CONSTITUTIONAL LAW • FMLADECEMBER 1999 • LEGISLATIVE PREVIEW 1 West new 4249 Cases re- trieved - 4C

2 GEORGIA BAR JOURNAL Editorial Board WILLIAM WALL SAPP, Editor-in-Chief JENNIFER M. DAVIS, Managing Editor LYN K. ARMSTRONG DIANE BETH MELKIN ERIKA C. BIRG D. SCOTT MURRAY CHARLES M. CORK III MARISA A NNE PAGNATTARO December 1999 • Vol. 5 No. 3 O. WAYNE ELLERBEE AMELIA TOY RUDOLPH GEORGE W. FRYHOFER III JOHN M. SIKES JR. MICHAEL JABLONSKI JOHN SPANGLER III On the Cover: While the century draws to a close and all eyes are ANNE R. JACOBS JERRE B. SWANN JR. focused on the future, we decided to take a look back at our past. The MICHELLE W. JOHNSON PAMELA Y. W HITE-COLBERT cover story examines the history of the Cherokees in Georgia, and the SARAJANE N. LOVE J. MICHAEL WIGGINS ensuing legal battle that ultimately led to the Trail of Tears. Photo by Richard T. Bryant. W. FRAY MCCORMICK CHARLES R. ADAMS III, ADVISOR QUICK DIAL THEODORE H. DAVIS JR., ADVISOR Attorney Discipline ...... (800) 334-6865 ext. 720 (404) 527-8720 Officers of the State Bar of Georgia Consumer Assistance Program ...... (404) 527-8759 (ex officio members) Conference Room Reservations ...... (404) 527-8712 Fee Arbitration ...... (404) 527-8750 RUDOLPH N. PATTERSON, MACON Continuing Legal Education Transcripts ...... (404) 527-8710 President Diversity Program ...... (404) 527-8754 GEORGE E. MUNDY, CEDARTOWN ETHICS Hotline ...... (800) 682-9806 (404) 527-8741 President-elect Georgia Bar Foundation/IOLTA ...... (404) 527-8766 Georgia Bar Journal ...... (404) 527-8736 JAMES B. FRANKLIN, STATESBORO Secretary Lawyer Assistance Program ...... (770) 612-1122 (800) 327-9631 Law Practice Management ...... (404) 527-8773 JAMES B. DURHAM, BRUNSWICK Treasurer Membership Records ...... (404) 527-8777 Meetings Information ...... (404) 527-8790 WILLIAM E. CANNON JR., ALBANY Pro Bono Project ...... (404) 527-8763 Immediate Past President Professionalism ...... (404) 527-8793 JOSEPH W. DENT, ALBANY Sections ...... (404) 527-8774 YLD President Unauthorized Practice of Law ...... (404) 527-8743 KENDALL S. BUTTERWORTH, ATLANTA Young Lawyers Division ...... (404) 527-8778 YLD President-elect HEADQUARTERS ROSS J. ADAMS, ATLANTA YLD Immediate Past President 800 The Hurt Building • 50 Hurt Plaza • Atlanta, GA 30303-2934 (800) 334-6865 (404) 527-8700 FAX (404) 527-8717 Editors Emeritus • (ex officio members) Visit us on the Internet at www.gabar.org THEODORE H. DAVIS JR., 1997-1999 South Georgia Office L. BRETT LOCKWOOD, 1995-1997 STEPHANIE B. MANIS, 1993-1995 244 E. Second St. (31794) • P.O. Box 1390 • Tifton, GA 31793-1390 WILLIAM L. BOST JR., 1991-1993 (800) 330-0446 (912) 387-0446 FAX (912) 382-7435 CHARLES R. ADAMS III, 1989-1991 L. DALE OWENS, 1987-1989 Manuscript Submissions DONNA G. B ARWICK, 1986-1987 The Georgia Bar Journal welcomes the submission of unsolicited legal manuscripts on topics of JAMES C. GAULDEN JR., 1985-1986 interest to the State Bar of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 pages, double-spaced (including endnotes) and on letter-size paper. Citations should conform to A JERRY B. BLACKSTOCK, 1984-1985 UNIFORM SYSTEM OF CITATION (16th ed. 1996). Please address unsolicited manuscripts to: William Wall TEVEN OLLINS Sapp, Editor-in-Chief, Alston & Bird, One Atlantic Center, 1201 W. Peachtree St, Atlanta, GA 30309-3424. S M. C , 1982-1984 Authors will be notified of the Editorial Board’s decision following its next meeting. WALTER M. GRANT, 1979-1982 The Georgia Bar Journal welcomes the submission of news about local and circuit bar association happenings, Bar members, law firms and topics of interest to attorneys in Georgia. Please send news releases STEPHEN E. RAVILLE, 1977-1979 and other information to: Jennifer M. Davis, Managing Editor, 800 The Hurt Building, 50 Hurt Plaza, Atlanta, ROBERT H. WALLING, 1975-1977 Georgia 30303; phone: (404) 527-8736. Layout and Design by Lenz Design & Communications, Inc. 119 E. Court Sq. #201, Decatur, Georgia Communications Committee Publisher’s Statement WILLIAM E. CANNON JR., ALBANY The Georgia Bar Journal (SSN-0016-8416) is published six times per year (bi-monthly) by the State Chairperson Bar of Georgia, 800 The Hurt Building, 50 Hurt Plaza, Atlanta, Georgia 30303-2934. © State Bar of Georgia DENNIS C. O’BRIEN, MARIETTA 1999. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to Vice-Chairperson non-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia. Opinions and conclusions expressed in articles herein are those of the authors and not necessarily those of the Editorial Board, Commu- nications Committee, Officers or Board of Governors of the State Bar of Georgia. Advertising rate card will Staff be furnished upon request. Publishing of an advertisement does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. JENNIFER M. DAVIS Director of Communications Disabilities NIKKI HETTINGER CAROLINE SIRMON Communications Coordinator Internet Coordinator If you have a disability which requires printed materials in alter- AMY MORLEY nate formats, please contact the ADA coordinator at (404) 527-8700 or Administrative Assistant (800) 334-6865.

DECEMBER 1999 3 Lexis Nexispickup 10/ 99 p4 4C

4 GEORGIA BAR JOURNAL DECEMBER 1999 VOL. 5 NO. 3

Table of Contents

10 Professionalism Cover Story Narrowing the Gap from Law School to Law Practice Worcester vs. Georgia: Civil Disobedience 54 and the Cherokee Removal Lawyer Assistance Program By Sidney L. Moore Jr. and Leighton Moore 56 10 Georgia Trial Reporter 57 Legal Articles Bench & Bar 58 Juggling the FMLA and Its Regulations South Georgia News By Donald W. Benson 18 59 40 Lawyer Discipline Recent Developments in Construction Law By William H. Hughes Jr. 60 and Stephen M. Reams Sections 24 62 In Memoriam Features Departments 63 Notices Board of Governors Convenes in From The President Supreme Court Issues New FAO Brasstown Valley for Fall Meeting What Does Your Bar Do For You? Proposed FAO Nos. 97-R6, 99-R2, 99-R3 By Jennifer M. Davis By Rudolph N. Patterson Board of Governors Meeting Attendance 34 6 Proposed Uniform Superior Court Rules State Bar Gears Up for From The Director 2000 General Assembly Take Note of Changes to CLE Requirements Proposed 11th Circuit Rules By Mark Middleton By Cliff Brashier Financial Institutions Approved as 36 9 Depositories for Attorney Trust Accounts Georgia Bar Foundation Awards From the YLD President 64 $2.4 Million in Grants The YLD is Working for the Bar Annual Fiction Writing Contest By Len Horton By Joseph W. Dent 85 38 48 CLE Calendar Providing and Protecting Assets for a Who’s Where 88 Person with a Disability 50 Ad Index By Robert M. Fink From the Attorney General 90 40 51 Classifieds New Legislation for E-Commerce? Book Review 90 By Jonathan B. Wilson Getting Away With Murder: How Politics is 43 Destroying the Criminal Justice System Audited 1999 Financial Statement Reviewed by Bruce Harvey 80 52

DECEMBER 1999 5 with the tremendous responsibility of keeping track of all 30,000 or so of WHAT DOES YOUR you. It is they who issue your mem- bership cards — and by the way, new ones are in the mail to you as you BAR DO FOR YOU? read this — and they can also provide photo identification cards for a sumer Assistance Program helps nominal fee. resolve the minor complaints that Speaking of fees always brings to clients might have about their attor- mind the Finance Department. It’s a neys from time to time. Fee Arbitra- small group that impacts our entire tion can step in when a client-lawyer organization in a big way, and they dispute involves fees, and the Lawyer are to be commended for their work. Assistance Program is available to Not only do they continuously watch lawyers faced with difficult personal the bottom line, but they also manage By Rudolph N. Patterson issues, from stress to substance the Bar’s information systems and, abuse. thanks to their efforts, I am happy to o you graduate from law Since you are reading these report the Bar is “Y2K okay.” school and you pass the Bar words from the pages of our Journal, When you break it down program Sexam. Next thing you know, by program, it becomes clear that the you’re a distinguished, dues-paying value of the State Bar of Georgia is member of the Bar, and you might When you break it down certainly greater than the sum of its find yourself wondering, “What dues. And we have not even touched exactly does the State Bar of Georgia program by program, it upon our committees, too numerous do?” I sure did. But then I became to name here, but much appreciated involved with the organization, and I becomes clear that the for their valuable work on behalf of learned a thing or two. our members and their clients alike. For example, did you know that value of the State Bar Feel free to stop by one of your the organized Bar was created by the Bar offices, either the main headquar- Supreme Court of Georgia in 1964 of Georgia is certain ly ters in downtown Atlanta, or the with 4,700 members? Its primary South Georgia office in Tifton. Take purpose was to serve as the disciplin- greater than the sum of a tour, visit with some of your staff, ary arm of the Court, and this and share with me my pride in our remains a priority to this day. In fact, its dues. employees and our profession. if you refer to the audited financial At this time of year, with the statement that appears in the back of you may have guessed that the Bar holidays and a new millenium upon this issue, you will note that 30 also has a Communications Depart- us, we cannot help but wonder about percent of our overall budget is ment. Well, you’re right, and it is what lies ahead. Certainly this past dedicated to this critical function. continually recognized as one of the year has seen many changes in the And our discipline system is out- finest in the country. From Bar news, law and its practice, and as we move standing. But the contributions don’t law trends and information on the forward into the next century, I end there. legal community, to maintaining the anticipate that the Bar’s role as a Through the development of Bar’s Web site (www.gabar.org) and clearinghouse of information and an accessible, hands-on programs, the handling media relations, the commu- advocate of the profession will Bar provides support and assistance nications team strives to keep you become vital to us all. The Bar is to enhance professional development and the public informed in a timely, already hard at work exploring such and improve the delivery of legal concise and hopefully interesting complex topics as multidisciplinary services. Our Law Practice Manage- manner. practice. In fact, we have formed a ment team offers guidance on admin- Of course, in any member Multidisciplinary Practice Committee istrating the business side of the law, organization the Membership Depart- to monitor developments and investi- something many of us could use some ment is indispensable, and ours is no gate all facets of this issue, and a tips on once in a while. The Con- exception. These folks are charged grant from the Georgia Bar Founda-

6 GEORGIA BAR JOURNAL tion is providing us with a reporter to compile the committee’s recommen- STATEMENT OF OWNERSHIP, MANAGEMENT dations for presentation to the Board AND CIRCULATION of Governors. (Required by 39 U.S.C. § 3685) At times new challenges can seem insurmountable (or at least, a Georgia Bar Journal, published February, April, June, August, October pretty steep climb), but let’s not and December of each year. forget that the one constant in life is Office of Publication: 800 The Hurt Bldg., 50 Hurt Plaza, Atlanta, GA change, and that our profession has 30303-2934. equipped us with the tools of truth, Headquarters of Publisher: 800 The Hurt Bldg., 50 Hurt Plaza, Atlanta, justice and impartiality. I think GA 30303-2934. Governor Miller put it best during his Publisher: State Bar of Georgia, 800 The Hurt Bldg., 50 Hurt Plaza, address to our Supreme Court on its Atlanta, GA 30303-2934. 150th anniversary, when he quoted Editor: William W. Sapp, One Atlantic Center, 1201 W. Peachtree St., from Ralph Waldo Emerson’s essay Atlanta, GA 30309. Experience: Managing Editor: Jennifer M. Davis, 800 The Hurt Bldg., 50 Hurt Plaza, Atlanta, GA 30303-2934. Without any shadow of doubt, Owner: State Bar of Georgia, 800 The Hurt Bldg., 50 Hurt Plaza, admist the vertigo of shows and Atlanta, GA 30303-2934. politics, I settle myself ever firmer on the creed that we (a) total number copies (net press run): average-26,402; single issue should not postpone and refer published nearest to filing date-26,900; (b) paid and/or requested circula- and wish, but do broad justice tion: (b1) paid/requested outside-county mail subscriptions stated on where we are. form 3541 (include advertisers’ proof copies/exchange copies): average- 25,601; single issue published nearest to filing date-26,244; (b2) paid in- Governor Miller also offered his own county subscriptions (include advertisers’ proof copies/exchange copies): words of wisdom: average-410; single issue published nearest to filing date-205; (b3) sales through dealers and carriers, street vendors, counter sales, and other non- It is human nature to be continu- USPS paid distribution: average-0; single issue published nearest to ally looking forward to tomor- filing date-0; (b4) other classes mailed through the USPS: average-0; row with hope and anticipation. single issue published nearest to filing date-0; (c) total paid and/or Looking back to yesterday re- requested circulation [sum of 15b (1), (2), (3), and (4)]: average-26,011; quires a deliberate effort to turn single issue published nearest to filing date-26,449; (d) free distribution one’s head, but it is worth the by mail (samples, complimentary, and other free): (d1) outside-county as effort, because a knowledge of stated on form 3541: average-0; single issue published nearest to filing history makes an indispensable date-0; (d2) in-county as stated on form 3541: average-0; single issue contribution to wisdom . . . or, published nearest to filing date-0; (d3) other classers mailed through as Churchill once put it, “The USPS: average-98; single issue published nearest to filing date-100; (e) further back you look, the fur- free distribution outside the mail (carriers or other means): average-147; ther ahead you can see.” single issue published nearest to filing date-122; (f) total free distribution (sum of 15d and 15e): average-245; single issue published nearest to So, with this glance backward filing date-222; (g) total distribution (sum of 15c and 15f): average- and a peek at the future, I wish you a 26,256; single issue published nearest to filing date-26,671; (h) copies not distributed: average-86; single issue published nearest to filing date- Happy New Year. U 83; (i) total (sum of 15g and 15h): average-26,342; single issue pub- lished nearest to filing date-26,754; (j) percent paid and/or requested circulation (15c/15g x 100): average-99%; single issue published nearest to filing date-99%.

I certify that all information furnished is true and complete. Jennifer M. Davis, Managing Editor

DECEMBER 1999 7 Anlir pickup 10/99 p21 BW

8 GEORGIA BAR JOURNAL requires the same CLE fees as are paid by members residing in Georgia. TAKE NOTE OF CHANGES Another significant change now under consideration for future years is to allow credit for internet, video/ TO CLE REQUIREMENTS telephone conference and other distance learning formats of CLE. I ments, who owe no fees because of will include the results of this study prepayment by the sponsors, and who in a future Georgia Bar Journal, but have no deletions or additions to it will not be available for the current make to their record are no longer (1999) CLE year. required to file a reporting affidavit. Your comments regarding my If you qualify, your affidavit form column are welcome. If you have will so indicate. Others will receive a suggestions or information to share, different affidavit that does require please call me. Also, the State Bar of By Cliff Brashier filing by Jan. 31, 2000. Georgia serves you and the public. Out-of-state members are now Your ideas about how we can en- he Mandatory Continuing only required to meet the mandatory hance that service are always appre- Legal Education (MCLE) CLE requirements of the state in ciated. My telephone numbers are Tprogram continues its impor- which they practice in order to be in (800) 334-6865 (toll free), (404) 527- tant goal of helping attorneys main- compliance in Georgia. This option is 8755 (direct dial), (404) 527-8717 tain their professional competence elected on the reporting affidavit and (fax), and (770) 988-8080 (home). U throughout their active practice of law through continuing legal educa- tion. It is administered by a commit- tee of volunteer practicing attorneys and judges appointed by the State Bar and the Supreme Court of Georgia known as the Commission on Continuing Lawyer Competency. With the end of the 1999 CLE year near at hand, please note the following important dates: Dec. 27, 1999 ...... 1999 reporting 4/c House ad affidavits mailed Jan. 31, 2000...... reporting affidavit coming from filing deadline (a $50 late filing fee is applicable Jennifer thereafter) March 31, 2000 ...1999 CLE grace period ends (a $100 late CLE fee is applicable thereafter) While the foregoing dates have been consistent since the program began in 1984, there are several new changes that may be of interest to you. Members who have timely obtained all of their CLE require-

DECEMBER 1999 9 COVER STORY

WORCESTER VS. GEORGIA: Civil Disobedience and the Cherokee Removal

By Sidney L. Moore Jr. and Leighton Moore

hief Justice John Marshall’s decision in Worcester v. Georgia1 that Georgia did not have authority to extend its police powers to the Cherokee Nation is most often studied as an early example of the Supreme Court’s power of judicial review. From a historical perspective,C however, the case may be more important as an example of how private civil disobedience can lead to a major Constitutional crisis. The Rev. Samuel Worcester and his associate, the Rev. Dr. Elizur Butler, had been instrumental in the resistance to Cherokee removal. Their willingness to go to prison for their beliefs and the unwillingness of Georgia authorities to release them after their convictions were overturned by the Supreme Court not only pitted the United States against Georgia, but the executive branch of the United States government against the judicial branch.

