rule 16. Reading) Appellate Briefs in the Digital 19. Times New Roman (at least 14 point); Courier New (at least 12 Age, 15 J. APP. PRAC. & PROCESS 47 (2014). Professor Beazley’s article point); Century Schoolbook (at is just one of many recent articles least 13 point); or Book Antiqua (at and blog posts exploring the least 13 point). implications of proliferating digital 20. Matthew Butterick, Typography for reading for judges and lawyers. See, Lawyers: Essential Tools for Polished e.g., Ellie Margolis, Is the Medium & Persuasive Documents (2010).

April 2015 61 Professionalism Page

Hundreds Brave the Weather to Salute Legal Community Servants

by Avarita L. Hanson

or the 16th year, the State Bar of Georgia joined

forces with the Chief Justice’s Commission on FProfessionalism (the Commission) to honor judges and lawyers for service to their communities with the Justice Robert Benham Awards for Community

Service. On a cold Feb. 17, more than 200 well-wishers ventured out in the wintry weather to come to the Bar

Center in Atlanta to salute our community servants.

Spotted in the crowd of notables were baseball legend and community leader Hank Aaron, U.S. District Court

Judge Steve Jones, Court of Appeals Chief Judge Herbert

Phipps and former U.S. Senator and 2013 Lifetime Photos by Don Morgan, Morgan Photography and Video State Bar of Georgia President Patrise M. Perkins-Hooker welcomes attendees to the Justice Robert Benham Awards for Community Service. Achievement Award recipient David Gambrell. The Justice Robert Benham Awards for Community The evening began with a welcome from Chief Justice Service are given each year to focus attention on the Hugh P. Thompson and a Call to Professionalism by professionalism ideals of community and public service. State Bar President Patrise M. Perkins-Hooker. WXIA- These awards recognize the commitment of Georgia TV Business Editor and Help Desk Manager William J. lawyers to volunteerism, encourage all lawyers to “Bill” Liss introduced Justice Benham through a mock become involved in community service, improve the interview where Justice Benham shared stories relating quality of lawyers’ lives through the satisfaction they his life experiences, which for him shaped the meaning derive from helping others and raise the public image of and credo for community service. of lawyers.

62 Georgia Bar Journal Lifetime Achievement Award For the first time, there were three recipients of the Lifetime Achievement Award, the highest award for community service given by the State Bar and the Commission. John S. Lewis, attorney, Cartersville, has long been involved in civic and public organizations promoting redevelopment, history, art and other causes. Most notably, he has made Cartersville one of the leading small towns in America. Now semi-retired from his law practice, he is not finished contributing to his community. Organizations (Left to right) Lifetime Achievement Award recipient Allan J. Tanenbaum, Justice Robert benefitting his engagement include Benham, community leader and baseball legend Hank Aaron and Chief Justice Hugh P. Thompson. the Lions Club, Bartow County Heart Fund, Pumphouse Players, sure and leadership to significant Adairsville Church of God, he serves Chamber of Commerce and the community, civic and social service as a director of the Church of God Bartow County Historical Society. organizations. He has been particu- Benefits Board. A member of the Rep. Mary Margaret Oliver, larly dedicated to organizations that Georgia House of Representatives attorney, Decatur, has been a relent- enable and uplift underprivileged since 2011, Coomer serves as less champion for the under-served, children, indigents and minorities the Senior Administrative Floor minorities, women and children to lead meaningful, successful and Leader for Gov. Nathan Deal for more than 40 years. She was productive lives. He has advanced and on the Retirement, Judiciary one of the first women lawyers to indigent Georgians through the Non-Civil, Banks and Banking, represent indigent clients in South Georgia Legal Services Program and Juvenile Justice committees. Georgia. From there, she saw the and others through the American He also serves on the Joint Fiscal need to advocate for women and Bar Association Foundation for Affairs Subcommittee, Legislative children through public service in Justice and Education, the Atlanta Oversight Committee for the Public the Georgia Legislature and her pri- Bar Foundation, the Hank Aaron Defender Standards Council and vate law practice. She supplemented Chasing the Dream Foundation, chairs the Study Committee to revise her work through educating law the Truancy Intervention Project, the Georgia Code of Military Justice. students at Emory’s Barton Clinic Camp Kudzu, the Kids in Need Christopher K. Middleton, which she founded, church activi- Foundation and the Children’s public defender, Eastern Judicial ties and supporting legal aid pro- Museum of Atlanta. Circuit Public Defender’s Office, grams. She remains actively engaged Savannah, gives back to his com- with many community organiza- Community Service munity through youth, civic, bar tions, including All Saints Episcopal Awards association and fraternal activities. Church, BOND Community Credit He positively touches lives of those Union, Callanwold, Georgia Legal Rep. Christian A. Coomer, he serves professionally and in the Services Program, Goals for DeKalb, Christian A. Coomer, Attorney at community through his work with Leadership Atlanta, Prevent Child Law, LLC; major, Air Force Reserve; All Walks of Life, Inc., Blessings Abuse Georgia, Senior Citizens and judge advocate general, in a Bag, Inc., Chatham-Savannah Services Corporation, CHARLEE National Guard, Cartersville, serves Citizens Advocacy Association, Homes and the Decatur Rotary Club. veterans, his church and many Alpha Gamma Chapter of the Allan J. Tanenbaum, of counsel, local civic organizations in Bartow Omega Psi Phi Fraternity, Inc., 100 Taylor English Duma, LLP, Atlanta, County. His community service Black of Savannah, Port City is well-known for his leadership includes service to the Cartersville/ Bar Association and the Citizens and work with bar associations at Bartow County Chamber of Advisory Board of the Metropolitan the national, state and local levels. Commerce, Civitans Club, Exchange Planning Commission. Over the course of his 43 years at Club, Advance Adairsville, Georgia Vannessa I. Hickey-Gales, the Bar, Tanenbaum has also dedi- Veterans Association and the Good attorney, adjunct professor, Brown cated much of his time, talents, trea- Neighbor Shelter. A member of the Mackie College, Atlanta, has been

April 2015 63 Honorees, special guests and emcees. (Front row, left to right) Nora L. Polk, Vannessa I. Hickey-Gales, Nicki Noel Vaughan, Chief Justice Hugh P. Thompson, Justice Robert Benham, Avarita L. Hanson and Nancy Terrill. (Back row, left to right) Allan J. Tanenbaum, Hon. Lawton E. Stephens, John S. Lewis, Philip E. Holladay, Lt. Col. J. Randall Hicks, Rep. Christian A. Coomer, Rep. Mary Margaret Oliver, Ernest L. Greer and Christopher K. Middleton. committed to public and commu- the Woodruff Arts Center Board of that welcomes new members to nity service throughout her career. Trustees, Center for Civil & Human the Moody Air Force Base and She has created innovative solu- Rights Board, Buckhead Coalition, the American Legion. As an attor- tions to recidivism, forged com- Sigma Pi Phi Fraternity (Kappa ney, Hicks represents many service munity relationships to leverage Boule), National Association of members pro bono or at a reduced resources to serve the underserved Guardsmen, Alpha Kappa Psi rate and is a resource to other and has uplifted women and chil- Fraternity, Inc., and Rotary Club local attorneys in cases involving dren in her native Atlanta commu- of Atlanta. He is the first attorney military matters. During the last nity. Hickey-Gales was a founding to serve as president of the Georgia 10 years, he has helped hundreds member of the Georgia Association Chamber of Commerce, and has of members of the Georgia Air of Black Women Attorneys, and lead other organizations that serve National Guard for the 165th Airlift served on the Fulton County Family Georgia’s underserved and under- Wing in Savannah with their legal Violence Task Force, Family Court privileged communities includ- needs prior to deployment. Task Force, Speakers Bureau of the ing the 100 Black Men of Atlanta, Philip E. Holladay Jr., partner, Georgia Indigent Defense Council, Trinity School Parents Association, King & Spalding LLP, Atlanta, is a mentor with YES (Atlanta Youth Boys & Girls Club of Metro Atlanta long-time supporter and leader of Experiencing Success) and the Nu Board, Emory University Board of the Georgia Justice Project, serving Lamda Chapter of Alpha Kappa Visitors, Atlanta Historical Society as its board president and chair. Alpha Sorority, Inc. She serves on Board of Trustees and co-chaired On the civil side, Holladay served the board of the Restorative Center fundraisers for Families First and as president and on the board of Foundation, the organization she the American Jewish Committee’s Atlanta Legal Aid Society, Inc., and founded to transform the justice National Human Relations Dinner. now chairs its new building capital system by supporting interventions Lt. Col. John Randall Hicks, campaign. He has devoted more that reduce recidivism, improve attorney, J. Randall Hicks, P.C., than 150 pro bono hours represent- pro-social living and bring the Valdosta; judge advocate gener- ing low-income tenants in Fulton community and courts together to al, Georgia Air National Guard, county eviction proceedings, given focus on repairing harm and reha- Savannah, gives countless hours more than 150 pro bono hours rep- bilitating offenders. in service to veterans, the Boy resenting a Somali man through the Ernest LaMont Greer, vice presi- Scouts and other community orga- Georgia Asylum & Immigration dent and Atlanta managing share- nizations including the Easter Network and serves on the Georgia holder, Greenberg Traurig LLP, is a Seals Board, Valdosta Chamber of State University College of Law leader of many Georgia and Atlanta Commerce (formerly serving on Board of Visitors. civic, social service, historical and its Military Affairs Committee) Nora L. Polk, attorney, Ashby fraternal organizations, including: and the Red Carpet Committee & Polk; associate magistrate judge,

64 Georgia Bar Journal DeKalb County Magistrate Court, College and the Frances Wood Acknowledgments Decatur, advocates for the rights Wilson Foundation. Many thanks to the Benham of low-income citizens, women Nancy Terrill, attorney, Macon, Awards Selection Committee: and children in her DeKalb County has contributed much time and Janet G. Watts, chair; Lisa E. community through church, local leadership to public service, voting Chang; Mawuli Davis; Elizabeth bar associations, and organiza- rights and ensuring access to justice L. Fite; Laverne Lewis Gaskins; tions serving women and chil- for needy Georgians. Now a mem- Michael Hobbs Jr.; W. Seaborn dren. She is a board member of ber of the Democratic Executive Jones; Chung Lee; William “Bill” the Georgia Association of Black Committee of Bibb County, vice- Liss; and Brenda C. Youmas. We Women Attorneys (GABWA) president of the Democratic are thankful the support from our Foundation and executive director Women of Bibb County and the Young Lawyers Division, Sharri of GABWA’s Wills Project, as well League of Women Voters of Bibb Edenfield, president, and the eth- as a founding member of the State County, she started her civic ics and professionalism commit- Bar of Georgia’s YLD Leadership involvement in 1970 as a represen- tee volunteers: Shiriki Cavitt, Academy. She is also a member tative of the state of Virginia at the Courtney Dean, Derek Krebs and of the 2013 Class of Leadership National Conference on Juvenile Kevin Patrick; and our community DeKalb, Decatur Alumnae Chapter Delinquency in Chicago and a volunteers: Bre’Anna Brown, Tene of Delta Sigma Theta Sorority panel participant at the Republican Davis, Abi Oyengun, Kimberly and serves on its Social Action Governors Conference in Virginia. Walker and Faith Warren. Committee, and is first vice presi- She is former member of the board We cannot present this spe- dent of the Stone Mountain Chapter of directors of Kids Voting Georgia, cial program without the work of Jack & Jill of America, Inc. Polk is Inc., and Policy Council of the of Commission and Bar staff. a member and leader of the Wesley Macon-Bibb County Headstart. She Thank you to Assistant Director Chapel United Methodist Church was president and co-founder of Terie Latala and Administrative and the Nominating Committee the Women’s Political Organization Assistant Nneka Harris-Daniel. of The Living Room, a nonprofit of Macon, a member of the Mayor’s Special thanks to State Bar staff assisting people living with HIV/ Committee on Annexation and a Joyce Javis, Rudy Ross and Mark AIDS after serving on its board for Rolling Reader at Tinsley School. Brayfield. We also extend appre- six years. Deeply committed to access to jus- ciation to Don Morgan, Don Hon. Lawton E. Stephens, chief tice, since 2000, Terrill has served Morgan Photography; Vince “the judge, Superior Court, Western on the board of the Georgia Legal Voice” Bailey, videographer, Judicial Circuit, Athens, has con- Services Program and leads its Vince Bailey Productions; and tributed considerably to the Athens Macon fundraising campaign. Eric Thomas, entertainer, Elevate community as a public official Nicki Noel Vaughan, chief assis- the Quest. serving in the Georgia Legislature, tant public defender, Northeastern The next time you see a Georgia his church, the Northeast Council Circuit, Gainesville, has devoted lawyer working hard in your com- of the Boy Scouts of America, and her professional and personal time munity, please say “thank you.” other civic and educational orga- to improving lives of juveniles, Then, consider nominating him nizations. Stephens is an active indigents and families. Notably, or her for a Community Service member and Sunday school teach- Vaughan is credited for founding Award. Watch for the announce- er who has served as a deacon two major organizations serving ment in the August Georgia Bar and elder in the First Presbyterian troubled children: Chris Kids, Inc. Journal. Contact Nneka Harris- Church of Athens. Stephens (formerly Georgia’s Menninger Daniel for more information represented Clarke County in Group Homes/CHARLEE), fol- at [email protected] or 404-225- the Georgia Legislature as State lowed by what is now the Georgia 5040. Our communities, Georgia Representative for the 68th House Court-Appointed Special Advocates and our country are all better for District from 1969-74. He currently Program (CASA), which trains what our volunteer attorneys con- represents the Western Circuit on community volunteers to advocate tribute and do. the State Bar Board of Governors for children in Juvenile Court pro- and serves on the Advisory ceedings for abused and neglected Avarita L. Hanson is Committee on Legislation and children. She is currently a lifetime the executive director Bench and Bar Committee. member of the CASA board and of the Chief Justice’s He is member of the Gridiron serves on the boards of the Boys Commission on Society, Omicron Delta Honorary & Girls Club of Gainesville-Hall Professionalism and Leadership Organization and past County, Gainesville Adolescent can be reached at president of the Oconee County Project, Georgia Mountains Food [email protected]. Rotary Club. He also serves on the Bank and Georgia Legal Services boards of the Athens Technical Program.