10 GEORGIA BAR JOURNAL The dispute between the Georgia and the Cherokees penny an acre.3 was long standing. The invention of the cotton gin by Eli The discovery of gold in 1828 in what is now White Whitney at the Greene plantation near Savannah, coupled County between Cleveland and Helen, by an enterprising with the exhaustion of farms in North and South Carolina, black slave from Loudsville,4 gave new impetus to the brought a tremendous demand for new cotton acreage in push for Cherokee removal. The General Assembly of Georgia. There were relatively few Indians in the North- 1828 purported to divide the Cherokee Nation into five western third of the State compared to the vast amount of parts, each of which was assigned to a different Georgia land, and Georgians considered it the “manifest destiny” of county for law enforcement purposes.5 This law was whites to drive out the “merciless Indian Savages,” as substantially broadened by the 1829 General Assembly.6 Native Americans were referred to in the Declaration of These statutes were blatantly illegal, as the Cherokee Independence.2 Nation was protected by treaties with the United States The official attitude of the state government was no government. But Georgia sheriffs began asserting their law different from that of its citizens. Governor after governor enforcement powers nonetheless, as did the Georgia made it clear to the United States government that they Militia. expected the federal authorities to clear the Cherokee land Georgia’s assertion of legal authority over the Chero- for settlement in exchange for Georgia’s relinquishment of kees was challenged three times in the Supreme Court of its claim to Alabama and Mississippi. The central govern- the United States during the tenure of Chief Justice John ment might have argued, however, that much of the delay Marshall. The first case, Cherokee Nation v. Georgia,7 in delivery of the quid pro quo was that Georgia had was filed as an original action under the provision of the clouded the title to the lands West of the Chattahoochee United States Constitution establishing trial jurisdiction in through the great Yazoo Land Fraud, in which nearly cases of foreign nations against states. The second case, every member of the General Assembly had been bribed Tassels v. Georgia,8 resulted in an order staying Georgia’s into selling 50,000,000 acres of land to speculators for a execution of an Indian who had been convicted in

DECEMBER 1999 11 Gwinnett County Superior Court for murdering another amalgamated with their vanquishers, and became one Indian within the Cherokee Nation. But Worcester v. people; or they were governed as a separate but de- Georgia,9 the third case and the only published opinion in pendent State. The habits, manners, and imbecile in- favor of the Cherokees, nearly started an armed conflict tellect of the Indians, opposed impracticable barriers between the Georgia Militia and the United States Army. to either of these modes of procedure . . . . They were Not only were the Cherokees subjected to Georgia judged incapable of complying with the obligations laws and courts under the new scheme of things, but they which the laws of civilized society imposed, or of be- were also prohibited from using those laws for their own ing subjected to any code of laws which could be sanc- benefit. The 1828 Act provided that “no Indian, or tioned by any christian community.17 decendant [sic] of Indian, residing within the Creek or Cherokee nations of Indians, shall be deemed a competent The motion to dismiss was denied. witness, or a party to any suit, in any court created by the Because the Hall County Superior Court was not constitution, or laws of this state, to which a white man may prepared to handle the case, venue was transferred to be a party.”10 The 1829 Act added “except such white Gwinnett, where Corn Tassels was promptly convicted and person resides within the said nation” — a phrase added so sentenced to hang.18 Defense counsel rushed to Washington that the State could use Indian with an application for certiorari to witnesses to prosecute the white review the conviction, and Chief men who had the audacity to live Justice Marshall issued a stay order, among the Cherokees and help commanding the State of Georgia them resist removal.11 to show cause why Corn Tassels Armed with some of the Masthead of the Cherokee Phoenix, the offi- should not be set free. finest lawyers in the United cial newspaper of the Cherokee Nation that The order arrived in Atlanta States,12 the Cherokees filed was published in Cherokee and English. on December 22, 1829, and Cherokee Nation v. Georgia, an Governor George R. Gilmer original action against the State of Georgia in the Supreme immediately sent a message to the assembled lawmakers: Court of the United States, seeking an injunction against these illegal predations. The Supreme Court held, with I submit to the legislature for its consideration, a copy obvious reluctance, that the Cherokee Nation was not the of a communication received this day, purporting to type of nation that was entitled to sue directly in that court be signed by the Chief Justice of the United States, against a State, and the case was dismissed.13 and to be a citation to the State of Georgia, to appear While the Cherokee Nation case was pending in the before the Supreme Court on the second Monday in Supreme Court, Georgia was looking for a proper case to January next, to answer to that tribunal for having assert its self-ordained powers over the Indians. The case caused a person who had committed murder within of State v. Tassels seemed perfect for the purpose. George the limits of the State to be tried and convicted there- “Corn” Tassels was accused of killing another Cherokee for. man in a dispute over a woman. Before Cherokee authori- The object of this mandate is to control the State in ties could take action, Georgia officers arrested Corn the exercise of its ordinary jurisdiction, which, in Tassels inside the Cherokee Nation and took him to Hall criminal cases, has been vested by the Constitution, County for trial.14 Tassels’ lawyers filed a motion to exclusively in its superior court. quash the indictment based on a lack of jurisdiction. So far as concerns the exercise of the power which Because Georgia did not yet have a Supreme Court15 belongs to the Executive Department, orders received (although the Cherokee Nation did), the legal issues were from the Supreme Court for the purpose of staying or presented to a “Conference of Judges,” which issued a in any manner interfering with the decisions of the lengthy opinion in support of the new Georgia law. courts of the State, in the exercise of their constitu- Referring to the Cherokees as “a savage race, and of tional jurisdiction, will be disregarded, and any at- imbecile intellect,”16 the Conference ruled that Georgia, as tempt to enforce such orders will be resisted with the successor-in-interest to the conquering or discovering whatever force the laws have placed at my command. English, had a right to assert its jurisdiction over the If the judicial powers thus attempted to be exercised conquered tribes. The conference held that, historically, by the courts of the United States is submitted to, or conquered peoples were either: sustained, it must eventuate in the utter annihilation of the State governments, not less fatal to the peace and prosperity of our present highly favored country.19

12 GEORGIA BAR JOURNAL Both the House and Senate responded by overwhelm- that the Act of the Legislature of Georgia, passed at ingly (but not unanimously) adopting resolutions in support its last session, subjecting all the Cherokee territory of the hanging of Corn Tassels.20 The Governor dis- and the persons occupying it, to the ordinary jurisdic- patched a rider to Hall County with instructions to the tion of the State has gone into operation, and in reply sheriff to carry out the execution, and soon Corn Tassels I have the honor to inform you that previously to the was sitting on his own coffin in the back of a wagon, a receipt of your letter an order was issued to Major noose around his neck. The wagon was pulled out from Wages (the United States Army Commander in the under him and he was soon dead. It was Christmas Eve, Cherokee Nation), a copy of which for your informa- and a cold rain was falling, but that did not deter thou- tion and satisfaction is here inclosed [sic]. By it you sands of spectators from gathering in Gainesville for the will perceive that he is instructed, as the winter is event. One spectator’s version of the hanging was reported approaching, to retire with his troops into winter quar- in the Gainesville Eagle years after the event: ters. It is expected that the emergency which induced the troops to enter the Indian country has ceased.23 The prisoner was ordered by the sheriff to get up, and stand upon his coffin, on which he had for some time The General Assembly of December, 1830, increased been sitting. The arms were tied down, the cap drawn Georgia’s hold on the Cherokee Nation. The Cherokees down over the face, the ox cart was driven forward were prohibited from meeting to make their own “laws, leaving the body suspended in the air. A few shrugs orders, or regulations for said tribe.”24 The Cherokees of the shoulders, a little drawing up of the feet, and all courts were ordered disbanded and their processes nullified.25 was still and within twenty minutes the doctors in at- But the General Assembly and Governor knew that so tendance pronounced him dead.21 long as the Cherokees had the assistance of white mission- aries, lawyers, and others, the fight to remove them would Corn Tassels’ case wound up in a clerical note when be a long one. It was therefore provided by law that: the Cherokee Nation opinion was published.22 The same legislature that had encouraged the Governor to ignore all white persons residing within the limits of the Corn Tassels’ writ from Chief Justice Marshall was Cherokee nation, on the first day of March next, or at determined to expand Georgia’s jurisdiction over the any time thereafter, without a license or permit, from Cherokee Nation by additional illegal statutes. They his Excellency the Governor, or from such agent as believed that President Andrew Jackson was on their side his Excellency the Governor, shall authorize to grant and was not going to enforce the edicts of the Supreme such permit or license, and who shall not have taken Court regarding the Cherokees. the oath hereinafter required [pledging allegiance to President Jackson had long since earned his stripes as the State of Georgia] shall be guilty of an high misde- an Indian fighter, one of his major claims to fame being meanor, and upon conviction thereof, shall be pun- the 1814 massacre of the Creeks at the Battle of Horse- ished by confinement in the Penitentiary at hard labour, shoe Bend, followed by the Treaty of Fort Jackson in for a term not less than four years.26 which the Creeks involuntarily ceded more than 20,000,000 acres of land in Alabama and southwest Twelve days after the effective date of this new statute Georgia to the federal government. Governor Gilmer, then a colonel and twenty five men of the Georgia militia, all an army officer, had materially assisted Jackson in this mounted and armed with guns and bayonets, showed up at venture by building “Peachtree Road” from Ft. Daniel in Carmel and arrested the teacher and secular superintendent Gwinnett County to the confluence of Peachtree Creek and of a school for the education of Cherokee children. The the Chattahoochee River, and constructing a supply fort next morning they marched him on foot to New Echota, there called Fort Peachtree. the capital of the Cherokee Nation, a distance of some Jackson returned the favor in the Fall of 1830 when forty miles, where they arrested Rev. Worcester, a mission- Governor Gilmer complained to him that the United States ary to the Cherokees, and the printer of the Cherokee Army was protecting the Cherokee lands from being invaded Phoenix, the nation’s newspaper. Others were also taken by whites seeking gold in the foothills of the Blue Ridge. into custody at New Echota before the prisoners were President Jackson spoke with the Secretary of War, J.A. marched the next day to the Hightower (“Itowah” or Eaton, who promptly wrote to Governor Gilmer as follows: “Etowah” in the Indian tongue) missionary station, a distance of another thirty miles, where another missionary The President has referred to this Department your was arrested. The prisoners were all then marched to a letter of the 29th of last month (October) advising him temporary headquarters of the militia, and the next day

DECEMBER 1999 13 D The Trail of Tears D

another thirty miles to Lawrenceville, where they were service of this Department any one who is a refrac- jailed. The charges were that they were living in the tory and disobedient citizen of the State within whose Cherokee Nation without a permit from the Governor. The territory, and under whose jurisdiction he resides.29 Governor was not issuing any permits.27 Several lawyers volunteered to represent the group Upon receipt of this letter, Governor Gilmer wrote to before the Gwinnett Superior Court, including William H. Rev. Worcester: Underwood and General Edward Harden. They argued first that the statute was unconstitutional and secondly that It is part of my official duty to cause all white persons the prisoners were immune from State prosecution because residing within the territory of the state, occupied by of various federal offices held by them. Rev. Worcester, the Cherokees to be removed therefrom, who refuse for example, was the Postmaster of New Echota. The to take the oath to support the constitution and laws Court rejected the constitutionality argument, but did of the State. Information has been received of your release Rev. Worcester because of his position as Postmas- continued residence within that territory, without com- ter. The others posted bond and were released.28 plying with the requisites of the law, and of your claim As Rev. Worcester was one of the primary targets of to be exempted from its operation, on account of your the new law, the dismissal of the case against him enraged holding the office of Postmaster of New Echota. You Governor Gilmer. He quickly dispatched a letter to the have no doubt been informed of your dismissal from President requesting that Rev. Worcester be fired as that office . . . . You are, therefore, advised to remove Postmaster. The President asked the Attorney General to from the territory of Georgia, occupied by the Chero- take care of the matter and on May 7, 1831, Postmaster kees . . . .”30 W. J. Barry wrote to “His Excellency Geo. R. Gilmore [sic]” as follows: A similar letter was sent to the Rev. Dr. Elizur Butler, who had also become a major thorn in the side of the I have the honor to acknowledge the receipt of your Governor due to his effectiveness among the Indians. communication of the 19 of April, transmitted under It is unknown whether Rev. Worcester responded in cover of a letter from the Attorney General of the writing, but in a June 7, 1831, letter the Rev. Dr. Butler United States. I feel no disposition to retain in the made clear his feelings on the matter:

14 GEORGIA BAR JOURNAL Though I may have been accused of being a mortal separate indictments covering a total of eleven prisoners. enemy to Georgia and her measures, I solemnly affirm All were found guilty in a one-day trial. Since the that I am not, although I could not in conscience sub- statute required a “minimum mandatory” four years of scribe to all her enactments. For instance, I could not hard labor the sentences were soon forthcoming — four take the oath required of white men who live in her char- years in the State Penitentiary at Milledgeville. Rev. tered limits because I should then acknowledge the ju- Worcester, given an opportunity to speak before sentence risdiction of Georgia over this country which would be was pronounced, said in part: adverse to my opinion and would essentially affect my usefulness as a missionary . . . . Rather than changing if I am not guilty of [the indictment], which I sol- religious views to meet the exigencies of political trans- emnly aver before this Court and my God that I am actions, permit me to say I should sacrifice my life . . . . not, then I have to say what I have already said, that If I must suffer for the above course of conduct I hope this court ought not to proceed to pronounce sentence the Lord will enable me to meet suffering with Christian against me, because the act charged in the bill of in- meekness and fortitude.31 dictment was not committed within the rightful juris- diction of this Court.32 Again the missionaries and others assisting the Cherokees were arrested and again they taken before the Of the eleven convicted, nine ultimately were pardoned Gwinnett Superior Court. They were marched in chains by Governor Gilmer upon their promise to leave the State along the Old Hightower (Itowah) Trail, an Indian trading of Georgia and the Cherokee Nation and never return. But path that ran from the Etowah River southeastward as far Rev. Worcester and Butler, true to their religious beliefs as what is now Rockdale County, and which at that time and their belief that Georgia’s law was unconstitutional, formed the part of the boundary between Gwinnett and elected to go to prison and to appeal their convictions to DeKalb Counties, and then northeast along the Decatur- the Supreme Court of the United States. Lawrenceville Road. This time there was no dismissal, A short time after sentencing, the judges of the and the grand jury returned the indictments requested by Gwinnett Superior Court were served with an order from Solicitor General Turner H. Trippe. There were two the Supreme Court that:

Sequoyah, far left, was considered a genius for inventing the Cherokee alphabet, shown left. The Cherokee were the most westernized of the North American indian tribes.

DECEMBER 1999 15 under your seal distinctly and openly, you send the convictions, but had not specifically ordered the federal record and proceedings aforesaid, with all things con- executive branch to do anything to free the prisoners. cerning the same, to the Supreme Court of the United After Georgia’s refusal to acknowledge the ruling, States, together with this writ, so that you have the however, the defense attorneys traveled to Washington, same at Washington on the second Monday of Janu- seeking a writ to require the release of the prisoners under ary next in the said Supreme Court . . . .33 a threat of federal enforcement. Attorney Elisha W. Chester, for the defense, served notice on the Governor Gwinnett Inferior Court Clerk William Maltbie soon that the missionaries: complied with the writ, transmitting the record on Novem- ber 28, 1832. will therefore on Saturday, the second day of Febru- Meanwhile, in Milledgeville, the Rev. Worcester and ary in year eighteen hundred and thirty three by his Butler were serving their four years at hard labor and were counsel move the said Supreme Court expected to be keeping their spirits up by penning letters to their support- then in session, that such further proceedings be had ers. Rev. Worcester, in a letter to the editor of the Mission- by said Supreme Court in said cause as shall be agree- ary Herald at Home and Abroad, explained his reasons able to law and the principles of justice and that pro- for civil disobedience in Biblical terms: cess be issued to carry into effect the judgment ren- dered in said cause by said Supreme Court.36 I have formerly been told that there was no need of my going to the penitentiary; that it was easy for me The case had reached a crisis of Constitutional propor- to avoid it, if I would . . . . I would by no means tions. Assuming that the Supreme Court would issue an order compare myself with any of those mentioned below; to the executive branch of the United States Government to but you will doubtless understand my meaning. free the prisoners, would the President comply? Would he, Nehemiah might have gone into the temple, if he would. like President Eisenhower did in the case of Little Rock’s Shadrack and his companions might have worshipped Central High School, “send in the troops”? Or would the the images of Babylon, if they would. Daniel might national government come apart at the seams? have ceased to pray for a season, if he would . . . .34 The entire nation was watching the developments on a daily basis. Letters were streaming into the Governor’s The reversal of the convictions by the Marshall Court office warning of dire consequences. As February 1833 came almost as quickly as the prosecution.35 The Chero- approached and tempers were flaring throughout the kee Nation had been vindicated. Georgia’s assertion of country over the Constitutional crisis, the Governor finally jurisdiction over the Cherokee lands had been declared let it be known that he was prepared to pardon the mis- unconstitutional. The prisoners were to be freed and could sionaries and release them in compliance with the Supreme return to the Lord’s work. Court’s order. So informed, Rev. Worcester and Dr. Butler But nothing happened. The State of Georgia acted as wrote to Governor Lumpkin: “We have this day forwarded if there had never been a ruling in Worcester v. Georgia. instructions of our counsel to forbear the intended motion The prisoners remained in the penitentiary. and to prosecute the case no further.” However, in an Attorneys William H. Underwood, Elisha W. Chester obvious spirit of defiance, they added: and General Ed Harden rushed to the Clerk’s office in Gwinnett Superior Court with a petition for a writ of habeas We beg leave respectfully to state to your excellency corpus, seeking an order requiring the Governor to free the that we have not been led to the adoption of this mea- two missionaries. Judge Charles Dougherty of the Superior sure by any change of views . . . or by any doubt of Court ordered the Clerk to refuse the filing of the writ, but he the justice of our cause, or of our perfect right to a agreed to witness a statement by the lawyers that the Clerk legal discharge, in accordance with the decision of had refused to allow it to be filed. The lawyers went to the the Supreme Court in our favor . . . .37 new Governor, Wilson Lumpkin, who gave no assistance at all. Georgia would ignore the ruling of the Supreme Court of Governor Lumpkin was enraged. He had gone against the United States, and it appeared that the President of the the wishes of a great number of his constituents to extend United States would do nothing about it. an opportunity for release to these two civil dissidents and President Jackson was rumored to have said: “John they had slapped him in the face with the “justice of their Marshall has made his decision. Now let him enforce it.” cause.” He let it be known in no uncertain terms that he In reality, however, the time had not come for federal might well change his mind about the pardons. enforcement. The Supreme Court had simply reversed the Word quickly got to the prisoners who were housed

16 GEORGIA BAR JOURNAL only a short distance from the capitol in Milledgeville. 9. 31 U.S. (6 Pet.) 515, 8 L. Ed 483 (1832). Sheepishly, they penned another letter: 10. 1828 Ga. Laws at 89. 11. 1829 Ga. Laws at 101. 12. Led by William Wirt, formerly Attorney General of the Unit- Sir . . . we are sorry to be informed that some expres- ed States. sions in our communication of yesterday were regarded 13. 30 U.S. (5 Pet.) 1, 20, 8 L. Ed. 1, 32 (1831). by Your Excellency as an indignity offered to the state 14. The Southern boundary of Hall County portion of the Chero- kee Nation under the Act of 1829, was described as following or its authorities. Nothing could be further from our de- Baldridges Creek from the Chattahoochee River to the creek’s sign. In the course we have now taken it has been our source, and from there to where the Cherokee Federal Road of intention simply to forebear the prosecution of our case, 1804 crossed the “Hightower” (Etowah) River and then along and to leave the question of the continuance of our the Federal Road to the Tennessee state line. The Northern 38 boundary was a line which commenced at the Chestatee River confinment [sic] to the magnanimity of the State. “at the mouth of Hoholo Creek,” up the creek to the top of the Blue Ridge, then to the headwaters of the Notley River, and Rev. Samuel Worcester and Rev. Dr. Elizur Butler then down the river to the state line. 1829 Ga. Laws at 98-99. were released from the State Penitentiary at Milledgeville, 15. It was not until 1835 that Georgia’s Constitution was amend- Georgia, on January 14, 1833, having served a year and ed to authorize legislative establishment of a Supreme Court. 1835 Ga. Laws 49. four months of their four-year sentences. Their pardon by 16. State v. Tassels, 1 Ga. Rep. Anno. 478, 481 (Hall Super. Ct. Governor Lumpkin averted the first major Constitutional 1830). conflict between the judicial and executive branches of the 17. Id. federal government. But despite their firm moral stand on 18. The trial records of the Corn Tassels case were unfortunately destroyed by a tornado that demolished the Hall County behalf of the Cherokees, the Cherokee Nation was courthouse in 1936 and scattered its contents as far as Sene- doomed. While they were in prison the State of Georgia ca, South Carolina. Perhaps Corn Tassels, viewing the de- gave away the Cherokee lands by lottery. Governor struction from on high, saw it as a fitting revenge by the Lumpkin had served as surveyor in dividing up the lands. Cherokee Gods. 19. Niles Weekly Register XXXIX (Jan. 8, 1831) 338. Soon settlers were marching north of the Chattahoochee 20. The vote in the Senate, for example, was 37 to 7. demanding that the Indians vacate their farms. Within a 21. Gainesville Eagle, 2 (May 11, 1888). few years, after Jackson was out of office, those Chero- 22. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 12-13, 8 L. kees who had not voluntarily left were rounded up and Ed. 25, 29 (1831). 23. Letter from J. A. Eaton to Governor Gilmer (Nov. 10, 1830) marched to Oklahoma in the dead of winter in the infa- (on file at the Georgia Archives). mous Trail of Tears. U 24. 1830 Ga. Laws 114, 114. 25. Id. at 114-115. 26. Id. at 115-116. Sidney L. Moore Jr. is a trial lawyer and legal history buff in Atlanta. 27. As reported in the Missionary Herald at Home and Leighton Moore, Sid’s son, is a senior at Harvard Law School. Abroad (1831). 28. Id. 29. Letter from W. J. Barry to George Gilmer, Governor of Geor- En dn otes gia (May 7, 1831) (on file at the Georgia Archives). 30. Letter from George Gilmer, Governor of Georgia, to Rev. Samuel Worcester (1831) (on file at the Georgia Archives). 1. 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832) 31. Letter from Elizur Butler to George Gilmer, Governor of 2. “[The King] has endeavoured to bring on the inhabitants of Georgia (June 7, 1831) (on file at the Georgia Archives). our frontiers, the merciless Indian Savages, whose known 32. Letter to the American Board of Foreign Missions (Sept. rule of warfare is an undistinguished destruction of all ages, 16, 1831). sexes and conditions.” THE DECLARATION OF INDEPENDENCE, 33. Supreme Court of the United States, Transcripts of para. 23 (U.S. 1776). Records 1832, 480-1093, Vol. 2, January Term. 3. See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L. Ed. 162 34. Letter to the Editor, Missionary Herald at Home and (1810). Abroad (1831). 4. Gold was discovered by “a Negro servant of Maj. Frank Lo- 35. Worcester v. Georgia, 31 U.S. 515, 8 L. Ed. 483 (1832). gan . . .” according to the historical marker at Duke’s Creek, 36. Letter from Elisha W. Chester, Attorney for Plaintiff in Error, between Cleveland and Helen. His name, like the names of to Wilson Lumpkin, Governor of Georgia, and to Charles J. many other slaves who did important things in Georgia histo- Jenkins, Attorney General of Georgia (on file at the Georgia ry, has been long since forgotten. Archives). 5. The counties were Carroll, DeKalb, Gwinnett, Hall and Hab- 37. Letter from S. A. Worcester and Elizur Butler to Wilson ersham. 1828 Ga. Laws 88. Lumpkin, Governor of Georgia (Jan. 8, 1833) (on file at the 6. 1829 Ga. L. 98 (quoted in full at 31 U.S. (6 Pet.) at 525-28, 8 Georgia Archives). L. Ed. at 488-89). 38. Letter from S. A. Worcester and Elizur Butler to Wilson 7. 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831). Lumpkin, Governor of Georgia (January 9, 1833) (on file at 8. The stay order is alleged in the bill in Cherokee Nation v. the Georgia Archives). Georgia, 38 U.S. (5 Pet.) 1, 8 L. Ed. 25.

DECEMBER 1999 17 LEGAL ARTICLES Juggling the FMLA and its Regulations

By Donald W. Benson

uppose your client calls complaining that defined by the FMLA, but failed to produce a medical he has just been served with a completely certification saying that he was needed to care for his bogus lawsuit alleging a violation of the spouse as your client had requested; and (4) your client Family and Medical Leave Act notified the plaintiff-employee that he was ineligible for (“FMLA”).1 After asking for the pertinent FMLA leave one day before the employee took his leave. facts, you determine that: (1) the plaintiff- You check the statute and determine, sure enough, that employee has worked off and on for the to be an “eligible employee” for FMLA leave, an employee client, but his most recent term of employment has been for must have worked for twelve months preceding the date S that requested leave is to begin and must have worked only eleven months; (2) the plaintiff-employee has not worked 1,250 hours for the employer in the preceding 1,250 hours during that twelve-month period.2 Moreover, twelve months; (3) the plaintiff-employee asked for time off the employer has a statutory right to request that the to care for a spouse with a serious medical condition as employee produce a certification from his spouse’s health

18 GEORGIA BAR JOURNAL care provider stating that he was needed to care for the wording of the statute? serious health condition of this immediate family member.3 Congress intended that the FMLA establish a minimum Being indignant that a colleague would file such a frivolous for leave policies to protect employees who need leave due lawsuit without reading the statute, you fire off a letter to the employee’s own serious health condition or that of an threatening a Rule 11 motion for sanctions and anticipate immediate family member, or the birth or adoption of a the end of the 21-day waiting period so that you may file child.4 Congress also expressly provided that employers your devastating maneuver with the court. were free to provide more generous leave policies than As usual, discretion is the better part of valor. In reply mandated under the FMLA.5 For example, although the to your proposed Rule 11 motion, opposing counsel sends FMLA requires that employers extend unpaid leave for up you a one-sentence directive: “Please review the Depart- to twelve weeks, employers may provide more than twelve ment of Labor’s FMLA Regulations found at 29 C.F.R. § weeks of leave or provide full or partial payment for such 825.” You hastily read the regulations. Ouch. leave.6 The FMLA also allows employers to provide longer maternity leave programs, or a period of temporary disabil- I. The Practical Problem ity leave with partial pay that would run co-extensive with the FMLA mandated leave.7 The statutory wording of the There are situations in which the Department of FMLA anticipates allowing employers and employees some Labor’s FMLA Regulations (“Regulations”) would say flexibility in adopting FMLA requirements to fit more that your client was required to provide the requested leave. generous leave programs. Who would have thought that the Regulations could In general, the Regulations detail how the FMLA produce results so apparently inconsistent with the express applies in given situations, clarifies definitions, and fills in

DECEMBER 1999 19 the holes Solutions to these practical problems may be emerging of the in a line of cases rejecting strict adherence to the notice statutory provisions of the Regulations in situations in which the language.8 employee has been provided the full extent of leave envi- The Regu- sioned by the FMLA. In cases addressing the timeliness lations and adequacy of notice to the employee of eligibility for include FMLA leave, federal courts have struck down all or provisions portions of Regulations as contradicting or exceeding the that require express intent of the FMLA. Courts have also refused to an em- read penalties into Regulations where no express penalty ployer to exists. In some jurisdictions, the courts require the plaintiff provide its to show that he has suffered a harm as a result of his employee notice about a employer’s non-compliance with the notice Regulations. variety of aspects of its leave policies, including the need Just as firing off a Rule 11 letter without reviewing the for medical certification, whether the leave will be counted Regulations was premature, so is assuming that the Regu- as FMLA leave, and whether the leave is paid or unpaid.9 lations will require your client to concede liability in every These Regulations also provide that should the employer situation in which notice mandated in the Regulations was fail to initially provide the required notice, then the em- not given. ployer cannot count employee absences toward the twelve-week total of FMLA leave until proper notice is II. FMLA Regulation s given.10 Employers have encountered two common, practical Section 825.208 is an example of a notice provision in problems applying the notice provisions of the Regulations. the Regulations that potentially results in a windfall of In the first scenario, the employer discovers well after the leave to the employee by requiring the employer to inform employee’s FMLA leave has begun that the employer failed the employee within two business days, absent special to provide the requisite notice. The Regulations require that circumstances, that the leave is designated as FMLA an employer notify the employee whether the leave quali- leave.14 If the employer does not promptly notify the fies as FMLA leave within two business days of receiving employee within two business days, then the paid leave an employee request for such leave. When an employer may not be counted toward the employee’s total allowable does not provide timely notice, under the Regulations the FMLA leave of twelve weeks: employee is entitled to the full twelve weeks of leave after the employer provides notice, regardless of how much leave If the employer has the requisite knowledge to make a was previously offered by the employer.11 In some situa- determination that the paid leave is for an FMLA rea- tions, this results in a windfall to the employee. son at the time the employee either gives notice of the In the second scenario, the employer has a leave policy need for leave or commences leave and fails to desig- more liberal than the FMLA. For example, the employer nate the leave as FMLA leave (and so notify the em- offers fifteen weeks of leave, or the employer requires a ployee in accordance with paragraph (b)), the employer medical certification from a doctor only when the employee may not designate leave as FMLA leave retroactively, is ready to return to work. Because the employer offers a and may designate only prospectively as of the date of more generous leave policy than the FMLA requires, the notification to the employee of the designation. In such employer does not concern itself with the detailed notice circumstances, the employee is subject to the full pro- provisions of the FMLA. The employer might not send the tections of the Act, but none of the absence preceding two-day notice to the employee required by the Regulations the notice to the employee of the designation may be because the employer did not intend to restrict leave to counted against the employee’s 12-week FMLA leave twelve weeks.12 Likewise, the employer might not have entitlement.15 followed the tight time requirements for requesting medical certification because the employer did not intend to demand Under this Regulation, none of the pre-notice leave the medical certification at the earliest time allowed under may be counted as part of the maximum of twelve weeks of the FMLA.13 Employers who intend to offer more generous FMLA protected leave. The employee receives both the leave than required by the FMLA still find themselves paid leave for which the employer failed to give notice, confronted with FMLA claims based on Regulations plus an additional twelve weeks of FMLA leave. In es- designed to cover the minimum leave program. sence, an employer would be required to provide more