April 2015 65 In Memoriam

n Memoriam honors those members of the State Bar of Georgia who have passed away. As we reflect upon the memory of these members, we are mindful of the contributions they I made to the Bar. Each generation of lawyers is indebted to the one that precedes it. Each of us is the recipient of the benefits of the learning, dedication, zeal and standard of professional responsibility that those who have gone before us have contributed to the practice of law. We are saddened that they are no longer in our midst, but privileged to have known them and to have shared their friendship over the years.

James H. Bradford David W. Gunn M. Alvin Levy Roswell, Ga. Doraville, Ga. Atlanta, Ga. Woodrow Wilson College of Law Woodrow Wilson College of Law Emory University School of Law (1979) (1974) (1952) Admitted 1979 Admitted 1974 Admitted 1951 Died December 2014 Died January 2015 Died February 2015

William F. Bryant Eden Sara Hersh Jerry L. Lifsey Suwanee, Ga. Alpharetta, Ga. Chatsworth, Ga. University of Georgia School Georgia State University College Mercer University Walter F. of Law (1975) of Law (1990) George School of Law (1971) Admitted 1975 Admitted 1991 Admitted 1972 Died March 2015 Died March 2014 Died December 2014

John W. Childers Wensley Hobby H. Ed Martin Jr. Woodstock, Ga. Reidsville, Ga. Nevada City, Calif. John Marshall Law School (1983) Cumberland School of Law John Marshall Law School (1975) Admitted 1983 at Samford University (1961) Admitted 1975 Died March 2015 Admitted 1961 Died January 2015 Died January 2015 Ginny Yung-Ai Chung Walter L. McVey Potomac, Md. Sheryl L. Hudson Olathe, Kan. Emory University School of Law Augusta, Ga. University of Kansas School (1996) University of Georgia School of Law (1948) Admitted 1997 of Law (1985) Admitted 1965 Died November 2014 Admitted 1985 Died September 2014 Died August 2014 Suellen Fleming David Alan Mobley Carrollton, Ga. B. Michele Kaufman Atlanta, Ga. University of Missouri School East Boothbay, Maine University of Alabama School of Law (1988) University of Houston Law of Law (2002) Admitted 1989 Center (1976) Admitted 2004 Died December 2014 Admitted 1978 Died January 2015 Died September 2014 Whitfield R. Forrester Douglas Merlin Nelson Cordele, Ga. Robert L. Kraselsky Augusta, Ga. University of Georgia School Panama City, Fla. John Marshall Law School (1995) of Law (1948) University of Georgia School Admitted 1996 Admitted 1948 of Law (1970) Died October 2014 Died January 2015 Admitted 1970 Died March 2014

66 Georgia Bar Journal Eugene G. Partain Michelle Rena Reid Guerry R. Thornton Highlands, N.C. Gaithersburg, Md. Greenville, S.C. Duke University School of Law Howard University School of Law Emory University School of Law (1958) (1999) (1949) Admitted 1961 Admitted 2000 Admitted 1950 Died March 2015 Died June 2014 Died September 2014

William B. Paul Jr. Carson B. Shafer Daniel Upton White Atlanta, Ga. Powder Springs, Ga. Athens, Ga. Emory University School of Law Atlanta Law School (1949) University of Cincinnati College (1948) Admitted 1949 of Law (1984) Admitted 1949 Died February 2015 Admitted 1989 Died January 2015 Died March 2015 Mary L. Skene James B. Pilcher Tallahassee, Fla. Atlanta, Ga. Mercer University Walter F. Fiscal Year 2014-2015 Emory University School of Law George School of Law (1977) (1955) Admitted 1978 In Memoriam Admitted 1955 Died March 2015 Contributions to the Died February 2015 Frank E. Specht Georgia Bar Foundation* Robert Daniel Pope Atlanta, Ga. Acworth, Ga. University of Virginia School John Marshall Law School (1980) of Law (1957) In Memory of Kirk M. McAlpin Admitted 1981 Admitted 1958 Joseph Bankoff Died December 2014 Died February 2015 Lola and Charlie Battle Brandon Bridges Robert and Maggie Brinson Daniel Upton White Cushing, Morris, Armbruster & Montgomery by Steve Harper Richard and Claudia de Mayo On March 5, 2015, Georgia’s legal community lost Daniel Upton Jimmy and Fay Foy Franklin White, and the Institute of Continung Legal Education in Georgia lost Jon and Bonnie Harris Jr. a senior partner and dear colleague. Kenneth and Susan Henson Dan was born and raised in Louisville, Ky. He received a Bachelor of Telside and Harry Howard Arts in English from the University of Louisville and a Master of Arts Paul Kilpatrick Jr. in English from Cornell University. Dan earned a Ph.D. in English Phyllis A. Kravitch from the University of Kentucky. He was an English professor at East- Frank Love, Jr. ern Kentucky University before attending the University of Cincin- nati College of Law, where he was editor-in-chief of the Law Review. Palmour (Pope) McIntire Dan practiced law in Cincinnati and Athens before joining ICLE in James and Mary Pardo Jr. 1997. He was married to Rebecca Hanner White, who served as dean of the University of Mr. and Mrs. Charles M. Shaffer Jr. Georgia School of Law for 11 years until she returned to teaching in 2015. They have a son, Strickland, Brockington, Lewis LLP Brendan, and a daughter, Maren. In Memory of Carl Sanders As the director of production, Dan was responsible for ICLE’s entire editing and publishing operation. In addition to the production of almost 200 seminar and institute books, Dan Jimmy and Fay Foy Franklin charted the course for the expansion of ICLE’s publishing efforts. Under his leadership, In Memory of Harvey Weitz ICLE now offers leading reference books, including a treatise, a trilogy of desk books and the first editions of many new “How-To” manuals for Georgia attorneys. But Dan’s primary Edenfield, Cox, Bruce & Classens focus was working closely with the great Georgia attorneys who chaired and spoke at the Jimmy and Fay Foy Franklin hundreds of seminars that he organized. The outpouring of sympathy at his passing and praise for his work by his friends at the State Bar of Georgia, many of Dan’s chairs and In Memory of Marvin H. Zion speakers, the Athens and University of Georgia community and his colleagues at ICLE is a Robert and Maggie Brinson testament to his character and to the truly outstanding legacy and foundation for the future of high quality of continuing legal education in Georgia that he leaves to all. Those with whom he worked closest have described Dan White as a completely devoted husband and father, a deep thinker, a great listener, a true gentleman, a class act, a humble *Unless otherwise directed by the man, a helper, a perfectionist, an unequalled editor, a voracious reader, a brave and donor, In Memoriam Contributions will uncomplaining man, a source of calm and many more signs of praise. Dan will be missed be used for the Fellows program of the greatly by his ICLE colleagues, the many fine Georgia attorneys who served as seminar Georgia Bar Foundation. and institute chairs and speakers with whom he worked over the past 18 years and by all who knew him.

April 2015 67 CLE Calendar

April-July APR 10 ICLE MAY 5 ICLE Child Welfare Attorney Training Annual Sports Law Seminar Atlanta, Savannah and Tifton, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 7 CLE 3 CLE

APR 17 ICLE MAY 7 ICLE School and College Law Fulton Superior Court: Family Division Atlanta, Ga. Basics Boot Camp (TENTATIVE) See www.iclega.org for location Atlanta, Ga. 6 CLE See www.iclega.org for location 7 CLE APR 23 ICLE Building Professional Presence MAY 7-9 ICLE Atlanta, Ga. 37th Real Property Law Institute See www.iclega.org for location Miramar Beach, Fla. 6 CLE See www.iclega.org for location 12 CLE APR 23 ICLE New Tax Laws MAY 8 ICLE Atlanta, Savannah and Tifton, Ga. Georgia DUI Update See www.iclega.org for location Atlanta, Ga. 6 CLE See www.iclega.org for location 6 CLE APR 24 ICLE Construction Law for the General MAY 12 ICLE Practitioner May Group Mentoring Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE No CLE

APR 24 ICLE MAY 15 ICLE Discipline, Documentation and Discharge Landlord and Tenant Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

MAY 1 ICLE MAY 21-23 ICLE Dispute Resolution for Trial and Non- 33rd Family Law Institute Trial Lawyers Amelia Island, Fla. Augusta, Ga. See www.iclega.org for location See www.iclega.org for location 12 CLE 6 CLE

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.

68 Georgia Bar Journal CLE Calendar

JUN 12 ICLE JUN 29-30 ICLE Advocacy for the Ages Selected Video Replays Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

JUN 18-19 ICLE JUL 9-11 ICLE State Bar of Georgia Annual Meeting 2015 Fiduciary Law Institute Stone Mountain, Ga. St. Simons Island, Ga. See www.iclega.org for location See www.iclega.org for location 3 CLE 12 CLE

JUN 25-28 ICLE JUL 17-18 ICLE Gary Christy Memorial Georgia Trial Solo Small Firm Institute Skills Clinic Atlanta, Ga. Athens, Ga. See www.iclega.org for location See www.iclega.org for location 12 CLE 24 CLE JUL 24-25 ICLE JUN 25-27 ICLE Environmental Law Section Seminar Southeastern Admiralty Law Institute St. Simons Island, Ga. (SEALI) See www.iclega.org for location Point Clear, Ala. 8 CLE See www.iclega.org for location 10 CLE

2015 STATE BAR OF GEORGIA ANNUAL MEETING JUNE 18 - 21, 2015 CLE SCHEDULE Atlanta Evergreen Marriott • Stone Mountain, GA Thursday, June 18 2 – 5 p.m. 9 a.m. – 12 p.m. War Stories XV, Plus Georgia Evidence Update * Eureka Moments – Pro Bono Attorneys Tell All 3 CLE hours with 1 ethics credit, 1 professionalism credit 3 CLE hours, including 1 professionalism credit* and 3 trial practice credits 9 a.m. – 12 p.m. Friday, June 19 Trial Techniques and Tips 2 - 4 p.m. 3 CLE hours, including 3 trial practice credits Ethics, Malpractice and Professionalism * 1 – 5 p.m. 2 CLE hours with 1 professionalism credit and 1 ethics credit Next Step Institute 2 – 5 p.m. 4 CLE hours, including 1 professionalism credit* 50th Anniversary of the Voting Rights Act of 1965 2 – 5 p.m. 3 CLE hours Tools for Effectively Navigating the “New Normal” (*Professionalism credit is self-reporting, using the optional self-report form) 3 CLE hours, including 1 ethics credit

April 2015 69 Notices

Notice of Motion to Amend the Rules and Regulations of the State Bar of Georgia

No earlier than 30 days after the publication of this Rules and Regulations of the State Bar of Georgia as Notice, the State Bar of Georgia will file a Motion to originally set forth in an Order of this court dated Amend the Rules and Regulations for the Organization December 6, 1963 (219 Ga. 873), and as amended by and Government of the State Bar of Georgia pursuant subsequent Orders, published at 2014-2015 State Bar to Part V, Chapter 1 of said Rules, 2014-2015 State Bar of Georgia Directory and Handbook, pp. 1-H, et seq. of Georgia Directory and Handbook, p. H-7 (hereinafter The State Bar of Georgia respectfully moves that Rule referred to as “Handbook”). 4-104, Rule 4-106(f)(2), Rule 4-110, Rule 4-111, Rule I hereby certify that the following is the verbatim 4-204, Rule 4-204.1, Rule 4-208.3, Rule 4-213, Rule text of the proposed amendments as approved by the 4-217, Rule 4-219, Rule 4-221, Rule 4-227, Rule 4-403(c) Board of Governors of the State Bar of Georgia, and and (d), Rule 12-107, Rule 1.6, Rule 3.5, Rule 5.4, Rule includes non-substantive, stylistic changes to provide 7.3 and Rule 8.4(d) of the Georgia Rules of Professional consistency with the existing Bar Rules. Any member Conduct be amended as set out herein below. of the State Bar of Georgia who desires to object to these proposed amendments to the Rules is reminded I. that he or she must do so in the manner provided by Rule 5-102, Handbook, p. H-7. Proposed Amendment to Part IV Georgia Rules of This Statement and the following text are intended Professional Conduct; Chapter 1 Georgia Rules of to comply with the notice requirements of Rule 5-101, Professional Conduct and Enforcement Thereof; Rule Handbook, p. H-7. 4-104. Mental Incapacity and Substance Abuse.

Jeff Davis The Board of Governors of the State Bar of Georgia Executive Director proposes that – Rule 4-104. Mental Incapacity and State Bar of Georgia Substance Abuse. – be amended by deleting the struck- through portions and adding the language in bold IN THE SUPREME COURT underlined text as set out below: STATE OF GEORGIA Rule 4-104. Mental Incapacity and Substance IN RE: STATE BAR OF GEORGIA Abuse. Rules and Regulations for its … Organization and Government (b) Upon a finding by either panel of the State Disciplinary Board that an attorney may be MOTION TO AMEND 2015-1 impaired or incapacitated to practice law due to mental incapacity or substance abuse, that MOTION TO AMEND THE RULES AND panel may, in its sole discretion, make a confi- REGULATIONS OF THE dential referral of the matter to the Committee on STATE BAR OF GEORGIA Lawyer Impairment Lawyer Assistance Program for the purposes of confrontation and referral of COMES NOW, the State Bar of Georgia, pursuant the attorney to treatment centers and peer support to the authorization of its Board of Governors at its groups. Either panel may, in its discretion, defer regularly-called meeting held on January 10, 2015, disciplinary findings and proceedings based upon and presents to this court its Motion to Amend the the impairment or incapacitation of an attorney

70 Georgia Bar Journal pending attempts by the Committee on Lawyer its entry of judgment under Bar Rules 4-219 or Impairment Lawyer Assistance Program to afford 4-220(a), so that rehabilitative aid may be provided the attorney an opportunity to begin recovery. In to the impaired or incapacitated attorney. In such such situations the Program shall report to the situations the Program shall be authorized to report referring panel and Bar counsel concerning the to the court, either panel of the State Disciplinary attorney’s progress toward recovery. Board and Bar counsel concerning the attorney’s progress toward recovery. (c) In the event of a finding by the Supreme Court of Georgia that a lawyer is impaired or II. incapacitated, the court may refer the matter to the Committee on Lawyer Impairment Lawyer Proposed Amendment to Part IV Georgia Rules of Assistance Program, before or after its entry of Professional Conduct; Chapter 1 Georgia Rules of judgment under Bar Rules 4-219 or 4-220(a), so that Professional Conduct and Enforcement Thereof; Rule rehabilitative aid may be provided to the impaired 4-106(f)(2). Conviction of a Crime; Suspension and or incapacitated attorney. In such situations the Disbarment. committee Program shall be authorized to report to the court, either panel of the State Disciplinary The Board of Governors of the State Bar of Georgia Board and Bar counsel concerning the attorney’s proposes that – Rule 4-106(f)(2). Conviction of a Crime; progress toward recovery. Suspension and Disbarment. – be amended by deleting the struck-through portions and adding the language in If the proposed amendments to the Rule are adopt- bold underlined text as set out below: ed by the court, the amended – Rule 4-104. Mental Incapacity and Substance Abuse. – would read as Rule 4-106. Conviction of a Crime; Suspension and follows: Disbarment. … Rule 4-104. Mental Incapacity and Substance Abuse. (f) (1) If the Supreme Court of Georgia orders the (a) Want of a sound mind, senility, habitual respondent suspended pending the appeal, upon intoxication or drug addiction, to the extent of the termination of the appeal the State Bar of impairing competency as an attorney, when found Georgia may petition the Special Master to con- to exist under the procedure outlined in Part IV, duct a hearing for the purpose of determining Chapter 2 of these rules, shall constitute grounds whether the circumstances of the termination of for removing the attorney from the practice of law. the appeal indicate that the suspended respon- Notice of final judgment taking such action shall dent should: be given by the Review Panel as provided in Rule 4-220(a). (i1) be disbarred under Rule 8.4, or

(b) Upon a finding by either panel of the State (ii2) be reinstated, or Disciplinary Board that an attorney may be impaired or incapacitated to practice law due to mental inca- (iii3) remain suspended pending retrial as a pro- pacity or substance abuse, that panel may, in its tection to the public, or sole discretion, make a confidential referral of the matter to the Lawyer Assistance Program for the (iv4) be reinstated while the facts giving rise to purposes of confrontation and referral of the attor- the conviction are investigated and, if proper, ney to treatment centers and peer support groups. prosecuted under regular disciplinary proce- Either panel may, in its discretion, defer disciplin- dures in these rules. ary findings and proceedings based upon the impairment or incapacitation of an attorney pend- (2) The Rreports of the Special Master shall ing attempts by the Lawyer Assistance Program to be filed with the Review Panel or the Supreme afford the attorney an opportunity to begin recov- Court of Georgia as provided hereafter in Bar ery. In such situations the Program shall report to Rule 4-217. The Review Panel shall make its find- the referring panel and Bar counsel concerning the ings and recommendation as provided hereafter attorney’s progress toward recovery. in Bar Rule 4-218. … (c) In the event of a finding by the Supreme Court of Georgia that a lawyer is impaired or If the proposed amendments to the Rule are adopted, incapacitated, the court may refer the matter to the amended – Rule 4-106. Conviction of a Crime; the Lawyer Assistance Program, before or after Suspension and Disbarment. – would read as follows:

April 2015 71 Rule 4-106. Conviction of a Crime; Suspension and The Report of the Special Master shall be filed with Disbarment. the Review Panel or the Supreme Court of Georgia as provided hereafter in Bar Rule 4-217. (a) Upon receipt of information or evidence that an attorney has been convicted of any felony or (g) For purposes of this rule, a certified copy misdemeanor involving moral turpitude, whether of a conviction in any jurisdiction based upon a by verdict, plea of guilty, plea of nolo contendere or verdict, plea of guilty or plea of nolo contendere or imposition of first offender probation, the Office of the imposition of first offender treatment shall be the General Counsel shall immediately assign the prima facie evidence of an infraction of Bar Rule matter a State Disciplinary Board docket number 8.4 of Bar Rule 4-102 and shall be admissible in and petition the Supreme Court of Georgia for the proceedings under the disciplinary rules. appointment of a Special Master to conduct a show cause hearing. III.

(b) The petition shall show the date of the verdict Proposed Amendment to Part IV Georgia Rules of or plea and the court in which the respondent was Professional Conduct; Chapter 1 Georgia Rules of convicted, and shall be served upon the respondent Professional Conduct and Enforcement Thereof; Rule pursuant to Bar Rule 4-203.1. 4-110. Definitions.

(c) Upon receipt of the Petition for Appointment The Board of Governors of the State Bar of of Special Master, the Clerk of the Supreme Court Georgia proposes that – Rule 4-110. Definitions. – be of Georgia shall file the matter in the records of the amended by deleting the struck-through portions court, shall give the matter a Supreme Court docket and adding the language in bold underlined text as number and notify the Coordinating Special Master set out below: that appointment of a Special Master is appropriate. Rule 4-110. Definitions. (d) The Coordinating Special Master as provided … in Bar Rule 4-209.3 will appoint a Special Master, (i) Notice of Discipline: A Notice by the pursuant to Bar Rule 4-209(b). Investigative Panel that the respondent will be subject to a disciplinary sanction for violation of one or (e) The show cause hearing should be held within more Standards of Conduct Rules of Professional 15 days after service of the Petition for Appointment Conduct unless the respondent affirmatively rejects of Special Master upon the respondent or appoint- the notice. ment of a Special Master, whichever is later. Within 30 days of the hearing, the Special Master shall If the proposed amendment to the Rule is adopted, file a recommendation with the Supreme Court of the amended – Rule 4-110. Definitions – would read as Georgia, which shall be empowered to order such follow: discipline as deemed appropriate. Rule 4-110. Definitions. (f) If the Supreme Court of Georgia orders the respondent suspended pending the appeal, upon (a) Respondent: A person whose conduct is the the termination of the appeal the State Bar of subject of any disciplinary investigation or pro- Georgia may petition the Special Master to conduct ceeding. a hearing for the purpose of determining whether the circumstances of the termination of the appeal (b) Confidential proceedings: Any proceeding indicate that the suspended respondent should: under these rules which occurs prior to a filing in the Supreme Court of Georgia. (1) be disbarred under Rule 8.4; or (c) Public proceedings: Any proceeding under (2) be reinstated; or these rules which has been filed with the Supreme Court of Georgia. (3) remain suspended pending retrial as a protection to the public; or (d) Grievance/Memorandum of Grievance: An allegation of unethical conduct filed against an (4) be reinstated while the facts giving rise to the attorney. conviction are investigated and, if proper, prosecuted under regular disciplinary procedures in (e) Probable cause: A finding by the Investigative these rules. Panel that there is sufficient evidence to believe

72 Georgia Bar Journal that the respondent has violated one or more of the Rule 4-111. Audit for Cause. provisions of Part IV, Chapter 1 of the Bar Rules. Upon receipt of sufficient evidence that a law- (f) Petition for Voluntary Surrender of License: yer who practices law in this State poses a threat A Petition for Voluntary Discipline in which the of harm to his clients or the public, the State respondent voluntarily surrenders his license to Disciplinary Board may conduct an Audit for Cause practice law in this State. A voluntary surrender of with the written approval of the Chairman of the license is tantamount to disbarment. Investigative Panel of the State Disciplinary Board and the President-elect of the State Bar of Georgia. (g) He, him or his: Generic pronouns including Before approval can be granted, the lawyer shall both male and female. be given notice that approval is being sought and be given an opportunity to appear and be heard. (h) Attorney: A member of the State Bar of The sufficiency of the notice and opportunity to Georgia or one authorized by law to practice law in be heard shall be left to the sole discretion of the the State of Georgia. persons giving the approval. The State Disciplinary Board must inform the person being audited that (i) Notice of Discipline: A Notice by the the audit is an Audit for Cause. Investigative Panel that the respondent will be subject to a disciplinary sanction for violation of one or V. more Georgia Rules of Professional Conduct unless the respondent affirmatively rejects the notice. Proposed Amendment to Part IV Georgia Rules of Professional Conduct; Chapter 2, Disciplinary IV. Proceedings; Rule 4-204. Preliminary Investigation by Investigative Panel - Generally. Proposed Amendment to Part IV Georgia Rules of Professional Conduct; Chapter 1 Georgia Rules of The Board of Governors of the State Bar of Georgia Professional Conduct and Enforcement Thereof; Rule proposes that – Rule 4-204. Preliminary Investigation 4-111. Audit for Cause. by Investigative Panel - Generally. – be amended by deleting the struck-through portions and adding the The Board of Governors of the State Bar of Georgia language in bold underlined text as set out below: proposes that – Rule 4-111. Audit for Cause. – be amended by deleting the struck-through portions as set Rule 4-204. Preliminary Investigation by out below: Investigative Panel - Generally.

Rule 4-111. Audit for Cause. (a) Each grievance alleging conduct which appears to invoke the disciplinary jurisdiction of the State Upon receipt of sufficient evidence that a law- Disciplinary Board of the State Bar of Georgia shall yer who practices law in this State poses a threat be referred in accordance with Rule 4-204.1 by the of harm to his clients or the public, the State Office of the General Counsel to the Investigative Disciplinary Board may conduct an Audit for Cause Panel or a subcommittee of the Investigative Panel with the written approval of the Chairman of the for investigation and disposition in accordance with Investigative Panel of the State Disciplinary Board its rules. The Investigative Panel shall appoint one of and the President-elect of the State Bar of Georgia. its members to be responsible for the investigation. Before approval can be granted, the lawyer shall The Office of the General Counsel shall simultane- be given notice that approval is being sought and ously assign a staff investigator to assist in the inves- be given an opportunity to appear and be heard. tigation. If the investigation of the Panel establishes The sufficiency of the notice and opportunity to probable cause to believe that the respondent has be heard shall be left to the sole discretion of the violated one or more of the provisions of Part IV, persons giving the approval. The State Disciplinary Chapter 1 of these rules, it shall: Board must inform the person being audited that the audit is an Audit for Cause. The failure of a (1) issue a letter of admonition; lawyer to submit to an Audit for Cause shall be grounds for discipline pursuant to Standard 65.5. (2) issue an Investigative Panel Reprimand;

If the proposed amendment to the Rule is adopted, (3) issue a Notice of Discipline; or the amended – Rule 4-111. Audit for Cause. – would read as follows: (4) refer the case to the Supreme Court of Georgia for hearing before a Special Master and

April 2015 73 file a formal complaint with the Supreme Court VI. of Georgia, all as hereinafter provided. Proposed Amendment to Part IV Georgia Rules All other cases may be either dismissed by of Professional Conduct; Chapter 2 Disciplinary the Investigative Panel or referred to the Fee Proceedings; Rule 4-204.1. Notice of Investigation. Arbitration Committee or the Committee on Lawyer Impairment Lawyer Assistance Program. The Board of Governors of the State Bar of Georgia … proposes that – Rule 4-204.1. Notice of Investigation. – be amended by deleting the struck-through portions If the proposed amendment to the Rule is adopted, and adding the language in bold underlined text as set the amended – Rule 4-204. Preliminary Investigation by out below: Investigative Panel – Generally would read as follows: Rule 4-204.1. Notice of Investigation. Rule 4-204. Preliminary Investigation by … Investigative Panel – Generally. (b) The Notice of Investigation shall accord the respondent reasonable notice of the charges against (a) Each grievance alleging conduct which him and a reasonable opportunity to respond to the appears to invoke the disciplinary jurisdiction of charges in writing and shall contain: the State Disciplinary Board of the State Bar of Georgia shall be referred in accordance with Rule (1) a statement that the grievance is being trans- 4-204.1 by the Office of the General Counsel to mitted to the Investigative Panel, or subcommit- the Investigative Panel or a subcommittee of the tee of the Investigative Panel; Investigative Panel for investigation and disposition in accordance with its rules. The Investigative (2) a copy of the grievance; Panel shall appoint one of its members to be responsible for the investigation. The Office of (3) a list of the Standards of Conduct Rules the General Counsel shall simultaneously assign which appear to have been violated; a staff investigator to assist in the investigation. If the investigation of the Panel establishes probable (4) the name and address of the Panel member cause to believe that the respondent has violated assigned to investigate the grievance and a list of one or more of the provisions of Part IV, Chapter 1 the Panel, or subcommittee of the Panel, mem- of these rules, it shall: bers;

(1) issue a letter of admonition; (5) a statement of respondent’s right to challenge the competency, qualifications or objectiv- (2) issue an Investigative Panel Reprimand; ity of any Panel member; … (3) issue a Notice of Discipline; or If the proposed amendment to the Rule is adopted, (4) refer the case to the Supreme Court of the amended – Rule 4-204.1. Notice of Investigation. – Georgia for hearing before a Special Master and would read as follows: file a formal complaint with the Supreme Court of Georgia, all as hereinafter provided. Rule 4-204.1. Notice of Investigation.

All other cases may be either dismissed by (a) Upon completion of its screening of a griev- the Investigative Panel or referred to the Fee ance under Rule 4-202, the Office of the General Arbitration Committee or the Lawyer Assistance Counsel shall forward those grievances which Program. appear to invoke the disciplinary jurisdiction of the State Bar of Georgia to the Investigative (b) The primary investigation shall be conducted Panel, or subcommittee of the Investigative Panel by the staff investigators, the staff lawyers of the by serving a Notice of Investigation upon the Office of the General Counsel, and the member of respondent. the Investigative Panel responsible for the investigation. The Board of Governors of the State Bar (b) The Notice of Investigation shall accord the of Georgia shall fund the Office of the General respondent reasonable notice of the charges against Counsel so that the Office of the General Counsel him and a reasonable opportunity to respond to the will be able to adequately investigate and prosecute charges in writing and shall contain: all cases.

74 Georgia Bar Journal (1) a statement that the grievance is being trans- (a) In order to reject The Notice of Discipline the mitted to the Investigative Panel, or subcommit- respondent or the Office of the General Counsel tee of the Investigative Panel; must file a Notice of Rejection of the Notice of Discipline with the Clerk of the Supreme Court (2) a copy of the grievance; of Georgia within 30 days following service of the Notice of Discipline. (3) a list of the Rules which appear to have been violated; (b) Any Notice of Rejection by the respondent shall be served by the respondent upon the Office (4) the name and address of the Panel member of the General Counsel of the State Bar of Georgia. assigned to investigate the grievance and a list Any Notice of Rejection by the Office of the General of the Panel, or subcommittee of the Panel, Counsel of the State Bar of Georgia shall be served members; by the General Counsel upon the respondent. No rejection by the respondent shall be considered (5) a statement of respondent’s right to chal- valid unless the respondent files a written response lenge the competency, qualifications or objectiv- as required by Rule 4-204.3 at or before the filing ity of any Panel member; of the rejection. The respondent must also file a copy of such written response with the Clerk of the (c) The form for the Notice of Investigation shall Supreme Court of Georgia at the time of filing the be approved by the Investigative Panel. Notice of Rejection.