20 GEORGIA BAR JOURNAL than twelve weeks of leave because it failed to timely vide adequate certification. The employer shall ad- designate paid leave as FMLA leave. vise an employee whenever the employer finds a cer- The Regulations also require that the employer provide tification incomplete, and provide the employee a rea- the employee with notice as to the employee’s eligibility for sonable opportunity to cure any such deficiency.20 FMLA leave. Under the FMLA, only employees who have been employed for more than twelve months and who have Admittedly, this Regulation does not expressly provide worked 1,250 hours during the twelve months preceding a penalty for the employer’s failure to give the notice the date that requested leave is to begin are entitled to within two days or for a notice that does not contain the twelve weeks of leave.16 The Regulations require employ- required warning about “anticipated consequences.” ers to notify the employee of these requirements and Plaintiffs have argued, however, that the employer’s failure whether the employee has met these requirements once the to follow the notice regulation bars the employer from employee requests leave.17 Specifically, the Regulations refusing to grant the requested leave.21 This would have provide: the curious result that an employer must provide FMLA leave to an employee who can not obtain medical certifica- If the employer fails to advise the employee whether tion because the employer failed to “advise an employee of the employee is eligible prior to the date the requested the anticipated consequences of an employee’s failure to leave is to commence, the employee will be deemed provide adequate certification” in the notice.22 eligible. The employer may not, then, deny the leave. But, just as the good lawyer must check the Regula- Where the employee does not give notice of the need tions interpreting the FMLA, the good lawyer should also for leave more than two business days prior to com- not assume that every FMLA Regulation can be taken at mencing leave, the employee will be deemed to be eli- face value. For each of the Regulations discussed above, at gible if the employer fails to advise the employee that least one federal court has been confronted with a set of the employee is not eligible within two business days facts that led the court to reject the Regulation as inconsis- of receiving the employee’s notice.18 tent with the express intent of the statute. Thus, under the Regulations, the penalty for a failure III. Rejected FMLA Regulation s to notify an employee that he or she is not eligible for FMLA leave is that the employer must extend leave even Recently, the Eleventh Circuit addressed the conflict though the employee would have been otherwise ineligible. between the FMLA and section 825.208 of the Regulations In addition to relying on insufficient notice of the requiring notice of whether the employee’s leave counts as eligibility for leave, plaintiffs have attempted to use the FMLA leave. In Cox v. Autozone, Inc.,23 the plaintiff notice provisions concerning medical certification as a way employee took thirteen weeks of paid leave under to prevent employers from refusing to grant the requested the employer’s leave policy, followed leave.19 Under the Regulations, an employer may request by two weeks of unpaid leave medical certification of an employee’s medical condition, for a total of fifteen weeks. but the employer must provide the employee with a timely When she returned to notice that informs the employee that a medical certifica- work, she was tion is required and of the consequences of the failure to demoted because provide this certification: her prior position or an equivalent (c) In most cases, the employer should request that an position was not employee furnish certification from a health care pro- available. Cox vider at the time the employee gives notice of the need contended that, for leave or within two business days thereafter, or, in because she the case of unforeseen leave, within two business days was not given after the leave commences. The employer may request the notice certification at some later date if the employer later required by has reason to question the appropriateness of the leave section or its duration. 825.208, her (d) At the time the employer requests certification, the initial thirteen employer must also advise an employee of the antici- weeks of pated consequences of an employee’s failure to pro- paid leave would

DECEMBER 1999 21 not count toward her total of twelve weeks leave under the intend to create an entitlement to twelve weeks of leave FMLA. She claimed that she was entitled to an additional following employer notice, but only twelve weeks of twelve weeks of unpaid leave under the FMLA. This meant leave.33 Although the Cox opinion restricts itself to section that she was not only entitled to twelve additional weeks of 825.208, the rationale of the Court of Appeals may apply unpaid leave following the paid leave but also that she was to a number of other notice Regulations that could, in covered by the FMLA when she returned at the end of specific circumstances, provide employees a windfall of fifteen weeks. Under this reasoning, the company was leave beyond the twelve weeks of leave Congress clearly required under the FMLA to return her to her prior job or an intended to mandate in the FMLA. equivalent position.24 Like the Eleventh Circuit in Cox, the district court in The district court found the plaintiff’s interpretation of Wolke v. Dreadnought Marine, Inc.34 held that the FMLA section 825.208 to be inconsistent with the statute. After Regulations concerning notice of ineligibility for FMLA reviewing the relevant FMLA provisions, the court held, in violate the express intent of the statute and thus are essence, that the FMLA invalid. In Wolke, the guaranteed an employee a employee claimed entitle- minimum of twelve weeks ment to FMLA leave of unpaid leave.25 Accord- The best advice to an y employer is to because the employer had ing to the court, Congress not timely notified him that never intended the FMLA to structure its policies an d practices he had not worked twelve entitle employees at large months prior to his taking companies to more than to comply with the FMLA Regulation s leave as required by section twelve weeks leave.26 825.110(d) of the Regula- Additionally, the FMLA issued by the DOL. Obviously, 1 tions.35 The district court envisions that the employer found that the Regulations be able to count any paid complian ce carries the smallest risk were at odds with the leave to which an employee of litigation . Congress’s clear intent is entitled as unpaid FMLA under the FMLA to require leave.27 The court refused to extend this twelve week leave only for eligible employees as defined in the statute: minimum to require additional leave just because the “The regulation upon which Wolke relies to establish company failed to designate the company-provided paid ineligibility, 29 C.F.R. § 825.110, is invalid, because it leave at its commencement as running concurrently with impermissibly contradicts the clear intent of Congress to FMLA-protected leave.28 The notice requirements of the restrict the class of employees eligible for the FMLA.”36 Regulations imposed additional burdens not envisioned by Like in Cox, the district court applied the Supreme the FMLA and were “clearly beyond the language and Court’s two-pronged analysis for reviewing agency regula- intent of the FMLA.”29 The court held that, despite the tions.37 The Wolke court found that Congress had spoken defects in the employer’s notice, the employee Cox unambiguously on the precise issue. The FMLA states received the full twelve weeks of leave envisioned by the clearly that employees must work for twelve months and FMLA, and the court refused to grant her an additional 1,250 hours to obtain the protections of the FMLA.38 The twelve weeks of unpaid FMLA leave on top of her paid court held that, “[a]ny regulatory exceptions which purport leave. to shorten the twelve-month eligibility period are impermis- The Eleventh Circuit Court of Appeals affirmed the sible creations of the Department of Labor.”39 lower court’s decision, holding invalid the Regulation In addition to refusing to validate regulations that requiring that an employer notify the employee that the expressly contradict the FMLA, courts have refused to leaves run concurrently.30 When faced with a challenge to read penalties into notice Regulations if the penalty creates such an agency regulation, federal courts conduct a two- a result contrary to the express wording of the FMLA. In step analysis. First, the courts examine the statute to Henthorn v. Olsten Corp.,40 the employer denied the determine if Congress has clearly expressed its intent in employee’s request for FMLA leave. The employer then unambiguous statutory language.31 If Congress has not terminated the plaintiff’s employment for absenteeism spoken directly on the issue, the courts next determine because the employee never supplied a requested medical whether the agency’s answer to the question left open by certification. Relying on section 305(d) of the Regulations, Congress “‘reflects a permissible construction of the the employee claimed that she was relieved of her duty to statute.’”32 The Eleventh Circuit found that under either provide the certification because the company’s letter to her step, the Regulation was invalid because Congress did not attorney putting her on notice of the need for medical

22 GEORGIA BAR JOURNAL certification “did not advise her of any anticipated conse- smallest risk of litigation. quences for a failure to provide the requested medical When litigation has already begun, the fight may not be certification.”41 The district court pointed out that section lost just because the employer’s actions fail to conform to 305 is silent as to any consequences for an employer’s some of the Regulations. A line of cases has developed in failure to include such information in its request for which courts have refused to award employees rights certification: “To read such a penalty into the regulation beyond those provided by the FMLA. If the employee has could effectively nullify section 2613 of the FMLA, which not lost anything to which he was otherwise entitled, even if authorizes an employer to require an employee with a the employer’s notice is defective, closer scrutiny of serious health condition to supply the appropriate medical available arguments is warranted. If the employee lays certification. 29 U.S.C. § 2613. It is well-settled that a claim to leave to which he was not entitled, it is prudent to regulation cannot nullify the statute it is interpreting.”42 brush up on administrative law and examine whether the Although the above cases have held portions of the FMLA regulation at issue can be shown to be at odds with Regulations invalid, other courts have stopped one step the clear intent of Congress as expressly stated in the short of rejecting the Regulations in every circumstance. language of the FMLA. Just as checking the FMLA’s Such cases have focused on the causal connection that a statutory language without reviewing the Regulations can plaintiff must show between inadequate FMLA notice and lead to poor legal advice, the prudent practitioner should the alleged harm claimed. In each of these cases, the court not concede liability premised on the FMLA Regulations held that not every lapse in the notice requirements auto- without scrutinizing cases examining those Regulations. U matically supports a cause of action under the FMLA. Rather, a violation of the employee notice requirements is Donald W. Benson is a partner in the labor law firm of Constangy, Brooks actionable only if the inadequate notice effectively inter- & Smith LLC. He practices in the areas of employment 43 fered with the plaintiff’s statutory rights. dispute avoidance, litigation and mediation, and wage In Fry v. First Fidelity Bancorporation, the court and hour laws. He received his B.A. degree from Davison stated that inadequate notice amounts to interference if it College in 1976 and his masters degree in philosophy causes an employee to “unwittingly forfeit protection of the from the University of Georgia in 1978. He received his 44 FMLA.” The plaintiff in Fry took sixteen weeks of leave J.D. from the University of Utah College of Law in 1984. under a company policy more liberal than provided under the FMLA.45 Upon her return from pregnancy leave, however, Fry was not reinstated to her prior position as the FMLA would require at the end of a twelve week FMLA leave.46 En dn otes As in Cox, the plaintiff identified a notice defect, contending 1. 29 U.S.C.A. §§ 2601-2654 (1999). that the company’s employee handbook failed to adequately 2. Id. § 2611(2). 3. Id. § 2613. describe her FMLA reinstatement rights as required by the 4. Id. § 2601(b); 29 C.F.R. § 825.100(a) (1998). Regulations at section 825.301.47 Instead of invalidating the 5. 29 U.S.C.A. § 2653. Regulation as the Eleventh Circuit did in Cox, the Fry 6. Id. §§ 2612(c)-(d), 2653. district court adopted a “no-harm/no-foul” approach. 7. Id. § 2612. 8. Id. § 2654. Agreeing that a violation of section 825.301 does not 9. 29 C.F.R. §§ 825.305, .208 (1998). automatically amount to a statutory violation of the FMLA, 10. Id. § 825.208(c). the Fry court stopped short of invalidating the entire Regula- 11. Id. tion to hold that such a notice defect will be actionable “only 12. See id. 13. Id. § 825.305(c). if the inadequate notice effectively interfered with plaintiff’s 14. Id. § 825.208(b)(1). 48 statutory rights.” As Fry and Mora illustrate, there is a 15. Id.§ 825.208(c). developing willingness to overlook noncompliance with some 16. 29 U.S.C.A. §§ 2611(2)(A), 2612 (1999). FMLA Regulations if the defective notice failed to cause 17. 29 C.F.R. § 825.110(d) (1998). harm to an employee who would in any event have been 18. Id. 19. Henthorn v. Olsten Corp., No. 97 C 50182, 1999 U.S. Dist. ineligible for the requested FMLA leave. LEXIS 2029, at *1 (N.D. Ill. Feb. 24, 1999). 20. 29 C.F.R. § 825.305 (1998). 21. See Henthorn, 1999 U.S. Dist. LEXIS 2029, at *10-*11. III. Con clusion 22. 29 C.F.R. § 825.305(d). 23. Cox v. Autozone, Inc., 990 F. Supp. 1369, 1371 (M.D. Ala. The best advice to any employer is to structure its 1998), aff’d sub nom. McGregor v. Autozone, Inc., 180 F.3d policies and practices to comply with the FMLA Regula- tions issued by the DOL. Obviously, compliance carries the Continued on Page 69

DECEMBER 1999 23 LEGAL ARTICLES Recent Developments in Construction Law

William H. Hughes Jr. and Stephen M. Reams

24 GEORGIA BAR JOURNAL DECEMBER 1999 25 I. In troduction sued the builder for negligent construction and fraud.6 The builder moved for directed verdict based on the lack here is no proof that the Greek philosopher of privity. The trial court denied the motion and the Heraclitus was thinking about construction law builder appealed. The Georgia Court of Appeals ruled when he wrote “the only constant in life is that the homeowner could sue the builder in tort, and no Tchange.”1 But he certainly could have been. privity was required.7 This article will discuss some of the more significant The second situation that invites a claim for negligent recent developments in Georgia construction law and their construction is that of an injured party who is in privity implications for attorneys who represent owners, builders, with an insolvent building corporation or limited liability subcontractors and design professionals. The highlights company, but seeks to impose personal liability on owners, include recent cases concerning claims for negligent officers or managers of the builder. A claim for negligent construction, construction arbitration, and the Georgia lien construction can be a useful means of piercing the corpo- laws, and significant revisions to the widely-used form rate veil in this situation because, under the theory of contracts published by the American Institute of Architects negligent construction, an officer or manager of such a (“AIA”). corporation or company may be held individually liable, notwithstanding the absence of privity of contract. The II. Developmen ts in the Law of Negligen t seminal case on this topic is Cherry v. Ward,8 in which the Georgia Court of Appeals held that a corporate officer of Con struction a construction company could be held personally liable for Many attorneys are unaware that, in addition to being negligent construction if that person “specifically directed subject to claims for breach of contract, builders who the manner in which the [structure] was constructed or perform defective work in Georgia can also be sued for participated or cooperated in its negligent construction.”9 negligent construction. The Georgia Court of Appeals revisited this issue in the recent case of Jennings v. Smith.10 In Jennings, the A. Situations Inviting Claims for Negligent plaintiff sued a real estate company and its corporate Construction officer for negligent construction and fraudulent conceal- Negligent construction claims can be useful in two ment of construction defects. The trial court granted common situations. The first situation is that of a person summary judgment in favor of the corporate officer. The who is not in privity of contract with a builder but suffers Georgia Court of Appeals reversed, finding that the loss as a result of the builder’s defective performance. For corporate officer could be held personally liable for the example, a person who had no role in the construction negligence of the corporation if the officer took part in the process may incur personal injury or property damage as a alleged negligent act, specifically directed the act to be result of a defect or structural failure in a poorly-con- done, or participated or cooperated in its commission.11 structed building, and wish to sue the builder.2 Or a property owner who has entered into a contract with a B. Proving a Claim for Negligent Construction general contractor may be injured by the negligent work of In order to prove a claim for negligent construction a subcontractor and desire to pursue the subcontractor under any of the fact situations described above, the directly because the general contractor is insolvent. Or the plaintiff must first demonstrate that the contractor failed to purchaser of a building may suffer loss as a result of meet the required standard of care. The standard of care negligent work performed by a builder under contract to a for builders has been defined as “that degree of care and previous owner.3 In each of these situations, Georgia law skill as is ordinarily employed by other contractors under permits the injured party to assert a claim for negligent similar conditions and like circumstances.”12 Frequently, construction directly against the responsible general evidence of whether the defendant met the standard of care contractor or subcontractor, notwithstanding a complete is introduced through expert testimony. However, in the lack of privity of contract. recent case of Bilt Rite of Augusta, Inc. v. Gardner,13 the The leading case on this topic is Ramey v. Leisure, Georgia Court of Appeals held that expert testimony is not Ltd.4 In Ramey, the Georgia Court of Appeals permitted a always necessary to establish the standard of care. In- subsequent purchaser of property to sue the builder for stead, the standard may be derived from written materials negligence, despite the fact that the owner lacked privity such as manufacturer’s recommendations for the installa- with the builder. In this case, the plaintiff was actually the tion of building components.14 Also, because neither third purchaser of the home.5 The owner discovered general contractors nor subcontractors are currently defects related to the foundation trenches of the home and included in the professions covered by O.C.G.A. § 9-11-