VII. (c) The timely filing of a Notice of Rejection shall constitute an election for the Coordinating Special Proposed Amendment to Part IV Georgia Rules Master to appoint a Special Master and the matter of Professional Conduct; Chapter 2 Disciplinary shall thereafter proceed pursuant to Bar Rules 4-209 Proceedings; Rule 4-208.3. Rejection of Notice of through 4-225. Discipline. VIII. The Board of Governors of the State Bar of Georgia proposes that – Rule 4-208.3. Rejection of Notice of Proposed Amendment to Part IV Georgia Rules Discipline. – be amended by deleting the struck-through of Professional Conduct; Chapter 2 Disciplinary portions and adding the language in bold underlined Proceedings; Rule 4-213. Evidentiary Hearing. text as set out below: The Board of Governors of the State Bar of Georgia Rule 4-208.3. Rejection of Notice of Discipline. proposes that – Rule 4-213. Evidentiary Hearing. – be … amended by deleting the struck-through portions and (b) Any Notice of Rejection by the respon- adding the language in bold underlined text as set out dent shall be served by the respondent upon the below: Office of the General Counsel of the State Bar of Georgia. Any Notice of Rejection by the Office of Rule 4-213. Evidentiary Hearing. the General Counsel of the State Bar of Georgia shall be served by the General Counsel upon the (a) Within 90 days after the filing of respondent’s respondent. No rejection by the respondent shall answer to the formal complaint or the time for filing be considered valid unless the respondent files of the answer, whichever is later, the Special Master a written response to the pending grievance as shall proceed to hear the case. The evidentiary hear- required by Rule 4-204.3 at or before the filing of ing shall be stenographically reported and may be the rejection. The respondent must also file a copy transcribed at the request and expense of the request- of such written response with the Clerk of the ing party and transcribed at the expense of the State Supreme Court of Georgia at the time of filing the Bar of Georgia. When the hearing is complete, the Notice of Rejection. Special Master shall proceed to make findings of fact, … conclusions of law and a recommendation of discipline and file a report with the Review Panel or the If the proposed amendment to the Rule is adopted, Supreme Court of Georgia as hereinafter provided. the amended – Rule 4-208.3. Rejection of Notice of Alleged errors in the trial may be reviewed by the Discipline. – would read as follows: Supreme Court of Georgia when the findings and recommendations of discipline of the Review Panel are Rule 4-208.3. Rejection of Notice of Discipline. filed with the court. There shall be no direct appeal from such proceedings of the Special Master.

April 2015 75 (b) Upon respondent’s a showing of necessity tions with the Clerk of the State Disciplinary Board and financial inability to pay for a copy of the in accordance with Bar Rule 4-221(f) and serve transcript a showing of financial inability by the them on the opposing party within 30 days after respondent to pay for the transcription, the Special the Special Master’s report is filed with the Clerk Master shall order the State Bar of Georgia to pur- of the State Disciplinary Board. Upon receipt of a chase a copy of the transcript for respondent pro- timely written request and exceptions, the Clerk vide the transcript. of the State Disciplinary Board shall prepare and file the record and report with the Review Panel. If the proposed amendments to the Rule are adopted, The responding party shall have ten (10) days 30 the amended – Rule 4-213. Evidentiary Hearing. – days after service of the exceptions within which would read as follows: to respond.

Rule 4-213. Evidentiary Hearing. If the proposed amendments to the Rule are adopted, the amended – Rule 4-217. Report of the Special Master (a) Within 90 days after the filing of respon- to the Review Panel. – would read as follows: dent’s answer to the formal complaint or the time for filing of the answer, whichever is later, the Rule 4-217. Report of the Special Master to the Special Master shall proceed to hear the case. The Review Panel. evidentiary hearing shall be reported and transcribed at the expense of the State Bar of Georgia. (a) Within 30 days from receipt of the transcript When the hearing is complete, the Special Master of the evidentiary hearing, the Special Master shall shall proceed to make findings of fact, conclu- prepare a report which shall contain the following: sions of law and a recommendation of discipline and file a report with the Review Panel or the (1) findings of fact on the issues raised by the Supreme Court of Georgia as hereinafter provid- formal complaint; and ed. Alleged errors in the trial may be reviewed by the Supreme Court of Georgia when the find- (2) conclusions of law on the issues raised by the ings and recommendations of discipline of the pleadings of the parties; and Review Panel are filed with the court. There shall be no direct appeal from such proceedings of the (3) a recommendation of discipline. Special Master. (b) The Special Master shall file his or her origi- (b) Upon respondent’s showing of necessity and nal report and recommendation with the Clerk of financial inability to pay for a copy of the tran- the State Disciplinary Board and shall serve a copy script, the Special Master shall order the State Bar on the respondent and counsel for the State Bar of of Georgia to purchase a copy of the transcript for Georgia pursuant to Rule 4-203.1. respondent. (c) Thirty days after the Special Master’s report IX. and recommendation is filed, the Clerk of the State Disciplinary Board shall file the original record Proposed Amendment to Part IV Georgia Rules in the case directly with the Supreme Court of of Professional Conduct; Chapter 2 Disciplinary Georgia unless either party requests review by the Proceedings; Rule 4-217. Report of the Special Master Review Panel as provided in paragraph (d) of this to the Review Panel. Rule. In the event neither party requests review by the Review Panel and the matter goes directly The Board of Governors of the State Bar of Georgia to the Supreme Court of Georgia, both parties proposes that – Rule 4-217. Report of the Special Master shall be deemed to have waived any right they to the Review Panel. – be amended by deleting the may have under the rules to file exceptions with struck-through portions and adding the language in or make request for oral argument to the Supreme bold underlined text as set out below: Court of Georgia. Any review undertaken by the Supreme Court of Georgia shall be solely on the Rule 4-217. Report of the Special Master to the original record. Review Panel. … (d) Upon receipt of the Special Master’s report (d) Upon receipt of the Special Master’s report and recommendation, either party may request and recommendation, either party may request review by the Review Panel as provided in Rule review by the Review Panel as provided in Rule 4-218. Such party shall file the request and excep- 4-218. Such party shall file the request and exceptions with the Clerk of the State Disciplinary Board

76 Georgia Bar Journal in accordance with Bar Rule 4-221(f) and serve them on the opposing party within 30 days after the Special Master’s report is filed with the Clerk LAWYER ASSISTANCE of the State Disciplinary Board. Upon receipt of a timely written request and exceptions, the Clerk of PROGRAM the State Disciplinary Board shall prepare and file the record and report with the Review Panel. The responding party shall have 30 days after service of the exceptions within which to respond.

Proposed Amendment to Part IV Georgia Rules Stress, life challenges of Professional Conduct; Chapter 2 Disciplinary Proceedings; Rule 4-219. Judgments and Protective or substance abuse? Orders.

The Board of Governors of the State Bar of Georgia proposes that – Rule 4-219. Judgments and Protective Orders. – be amended by deleting the struck-through portions and adding the language in bold underlined We can text as set out below: Rule 4-219. Judgments and Protective Orders. help. (a) After either the Review Panel’s report or the Special Master’s report is filed with the Supreme Court of Georgia, the respondent and the State The Lawyer Assistance Program is a Bar of Georgia may file with the court any written free program providing confidential exceptions, supported by written argument, each may have to the report subject to the provisions of assistance to Bar members whose Rule 4-217(c). All such exceptions shall be filed with personal problems may be interfering the court within twenty days 30 days of the date that the report is filed with the court and a copy with their ability to practice law. served upon the opposing party. The responding party shall have an additional twenty days 30 days to file its response with the court. The court may grant oral argument on any exception filed with it upon application for such argument by a party to the disciplinary proceedings. The court will promptly consider the report of the Review Panel or the Special Master, any exceptions, and any responses filed by any party to such exceptions, and enter judgment upon the formal complaint. A copy of the court’s judgment shall be transmitted to the State Bar of Georgia and the respondent by the court. …

If the proposed amendments to the Rule are adopted, the amended – Rule 4-219. Judgments and Protective Orders – would read as follows:

Rule 4-219. Judgments and Protective Orders. Confidential Hotline (a) After either the Review Panel’s report or the 800-327-9631 Special Master’s report is filed with the Supreme Court of Georgia, the respondent and the State

April 2015 77 Bar of Georgia may file with the court any written (2) After a final judgment of disbarment or exceptions, supported by written argument, each suspension under Part IV of these Rules, includ- may have to the report subject to the provisions of ing a disbarment or suspension on a Notice of Rule 4-217(c). All such exceptions shall be filed with Discipline, the respondent shall take such action the court within 30 days of the date that the report necessary to cause the removal of any indicia of is filed with the court and a copy served upon the the respondent as a lawyer, legal assistant, legal opposing party. The responding party shall have clerk or person with similar status. In the event an additional 30 days to file its response with the the respondent should maintain a presence in court. The court may grant oral argument on any an office where the practice of law is conducted, exception filed with it upon application for such the respondent shall not: argument by a party to the disciplinary proceedings. The court will promptly consider the report (i) have any contact with the clients of the of the Review Panel or the Special Master, any office either in person, by telephone, or in exceptions, and any responses filed by any party writing; or to such exceptions, and enter judgment upon the formal complaint. A copy of the court’s judgment (ii) have any contact with persons who have shall be transmitted to the State Bar of Georgia and legal dealings with the office either in person, the respondent by the court. by telephone, or in writing.

(b) In cases in which the Supreme Court of XI. Georgia orders disbarment, voluntary surrender of license or suspension, or the respondent is disbarred Proposed Amendment to Part IV Georgia Rules or suspended on a Notice of Discipline, the Review of Professional Conduct; Chapter 2 Disciplinary Panel shall publish in a local newspaper or newspa- Proceedings; Rule 4-221. Procedures. pers and on the official State Bar of Georgia website, notice of the discipline, including the respondent’s The Board of Governors of the State Bar of Georgia full name and business address, the nature of the proposes that – Rule 4-221. Procedures. – be amended discipline imposed and the effective dates. by deleting the struck-through portions and adding the language in bold underlined text as set out below: (c) Rule 4-221. Procedures. (1) After a final judgment of disbarment or sus- … pension, including a disbarment or suspension (g) Pleadings and Communications Privileged. on a Notice of Discipline, the respondent shall Pleadings and oral and written statements of mem- immediately cease the practice of law in Georgia bers of the State Disciplinary Board, members and and shall, within 30 days, notify all clients of his designees of the Committee on Lawyer Impairment inability to represent them and of the necessity Lawyer Assistance Program, Special Masters, Bar for promptly retaining new counsel, and shall Counsel and investigators, complainants, witness- take all actions necessary to protect the interests es, and respondents and their counsel made to one of his clients. Within 45 days after a final judg- another or filed in the record during any investi- ment of disbarment or suspension, the respon- gation, intervention, hearing or other disciplinary dent shall certify to the court that he has satis- proceeding under this Part IV, and pertinent to the fied the requirements of this rule. Should the disciplinary proceeding, are made in performance respondent fail to comply with the requirements of a legal and public duty, are absolutely privi- of this rule, the Supreme Court of Georgia, upon leged, and under no circumstances form the basis its own motion or upon motion of the Office of for a right of action. the General Counsel, and after ten days notice to the respondent and proof of his failure to notify If the proposed amendments to the Rule are or protect his clients, may hold the respondent adopted, the amended – Rule 4-221. Procedures – in contempt and, pursuant to Bar Rule 4-228, would read as follows: order that a member or members of the State Bar of Georgia take charge of the files and records of Rule 4-221. Procedures. the respondent and proceed to notify all clients and to take such steps as seem indicated to pro- (a) Oaths. Before entering upon his duties as here- tect their interests. Motions for reconsideration in provided each member of the State Disciplinary may be taken from the issuance or denial of Board and each Special Master shall subscribe to such protective order by either the respondent an oath to be administered by any person autho- or by the State Bar of Georgia. rized to administer oaths under the laws of this

78 Georgia Bar Journal State, such oath to be in writing and filed with the or the State Bar of Georgia in the same manner Executive Director of the State Bar of Georgia. The and under the same provisions as may be done form of such oath shall be: in civil cases under the laws of Georgia, and such depositions may be used upon the trial or “I do solemnly swear that I will faithfully and an investigation or hearing in the same manner impartially discharge and perform all of the duties as such depositions are admissible in evidence incumbent upon me as a member of the State in civil cases under the laws of Georgia. Disciplinary Board of the State Bar of Georgia/ Special Master according to the best of my ability (5) All witnesses attending any hearing pro- and understanding and agreeable to the laws and vided for under these rules shall be entitled Constitution of this State and the Constitution of to the same fees as now are allowed by law to the United States so help me God.” witnesses attending trials in civil cases in the superior courts of this State under subpoena, (b) Witnesses and Evidence; Contempt. and said fees shall be assessed against the parties to the proceedings under the rule of law (1) The respondent and the State Bar of Georgia applicable to civil suits in the superior courts shall have the right to require the issuance of of this State. subpoenas for the attendance of witnesses to testify or to produce books and papers. The (6) Whenever the deposition of any person is State Disciplinary Board or a Special Master to be taken in this State pursuant to the laws of shall have power to compel the attendance of another state, territory, province or common- witnesses and the production of books, papers, wealth, or of the United States or of another and documents, relevant to the matter under country for use in attorney discipline, fitness investigation, by subpoena, and as further pro- or disability proceedings there, the chairperson vided by law in civil cases under the laws of of the Investigative Panel, or his or her desig- Georgia. nee upon petition, may issue a summons or subpoena as provided in this section to compel (2) The following shall subject a person to rule the attendance of witnesses and production of for contempt of the Special Master or Panel: documents at such deposition.

(i) disregard, in any manner whatever, of a (c) Venue of Hearings. subpoena issued pursuant to Rule 4-221(b) (1); (1) The hearings on all complaints and charges (ii) refusal to answer any pertinent or proper against resident respondents shall be held in the question of a Special Master or Board member; county of residence of the respondent unless he or otherwise agrees.