26 GEORGIA BAR JOURNAL 9.1(f), an expert’s affidavit is not required to support a III. Developmen ts in the Law of claim for negligent construction against a builder. Arbitration C. The Economic Loss Doctrine and Negligent Binding arbitration has a long history of use in Construction construction disputes. Virtually all of the standard One important question that the Georgia courts have industry form contracts used on private projects include not addressed is the effect of the economic loss doctrine on mandatory arbitration provisions.22 negligent construction claims. Under product liability law, The advantages of binding arbitration are well-known. the economic loss doctrine generally prohibits an action in These advantages include the potential for resolving negligence where there is no personal injury or damage to disputes more quickly than is possible within the judicial property other than to the allegedly defective product system, and the opportunity to obtain a decision from itself.15 None of the Georgia decisions on negligent arbitrators who are familiar with industry practices. In construction discuss this defense or its applicability to addition, arbitration generally minimizes expensive defective construction discovery and avoids claims. By implication it lengthy appellate review. would appear that the At the same time, economic loss doctrine does The advan tages of bin din g however, parties to binding not apply to negligent arbitration in clude the poten tial for arbitration usually relin- construction claims, since quish their right to gather several reported negligent resolvin g disputes more quickly than information from opposing construction cases involve and third parties prior to only economic loss of the is possible within the judicial adjudication. Because of sort that would preclude a the fact-intensive nature of claim for negligence under system, an d the opportun ity to obtain most arbitrations, the that doctrine.16 Until this parties also typically forfeit issue is directly addressed by a decision from arbitrators who are their ability to enforce strict the courts, however, the notice, waiver, and other effect of the economic loss familiar with in dustry practices. legal terms of the applicable doctrine on claims for contracts. These disadvan- negligent construction will remain somewhat uncertain. tages usually cut against the interests of the construction owner, who typically has less information about the D. The Statute of Limitations for Negligent project than the architect or the builder, and who may wish Construction Claims to strictly enforce contract provisions requiring written Any attorney considering a claim for negligent construc- change orders or timely notice of claims. tion should take heed of the applicable statute of limitations, In addition, all parties can be adversely affected by the which is shorter than that available for a claim for breach of absence of an effective process for review of erroneous contract. Indeed, unlike a claim for breach of a construction decisions in arbitration. Accordingly, making the decision contract, which enjoys a six-year statute of limitations dating to arbitrate requires an analysis of the potential costs as from substantial completion of the structure,17 a negligent well as the possible benefits. As recent cases have empha- construction claim must be brought within four years of the sized, the costs and benefits may vary depending upon date on which the cause of action arose.18 whether the arbitration is conducted under the Georgia A right of action for negligent construction is gener- Arbitration Code (“GAC”) or the Federal Arbitration Act ally deemed to arise on the date that the negligent work (“FAA”). was performed.19 In the recent case of Howard v. McFarland, 20 however, the Court of Appeals held that A. Application of the GAC and the FAA any positive affirmative act of concealment on the part of The FAA applies to maritime transactions and trans- the negligent builder will toll the running of the statute of actions involving interstate commerce in which the parties limitations until the time the defective work is discovered. have incorporated an arbitration clause.23 However, the Under the fraudulent concealment rule of McFarland, a parties to an agreement involving interstate commerce may positive affirmative act is required, and mere silence on the agree to arbitrate using the rules of the GAC. In Volt part of the builder is not sufficient to toll the running of Information Sciences v. Board of Trustees of the Leland the statute of limitations.21 Stanford Junior University,24 the United States Supreme

DECEMBER 1999 27 Court ruled that the parties to a transaction involving under the FAA if any one of three conditions is satisfied. interstate commerce may agree to arbitrate pursuant to First, attorney fees may be awarded if such an award is state arbitration rules, provided that the state law does not expressly provided for in the subject agreement. Second, conflict with the goals of the FAA. In North Augusta attorney fees may be awarded if the arbitration clause Associates Limited Partnership v. 1815 Exchange, Inc.,25 provides for “resolution of all disputes.” Finally, attorney the Georgia Court of Appeals determined that the Volt fees may be awarded if the single arbitrator or arbitration decision permits parties to contracts involving interstate panel determines that a party has acted in bad faith.30 commerce to agree to arbitrate pursuant to the GAC.26 Thus, attorney fees may be awarded much more readily in The principal substantive differences between the arbitration conducted under the FAA, than in arbitration GAC and the FAA concern the authority of the arbitrators governed by the GAC. to make awards of attorney fees, and the standard of review applicable on a motion to vacate an arbitration C. The Standard of Review on Motions to Vacate award. under the GAC and the FAA The grounds available for attacking an arbitration B. Awards of Attorney Fees under the GAC and award are severely limited under the GAC. Under the FAA recent decision of the Georgia Supreme Court in Greene v. In Hope & Associates, Inc. v. Marvin M. Black Co.,27 Hundley,31 arbitration awards may be vacated under the the Georgia Court of Appeals held that, under the GAC, GAC only if (1) the award was tainted by corruption, “[i]f the parties contract for fraud or misconduct, (2) a neutral arbitrator acted with attorney’s fees, that agree- partiality, (3) the arbitrators overstepped or erred in the ment will be enforced. If exercise of their authority such that a final and definite the parties do not contract award upon the subject matter submitted was not made, or for attorney’s fees, each (4) the arbitrators failed to follow the procedure of the party will be responsible Georgia Arbitration Code.32 for the payment of his The Supreme Court decision in Greene v. Hundley own attorney’s fees.”28 followed a widely-publicized decision by the Georgia Notwithstanding two Court of Appeals in Hundley v. Greene.33 In Hundley v. subsequent appellate Greene, the Georgia Court of Appeals examined the court decisions that factual record in a construction arbitration and concluded have confirmed that the award should be vacated because there was “no awards of attorney evidence to support the award” and it was “completely fees in arbitration irrational.”34 where neither the After the submission of amicus briefs arguing that all underlying agreement arbitration awards would henceforth be subject to lengthy nor the arbitration judicial review based on sufficiency of the evidence, the agreement provided Georgia Supreme Court granted certiorari and reversed. for such an The Supreme Court held that the four criteria listed above award,29 represent the exclusive grounds for vacating an arbitration Hope & award.35 Accordingly, the Greene v. Hundley Court held, Associates the GAC strictly prohibits a reviewing court from weigh- has never ing evidence presented to the arbitrator, “regardless of been over- whether the court believes there to be sufficient evidence, ruled. Thus, or even any evidence to support the award.”36 The under the Greene v. Hundley decision positions Georgia at one GAC the rule extreme of the states whose laws address the review of remains that arbitration awards and permit judicial review only in cases attorney fees may be of actual fraud, misconduct, partiality or overstepping of awarded only when authority. expressly provided for in the By contrast, federal courts in the Eleventh Circuit applicable agreement. have substantially broader powers to review awards in By contrast, attorney fees arbitration. In addition to the grounds recognized by the may be awarded in arbitration Georgia courts — including fraud, misconduct, partiality or

28 GEORGIA BAR JOURNAL overstepping of authority by an arbitrator — the FAA claimants have been relieved of the requirement of permits federal courts to vacate arbitration awards obtaining a judgment against the contract debtor if it is “(1) [w]here the award was procured by . . . undue impossible to secure such a judgment because the con- means; . . . [w]here the arbitrators were guilty of miscon- tract debtor has died, absconded, or been adjudged duct in refusing to postpone the hearing, upon sufficient bankrupt. In these cases, subcontractors or material cause shown, or in refusing to hear evidence pertinent and suppliers have long been entitled to enforce their liens in material to the controversy, or of any other misbehavior by an action directly against the owner.45 which the rights of any party have been prejudiced; or . . . In response to a nationwide movement to protect [w]here the arbitrators have so imperfectly executed [their subcontractors and suppliers who sign subcontracts and powers] that a mutual, final and definite award upon the purchase orders that contain “pay if paid” provisions,46 subject matter was not made.”37 the Georgia General Assembly recently amended the In addition to these statutory grounds, the Eleventh provision of the lien statute relating to judgment against Circuit also recognizes common-law grounds to vacate the contract debtor. The General Assembly added, to the arbitration awards. In the recent case of Lifecare Interna- historical situations discussed above, a new exception for tional, Inc. v. CD Medical, Inc.,38 the Eleventh Circuit subcontractors and materialmen who cannot obtain a Court of Appeals held that an arbitration award may be judgment against a contract debtor because the subcon- vacated when the reviewing court finds that the award is tract or purchase order contains a “pay if paid” provision, “arbitrary and capricious,” meaning that “a ground for the and the contract debtor has not been paid by the party that arbitrator’s decision cannot be inferred from the facts of owes it money. the case.”39 Thus, since July 1, 1997, in those cases where a The Eleventh Circuit further expanded its criteria for subcontractor or material supplier is unable to obtain a vacating an award in the recent case of Scott v. Prudential judgment against the contract debtor because the appli- Securities, Inc.40 In Scott, the Circuit Court held that cable subcontract or purchase order contains a “pay if “[i]n the Eleventh Circuit, a party may challenge an paid” provision, the subcontractor or material supplier has arbitration award without reliance on the FAA if the been entitled to proceed directly against the owner without award is in contravention of public policy; or entered in first obtaining a judgment against the contract debtor. ‘manifest disregard of the law.’”41 Thus, under Lifecare As highlighted by two recent decisions from the International and Scott, federal courts in the Eleventh Georgia Court of Appeals, however, use of any of these Circuit are permitted to review both the fact findings and exceptions can expose the lien claimant to a potential trap legal conclusions underlying an arbitration award, and for the unwary. This trap can be sprung if the lien claim- may vacate the award if either is severely lacking. ant originally files suit against the contractor and files the required Notice of Suit on the public records, and later IV. Developmen ts in Georgia Lien Law decides to proceed directly against the owner under one of the above exclusions. According to the recent decisions in The Georgia mechanic’s and materialman’s lien statute Calhoun/Johnson Company v. Houston Family Trust No. grants a lien in favor of contractors, subcontractors, 1 47 and Northside Wood Flooring, Inc. v. Borst,48 unless materialmen and laborers who furnish labor and material the lien claimant files a second Notice of Suit within 14 for the improvement of real estate.42 This remedy is in days of instituting the direct action against the owner, the addition to traditional contract remedies and is intended to second claim will be subject to dismissal. This is true protect those who provide labor and material to construc- because compliance with the subsection of the lien statute tion projects by allowing them to look to the improved real relating to claims against the contract debtor does not estate itself for payment. Because the lien statutes are in relieve the lien claimant of an obligation to comply with derogation of the common law, they are strictly construed the subsection addressing direct claims against the owner. against the lienor.43 Therefore, potential lien claimants Accordingly, each time a lien claimant’s theory of must strictly adhere to all technical requirements of the recovery changes in a way that implicates a different statute in order to make good their claims of lien. section of the lien statutes, the lien claimant should To perfect a lien, a lien claimant must sue the original carefully consider whether any new requirements are contract debtor for the amount of the claim within twelve triggered. months of the date the debt became due, file a Notice of Suit within 14 days thereafter,44 and obtain a judgment V. The New AIA Form Con tracts against the contract debtor before foreclosing the lien against the owner of the property. Historically, lien The single most important contract document in use

DECEMBER 1999 29 on construction projects today is the American Institute of when a project is delayed or defects appear. Such Architects Document A201 “General Conditions of the damages include lost revenues and profits caused by Contract for Construction.” Document A201, along with delayed completion, as well as losses from disruption in Document A201CM/a (for projects using a construction ongoing operations due to the discovery and repair of manager-advisor), are incorporated by reference in the defects. While the waiver provision in Document A201 contracts for literally hundreds of Georgia construction does make an exception for “liquidated direct damages,”53 projects each year. the use of the word “direct” in this exclusion is very The AIA promotes its form contracts by claiming that significant. The primary purpose of most liquidated they result from a “consensus-building process” that damages provisions is to compensate the owner for reflects industry standards and balances the interests of all indirect damages such as lost profits or revenues from parties involved.49 Some would surely argue, however, delayed completion. Because only liquidated direct that the AIA forms shift a disproportionate share of risk to damages are excepted from the waiver of damages in construction owners who, as a group, have less input into Document A201, a strong argument could be made that the AIA drafting process than designers and builders. Not the waiver precludes any recovery under a liquidated surprisingly, industry groups representing contractors, damages provision that is intended — as virtually all engineers, subcontractors, and owners offer forms that liquidated damages provisions are — to compensate the compete with the AIA contracts.50 owner for indirect and consequential damages. Since 1977, the AIA has maintained a ten-year cycle Attorneys who represent construction owners should for major revisions to Document A201 and its sister form, also be aware that, while the waivers of consequential the Document B141 “Standard Form of Agreement damages in Documents A201 and B141 are labeled Between Owner and Architect.” The November 1997 “mutual waivers,” both the builder and the architect retain editions of these documents have only recently come into rights to recover consequential losses under other provi- widespread use. Unbeknownst to many general practitio- sions of the contracts. For example, Document B141 ners, some of the changes in 1997 editions significantly permits the designer to recover, in the event of wrongful reallocate the risks traditionally borne by owners, builders termination of the contract, “termination expenses” that and designers. are defined elsewhere in the contract to include all ex- penses “directly attributable to termination for which the A. New Issues for Construction Owners architect is not otherwise compensated.”54 Similarly, The 1997 editions of Documents A201 and B141 under Document A201 a builder is entitled to recover its increase the risks assumed by owners in their relationships jobsite costs and anticipated profit arising from the project with both builders and architects. Among the most critical including, in the event of termination, reasonable overhead issues for owners are changes in the areas of consequential and profit on the work not yet executed.55 By following a damages, project termination, coordination of multiple few simple bookkeeping procedures, a builder can charac- contractors, and the owner’s relationship with its architect. terize a substantial portion of its consequential loss 1. Mutual Waiver of Consequential Damages exposure so that it fits within these broad categories. Both the A201 General Conditions and the B141 2. Coordination of Separate Contractors Owner-Architect agreement now contain a “mutual waiver On many modern construction projects, the owner of consequential damages” provision that affects, to hires several general contractors or trade contractors to varying degrees, the rights of the owner, builder, and work on the site simultaneously or in sequence. The designer.51 increased risk to the owner created by the waiver of The term “consequential damages” is not defined in consequential damages discussed above is further exacer- Document B141. In Document A201, the term is defined bated by the owner’s obligation, under the new Document to include any damages incurred by the owner for rental A201, to coordinate the work of all of the separate build- expenses, loss of use, income, profit, financing, business ers on such projects. Under Document A201 the owner is and reputation, or loss of management or employee strictly liable to each contractor for any damage incurred productivity or services.52 This definition applies only to by that contractor due to delays, improperly timed activi- losses of the owner and, in effect, waives all claims of the ties or defective construction by another contractor.56 In owner against its builder and architect for damages other addition, the owner is responsible to all contractors for than the direct cost of correcting defective design or improper design services provided by a designer acting construction work. under contract with the owner.57 This waiver is important because of the significant There are those who would argue that any costs the consequential damages a commercial owner can incur owner incurs to fulfill these responsibilities to the various

30 GEORGIA BAR JOURNAL contractors are “consequential” damages to the owner. for convenience. Under the mutual waiver of consequential damages 4. Notice of Claims discussed above, the owner would be barred from main- As compared to previous editions, the new Document taining an action against the responsible contractor or A201 simultaneously relaxes and tightens the requirements designer to recover these consequential damages. Thus, for making claims. While claims by both the owner and under the 1997 forms the owner could become, in effect, builder must still be submitted within twenty-one days the guarantor to each contractor of the performance of the after the claimant first recognizes the condition giving rise design team and every other contractor, while waiving its to the claim, now the original submission need only right to recover consequential damages incurred in fulfill- “initiate” rather than “make” the claim. This change in ing its obligations under that guaranty. language relaxes the burden for including information in 3. Termination for Convenience the initial notice of claim, since the term “initiate” pre- Owners have long sumes subsequent supple- complained about the mentation and explanation. absence, in previous editions However, under the of Document A201, of a In a dispute between the own er an d new Document A201 provision permitting the written notices of claim by owner to terminate the design er, the importan ce of con trol both the owner and the owner/builder contract for builder must be sent to the the owner’s convenience. over the drawin gs an d specification s other party and to the There are many legitimate architect. If either the reasons why an owner can n ot be overstated. Without design owner or the builder might wish to terminate a documen ts, the project can n ot submits a claim directly to project for convenience. the other party, without For example, an owner proceed. ... Whoever con trols the copying the architect, the might wish to cancel a notice will not satisfy the project that is no longer design documen ts con trols the notice provisions of Docu- needed, that has become ment A201 and the claim obsolete, or for which future of the project. may be considered funding has become unavail- waived.61 able. Typically, upon termination for convenience an 5. Architect’s Control of Design Documents owner is willing to pay the builder its costs and profit on In a dispute between the owner and designer, the work performed through the date of termination, along importance of control over the drawings and specifications with reasonable costs of demobilization and terminating cannot be overstated. Without design documents, the subcontracts or supply contracts. Most owners are not project cannot proceed. Whoever controls the design willing, however, to pay the builder’s lost profits on work documents controls the future of the project. not yet performed. Indeed, the owner is not required to The new Document B141 states that the owner’s use pay lost profits under the termination for convenience of drawings, specifications and other documents prepared provisions contained in several other form contracts, by the architects and its consultants is under a limited including the forms used on federal government license that expires if the owner-architect agreement is projects.58 terminated.62 Regardless of which party terminates the The new Document A201 includes a termination for agreement, all copies of the design documents must be convenience provision, but with a twist. Under the returned to the architect within seven days after termina- termination provision contained in the new Document tion.63 Under the new Document B141, the architect is A201, an owner who terminates for convenience is held entitled to retain these documents throughout any ensuing responsible for paying for all completed work and costs dispute with the owner, and the owner may regain use of incurred by reason of the termination, plus the builder’s the documents only after the architect is “adjudged” to be reasonable overhead and profit on the work not yet in default through a court proceeding or binding arbitra- executed.59 Thus, under the termination for convenience tion.64 provision in AIA Document A201, the owner is effectively Thus, under the new Document B141 the designer held responsible for payment of statutory damages for has complete control over the design documents and is in breach of contract.60 This is a far cry from what most a position to shut down the project in the event of a owners consider to be reasonable terms for termination dispute with the owner. In addition, under the waiver of

DECEMBER 1999 31 consequential damages discussed above, as well as a contractor’s review is now expressly “for the purpose of contract provision permitting the architect to suspend facilitating construction” and not for the purpose of services in the event of non-payment by the owner for discovering errors, omissions or inconsistencies in the any reason,65 the architect cannot be held responsible to contract Documents. A contractor who does not properly the owner for the severe indirect and consequential perform this review, however, will be strictly liable for any damages that most commercial owners will incur if a costs and damages which would have been avoided had it project is shut down and delayed. fulfilled its duties. It should be clear from the above discussion that 3. One-Year Period for Corrective Work architects enjoy significant advantages under the new Like the old version, the new Document A201 specifies a Document B141. The architect’s position is further one-year call-back period for performance of corrective enhanced by provisions in the new Document B141 that (i) work.72 Contrary to popular belief, the contractor’s war- guarantee the architect’s anticipated profits for services ranty obligations do not expire at the end of this one-year not yet performed if the agreement is terminated for period. Rather, the contractor’s potential liability for breach convenience or otherwise without the fault of the archi- of contract, breach of warranty and negligent construction tect,66 (ii) limit the number of certain services that will be extends until the statute of limitation expires. provided by the architect without additional compensa- 4. Second Notice of Default Before Termination tion,67 (iii) mandate additional compensation to the Under the new Document A201, the owner is still architect if the requirements of the project change,68 and required to give the contractor two notices of default before (iv) require that the architect approve any changes in the termination.73 However, the time limit for the second notice A201 agreement that would affect the architect and are is now only three calendar — not business — days. A inconsistent with the B141 agreement.69 second notice given on a Friday afternoon and not cured by Monday could result in termination on Tuesday. B. New Issues for Contractors 5. Architect’s Authority Although the 1997 A201 and B141 documents shift The owner is now required to designate in writing a significant risks to owners, there are also new concerns representative who has express authority to provide for contractors. approvals or authorizations on behalf of the owner.74 1. Contractor’s Design Responsibility Absent written designation by the owner, the contractor A controversial new paragraph in Document A201 cannot assume that the architect has such authority. Also, addresses the contractor’s responsibilities for design. The under a new paragraph in Document A201, substitutions provision provides some new protection to the contractor may be approved only by the owner.75 The architect has by requiring the architect to state specifically when the no independent authority to approve substitutions. design services of the contractor are needed. Once design The new AIA documents create significant issues for responsibilities are delegated, the contractor becomes all involved in construction projects using these form solely responsible for them, and the architect is permitted agreements. Substantial risks have been reallocated in to rely on their adequacy, accuracy and completeness.70 ways that may not always be anticipated by the parties Left hanging are numerous questions including how involved. However, in virtually all cases the parties will specific the architect’s delegation needs to be and what engage in negotiations over the final form of the documents. interpretation should be given to mixed specifications that All of the above provisions are subject to change, deletion include both prescriptive specifications and performance or modification by the parties before reaching final agree- requirements. Contractors should be sure to obtain clear ment. Accordingly, prior to entering into any agreements, instructions concerning delegated design before bidding even form agreements as widely used as the AIA, it is on, or signing a contract for, a project using the new imperative that competent legal counsel be consulted. U Document A201. Contractors should also pay close attention to their own insurance and that of their subcon- William H. Hughes, Jr., a partner in the construction practice group of tractors, to make sure that the risks arising from delegated Alston & Bird, has a national construction law practice design are covered. involving projects in 22 states and Mexico. He received 2. Contractor’s Responsibility for Comparing his B.A. degree from the University of North Carolina Design to Field Conditions in 1980, and his J.D. from the University of Virginia in A new paragraph in Document A201 relaxes the 1983. Hughes has been a member of the State Bar’s standard for the contractor’s review and comparison of the Litigation Section since 1983, and has served as direc- design documents with field conditions, but imposes strict tor and chair of the Construction Law Section of the 71 penalties for failure to conduct such a review. The Atlanta Bar Association.

32 GEORGIA BAR JOURNAL Stephen Reams works in the construction litigation practice group of S.E.2d 739 (1983). But see Ramey, 205 Ga. App. 128, 421 Alston & Bird. Previously, he practiced construction S.E.2d 555. Ramey made it possible to extend the period of limitations significantly if the subsequent owner can state litigation in Tampa, Florida. He graduated from the a cause of action for fraudulent concealment. In Ramey, University of Notre Dame School of Law in 1996, where the Court ruled that a claim for fraudulent concealment of he served as an articles editor for the Journal of Legisla- negligent construction could be brought by any subse- tion. Reams received his B.A. in economics from Centre quent purchaser of a building, at any time within four years after that purchaser discovered a defect. Ramey, 205 College. He is admitted to practice in Florida. Ga. App. at 130-31, 421 S.E.2d at 558. 20. 237 Ga. App. 483, 515 S.E.2d 629 (1999). 21. Id. at 486, 515 S.E.2d at 633 (citing Comerford v. Hurley, 154 Ga. App. 387, 388, 268 S.E.2d 358, 360, aff’d, 246 Ga. En dn otes 401, 271 S.E.2d 782 (1980). 22. The form contracts published by the American Institute of 1. Plato, CRATYLUS, 402A. Architects (“AIA”), the Associated General Contractors 2. See, e.g., Hudson v. Santangelo, 228 Ga. App. 768, 492 (“AGC”) and the Engineers Joint Contract Documents Com- S.E.2d 673 (1997) (injured contractor sued owner for person- mittee (“EJCDC”) all include mandatory arbitration provi- al injuries based on theory that owner served as his own gen- sions. eral contractor; contractor failed to establish evidentiary basis 23. 9 U.S.C. §§ 1-2 (1999); see, e.g., Medical Development for negligent construction). Corp. v. Industrial Molding Corp., 479 F.2d 345, 347 (10th 3. See, e.g., Ramey v. Leisure, Ltd., 205 Ga. App. 128, 421 Cir. 1973). S.E.2d 555 (1992). 24. 489 U.S. 468, 109 S.Ct. 1248 (1989). 4. Id. 25. 220 Ga. App. 790, 469 S.E.2d 759 (1996). 5. Id. at 128, 421 S.E.2d at 556. 26. Id. at 791-92, 469 S.E.2d at 761-62. See generally Douglas 6. Id. H. Yarn, Alternative Dispute Resolution, Practice and Proce- 7. Id. at 130-31, 421 S.E.2d at 558. dure in Georgia § 8-11 (2d ed. 1997). 8. 204 Ga. App. 833, 420 S.E.2d 763 (1992). 27. 205 Ga. App. 561, 422 S.E.2d 918 (1992). 9. Id. at 834, 420 S.E.2d at 765. 28. Id. at 562, 422 S.E.2d at 919. 10. 226 Ga. App. 765, 487 S.E.2d 362 (1997). 29. See Haddon v. Shaheen & Co., 231 Ga. App. 596, 499 S.E.2d 11. Id. at 766, 487 S.E.2d at 363-64. 693 (1998); Akintobi v. Phoenix Fire Restoration Co., 236 12. Hudson, 228 Ga. App. at 773, 492 S.E.2d at 677; see also Ga. App. 760, 761, 513 S.E.2d 507, 508 (1999) (parties im- Cherry, 204 Ga. App. at 833, 420 S.E.2d at 765 (actionable plicitly agreed to arbitrate attorney’s fees during the course of negligence defined as the “failure to adhere to the estab- the arbitration). lished and accepted standards of professional care or con- 30. See Yarn, supra note 25, § 8-51 (Supp. 1999) (citing Marshal duct in the community, which defect the builder knew or & Co. v. Duke, 114 F.3d 188 (11th Cir. 1997). should have known by the exercise of ordinary care” 31. 266 Ga. 592, 468 S.E.2d 350 (1996). (quoting Williams v. Runion, 173 Ga. App. 54, 57, 325 32. O.C.G.A. § 9-9-13(b). Under O.C.G.A. § 9-9-13(b)(4), the S.E.2d 441, 446 (1984)). fourth ground may be waived if the party moving to vacate 13. 221 Ga. App. 817, 472 S.E.2d 709 (1996). continued the arbitration without objection after becoming 14. Id.; see also Rentz v. Brown, 219 Ga. App. 187, 188, 464 aware of the arbitrator’s failure to follow the Code. S.E.2d 617, 619 (1995); Hudson, 228 Ga. App. at 773, 492 33. 218 Ga. App. 193, 461 S.E.2d 250 (1995). S.E.2d at 677. 34. Id. at 197, 461 S.E.2d at 254. 15. Advanced Drainage Systems, Inc. v. Lowman, 210 Ga. App. 35. Greene, 266 Ga. at 595, 468 S.E.2d at 352 (citing Raymer v. 731, 437 S.E.2d 604 (1993). Exceptions are made for sudden Foster & Cooper, Inc., 195 Ga. App. 200, 201, 393 S.E.2d 49 and calamitous events that pose an unreasonable risk of inju- (1990); Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., ry to persons or property other than the product itself and for 176 Ga. App. 232, 236, 335 S.E.2d 708, 711-712 (1985)). certain acts of misrepresentation. Id. at 734, 437 S.E.2d at 36. Id. at 597, 468 S.E.2d at 354. 607. 37. 9 U.S.C.A. § 10(a) (1999). 16. See, e.g., Ramey, 205 Ga. App. 128, 421 S.E.2d 555; Cherry, 38. 68 F.3d 429 (11th Cir. 1995). 204 Ga. App. 833, 420 S.E.2d 763; Jennings v. Smith, 226 39. Id. at 435 (citing Raiford v. Merrill Lynch, Pierce, Fenner & Ga. App. 765, 487 S.E.2d 362 (1997); Bilt Rite of Augusta, Smith, Inc., 903 F.2d 1410, 1412 (11th Cir. 1990); Ainsworth Inc. v. Gardner, 221 Ga. App. 817, 472 S.E.2d 709 (1996). v. Skurnick, 960 F.2d 939, 941 (11th Cir. 1992)). 17. Fort Oglethorpe Associates II, Ltd. v. Hails Construction Co. 40. 141 F.3d 1007 (11th Cir. 1998), cert denied, ____ U.S. ____, of Georgia, 196 Ga. App. 663, 396 S.E.2d 585 (1990). 119 S. Ct. 798 (1999). 18. O.C.G.A. § 9-3-30 states that “[a]ll actions for trespass upon 41. Scott v. Prudential Securities, Inc., 141 F.3d at 1017 (citing or damage to realty shall be brought within four years after Montes v. Shearson Lehman Bros., Inc., 128 F.3d 1456 (11th the right of action accrues.” Cir. 1997)). 19. Travis Pruitt & Assoc. v. Bowling, 238 Ga. App. 225, 225, 42. O.C.G.A. § 44-14-361(a)(2) (Supp. 1999). 518 S.E.2d 453, 454 (1999) (“a cause of action in negligence 43. Northside Wood Flooring, Inc. v. Borst, 232 Ga. App. 569, accrues and the statute of limitation begins to run when there 572, 502 S.E.2d 508, 510 (1998), cert. denied, (Ga. Oct. 2, is a negligent act coupled with a proximately resulting inju- 1998). ry”); Corporation of Mercer Univ. v. National Gypsum Co., 44. O.C.G.A. § 44-14-361.1(3) (Supp. 1999). 258 Ga. 365, 368 S.E.2d 732 (1988); Millard Matthew Build- ers, Inc. v. Plant Improvement Co., 167 Ga. App. 855, 307 Continued on page 87

DECEMBER 1999 33 FEATURES

Board of Governors Convenes in Brasstown Valley for Fall Meeting

By Jennifer M. Davis as follows: James B. Franklin, of policy to allow the Bar secretary the Statesboro for president-elect; James sole discretion to grant an excused THE NORTH GEORGIA MOUN- B. Durham of Brunswick for a absence. tains were ablaze with color when the second term as treasurer; and Will- The Board also heard a report Board of Governors convened at the iam D. Barwick and Phyllis J. from the committee investigating Brasstown Valley Resort from Nov. Holmen, both of Atlanta, in a con- apportionment of the Board of 12-14, 1999. The Fall Meeting tested race for secretary. Governors. Committee co-chair John opened in the foothills of the Blue Next the Board voted to amend Chandler discussed his group’s Ridge mountains on Friday evening Bylaw Article X, Section 1 to change struggling to balance the size of the with a campfire cookout under the the age of the ABA Delegate from the Board with the growing population of stars. Young Lawyers Division from 35 to lawyers and their need for a represen- On Saturday morning the Board 36 (to be in agreement with the ABA tative voice. Among other research, of Governors for its last meeting of YLD age cut off). they are surveying how other bar the millennium. Meanwhile, their Then the following ABA del- associations’ boards are configured. spouses and guests experienced the egates were nominated for 2-year region’s Cherokee Indian heritage by terms (2000-2002): Allan Jay Bar Cen ter Usage exploring illustrations of native Tanenbaum, Post 1; Cubbedge Snow Indian arts and crafts, followed by an Jr., Post 3; S. Kendall Butterworth, The Board also reviewed a draft interactive session on the art of Post 5 (YLD); Linda A. Klein, Post strategic plan to outline the usage of pottery. 7. the Bar Center, since we will begin While the guests reflected on the Ballots — which will include the the move-in process in about two history of the area, Board members officers, ABA delegates and con- years. The preamble states the “plan looked to the future. In doing so, the tested races for Board of Governors’ is dedicated to the recognition that all Board addressed two of its most posts — were mailed on Dec. 15 and members are entitled to benefit important duties — nominating are due back at Bar headquarters by financially and professionally from candidates for officer positions and Jan. 26. their investment in the future of the setting the Bar’s legislative agenda. legal profession in Georgia.” Further- To find out what the Bar will be Board Apportion men t an d more, the mission statement regard- monitoring when the General Assem- ing the new headquarters professes: bly convenes in January 2000, please Atten dan ce The Bar Center is the home of see the article on page 36. The With elections on their minds, the the lawyers of Georgia. It is their complete text of the legislative Board of Governors debated the professional gathering place. As proposals also appear on the Bar’s current attendance policy which such, it is dedicated to sere all Web site at www.gabar.org/ga_bar/ requires members to attend at least members of the State Bar and the legislat.html. 50 percent of the Board meetings held public through the administration of during the Bar year, unless the justice in the highest traditions of the Nomin ation of Can didates absence is excused by the Executive legal profession. All Georgia lawyers Committee. The Board decided the welcome to enjoy their new home The slate of candidates for the present list of excused absences was today and for many decades to come. 2000-2001 election were nominated too limiting, and voted to amend the Executive Director Cliff Brashier

34 GEORGIA BAR JOURNAL 123 4

1. Board member Walter Hartridge goes for a trail ride. 2. Treasurer Jim Durham reports on the Bar’s finances. 3. Secretary Jimmy Franklin of Statesboro was nominated for 2000-2001 president-elect. 4. (l-r) Board member Forrest 9 Champion and President Rudolph Patterson enjoy Friday’s cookout. 5. (l-r) Board members Fielder Martin and Judge Johnny Mason study the agenda at their meeting. 6. On Friday evening, Board 5 member Tina Roddenbery stays warm by the fire with her daughter, Megan, and husband, 8 Hansell. 7. Board member Chuck Driebe and Past President Linda Klein visit at the open- ing dinner. 8. Judge Bonnie Oliver talks with (l-r) her husband, Andy, and fellow Board members Todd Carroll and Robert Ingram on Saturday night. 9. President Rudolph Patterson (left) and YLD President Joe Dent don their cowboy duds, alongside Margaret 7 Patterson (right) and Christy Moore. 6 announced that the Bar’s leasing proved funding for a reporter to Other Busin ess agent Cushman & Wakefield will compile the group’s findings. Profes- begin pre-leasing space. The strategic sor Christopher Wells of Mercer Other highlights from the Board plan will be submitted to the Board of University will fulfill that role as the meeting were: Governors for adoption at the Mid- committee explores issues including: w The following sections changed year Meeting in January 2000. The client confidences, professional their section year to coincide with plan will then be published for Bar independence, conflicts of interest, the State Bar’s fiscal year: Avia- members’ review in a future Journal. unauthorized practice of law, fee tion, Administrative, Computer, splitting, certification and discipline, and General Practice & Trial. Multidisciplin ary Practice and interstate and cross border w William E. Cannon Jr. and Aasia activities. Mustakeem were appointed to a 2- Another look into the future Finally, Disciplinary Rules & year term on the Commission on addressed one of the hottest Procedure chair Judge Ed Carriere Continuing Lawyer Competency. buzzwords to enter the legal arena: reported his committee is exploring w Members were urged not only to multidisciplinary practice. If you the confidentiality rule, which sign up for the Bar’s speakers need proof, you need only look to currently mandates silence prior to a bureau, but also to contact their Europe where Arthur Andersen is the finding of probable cause. The local community and school largest law firm. Linda Klein, who is committee is reviewing case law on groups to schedule lawyer speak- heading a committee to study the the subject as they formulate a ers. For more information call issue in Georgia, announced the recommendation for the Board of Bonne Cella at (800) 330-0446. U Georgia Bar Foundation had ap- Governors to consider.