(iii) willful or flagrant violation of a lawful (2) Where the respondent is a nonresident of the directive of a Special Master or Board member. State of Georgia and the complaint arose in the State of Georgia, the hearing shall be held in the It shall be the duty of the chairperson of the county where the complaint arose. affected Panel or Special Master to report the fact to the Chief Judge of the superior court (3) When the respondent is a nonresident of the in and for the county in which said investiga- State of Georgia and the offense occurs outside tion, trial or hearing is being held. The superior the State, the hearing may be held in the county court shall have jurisdiction of the matter and of the State Bar of Georgia headquarters. shall follow the procedures for contempt as are applicable in the case of a witness subpoenaed (d) Confidentiality of Investigations and to appear and give evidence on the trial of a civil Proceedings. case before the superior court under the laws in Georgia. (1) The State Bar of Georgia shall maintain as confidential all disciplinary investigations and (3) Any member of the State Disciplinary Board proceedings pending at the screening or inves- and any Special Master shall have power to tigative stage, unless otherwise provided by administer oaths and affirmations and to issue these rules. any subpoena herein provided for. (2) After a proceeding under these rules is filed (4) Depositions may be taken by the respondent with the Supreme Court of Georgia, all eviden-

April 2015 79 tiary and motions hearings shall be open to the (i) The Committee on the Arbitration of public and all reports rendered shall be public Attorney Fee Disputes or the comparable body documents. in other jurisdictions;

(3) Nothing in these rules shall prohibit the (ii) The Trustees of the Clients’ Security Fund complainant, respondent or third party from or the comparable body in other jurisdictions; disclosing information regarding a disciplinary proceeding, unless otherwise ordered by the (iii) The Judicial Nominating Commission or Supreme Court of Georgia or a Special Master the comparable body in other jurisdictions; in proceedings under these rules. (iv) The Lawyer Assistance Program or the (4) The Office of the General Counsel of the State comparable body in other jurisdictions; Bar of Georgia or the Investigative Panel of the State Disciplinary Board may reveal or autho- (v) The Board to Determine Fitness of Bar rize disclosure of information which would Applicants or the comparable body in other otherwise be confidential under this rule under jurisdictions; the following circumstances: (vi) The Judicial Qualifications Commission (i) In the event of a charge of wrongful conduct or the comparable body in other jurisdictions; against any member of the State Disciplinary Board or any person who is otherwise con- (vii) The Executive Committee with the spe- nected with the disciplinary proceeding in any cific approval of the following representa- way, either Panel of the Board or its chairper- tives of the Investigative Panel of the State son or his or her designee, may authorize the Disciplinary Board: the chairperson, the vice- use of information concerning disciplinary chairperson and a third representative desig- investigations or proceedings to aid in the nated by the chairperson; defense against such charge. (viii) The Formal Advisory Opinion Board; (ii) In the event the Office of the General Counsel receives information that suggests (ix) The Consumer Assistance Program; criminal activity, such information may be revealed to the appropriate criminal pros- (x) The General Counsel Overview Committee; ecutor. (xi) An office or committee charged with dis- (iii) In the event of subsequent disciplinary cipline appointed by the United States Circuit proceedings against a lawyer, the Office of the or District Court or the highest court of any General Counsel may, in aggravation of disci- state, District of Columbia, commonwealth or pline in the pending disciplinary case, reveal possession of the United States; and the imposition of confidential discipline under Rules 4-205 to 4-208 and facts underlying the (xii) The Unlicensed Practice of Law imposition of discipline. Department.

(iv) A complainant or lawyer representing the (6) Any information used by the Office of the complainant may be notified of the status or General Counsel in a proceeding under Rule disposition of the complaint. 4-108 or in a proceeding to obtain a receiver to administer the files of a member of the State Bar of (v) When public statements that are false or Georgia, shall not be confidential under this rule. misleading are made about any otherwise confidential disciplinary case, the Office of the (7) The Office of the General Counsel may General Counsel may disclose all information reveal confidential information when required necessary to correct such false or misleading by law or court order. statements. (8) The authority or discretion to reveal con- (5) The Office of the General Counsel may fidential information under this rule shall not reveal confidential information to the following constitute a waiver of any evidentiary, statutory persons if it appears that the information may or other privilege which may be asserted by the assist them in the discharge of their duties: State Bar of Georgia or the State Disciplinary Board under the Bar rules or applicable law.

80 Georgia Bar Journal (9) Nothing in this rule shall prohibit the Office XII. of the General Counsel or the Investigative Panel from interviewing potential witnesses or Proposed Amendment to Part IV Georgia Rules placing the Notice of Investigation out for ser- of Professional Conduct; Chapter 2 Disciplinary vice by sheriff or other authorized person. Proceedings; Rule 4-227. Petitions for Voluntary Discipline. (10) Members of the Office of the General Counsel and State Disciplinary Board may The Board of Governors of the State Bar of Georgia respond to specific inquiries concerning matters proposes that – Rule 4-227. Petitions for Voluntary that have been made public by the complainant, Discipline – be amended by deleting the struck-through respondent or third parties but are otherwise portions and adding the language in bold underlined confidential under these rules by acknowledging text as set out below: the existence and status of the proceeding. Rule 4-227. Petitions for Voluntary Discipline. (11) The State Bar of Georgia shall not disclose … information concerning discipline imposed on (c) After the issuance of a formal complaint a a lawyer under prior Supreme Court Rules that respondent may submit a petition for voluntary was confidential when imposed, unless autho- discipline seeking any level of discipline authorized to do so by said prior rules. rized under these rules.

(e) Burden of Proof; Evidence. (1) the petition shall be filed with the Special Master who Clerk of the State Disciplinary (1) In all proceedings under this chapter, the Board at the headquarters of the State Bar of burden of proof shall be on the State Bar of Georgia and copies served upon the Special Georgia except for proceedings under Bar Rule Master and all parties to the disciplinary pro- 4-106. ceeding. The Special Master shall allow Bar counsel 30 days within which to respond. The (2) In all proceedings under this chapter Office of the General Counsel may assent to the occurring after a finding of probable cause as petition or may file a response, stating objec- described in Rule 4-204.4, the procedures and tions and giving the reasons therefore. The rules of evidence applicable in civil cases under Office of the General Counsel shall serve a copy the laws of Georgia shall apply, except that the of its response upon the respondent. quantum of proof required of the State Bar of … Georgia shall be clear and convincing evidence. If the proposed amendments to the Rule are adopted, (f) Pleadings and Copies. Original pleadings the amended – Rule 4-227. Petitions for Voluntary shall be filed with the Clerk of the State Disciplinary Discipline – would read as follows: Board at the headquarters of the State Bar of Georgia and copies served upon the Special Master Rule 4-227. Petitions for Voluntary Discipline. and all parties to the disciplinary proceeding. Depositions and other original discovery shall be (a) A petition for voluntary discipline shall con- retained by counsel and shall not be filed except as tain admissions of fact and admissions of conduct permitted under the Uniform Superior Court Rules. in violation of Part IV, Chapter 1 of these rules sufficient to authorize the imposition of discipline. (g) Pleadings and Communications Privileged. Pleadings and oral and written statements of mem- (b) Prior to the issuance of a formal complaint, bers of the State Disciplinary Board, members a respondent may submit a petition for voluntary and designees of the Lawyer Assistance Program, discipline seeking any level of discipline autho- Special Masters, Bar counsel and investigators, rized under these rules. complainants, witnesses, and respondents and their counsel made to one another or filed in the record (1) Those petitions seeking private discipline during any investigation, intervention, hearing or shall be filed with the Office of the General other disciplinary proceeding under this Part IV, Counsel and assigned to a member of the and pertinent to the disciplinary proceeding, are Investigative Panel. The Investigative Panel of made in performance of a legal and public duty, are the State Disciplinary Board shall conduct an absolutely privileged, and under no circumstances investigation and determine whether to accept form the basis for a right of action. or reject the petition as outlined at Bar Rule 4-203(a)(9).

April 2015 81 (2) Those petitions seeking public discipline shall (5) If the Special Master accepts the petition be filed directly with the Clerk of the Supreme for voluntary discipline, he or she shall enter a Court. The Office of the General Counsel shall report making findings of fact and conclusions have 30 days within which to file a response. of law and deliver same to the Clerk of the The court shall issue an appropriate order. State Disciplinary Board. The Clerk of the State Disciplinary Board shall file the report and the (c) After the issuance of a formal complaint a complete record in the disciplinary proceeding respondent may submit a petition for voluntary with the Clerk of the Supreme Court of Georgia. discipline seeking any level of discipline autho- A copy of the Special Master’s report shall rized under these rules. be served upon the respondent. The Supreme Court of Georgia shall issue an appropriate (1) The petition shall be filed with the Clerk of order. the State Disciplinary Board at the headquarters of the State Bar of Georgia and copies served (6) Pursuant to Bar Rule 4-210(e), the Special upon the Special Master and all parties to the Master may, in his or her discretion, extend disciplinary proceeding. The Special Master any of the time limits in these rules in order to shall allow Bar counsel 30 days within which to adequately consider a petition for voluntary respond. The Office of the General Counsel may discipline. assent to the petition or may file a response, stating objections and giving the reasons therefore. XIII. The Office of the General Counsel shall serve a copy of its response upon the respondent. Proposed Amendment to Part IV Georgia Rules of Professional Conduct; Chapter 4 Advisory Opinions; (2) The Special Master shall consider the peti- Rule 4-403. Formal Advisory Opinions. tion, the State Bar of Georgia’s response and, the record as it then exists and may accept or reject The Board of Governors of the State Bar of Georgia the petition for voluntary discipline. proposes that – Rule 4-403. Formal Advisory Opinions. – be amended by adding the language in bold under- (3) The Special Master may reject a petition for lined text as set out below: such cause or causes as seem appropriate to the Special Master. Such causes may include but are Rule 4-403. Formal Advisory Opinions. not limited to a finding that: … (c) When the Formal Advisory Opinion Board (i) the petition fails to contain admissions of makes a preliminary determination that a Proposed fact and admissions of conduct in violation of Formal Advisory Opinion should be drafted, it shall Part IV, Chapter 1 of these rules sufficient to publish the Proposed Formal Advisory Opinion authorize the imposition of discipline; either in an official publication of the State Bar of Georgia or on the State Bar of Georgia’s website, (ii) the petition fails to request appropriate and solicit comments from the members of the State discipline; Bar of Georgia. Following a reasonable period of time for receipt of comments from the members (iii) the petition fails to contain sufficient infor- of the State Bar of Georgia, the Formal Advisory mation concerning the admissions of fact and Opinion Board shall then make a final determina- the admissions of conduct; tion to either file the Proposed Formal Advisory Opinion as drafted or modified, or reconsider its (iv) the record in the proceeding does not con- decision and decline to draft and file the Proposed tain sufficient information upon which to base Formal Advisory Opinion. a decision to accept or reject. (d) After the Formal Advisory Opinion Board (4) The Special Master’s decision to reject a makes a final determination that the Proposed petition for voluntary discipline does not pre- Formal Advisory Opinion should be drafted and clude the filing of a subsequent petition and filed, the Formal Advisory Opinion shall then is not subject to review by either the Review be filed with the Supreme Court of Georgia and Panel or the Supreme Court of Georgia. If the republished either in an official publication of Special Master rejects a petition for voluntary the State Bar of Georgia or on the State Bar of discipline, the disciplinary case shall proceed as Georgia’s website. Unless the Supreme Court of provided by these rules. Georgia grants review as provided hereinafter, the opinion shall be binding only on the State Bar of

82 Georgia Bar Journal Georgia and the person who requested the opin- the members of the State Bar of Georgia, whether ion, and not on the Supreme Court or Georgia, a genuine ethical issue is presented, the existence which shall treat the opinion as persuasive author- of opinions on the subject from other jurisdictions, ity only. Within 20 days of the filing of the Formal and the nature of the prospective conduct. Advisory Opinion or the date the publication is mailed to the members of the State Bar of Georgia (c) When the Formal Advisory Opinion Board (if the opinion is published in an official pub- makes a preliminary determination that a Proposed lication of the State Bar of Georgia), or first Formal Advisory Opinion should be drafted, it shall appears on the State Bar of Georgia’s website (if publish the Proposed Formal Advisory Opinion in the opinion is published on the website), which- an official publication of the State Bar of Georgia ever is later, the State Bar of Georgia or the person and solicit comments from the members of the who requested the opinion may file a petition for State Bar of Georgia. Following a reasonable period discretionary review thereof with the Supreme of time for receipt of comments from the members Court of Georgia. The petition shall designate the of the State Bar of Georgia, the Formal Advisory Formal Advisory Opinion sought to be reviewed Opinion Board shall then make a final determina- and shall concisely state the manner in which tion to either file the Proposed Formal Advisory the petitioner is aggrieved. If the Supreme Court Opinion as drafted or modified, or reconsider its of Georgia grants the petition for discretionary decision and decline to draft and file the Proposed review or decides to review the opinion on its own Formal Advisory Opinion. motion, the record shall consist of the comments received by the Formal Advisory Opinion Board (d) After the Formal Advisory Opinion Board from members of the State Bar of Georgia. The makes a final determination that the Proposed State Bar of Georgia and the person requesting the Formal Advisory Opinion should be drafted and opinion shall follow the briefing schedule set forth filed, the Formal Advisory Opinion shall then in Supreme Court of Georgia Rule 10, counting be filed with the Supreme Court of Georgia and from the date of the order granting review. The republished in an official publication of the State final determination may be either by written opin- Bar of Georgia. Unless the Supreme Court of ion or by order of the Supreme Court of Georgia Georgia grants review as provided hereinafter, and shall state whether the Formal Advisory the opinion shall be binding only on the State Opinion is approved, modified, or disapproved, Bar of Georgia and the person who requested or shall provide for such other final disposition as the opinion, and not on the Supreme Court of is appropriate. Georgia, which shall treat the opinion as persua- … sive authority only. Within 20 days of the filing of the Formal Advisory Opinion or the date the If the proposed amendments to the Rule are adopted, publication is mailed to the members of the State the amended – Rule 4-403. Formal Advisory Opinions. Bar of Georgia, whichever is later, the State Bar of – would read as follows: Georgia or the person who requested the opinion may file a petition for discretionary review there- Rule 4-403. Formal Advisory Opinions. of with the Supreme Court of Georgia. The petition shall designate the Formal Advisory Opinion (a) The Formal Advisory Opinion Board shall sought to be reviewed and shall concisely state be authorized to draft Proposed Formal Advisory the manner in which the petitioner is aggrieved. Opinions concerning a proper interpretation of the If the Supreme Court of Georgia grants the peti- Georgia Rules of Professional Conduct or any of tion for discretionary review or decides to review the grounds for disciplinary action as applied to a the opinion on its own motion, the record shall given state of facts. The Proposed Formal Advisory consist of the comments received by the Formal Opinion should address prospective conduct and Advisory Opinion Board from members of the may respond to a request for a review of an State Bar of Georgia. The State Bar of Georgia Informal Advisory Opinion or respond to a direct and the person requesting the opinion shall fol- request for a Formal Advisory Opinion. low the briefing schedule set forth in the Rules of the Supreme Court of Georgia, Rule 10, count- (b) When a Formal Advisory Opinion is requesting from the date of the order granting review. ed, the Formal Advisory Opinion Board should The final determination may be either by writ- review the request and make a preliminary deter- ten opinion or by order of the Supreme Court mination whether a Proposed Formal Advisory of Georgia and shall state whether the Formal Opinion should be drafted. Factors to be con- Advisory Opinion is approved, modified, or dis- sidered by the Formal Advisory Opinion Board approved, or shall provide for such other final include whether the issue is of general interest to disposition as is appropriate.