DECEMBER 1999 35 FEATURES State Bar Gears Up for 2000 Georgia General Assembly

By Mark Middleton the Georgia Appellate and Educa- of Governors (BOG) for approval at tional Resource Center. either its November or January AFTER A SUCCESSFUL 1999 meeting. session of the General Assembly, the Developmen t of The 2000 The BOG at its November State Bar is preparing its agenda for meeting has approved the following the 2000 session that begins in Legislative Agen da items to be part of the State Bar’s January. This will be the second Between legislative sessions, the legislative package for the 2000 session of the two-year term served various Sections of the State Bar General Assembly Session: by the current members of 1) Funding for the legislature. It is ex- Domestic Violence. The pected that the Governor’s BOG approved the pro- agenda will again dominate posal of the Women & the session as his Educa- Minorities in the Profes- tional Reform Commission sion Committee to fund the comes forth with its Domestic Violence Pro- recommendations. gram at 2.25 million dollars, an increase of Review of 1999 $150,000.00 and consistent with the Chief Justice’s Session budgetary request to the Last year the General Governor. There is no Assembly passed State Bar known opposition to the endorsed bills which continued funding of this expanded the Georgia program. “This program is Court of Appeals from ten proving its worth by saving to twelve members, updated countless women and the corporate code, revised the meet to prepare the legislative and children from the harmful effects of Limited Partnership and Liability funding proposals affecting their domestic violence,” says Chief Company Acts, and improved the specific area of practice. These Justice Robert Benham. process for canceling security deeds Section proposals are forwarded to 2) Funding for Indigent Defense in real estate closings. The State Bar the State Bar’s Advisory Committee Council. The BOG approved the also was successful in advocating on Legislation (ACL) for consider- request of the Indigent Defense increased appropriations for the ation. The ACL reviews the propos- Committee to increase the funding to Court Appointed Special Advocates als individually to determine whether the levels set forth in the Chief (CASA) Program, the Victims of the proposal is within the scope and Justice’s request for supplemental Domestic Violence Program, the purpose of the State Bar. If the ACL and FY2001. The State currently Indigent Defense Council, judicial determines to recommend the pro- appropriates 4.1 million dollars for pay raises, and continued funding for posal, the item is taken to the Board the Georgia Indigent Defense Coun-

36 GEORGIA BAR JOURNAL cil, and $900,000 for the Multi- provision protects against computer member can join a section of the Bar County Public Defender’s Office. system failures and addresses ques- and participate in its legislative The funds requested by the Commit- tions over accuracy and availability activities. Historically, the two most tee for FY2001 total $9.1 million. of records. H.B. 597 passed the active sections — the Corporate and 3) Funding for Georgia Appel- House and the State Bar expects that Banking Section and the Real Prop- late Practice & Educational Re- it will be among the first House bills erty Law Section — have passed bills source Center. The Resource Center, considered in the Senate during the in virtually every session in the established in 1986, through the 2000 Session. 1990s. The Fiduciary Law and efforts of the State Bar, exists to Also, the State Bar supports the Criminal Law Sections are quite provide post-conviction support to effort to create a state-funded juvenile active as well. Also, other sections attorneys of indigent sentenced to court in every jurisdiction. This such as the General Practice & Trial death. The legislature currently funds would provide improved service in Law Section are proactive in provid- the Resource Center at $500,000, and areas that do not have a designated ing information on bills affecting the the BOG approved supporting the juvenile court judge and provide practice of law. The Young Lawyers Center’s request for a total appro- budgetary relief to counties that do Division holds an annual legislative priation of $700,000. The Chief have juvenile court judges. H.B. 182, breakfast that is very well attended. Justice has included this item in his has passed the House and will be Another excellent way to participate budgetary request to the Governor. taken up by the Senate in the 2000 is by making the voluntary legislative 4) Funding for Georgia Court session. Also, the Bar will support contribution to the State Bar. This Appointed Special Advocates. The the efforts to have this initiative fully year about 50 percent of Georgia BOG supports seeking a total appro- funded by the legislature. lawyers contributed to the legislative priation of $1,231,250 for FY 2001. Another Bar endorsed initiative program. This is an increase of approximately carried over from the last session is The recent years have brought $500,000. This request for increased H.B. 708, authored by Tom Bor- continued success for the State Bar’s funding is consistent with the Senate deaux (D-Savannah) which would legislative activities. We should all be Study Committee on Foster Care and conform service procedures to the thankful for the many lawyers who Adoption that recommends an Federal Rule. The members are have provided leadership, expertise, expansion of the CASA Program. currently studying this bill in the and commitment to the legislative “The CASA program is important to House Judiciary committee. efforts of the Bar. In particular, we the lives of the children who would be Finally, the Bar will continue to are grateful for those lawyers who otherwise unrepresented,” said State support S.B. 176, authored by have sacrificed to serve the people of Bar President Rudolph Patterson. Senator Clay Land (R- Columbus). our state as members of the General “We need to continue to support this This is an important Bar initiative Assembly. Because of these efforts, fine program.” that would create a procedure for the influence of the State Bar contin- The State Bar will undoubtedly collecting basic case filing data on a ues to grow. As we approach the add items to its agenda at the Board statewide basis. If approved, this 2000 Session of the General Assem- meeting in January. initiative would allow the Bar and bly, the State Bar will continue to policy makers to obtain reliable data work in a nonpartisan, proactive way Carryover Bills to Be to consider in matters relating to the to help shape the future of our practice of law and the allocation of profession and the great state of Con sidered in 2000 resources in the judicial branch of Georgia. Session government. There are also many ways to monitor the legislative activity of the The legislature will also consider Membership Participation State Bar. For full texts of State Bar bills that the State Bar endorsed last proposals, go to the Bar’s Web site at year. For example, the Real Property in State Bar Legislative www.gabar.org/ga_bar/legislat.html Section initiated H.B. 597 authored Activities or call the State Bar legislative by Allen Hammontree (R-Cohutta). representatives Tom Boller, Rusty This bill requires Superior Court A number of opportunities exist Sewell, Wanda Segars, and Mark Clerks to maintain printed copies of for lawyers who would like to Middleton at (404) 872-2373 or the grantor/grantee index even if they become active in the legislative (770) 825-0808 for further legislative computerize the filing system. This efforts of the State Bar. A bar information. U

DECEMBER 1999 37 FEATURES Georgia Bar Foundation Awards $2.4 million in Grants

By Len Horton Lawyers Foundation, Georgia Access To Justice Project, Georgia Justice Project, Georgia Law Center on AT ITS ANNUAL GRANT DECISION MEETING, Homelessness and Poverty, Southeast Georgia Communi- held on Sept. 17, 1999, the Board of Trustees of the Georgia ties Project and State Bar of Georgia Pro Bono Project all Bar Foundation approved 28 grants totaling $2,466,000 — received assistance. the largest total amount ever awarded in one year. The 28 Educating Georgia’s youth received a high priority. different grant recipients were selected from among 43 The Youth Judicial Program of the State YMCA intro- applicants requesting $3,149,000. The total amount pre- duces 11th and 12th graders to our judicial system, from sented was in addition to $2,346,195 awarded by order of the trial to appellate courts, by having them debate both sides Supreme Court of Georgia to the Georgia Indigent Defense of an issue before a panel of lawyers and judges. The Council and the Georgia Civil Justice Foundation by the end recipient of $9,400 this year, it is a very popular and of the just completed fiscal year. highly praised program that has been supported by the “This meeting did a world of good for needy Geor- Foundation annually since 1986. gians through the support we were able to give to a Also, the YLD High School Mock Trial Committee, number of law-related organizations throughout the state,” which has received grant awards from IOLTA money said William D. Harvard, president of the Georgia Bar annually since 1986, received $71,000. With the help of Foundation. “Georgia’s lawyers, working in partnership funding from the Foundation, it has become an effective with Georgia’s bankers as part of the Interest On Lawyer and popular part of a comprehensive, law-related educa- Trust Accounts program, are helping provide legal tional curriculum in many Georgia schools. Students gain services to people who cannot afford an attorney, insuring a basic understanding of how our judicial system helps that everyone has the right to be represented in court, no resolve disputes by playing the roles of attorneys and matter who they are or where they live or what their witnesses in a fictitious case. circumstances may be.” A major educational effort targeting Georgia’s school Harvard added, “We continued to help children including children is the Georgia Law-Related Education (LRE) those who have been abused by their parents, those who need Consortium of the Carl Vinson Institute of Government at help to avoid living lives involved with drugs and crime, and the University of Georgia. This year’s grant award of those who need to learn about our form of government $75,000 insures that the LRE Consortium will help including the judicial system. Because we had more money provide civics education to children from kindergarten than usual to award as a result of having completed the best through the 12th grade. year in our history, we were also able to fund a couple of As it has for many years, the Foundation continued to projects that directly improve the judicial system. All Georgia help children in other ways as well. The Adopt-A-Role- attorneys should be proud of their contributions, which Model program in Macon, the Athens Area Child Abuse enabled the grant awards of this Board.” Prevention Council, the Barrow County Children’s Advocacy Grants to support civil legal services for people who program, the Children’s Tree House in Columbus, and Kids cannot afford a lawyer were funded at 100 percent of the in Need of Dreams all received grant awards. requested amount of $1,688,000 — the largest amount Since 1988, the Foundation has been a major sup- ever awarded to both Georgia Legal Services and Atlanta porter of CASA, the Court Appointed Special Advocates Legal Aid in one year. The Foundation also awarded program in Georgia. The $35,000 awarded this year will grants to several other organizations working to help be used to help create several new programs throughout provide legal assistance to the poor. The Atlanta Volunteer the state. The premise of CASA is that children need

38 GEORGIA BAR JOURNAL advocates for them in court proceedings regarding their Amendment Foundation conducts a series of workshops in abusive parents. The program encourages volunteers to rural Georgia to educate people about the importance of assist in these cases and to continue to look after the needs open meetings and the First Amendment. of these kids. The Diversity Program of the State Bar of Georgia Helping people about to be released from prison was the received a $10,000 award to assist minority attorneys in major focus of the grant to the BASICS World of Work, becoming part of the law firm mainstream in Georgia. which is managed by Ed Menifee, a leader of efforts to help State Bar President Rudolph Patterson’s request to people avoid returning to crime after being released from receive funds to hold hearings on the concept of multidis- prison. Menifee and his staff conduct training programs in ciplinary practice in law received funding. The goal is to transition and diversion centers throughout Georgia. Since decide how to deal with the growing public interest in 1986, the Foundation has consistently supported this popular, combining law practice with accounting and other services much praised program, which boasts a low recidivism rate. to clients. Also, the Foundation funded a program to The Georgia Justice Project is another criminal-law- insure that certified interpreters are available in Georgia related grantee receiving funds. This program, too, special- courts, which are experiencing increasing numbers of izes in returning “lost cause” people to productive, law- litigants who do not speak English. abiding lives. By making these people, in effect, a part of the These 28 grants represent a significant contribution of family of staff members the lawyers and bankers who run the program, of Georgia, working GJP creates an artificial together for the good of but realistic family all Georgians. A com- environment where plete listing of all grants pleasing a new family awarded is available becomes more important upon request. than falling back into a In addition to these life of crime. This discretionary grant program is managed by awards, the Foundation, Doug Ammar and by order of the Supreme received $45,000. Court of Georgia, gives 40 Since 1989, the percent of all net Interest Lowndes County Drug State Bar President Rudolph N. Patterson (second from right) On Lawyer Trust Ac- Action Council has presents a Georgia Bar Foundation grant to Macon’s Adopt-A- counts (IOLTA) revenues become a special project Role-Model program. Accepting are (l-r) Jestine “Tina” Dennard, to the Georgia Indigent of the Foundation. This program co-founder; Susan S. Cole, president of the Macon Defense Council (GIDC). program has taken the Bar; and Alex C. Habersham, program co-founder. (Photo by C. The GIDC channels streets back from drug Richardson, Macon Telegraph) money to Georgia’s dealers in Hudson counties to help pay for Docket and Ora Lee West housing projects in Valdosta. legal assistance to people charged with crimes. Prodded by attorney Steve Gupton, the Valdosta Bar Asso- The Supreme Court of Georgia has also ordered that ciation has made LODAC its major project. LODAC has 10 percent of net IOLTA revenues should go to the become a model for how cities can fight crime and win. Georgia Civil Justice Foundation (GCJF), which is the Standing for the principle that everyone in this country, charitable arm of the Georgia Trial Lawyers Association. even those in prison, are entitled to legal representation, the GCJF specializes in developing programs to educate the Foundation made grants to both the Southern Center for public about the civil justice system. Human Rights and Aid To Children of Imprisoned Mothers Through you, the lawyers of Georgia, and your (AIM). The Southern Center helps solve the legal problems participation in IOLTA, and with the assistance of Geor- of inmates in the Georgia prison system while AIM concen- gia bankers and the guidance of the Supreme Court of trates on helping imprisoned mothers reduce the impact of Georgia, the Georgia Bar Foundation has become your their confinement on their children. charitable organization devoted to helping solve some of Two new educational programs received funding this the most important and challenging legal problems of the year. The Atlanta Lawyers for the Arts conducts seminars state. U to educate artists about important legal issues such as copyright, licensing and contracts. The Georgia First Len Horton is executive director of the Georgia Bar Foundation.