April 2015 83 (e) If the Supreme Court of Georgia declines to statements of fact regarding the proceeding, review the Formal Advisory Opinion, it shall be including information otherwise confidential binding only on the State Bar of Georgia and the under the provisions of Rule 4-102(d), Standard person who requested the opinion, and not on 28 Rule 1.6, as may be reasonably necessary to the Supreme Court of Georgia, which shall treat defend that person’s reputation; the opinion as persuasive authority only. If the Supreme Court of Georgia grants review and dis- (2) Willful and malicious false statements of approves the opinion, it shall have absolutely no fact made by any person connected with a effect and shall not constitute either persuasive or proceeding under Part XII of these rules may binding authority. If the Supreme Court of Georgia subject such person to rule for contempt by the approves or modifies the opinion, it shall be bind- Supreme Court of Georgia. ing on all members of the State Bar of Georgia and shall be published in the official Georgia Court and (c) In the event the conduct of the attorney appears Bar Rules manual. The Supreme Court of Georgia to violate one or more of the standards of conduct shall accord such approved or modified opinion Georgia Rules of Professional Conduct set forth in the same precedential authority given to the regu- Part IV of the Bar Rules, and Consumer Assistance larly published judicial opinions of the Court. staff in its sole discretion makes a determination under Rule 12-106 that the matter cannot be resolved (f) The Formal Advisory Opinion Board may informally, then the Consumer Assistance staff shall call upon the Office of the General Counsel for inform callers of their option to file a grievance and staff support in researching and drafting Proposed shall advise the Office of the General Counsel to Formal Advisory Opinions. send the appropriate forms to the callers.

(g) The name of a lawyer requesting an Informal (d) The Consumer Assistance Committee and Advisory Opinion or Formal Advisory Opinion staff may reveal confidential information when will be held confidential unless the lawyer elects required by law or court order. otherwise. If the proposed amendments to the Rule are adopt- XIV. ed, the amended – Rule 12-107. Confidentiality of Proceedings. – would read as follows: Proposed Amendment to Part XII Consumer Assistance Program; Rule 12-107. Confidentiality of Proceedings. Rule 12-107. Confidentiality of Proceedings.

The Board of Governors of the State Bar of Georgia (a) All investigations and proceedings provided proposes that – Rule 12-107. Confidentiality of for herein shall be confidential unless the respon- Proceedings. – be amended by deleting the struck- dent otherwise elects or as hereinafter provided in through portions and adding the language in bold this rule and Part IV of the Bar Rules. underlined text as set out below: (b) Except as expressly permitted by these Rule 12-107. Confidentiality of Proceedings. rules, no person connected with the Consumer Assistance Program shall disclose information (a) All investigations and proceedings provided concerning or comment on any proceeding under for herein shall be confidential unless the respon- Part XII of these rules. dent otherwise elects or as hereinafter provided in this rule and Part IV of the Bar Rules. (1) Nothing in the rules shall prohibit truthful and accurate public statements of fact about (b) Except as expressly permitted by these rules, a proceeding under Part XII of these rules, no person connected with the Consumer Assistance provided however, that in the event of such Program shall disclose information concerning or statement any other person involved in the pro- comment on any proceeding under Part XII of these ceeding may make truthful and accurate public rules. statements of fact regarding the proceeding, including information otherwise confidential (1) Nothing in the rules shall prohibit truthful under the provisions of Rule 4-102(d), Rule 1.6, and accurate public statements of fact about as may be reasonably necessary to defend that a proceeding under Part XII of these rules, person’s reputation; provided however, that in the event of such statement any other person involved in the pro- (2) Willful and malicious false statements of ceeding may make truthful and accurate public fact made by any person connected with a

84 Georgia Bar Journal proceeding under Part XII of these rules may (iv) to secure legal advice about the lawyer’s subject such person to rule for contempt by the compliance with these rules. Supreme Court of Georgia. (2) In a situation described in paragraph (b) (c) In the event the conduct of the attorney (1), if the client has acted at the time the lawyer appears to violate one or more of the Georgia learns of the threat of harm or loss to a victim, Rules of Professional Conduct set forth in Part IV use or disclosure is permissible only if the harm of the Bar Rules, and Consumer Assistance staff or loss has not yet occurred. in its sole discretion makes a determination under Rule 12-106 that the matter cannot be resolved (3) Before using or disclosing information pur- informally, then the Consumer Assistance staff suant to paragraph (b)(1) (i) and (ii), if feasible, shall inform callers of their option to file a griev- the lawyer must make a good faith effort to per- ance and shall advise the Office of the General suade the client either not to act or, if the client Counsel to send the appropriate forms to the has already acted, to warn the victim. callers. …

(d) The Consumer Assistance Committee and If the proposed amendments to the Rule are adopted, staff may reveal confidential information when the amended – Rule 1.6. Confidentiality of Information. required by law or court order. – would read as follows:

XV. Rule 1.6. Confidentiality of Information.

Proposed Amendment to Part IV Georgia Rules of (a) A lawyer shall maintain in confidence all Professional Conduct; Chapter 1 Georgia Rules of information gained in the professional relationship Professional Conduct and Enforcement Thereof; Rule with a client, including information which the cli- 4-102; Part One Client-Lawyer Relationship; Rule 1.6. ent has requested to be held inviolate or the dis- Confidentiality of Information. closure of which would be embarrassing or would likely be detrimental to the client, unless the client The Board of Governors of the State Bar of Georgia gives informed consent, except for disclosures that proposes that – Rule 1.6. Confidentiality of Information. are impliedly authorized in order to carry out the – be amended by adding the language in bold under- representation, or are required by these Rules or lined text as set out below: other law, or by order of the court.

Rule 1.6. Confidentiality of Information. (b) … (b) (1) A lawyer may reveal information covered by paragraph (a) which the lawyer reasonably (1) A lawyer may reveal information covered believes necessary: by paragraph (a) which the lawyer reasonably believes necessary: (i) to avoid or prevent harm or substantial financial loss to another as a result of client (i) to avoid or prevent harm or substantial criminal conduct or third party criminal con- financial loss to another as a result of client duct clearly in violation of the law; criminal conduct or third party criminal conduct clearly in violation of the law; (ii) to prevent serious injury or death not otherwise covered by subparagraph (i) above; (ii) to prevent serious injury or death not otherwise covered by subparagraph (i) above; (iii) to establish a claim or defense on behalf of the lawyer in a controversy between the (iii) to establish a claim or defense on behalf lawyer and the client, to establish a defense of the lawyer in a controversy between the to a criminal charge or civil claim against the lawyer and the client, to establish a defense lawyer based upon conduct in which the client to a criminal charge or civil claim against the was involved, or to respond to allegations in lawyer based upon conduct in which the client any proceeding concerning the lawyer’s rep- was involved, or to respond to allegations in resentation of the client; any proceeding concerning the lawyer’s representation of the client; (iv.) to secure legal advice about the lawyer’s compliance with these rules.

April 2015 85 (2) In a situation described in paragraph (b) (2) the juror has made known to the lawyer a (1), if the client has acted at the time the lawyer desire not to communicate; or learns of the threat of harm or loss to a victim, use or disclosure is permissible only if the harm (3) the communication involves misrepresenta- or loss has not yet occurred. tion, coercion, duress or harassment; or

(3) Before using or disclosing information pur- (d) engage in conduct intended to disrupt a suant to paragraph (b)(1) (i) and (ii), if feasible, tribunal. the lawyer must make a good faith effort to persuade the client either not to act or, if the client The maximum penalty for a violation of part (a) has already acted, to warn the victim. and part (c) of this Rule is disbarment. The maximum penalty for a violation of part (b) or part (c) (c) The lawyer may, where the law does not (d) of this Rule is a public reprimand. otherwise require, reveal information to which the duty of confidentiality does not apply under para- Comment graph (b) without being subjected to disciplinary … proceedings. [7] Reserved. A lawyer may on occasion want to communicate with a juror after the jury has (d) The lawyer shall reveal information under been discharged. The lawyer may do so unless paragraph (b) as the applicable law requires. the communication is prohibited by law or a court order but must respect the desire of the (e) The duty of confidentiality shall continue juror not to talk with the lawyer. The lawyer after the client-lawyer relationship has terminated. may not engage in improper conduct during the communication. The maximum penalty for a violation of this Rule … is disbarment. If the proposed amendments to the Rule are adopted, XVI. the amended – Rule 3.5. Impartiality and Decorum of the Tribunal., and Comment [7] of Rule 3.5 – would Proposed Amendment to Part IV Georgia Rules of read as follows: Professional Conduct; Chapter 1 Georgia Rules of Professional Conduct and Enforcement Thereof; Rule Rule 3.5. Impartiality and Decorum of the Tribunal. 4-102; Part Three Advocate; Rule 3.5. Impartiality and Decorum of the Tribunal. and Comment [7] of Rule 3.5. A lawyer shall not, without regard to whether the lawyer represents a client in the matter: The Board of Governors of the State Bar of Georgia proposes that – Rule 3.5. Impartiality and Decorum of (a) seek to influence a judge, juror, prospective the Tribunal., and Comment [7] of Rule 3.5 – be amend- juror or other official by means prohibited by law; ed by deleting the struck-through portions and adding the language in bold underlined text as set out below: (b) communicate ex parte with such a person except as permitted by law; Rule 3.5. Impartiality and Decorum of the Tribunal. (c) communicate with a juror or prospective A lawyer shall not, without regard to whether juror after discharge of the jury if: the lawyer represents a client in the matter: (1) the communication is prohibited by law or (a) seek to influence a judge, juror, prospective court order; or juror or other official by means prohibited by law; (2) the juror has made known to the lawyer a (b) communicate ex parte with such a person desire not to communicate; or except as permitted by law; or (3) the communication involves misrepresenta- (c) communicate with a juror or prospective tion, coercion, duress or harassment; or juror after discharge of the jury if: (d) engage in conduct intended to disrupt a (1) the communication is prohibited by law or tribunal. court order; or

86 Georgia Bar Journal The maximum penalty for a violation of part (a) [6] Direct or indirect communication with a juror and part (c) of this Rule is disbarment. The maxi- during the trial is clearly prohibited. A lawyer may mum penalty for a violation of part (b) or part (d) not avoid the proscription of Rule 3.5. Impartiality of this Rule is a public reprimand. and Decorum of the Tribunal., by using agents to communicate improperly with jurors. A lawyer Comment may be held responsible if the lawyer was aware of the client’s desire to establish contact with [1] Many forms of improper influence upon the jurors and assisted the client in doing so. tribunal are proscribed by criminal law. All of those are specified in the Georgia Code of Judicial [7] A lawyer may on occasion want to communicate Conduct with which an advocate should be familiar. with a juror after the jury has been discharged. The Attention is also directed to Rule 8.4. Misconduct., lawyer may do so unless the communication is which governs other instances of improper conduct prohibited by law or a court order but must respect by a lawyer/candidate. the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct [2] If we are to maintain the integrity of the judicial during the communication. process, it is imperative that an advocate’s function be limited to the presentation of evidence and [8] While a lawyer may stand firm against abuse by argument, to allow a cause to be decided accord- a judge, the lawyer’s actions should avoid recipro- ing to law. The exertion of improper influence is cation. Fairness and impartiality of the trial process detrimental to that process. Regardless of an advo- is strengthened by the lawyer’s protection of the cate’s innocent intention, actions which give the record for subsequent review and this preserves appearance of tampering with judicial impartiality the professional integrity of the legal profession by are to be avoided. The activity proscribed by this patient firmness. rule should be observed by the advocate in such a careful manner that there is no appearance of XVII. impropriety. Proposed Amendment to Part IV Georgia Rules of [3A] The rule with respect to ex parte communica- Professional Conduct; Chapter 1 Georgia Rules of tions limits direct communications except as may Professional Conduct and Enforcement Thereof; Rule be permitted by law. Thus, court rules or case law 4-102; Part Five Law Firms and Associations; Rule 5.4. must be referred to in order to determine whether Professional Independence of a Lawyer. certain ex parte communications are legitimate. Ex parte communications may be permitted by statu- The Board of Governors of the State Bar of Georgia tory authorization. proposes that – Rule 5.4. Professional Independence of a Lawyer. – be amended by adding the language in [3B] A lawyer who obtains a judge’s signature on a bold underlined text as set out below: decree in the absence of the opposing lawyer where certain aspects of the decree are still in dispute may Rule 5.4. Professional Independence of a Lawyer. have violated Rule 3.5. Impartiality and Decorum … of the Tribunal., regardless of the lawyer’s good (d) A lawyer shall not practice with or in the intentions or good faith. form of a professional corporation or association authorized to practice law for a profit, if: [4] A lawyer may communicate as to the merits of the cause with a judge in the course of official (1) a nonlawyer owns any interest therein, except proceedings in the case, in writing if the lawyer that a fiduciary representative of the estate of a simultaneously delivers a copy of the writing to lawyer may hold the stock or interest of the law- opposing counsel or to the adverse party if the yer for a reasonable time during administration; party is not represented by a lawyer, or orally upon adequate notice to opposing counsel or to the (2) a nonlawyer is a corporate director or officer adverse party if the party is not represented by a thereof; or lawyer. (3) a nonlawyer has the right to direct or control [5] If the lawyer knowingly instigates or causes the professional judgment of a lawyer. another to instigate a communication proscribed by Rule 3.5, Impartiality and Decorum of the (e) Notwithstanding the provisions of para- Tribunal., a violation may occur. graph (d) above, but subject to (3) below, a lawyer may:

April 2015 87 (1) Provide legal services to clients while work- yer employees in a compensation or retirement ing in association with other lawyers or law plan, even though the plan is based in whole or firms practicing in, and organized under the in part on a profit-sharing arrangement; and rules of, other jurisdictions, whether domestic or foreign, including any such rules that permit (4) a lawyer who undertakes to complete unfin- non-lawyers to participate in the management ished business of a deceased lawyer may pay to of such firms, have equity ownership in such the estate of the deceased lawyer that propor- firms, or share in legal fees generated by such tion of the total compensation which fairly rep- firms, and resents the services rendered by the deceased lawyer. (2) Share legal fees arising from such legal services with such other lawyers or law firms (5) a lawyer may pay a referral fee to a bar-oper- to the same extent as the sharing of legal fees ated non-profit lawyer referral service where is permitted under applicable Georgia Rules of such fee is calculated as a percentage of legal Professional Conduct. fees earned by the lawyer to whom the service has referred a matter pursuant to Rule 7.3. (3) The activities permitted under the preced- Direct Contact with Prospective Clients. ing portion of this paragraph (e) are subject to the following: (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership (i) The association shall not compromise consist of the practice of law. or interfere with the lawyer’s independence of professional judgment, the client-lawyer (c) A lawyer shall not permit a person who rec- relationship between the lawyer and the cli- ommends, employs, or pays the lawyer to render ent, or the lawyer’s compliance with these legal services for another to direct or regulate the rules; and lawyer’s professional judgment in rendering such legal services. (ii) Nothing in this paragraph (e) is intended to affect the lawyer’s obligation to comply (d) A lawyer shall not practice with or in the with other applicable rules of professional form of a professional corporation or association ethics, or to alter the forms in which a lawyer authorized to practice law for a profit, if: is permitted to practice. (1) a nonlawyer owns any interest therein, The maximum penalty for a violation of this Rule except that a fiduciary representative of the is disbarment. estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during If the proposed amendments to the Rule are adopted, administration; the amended – Rule 5.4. Professional Independence of a Lawyer. – would read as follows: (2) a nonlawyer is a corporate director or officer thereof; or Rule 5.4. Professional Independence of a Lawyer. (3) a nonlawyer has the right to direct or control (a) A lawyer or law firm shall not share legal fees the professional judgment of a lawyer. with a nonlawyer, except that: (e) Notwithstanding the provisions of paragraph (1) an agreement by a lawyer with the lawyer’s (d) above, but subject to (3) below, a lawyer may: firm, partner, or associate may provide for the payment of money, over a reasonable period (1) Provide legal services to clients while work- of time after the lawyer’s death, to the lawyer’s ing in association with other lawyers or law estate or to one or more specified persons; firms practicing in, and organized under the rules of, other jurisdictions, whether domestic (2) a lawyer or law firm who purchases the or foreign, including any such rules that permit practice of a deceased, disabled, or disappeared non-lawyers to participate in the management lawyer may, pursuant to the provisions of Rule of such firms, have equity ownership in such 1.17, pay to the estate or other representative of firms, or share in legal fees generated by such that lawyer the agreed-upon purchase price; and firms, and

(3) a lawyer or law firm may include nonlaw- (2) Share legal fees arising from such legal

88 Georgia Bar Journal services with such other lawyers or law firms a report showing its terms, its subscription to the same extent as the sharing of legal fees charges, agreements with counsel, the number is permitted under applicable Georgia Rules of of lawyers participating, and the names and Professional Conduct. addresses of lawyers participating in the service; (3) The activities permitted under the preceding portion of this paragraph (e) are subject to the (i) does not engage in conduct that would following: violate these rules if engaged in by a lawyer;

(i) The association shall not compromise or (ii) provides an explanation to the prospec- interfere with the lawyer’s independence of tive client regarding how the lawyers are professional judgment, the client-lawyer rela- selected by the service to participate in the tionship between the lawyer and the client, or service; and the lawyer’s compliance with these rules; and (iii) discloses to the prospective client how (ii) Nothing in this paragraph (e) is intended many lawyers are participating in the service to affect the lawyer’s obligation to comply and that those lawyers have paid the service with other applicable rules of professional eth- a fee to participate in the service. ics, or to alter the forms in which a lawyer is permitted to practice. (2) A lawyer may pay the usual and reasonable fees or dues charged by a bar-operated non- The maximum penalty for a violation of this Rule profit lawyer referral service, including a fee is disbarment. which is calculated as a percentage of the legal fees earned by the lawyer to whom the service XVIII. has referred a matter, provided such bar-operated non-profit lawyer referral service meets the Proposed Amendment to Part IV Georgia Rules of following criteria: Professional Conduct; Chapter 1 Georgia Rules of Professional Conduct and Enforcement Thereof; Rule (i) the lawyer referral service shall be oper- 4-102; Part Seven Information About Legal Services; ated in the public interest for the purpose Rule 7.3. Direct Contact with Prospective Clients., and of referring prospective clients to lawyers, Comments 3, 7 and 8, of Rule 7.3. pro bono and public service legal programs, and government, consumer or other agencies The Board of Governors of the State Bar of Georgia which can provide the assistance the clients proposes that – Rule 7.3. Direct Contact with Prospective need. Such organization shall file annually Clients., and Comments 3, 7 and 8 of Rule 7.3 – be with the State Disciplinary Board a report amended by deleting the struck-through portions and showing its rules and regulations, its sub- adding the language in bold underlined text as set out scription charges, agreements with counsel, below: the number of lawyers participating and the names and addresses of the lawyers partici- Rule 7.3. Direct Contact with Prospective Clients. pating in the service; … (c) A lawyer shall not compensate or give (ii) the sponsoring bar association for the law- anything of value to a person or organization to yer referral service must be open to all lawyers recommend or secure the lawyer’s employment by licensed and eligible to practice in this state a client, or as a reward for having made a recom- who maintain an office within the geographi- mendation resulting in the lawyer’s employment cal area served, and who meet reasonable by a client; except that the lawyer may pay for objectively determinable experience require- public communications permitted by Rule 7.1 and ments established by the bar association; except as follows: (iii) The combined fees charged by a lawyer (1) A lawyer may pay the usual and reason- and the lawyer referral service to a client able fees or dues charged by a bona fide lawyer referred by such service shall not exceed the referral service, if the service: service oper- total charges which the client would have paid ated by an organization authorized by law and had no service been involved; and, qualified to do business in this state; provided, however, such organization has filed with the (iv) A lawyer who is a member of the quali- State Disciplinary Board, at least annually, fied lawyer referral service must maintain in

April 2015 89 force a policy of errors and omissions insur- [2] The situation is therefore fraught with the ance in an amount no less than $100,000 per possibility of undue influence, intimidation, and occurrence and $300,000 in the aggregate. overreaching. The potential for abuse inherent in solicitation of prospective clients through personal (3) A lawyer may pay the usual and reasonable contact justifies its prohibition, particularly since fees to a qualified legal services plan or insurer the direct written contact permitted under para- providing legal services insurance as authorized graph (b) of this rule offers an alternative means by law to promote the use of the lawyer’s ser- of communicating necessary information to those vices, the lawyer’s partner or associates services who may be in need of legal services. Also included so long as the communications of the organi- in the prohibited types of personal contact is direct zation are not false, fraudulent, deceptive or personal contact through an intermediary and live misleading; contact by telephone.

(4) A lawyer may pay the usual and reasonable Direct Mail Written Solicitation fees charged by a lay public relations or marketing organization provided the activities of such [3] Subject to the requirements of Rule 7.1: organization on behalf of the lawyer are other- Communications Concerning a Lawyer’s Services wise in accordance with these Rules. and paragraphs (b) and (c) of this Rule 7.3: Direct Contact with Prospective Clients, promotional (5) A lawyer may pay for a law practice in communication by a lawyer through direct writ- accordance with Rule 1.17: Sale of Law Practice. ten contact is generally permissible. The public’s need to receive information concerning their legal (d) A lawyer shall not solicit professional rights and the availability of legal services has been employment as a private practitioner for the law- consistently recognized as a basis for permitting yer, a partner or associate through direct personal direct written communication since this type of contact or through live telephone contact, with a communication may often be the best and most non-lawyer who has not sought advice regarding effective means of informing. So long as this stream employment of a lawyer. of information flows cleanly, it will be permitted to flow freely. (e) A lawyer shall not accept employment when the lawyer knows or it is obvious or reasonably [4] Certain narrowly-drawn restrictions on this should know that the person who seeks to employ type of communication are justified by a substantial the lawyer does so as a result of conduct by any state interest in facilitating the public’s intelligent person or organization that would violate these selection of counsel, including the restrictions of Rules if engaged in by a lawyer. prohibited under sub-paragraph (a)(3) & (4) which proscribe direct Rules 7.3(c)(1), 7.3(c)(2) or 7.3(d): Direct Contact mailings to persons such as an injured and hospi- with Prospective Clients. talized accident victim or the bereaved family of a deceased. The maximum penalty for a violation of this Rule is disbarment. [5] In order to make it clear that the communication is commercial in nature, paragraph (b) requires Comment inclusion of an appropriate affirmative “advertisement” disclaimer. Again, the traditional exception Direct Personal Contact for contact with close friends, relatives and former clients is recognized and permits elimination of [1] There is a potential for abuse inherent in solici- the disclaimer in direct written contact with these tation through direct personal contact by a lawyer persons. of prospective clients known to need legal services. It subjects the lay person to the private importun- [6] This rule does not prohibit communications ing of a trained advocate, in a direct interpersonal authorized by law, such as notice to members of a encounter. A prospective client often feels over- class in class action litigation. whelmed by the situation giving rise to the need for legal services, and may have an impaired capacity Paying Others to Recommend a Lawyer for reason, judgment and protective self-interest. Furthermore, the lawyer seeking the retainer is [7] A lawyer is allowed to pay for communications faced with a conflict stemming from the lawyer’s permitted by these rules, but otherwise is not per- own interest, which may color the advice and rep- mitted to pay another person for channeling profes- resentation offered the vulnerable prospect. sional work. This restriction does not prevent an

90 Georgia Bar Journal organization or person other than the lawyer from client or one whom the lawyer reasonably believes advertising or recommending the lawyer’s services. is a former client, for the purpose of obtaining Thus, a legal aid agency, a prepaid legal services professional employment shall be plainly marked plan or prepaid legal insurance organization may “Advertisement” on the face of the envelope and pay to advertise legal services provided under its on the top of each page of the written communica- auspices. Likewise, a lawyer may participate in tion in type size no smaller than the largest type lawyer referral programs and pay the usual fees size used in the body of the letter. charged by such programs, provided the programs are in compliance with the registration require- (c) A lawyer shall not compensate or give ments of sub-paragraph (c)(1) or (c)(2)of this Rule anything of value to a person or organization to 7.3: Direct Contact with Prospective Clients and the recommend or secure the lawyer’s employment by communications and practices of the organization a client, or as a reward for having made a recom- are not deceptive or misleading. mendation resulting in the lawyer’s employment by a client; except that the lawyer may pay for [8] A lawyer may not indirectly engage in promo- public communications permitted by Rule 7.1 and tional activities through a lay public relations or except as follows: marketing firm if such activities would be prohibited by these Rules if engaged in directly by the (1) A lawyer may pay the usual and reasonable lawyer. fees or dues charged by a lawyer referral service, if the service: If the proposed amendments to the Rule are adopted, the amended Rule 7.3. Direct Contact With Prospective (i) does not engage in conduct that would Clients - would read as follows: violate these rules if engaged in by a lawyer;

Rule 7.3. Direct Contact With Prospective Clients. (ii) provides an explanation to the prospective client regarding how the lawyers are selected (a) A lawyer shall not send, or knowingly permit by the service to participate in the service; and to be sent, on behalf of the lawyer, the lawyer’s firm, lawyer’s partner, associate, or any other lawyer affil- (iii) discloses to the prospective client how iated with the lawyer or the lawyer’s firm, a written many lawyers are participating in the service communication to a prospective client for the pur- and that those lawyers have paid the service a pose of obtaining professional employment if: fee to participate in the service.

(1) it has been made known to the lawyer that (2) A lawyer may pay the usual and reasonable a person does not desire to receive communica- fees or dues charged by a bar-operated non- tions from the lawyer; profit lawyer referral service, including a fee which is calculated as a percentage of the legal (2) the communication involves coercion, fees earned by the lawyer to whom the service duress, fraud, overreaching, harassment, intimi- has referred a matter, provided such bar-oper- dation or undue influence; ated non-profit lawyer referral service meets the following criteria: (3) the written communication concerns an action for personal injury or wrongful death (i) the lawyer referral service shall be operated or otherwise relates to an accident or disaster in the public interest for the purpose of refer- involving the person to whom the communica- ring prospective clients to lawyers, pro bono tion is addressed or a relative of that person, and public service legal programs, and gov- unless the accident or disaster occurred more ernment, consumer or other agencies which than 30 days prior to the mailing of the com- can provide the assistance the clients need. munication; or Such organization shall file annually with the State Disciplinary Board a report showing its (4) the lawyer knows or reasonably should rules and regulations, its subscription charges, know that the physical, emotional or mental agreements with counsel, the number of law- state of the person is such that the person could yers participating and the names and address- not exercise reasonable judgment in employing es of the lawyers participating in the service; a lawyer. (ii) the sponsoring bar association for the law- (b) Written communications to a prospective yer referral service must be open to all lawyers client, other than a close friend, relative, former licensed and eligible to practice in this state

April 2015 91 who maintain an office within the geographi- have an impaired capacity for reason, judgment cal area served, and who meet reasonable and protective self-interest. Furthermore, the law- objectively determinable experience require- yer seeking the retainer is faced with a conflict ments established by the bar association; stemming from the lawyer’s own interest, which may color the advice and representation offered (iii) The combined fees charged by a lawyer the vulnerable prospect. and the lawyer referral service to a client referred by such service shall not exceed the [2] The situation is therefore fraught with the total charges which the client would have paid possibility of undue influence, intimidation, and had no service been involved; and, overreaching. The potential for abuse inherent in solicitation of prospective clients through personal (iv) A lawyer who is a member of the quali- contact justifies its prohibition, particularly since fied lawyer referral service must maintain in the direct written contact permitted under para- force a policy of errors and omissions insur- graph (b) of this rule offers an alternative means ance in an amount no less than $100,000 per of communicating necessary information to those occurrence and $300,000 in the aggregate. who may be in need of legal services. Also included in the prohibited types of personal contact are (3) A lawyer may pay the usual and reasonable direct, personal contacts through an intermediary fees to a qualified legal services plan or insurer and live contact by telephone. providing legal services insurance as authorized by law to promote the use of the lawyer’s ser- Written Solicitation vices, the lawyer’s partner or associates services so long as the communications of the organi- [3] Subject to the requirements of Rule 7.1 and zation are not false, fraudulent, deceptive or paragraphs (b) and (c) of this Rule 7.3, promotional misleading; communication by a lawyer through direct written contact is generally permissible. The public’s (4) A lawyer may pay for a law practice in need to receive information concerning their legal accordance with Rule 1.17. rights and the availability of legal services has been consistently recognized as a basis for permitting (d) A lawyer shall not solicit professional direct written communication since this type of employment as a private practitioner for the law- communication may often be the best and most yer, a partner or associate through direct personal effective means of informing. So long as this stream contact or through live telephone contact, with a of information flows cleanly, it will be permitted to non-lawyer who has not sought advice regarding flow freely. employment of a lawyer. [4] Certain narrowly-drawn restrictions on this (e) A lawyer shall not accept employment when type of communication are justified by a substantial the lawyer knows or reasonably should know that state interest in facilitating the public’s intelligent the person who seeks to employ the lawyer does so selection of counsel, including the restrictions of as a result of conduct by any person or organiza- sub-paragraph (a)(3) & (4) which proscribe direct tion that would violate these rules if engaged in by mailings to persons such as an injured and hospi- a lawyer. talized accident victim or the bereaved family of a deceased. The maximum penalty for a violation of this rule is disbarment. [5] In order to make it clear that the communication is commercial in nature, paragraph (b) requires Comment inclusion of an appropriate affirmative “advertisement” disclaimer. Again, the traditional exception Direct Personal Contact for contact with close friends, relatives and former clients is recognized and permits elimination of [1] There is a potential for abuse inherent in the disclaimer in direct written contact with these solicitation through direct personal contact by persons. a lawyer of prospective clients known to need legal services. It subjects the lay person to the [6] This rule does not prohibit communications private importuning of a trained advocate, in authorized by law, such as notice to members of a a direct interpersonal encounter. A prospective class in class action litigation. client often feels overwhelmed by the situation giving rise to the need for legal services, and may

92 Georgia Bar Journal Paying Others to Recommend a Lawyer The maximum penalty for a violation of Rule 8.4(a)(1) is the maximum penalty for the specific [7] A lawyer is allowed to pay for communications Rule violated. The maximum penalty for a violation permitted by these rules, but otherwise is not per- of Rule 8.4(a)(2) through Rule 8.4(c) is disbarment. mitted to pay another person for channeling professional work. This restriction does not prevent an If the proposed amendment to the Rule is adopted, organization or person other than the lawyer from the amended – Rule 8.4. Misconduct. – would read as advertising or recommending the lawyer’s services. follows: Thus, a legal aid agency, a prepaid legal services plan or prepaid legal insurance organization may Rule 8.4. Misconduct. pay to advertise legal services provided under its auspices. (a) It shall be a violation of the Georgia Rules of Professional Conduct for a lawyer to: XIX. (1) violate or knowingly attempt to violate the Proposed Amendment to Part IV Georgia Rules of Georgia Rules of Professional Conduct, know- Professional Conduct; Chapter 1 Georgia Rules of ingly assist or induce another to do so, or do so Professional Conduct and Enforcement Thereof; Rule through the acts of another; 4.102; Part Eight Maintaining the Integrity of the Profession; Rule 8.4. Misconduct. (2) be convicted of a felony;

The Board of Governors of the State Bar of Georgia (3) be convicted of a misdemeanor involving proposes that – Rule 8.4. Misconduct – be amended by moral turpitude where the underlying conduct deleting the struck-through portions and adding the relates to the lawyer’s fitness to practice law; language in bold underlined text as set out below: (4) engage in professional conduct involving Rule 8.4. Misconduct. dishonesty, fraud, deceit or misrepresentation; … (d) Rule 8.4(a)(1) does not apply to Part Six of (5) fail to pay any final judgment or rule abso- the Georgia Rules of Professional Conduct any of lute rendered against such lawyer for money the Georgia Rules of Professional Conduct for collected by him or her as a lawyer within ten which there is no disciplinary penalty. days after the time appointed in the order or judgment;

Share Ideas! Join a Section Online. Log in to your account at www.gabar.org and select “Join a Section” or simply check the box on your dues notice and add the payment to your remittance.

April 2015 93 (6) (2) The record of a conviction or disposition in any jurisdiction based upon a guilty plea, a (i) state an ability to influence improperly plea of nolo contendere, a verdict of guilty, or a government agency or official by means a verdict of guilty but mentally ill, or upon the that violate the Georgia Rules of Professional imposition of first offender probation shall be Conduct or other law; conclusive evidence of such conviction or disposition and shall be admissible in proceedings (ii) state an ability to achieve results by means under these disciplinary rules. that violate the Georgia Rules of Professional Conduct or other law; (c) This rule shall not be construed to cause any infringement of the existing inherent right of (iii) achieve results by means that violate Georgia Superior Courts to suspend and disbar the Georgia Rules of Professional Conduct or lawyers from practice based upon a conviction of other law; a crime as specified in paragraphs (a)(1), (a)(2) and (a)(3) above. (7) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of (d) Rule 8.4(a)(1) does not apply to any of the judicial conduct or other law; or Georgia Rules of Professional Conduct for which there is no disciplinary penalty. (8) commit a criminal act that relates to the lawyer’s fitness to practice law or reflects adversely The maximum penalty for a violation of Rule on the lawyer’s honesty, trustworthiness or fit- 8.4(a)(1) is the maximum penalty for the specific ness as a lawyer, where the lawyer has admitted rule violated. The maximum penalty for a violation in judicio, the commission of such act of Rule 8.4(a)(2) through Rule 8.4(c) is disbarment.

(b) SO MOVED, this day of , 2015.

(1) For purposes of this rule, conviction shall Counsel for the State Bar of Georgia include any of the following accepted by a court, William D. NeSmith III whether or not a sentence has been imposed: Deputy General Counsel State Bar Number 535792 (i) a guilty plea; OFFICE OF THE GENERAL COUNSEL (ii) a plea of nolo contendere; State Bar of Georgia 104 Marietta St. NW, Suite 100 (iii) a verdict of guilty; or Atlanta, Georgia 30303 404-527-8720 (iv) a verdict of guilty but mentally ill.

Proposed Amendments to Uniform Superior Court Rules 28 and 33, and Proposed New Rule 48 At its business meeting on Jan. 22, 2015, the Council Should you have any comments on the proposed of Superior Court Judges approved proposed amend- changes, please submit them in writing to the Council ments to Uniform Superior Court Rules 28 and 33, of Superior Court Judges at 18 Capitol Square, Suite and proposed new Rule 48. A copy of the proposed 104, Atlanta, GA 30334 or fax them to 404-651-8626. amendments may be found at the Council’s website at To be considered, comments must be received by http://georgiasuperiorcourts.org. Monday, July 6, 2015.

94 Georgia Bar Journal Classified Resources

Property/Rentals/Office Space Sandy Springs Commerce Building, 333 Sandy Springs Cir. NE, Atlanta, GA 30328. Contact Ron Winston—(w) 404-256-3871; (email) rnwlaw@gmail. com; Full service, high-quality tenants (including many small law practices), great location, well-maintained. Misc. small office suites available; Rental and term negotiable.

Office Space—Class A office space for one or two attorneys, window offices with two other lawyers in Park Central building, 2970 Clairmont Road, near I-85. Includes conference room, phone/internet, copy/fax/scan, secretarial space, $1,000 to $1,300 per month. Call Salu Kunnatha at 404-633-4200 or email: [email protected].

Prime Buckhead Peachtree Offices for Rent—Brand new, award-winning, high tech Class A offices on glass ETHICS DILEMMA? in new Peachtree Tower. Client wow factor Peachtree Lawyers who would like to discuss an ethics views. Concierge service, valet parking, three restau- dilemma with a member of the Office of the rants, across from Phipps Plaza. Support staff. Share General Counsel staff should contact the with other former big firm lawyers. Referral work Ethics Helpline at 404-527-8741, 800-682- opportunities. Contact: [email protected]. 9806 or log in to www.gabar.org and submit Two Executive Offices available in established law your question by email. firm—Lawrenceville. 200 sf corner window office —$1,150 month. 140 sf window office—$750 month. Walking distance to Gwinnett Courts; ideal for attorney. Includes receptionist, utilities, copier, breakroom, meeting rooms, high speed internet/fax, phone. actions and litigation in state and federal courts. Potential referrals. Call Barbara Gordon at Hughes & Contact E. David Smith, Esq., 570 Lexington Ave., Associates, 770-469-8887. 23rd Floor, New York, NY 10022; 212-661-7010; [email protected]. Practice Assistance Handwriting Expert/Forensic Document Examiner. Position Wanted Certified by the American Board of Forensic Document Personal Injury Attorney—Well-established, success- Examiners. Former Chief, Questioned Documents, U.S. ful Atlanta plaintiff’s firm seeking personal injury Army Crime Laboratory. Member, American Society attorney. Excellent financial opportunity. Collegial, of Questioned Document Examiners and American professional environment. Great support. Send resume Academy of Forensic Sciences. Farrell Shiver, Shiver & to: GBJ at [email protected]. Nelson Document Investigation Laboratory, 1903 Lilac Ridge Drive, Woodstock, GA 30189, 770-517-6008. PI & Criminal—Trial and Pre-Litigation Attorneys (Jacksonville, FL) New York & New Jersey Transactions and Litigation. Law Firm of Military Veterans is seeking veterans Georgia bar member practicing in Manhattan and for their growing law firm. In addition to criminal New Jersey can help you with your corporate trans- defense attorney, seeking PI Jr. associates (0-3 years’

April 2015 95 Classified Resources

experience and recent grads), and an experienced PI trial attorney with actual first or second chair experience through verdict. Please include detailed information regarding ex. Salary commensurate with experience. Please send cover letter and resume with references to [email protected]. ADVERTISE Finance/Banking/Regulatory Compliance— Louisville, KY—SEMINAR SPEAKER— Major financial services consulting and educational company has opportunity for an individual with banking and/or Are you attracting the right audience financial regulatory background and experience for its for your services? Advertisers are Education Division. Candidate should have a degree with 5-10 years banking or regulatory experience and discovering a fact well known should have demonstrated interpersonal, presentation to Georgia lawyers. If you have and communication skills, as well as a strong knowledge of bank statutory and regulatory requirements. something to communicate to the Will provide presentations on compliance and regula- lawyers in the state, be sure that it is tory topics throughout the country. Position requires extensive travel, as well as the ability to maintain published in the Georgia Bar Journal. superior rapport with attendees. Compensation commensurate with experience and credentials. Company has excellent benefits, including 401K plan. Submit Contact Jennifer Mason resume to: Human Resource Manager, Professional Bank Services, Inc., 6200 Dutchman’s Lane, Suite 305, at 404-527-8761 or Louisville, KY 40205; Email to: [email protected]. An [email protected]. Equal Opportunity Company M/F/H.

Advertisers Index Earn up to 6 CLE credits for GilsbarPRO ...... 33 authoring legal articles and Investors Title Insurance Company ...... 35 having them published. Law Firm of Shein & Brandenburg ...... 7 Submit articles to: Member Benefits, Inc...... 31 Bridgette Eckerson Mercer Health and Benefits Administration ...... 7 Georgia Bar Journal Mitchell Kaye Valuation ...... 21 104 Marietta St. NW, Suite 100 Norwitch Document Laboratory ...... 29 Atlanta, GA 30303 ProAssurance LawyerCare ...... 49 Contact [email protected] for The University of Alabama School of Law ...... 9 more information or visit the Bar’s website, www.gabar.org. Warren R. Hinds, P.C...... 53

96 Georgia Bar Journal Trial By Jury: What’s the Big Deal?

“Trial By Jury: What’s the Big Deal?” is an animated presentation for high school civics classes in Georgia to increase court literacy among young people. This presentation was created to be used by high school civics teachers as a tool in fulﬁ lling four speciﬁ c requirements of the Social Studies Civics and Government performance standards.

This animated presentation reviews the history and importance of trial by jury through a discussion of the Magna Carta, the Star Chamber, the trial of William Penn, the Constitutional Convention in 1787, the Constitution and the Bill of Rights. Also covered in the presentation are how citizens are selected for jury duty, the role of a juror, and the importance of an impartial and diverse jury.

The State Bar of Georgia’s Law-Related Education Program offers several other opportunities for students and teachers to explore the law. Students can participate in Journey Through Justice, a free class tour program at the Bar Center, during which they learn a law lesson and then participate in a mock trial. Teachers can attend free workshops correlated to the Georgia Performance Standards on such topics as the juvenile and criminal justice systems, federal and state courts, and the Bill of Rights.

You may view “Trial By Jury: What’s the Big Deal?” at www.gabar.org/forthepublic/ forteachersstudents/lre/ teacherresources. For a free DVD copy, email [email protected] or call 404-527- 8736. For more information on the LRE Program, contact Deborah Craytor at [email protected] or 404-527-8785.

JUNE 18 - 20, 2015 Evergreen Conference Center t Stone Mountain, GA Early Bird Cut-off Date: May 15 t Hotel Cut-off Date: May 15 t Final Cut-off Date: June 5 MEETING HIGHLIGHTS INCLUDE: Opening Night Festival, CLE Opportunities, Presidential Inaugural Dinner, Social Events, Family Activities, Exhibits