DECEMBER 1999 39 FEATURES

Providing and Protecting Assets For a Person With a Disability

By Robert M. Fink The Georgia Solution disability an opportunity to provide for their own special needs. Under A TRANSFER OF ASSETS BY The Georgia Community Trust this law, a community trust must be gift or inheritance, intended to benefit solves this dilemma. An individual sponsored by a nonprofit corpora- a disabled heir, can in fact be de- can transfer assets to the Trust for the tion,6 and trustees are required to pleted on expenses that would benefit of an intended beneficiary. A have experience in business, finance, otherwise have been covered by judgment or settlement payment can investment management, and provid- public assistance programs. Gener- be made to the Georgia Community ing services to persons with disabili- ally, a person with a disability is Trust for the benefit of the benefi- ties.7 An eligible beneficiary must entitled to receive both Supplemental ciary. Through this arrangement the have a disability that substantially Security Income (SSI) and Medicaid beneficiary does not forfeit basic care limits one or more major life activi- benefits. These public assistance he or she may receive through public ties, whether the impairment is benefits are based on financial need, assistance programs since the assets congenital or acquired by accident, measured by a maximum allowable in the Trust are not considered assets injury, age, or disease.8 income of approximately $500 per of the beneficiary.2 The assets in the The Georgia Community Trust the month and a maximum allowable Trust can then be used to enrich the only community trust in the state, is resource amount of $2,000, excluding life of the beneficiary by covering sponsored by Ridgeview Institute, Inc., a residence and other specified expenses complementary to those a non-profit behavioral health facility assets.1 benefits provided by public assis- in Smyrna, Georgia. The National A beneficiary with a disability tance.3 The funds can be used for Mental Health Association of Georgia will lose public assistance eligibility, supplemental education, private is a supporting sponsor organization. if his or her total assets after receiv- rehabilitation, recreation, entertain- Until the Trust has a large number of ing a gift or bequest exceed the ment, medical and diagnostic treat- beneficiaries to require a full-time maximum allowable amount. Simi- ment beyond Medicaid benefits, administrator, the President of larly, a judgment in a lawsuit for services of a caretaker, and the Ridgeview Institute will serve as injury or a payment in settlement of a purchase of furniture for the person Executive Director without compensation. dispute disqualifies a person with a with the disability.4 disability from receiving public Legislation making the Georgia How the Georgia assistance benefits when the payment Community Trust possible was results in total assets exceeding the passed by the Georgia General Commun ity Trust maximum allowable amount. The Assembly and signed by Governor Helps Families person with a disability must then use Zell Miller in 1996.5 The law is these resources toward costs that intended to help Georgia citizens Bob Seamons* is an 80-year-old would have been covered by SSI and provide for the special needs of widower with an estate of $20,000. Medicaid and will not qualify for SSI family members with a disability He has two adult sons, Robert and or Medicaid until the assets are while preserving assets for the other Richard. Robert, who has a develop- depleted. members of the family as well. It also mental disability, has lived in a state is intended to give a person with a institution for 40 years and receives

40 GEORGIA BAR JOURNAL both Medicaid and SSI benefits. Bob Commun ity Trust With of the Trust’s assets will be invested would like his estate to help Robert. in a taxable bond fund that provides a But if he leaves his money directly to In dividual Accoun ts high level of current income from him, Robert will be forced to leave The Georgia Community Trust is diversified portfolios of fixed income the state institution or will be charged considered one trust fund for invest- investments. Funds will also be for his care. Bob’s $20,000 estate ment and management purposes.9 invested in an equity fund of domestic will be quickly depleted and Robert Individual beneficiaries of the fund common stocks that pay dividends. will have to go back on public have separate accounts to which net assistance. Richard will inherit none income is credited in proportion to Georgia Commun ity Trust II of his father’s money at either his each beneficiaries contribution.10 father’s or his brother’s death. These proportions change depending The short-term goal of the The Georgia Community Trust on expenditures allocated to indi- Georgia Community Trust II is to offers Bob Seamons a new option. He vidual beneficiaries. For example, keep funds available to meet the can place all or part of his assets in assume that the trust has ten benefi- immediate needs of each beneficiary the Trust to benefit Robert. Richard ciaries, and $10,000 has been con- and the long-term goal is preservation can serve as co-trustee to authorize tributed to each of their accounts. of capital with some amount of expenditures for Robert’s special Each beneficiary receives 10% of the growth. To achieve the short-term needs. For example, the money can income from the Trust. goal, trustees invest in a quality be used to enroll Robert in a When $5,000 from the Trust has money market fund that ensures woodshop class at a local community been distributed to cover the needs of ready cash. For capital preservation center and can pay for a trip to a beneficiary, his allocation percent- with some amount of growth, most of California to visit Richard and his age becomes 5.16% ($5,000/ the Trust’s assets will be invested in family — including the cost of $95,000); the allocation for the other certificates of deposit of national caretaker to accompany him. At nine beneficiaries increases to banks and U. S. Government Obliga- Robert’s death the assets in his Trust 10.54% ($10,000/$95,000). tions. account will be transferred to Rich- ard in accordance with Bob Successor Ben eficiaries Appoin tmen t of a Seamons’ wishes. When the donor transfers assets Co-trustee How the Georgia to the Georgia Community Trust, Each donor creating a trust successor beneficiaries are desig- account appoints a co-trustee, usually Commun ity Trust Helps a nated.11 Upon the death of the person a family member, to advocate for the Recipien t of a Judgmen t with the disability, the remaining beneficiary with the disability and balance in the account of the benefi- request funds to cover particular Jim Stack* is a 30-year-old ciary will be distributed to the expenses.12 The co-trustee is the individual with a disability. He successor beneficiary. liaison between the Trust and the receives monthly SSI payments and beneficiary. Medicaid benefits. Jim is injured in Georgia Commun ity Trust I an automobile accident caused by the Fees driver of a truck. He engages an The Georgia Community Trust attorney and sues the owner of the consists of two trusts, Trust I and Fees for establishing and main- truck for damages. A judgment is Trust II. The donor of the funds taining a Trust account are: awarded to Jim Stack in the amount selects a trust fund based upon w Initial enrollment fee: a one-time of $20,000. When he receives the desired investment goals. The short- $300 fee paid by the person who payment, he will forfeit his right to term goal of the Georgia Community will transfer assets to the Trust. receive SSI and Medicaid benefits Trust I is to keep funds available to w Consultation fee: a $400 fee to until his assets are reduced to $2,000. meet the immediate needs of each cover consultation to the co- If, however, he transfers the funds beneficiary and the long-term goal is trustee. This fee is charged at the from the judgment to the Georgia capital growth. To achieve the short- end of each calendar year (pro- Community Trust for his own special term goal, trustees invest in a quality rated if for a period of less than needs, he will not lose his eligibility money market fund that ensures twelve months) and is charged for public assistance. ready cash. For capital growth, most against each beneficiary’s account.

DECEMBER 1999 41 In accordance with Georgia law, How Expen ses are Paid the beneficiary’s account cannot be Georgia charged a fee in excess of the for the Ben eficiary income allocated to the account.13 A member of the Expenditure Community Therefore, the principal transferred Committee of the Trustees will to the trust for a beneficiary will approve all requests to ensure that only be used for the needs of the only expenditures permitted by the Trust beneficiary. various public assistance programs are authorized by the Georgia Board of Protectin g a Judgmen t or Community Trust. Income and principal may be used only to provide Trustees Settlemen t Paymen t non-cash benefits for special needs of A judgement or settlement the disabled person beyond the basic agreement may provide for payment support offered by Medicaid and SSI. Robert M. Fink, Founder and CEO of to the Georgia Community Trust for When these requirements are met, the Ridgeview Institute; former partner of the benefit of the person with the disabled person retains his eligibility Troutman Sanders LLP, and former disability. The judgement or settle- for public assistance. partner of Coopers & Lybrand. ment may also designate a co-trustee Rodney F. Banks, Executive Vice and provide for payments to succes- Man agemen t of the Trust President of Bank of America; Trustee sor beneficiaries. Since the funds of Kennesaw State College, and the resulted from a lawsuit brought on The Georgia Community Trust is Foundation for Medically Fragile behalf of the beneficiary, the funds managed by its board of trustees Children. will be considered to be donor- shown below. The Georgia Commu- beneficiary funds. nity Trust was created in January Ira E. Cavallo, President, The 1998 and currently has twelve Georgia ARC/Network. Don or-Ben eficiary beneficiaries. U Beth English, Executive Director, Southwest Georgia Easter Seal If a donor designates himself or En dn otes Society, Inc. and past president of herself as the life beneficiary, then the The Georgia ARC/Network . account of the life beneficiary is 1. 42 U.S.C.A. §§ 1381-1383 (1991, Elizabeth Finnerty, Executive subject to certain limitations. In such 1992 & Supp. 1999). Director of Skyland Trails, a nonprofit case the contribution to the Trust is 2. O.C.G.A. § 30-10-3(a) (1997). mental health residential facility, and irrevocable and the donor or spouse 3. Id. § 30-10-1(5). Executive Director of the George cannot serve as co-trustee.14 The 4. Id. § 30-10-6(b)(6). West Mental Health Foundation. funds remaining in the account upon 5. Id. § 30-10-1. the death of the life beneficiary may 6. Id. § 30-10-4. Ruthann P. Lacey, Esq., Attorney be distributed to a successor trust for 7. Id. specializing in Elder Law. the benefit of indigent persons with a 8. Id. §§ 30-10-6(b)(1), 30-10-2(5). George Olsen, Investment Vice 15 disability. If the donor-beneficiary 9. Id. § 30-10-6(b)(2). President, J.C. Bradford & Company, designates a successor beneficiary 10. Id. Atlanta, Georgia. other than the supporting Trust, then 11. Id. § 30-10-6(b)(3). upon his or her death, the account 12. Id. § 30-10-6(b)(6). David P. Pollan, Esq., Attorney balance will be subject to repayment 13. Id. § 30-10-6(b)(3). specializing in Elder Law. for medical assistance prior to the 14. Id. § 30-10-6(b)(4)(C). Theresa Prestwood, Director of distribution to the successor benefi- 15. Id. § 30-10-6(b)(4)(B). Development, Childkind. ciary.16 16. 42 U.S.C.A. § 1396p(d)(4)(C) (Supp. 1999). Cynthia A. Wainscott, Executive *Names are fictitious. Director, National Mental Health Association of Georgia. Lynn M. Wilson, Chief Financial Officer, Ridgeview Institute.

42 GEORGIA BAR JOURNAL FEATURES

THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT: New Legislation for E-Commerce?

By Jonathan B. Wilson Institute worked on several drafts of with the result that a consensus could changes to Article 2 of the UCC. not be reached. By February 1999 the ONE OF THE CONCERNS OF After four years of trying, however, process ground to a halt when the software developers and ALI/ABA refused to others promoting the endorse the final draft of growth of e-commerce is Article 2B. The reasons a perceived lack of for the ALI/ABA’s uniformity in the state refusal ran the gamut, laws governing software with some of the ex- licenses and online pressed reasons appear- transactions. Like other ing to contradict each contracts, the interpreta- other. Even in their tion and enforcement of disagreement over the software licenses and points in the final draft, online contracts is largely many of the participants a matter of state law. could not agree on the Because the use of basis for their disagree- personal computers in ment. business is relatively On July 29, 1999, recent by legal standards acting on its own initia- (counting from the mid- tive in an attempt to 1980s, we are fewer than salvage a uniform law 20 years from the begin- from the almost decade- ning of the industry) there long drafting effort, the are relatively few judicial NCCUSL adopted a decisions on the many modified version of the issues that can arise in contracts the ALI and the NCCUSL in 1995 final draft of Article 2B, which they relating to software. agreed that the changes to the law named the Uniform Computer In 1991 the National Conference were so sweeping that they could not Information Transactions Act of Commissioners on Uniform State be accomplished with a mere change (“UCITA”).1 That action marks the Laws (the “NCCUSL”) addressed an to Article 2. The ALI/ABA and beginning of a new chapter in this ABA study group with the hopes of NCCUSL then spent nearly four long running saga, as the NCCUSL beginning a new uniform law that years trying to pull together a new recommends UCITA for adoption by would modify Article 2 of the Uni- uniform law to pre-empt Article 2 in state legislatures in the coming form Commercial Code to better the area of software transactions, to months.2 accommodate computer software be known as Article 2B. licensing transactions. The NCCUSL The Article 2B drafting sessions What Does UCITA Do? convinced the ABA that a change were rancorous. Industry, consumer was needed and from 1991 to 1995 and other advocacy groups coalesced Like the original Uniform the NCCUSL and the American Law around disparate points of interest Commercial Code in whose footsteps

DECEMBER 1999 43 UCITA follows, the UCITA drafters trade secret theories. Copyright is a create, modify, transfer, or license argue that UCITA is consistent with creature of U.S. federal law. Trade computer information or informa- existing common law and commercial secrets are a creature of state law. In tional rights in computer informa- practice (even though an espoused the paradigmatic transaction covered tion.”7 In transactions that involve impetus for UCITA was the elimina- by Article 2 — a sale of tangible both the sale of goods and the tion of inconsistencies and complexi- goods — no analogous rights of a licensing of “computer informa- ties in the current legal framework). seller are involved. tion,”8 UCITA will govern the entire In the prefatory note to UCITA, the Based upon the interplay of state transaction except to the extent drafters argue with an appeal to and federal law on transactions certain provisions of the UCC will history that the need for a new involving rights in computer informa- override UCITA or the opt-out rules uniform law to override Article 2 is tion, the drafters of UCITA argue of Section 104 will cause UCITA not much like the need that existed in the that a new uniform state law is to apply.9 If a copy of computer 1930s for a new uniform law (the required to eliminate the transaction information is included in a sale of 1939 version of Article 2) to override costs associated with creating goods (a term that is not defined) the common law that existed at the contracts under the current legal UCITA will apply to the copy of the time. framework. The drafters claim as computer information.10 However, if The drafters argue by analogy their guiding principles in creating a copy of computer information is that the common law of the 1930s UCITA: contained in and sold or leased as was developed over the preceding (1) the paradigm transaction is a part of other goods, UCITA applies century in the context of a largely license of computer information, to the computer information only if agrarian economy. Common law rather than a sale of goods; “(A) the other goods are a computer rules allocating risk and liability in (2) innovation and competitiveness or computer peripheral; or (B) giving commercial transactions used the have come from small entrepre- the buyer or lessee of the goods paradigm of a sale of agricultural neurial companies as well [as] access to or use of the program is goods (livestock, grains and the like) larger companies; ordinarily a material purpose of rather than the sale of manufactured (3) computer information transac- transactions in goods of the type sold goods. The development of the tions engage fundamental free or leased.”11 economy and the predominance of speech issues; Likewise, UCITA will not apply: manufactured goods over agricultural (4) a commercial law statute should (1) to the extent of a conflict between goods drove the need to develop a support contract freedom and UCITA and Article 9 of the new uniform law to provide default interpretation of agreements in UCC;12 rules in transactions for the sale of light of the practical commercial (2) to any subject matter within the manufactured goods. This paradigm context; and scope of Articles 3, 4, 4A, 5, 6, 7 lies at the heart of Article 2. (5) a substantive framework for or 8 of the UCC;13 Likewise, the drafters argue, Internet contracting is needed to (3) to “a financial services transac- “The economy has changed again. facilitate commerce in computer tion”;14 Goods-based transactions remain information.5 (4) to “a contract to create, perform important, but transactions in intan- Few of the opponents of Article or perform in, including informa- gibles of computer information are a 2B, and now UCITA, have quarreled tion in, acquire, use, distribute, central element of commerce.”3 As with these basic tenets. Rather, modify, reproduce, have access the drafters note, “Software, multi- opposition has grown to the practical to, adapt, make available, media, digital databases, artificial applications of UCITA as it proposes transmit, license, or display (A) intelligence systems, and other to change some baseline assumptions audio or visual programming that computer information products are about the way online contracts is provided by broadcast, satel- governed by an intellectual property operate in today’s business world. lite, or cable as defined in the law dominated by copyright law.”4 Federal Communications Act and The holder of a copyright has an When Does UCITA Apply? related regulations as they existed exclusive right to create copies of the on July 1, 1999, or by similar work. If the software is one where the By its terms, UCITA applies to methods of delivering that owner has kept secret the source code “computer information transac- programming; or (B) a motion for the software, that source code tions,”6 which it defines as “an picture, sound recording, musical may also be protectible under various agreement or the performance of it to work, or phonorecord as defined

44 GEORGIA BAR JOURNAL or used in Title 17 of the United outcome, consistent with both UCITA concerning the claimed breach.19 States Code as of July 1, 1999, and Article 9, could well prove to be These requirements are likely to or an enhanced sound record- a complicated and onerous one. be onerous in an online services ing”;15 In addition contrast to the context where a service provider may (5) to “a compulsory license”;16 or conflicts rules in Section 103, UCITA have millions of customers. With (6) to “a contract of employment of also contains “opt-in” and “opt-out” such a customer base, the service an individual other than as an rules. These rules permit contracting provider could easily have tens of independent contractor.”17 parties to apply UCITA where it thousands of customers in default for might not otherwise apply (opt-in) or non-payment in any given month. Con flicts With Other Laws exclude UCITA where it might Under current law and practice, most otherwise apply (opt-out). The opt- service providers include language in The conflict provisions of out rules have the greatest impact in their contracts allowing for discon- UCITA are extremely complex and consumer transactions (such as the nection of the service in the event of not altogether clear and could easily click-wrap terms and conditions that non-payment, most likely following be the subject of an extended disser- govern most online transactions on some specified grace period. The self- tation. For the purposes of this the Web). Section 104(2) permits the help provisions of UCITA (which, article, it is sufficient to note that parties to agree to exclude applica- per Section 104(2)(A), cannot be they are complicated, implicate a tion of UCITA, other than Section waived) impose a notice requirement, variety of different legal topics and 214 (regarding defenses to liability require personal access for the are likely to be the subject of future allowed to consumers) and Section licensee, and mandate an effective dispute, litigation and academic 816 (regarding a licensor’s use of 15-day waiting period. Importantly, debate. For example, courts will one certain self-help measures). the non-waivable rules governing day likely need to resolve the conflict self-help will apply not only in the between the provisions of an anti- Electron ic Self-help consumer context (where a assignment clause in a software consumer’s ability to negotiate license and the Article 9 rights of As alluded to above, UCITA provisions for notice of default is secured creditors of the licensee to contains certain “self-help” provisions non-existent) but also in the commer- enforce a security interest in the which, if adopted, would make life cial context (where the parties’ ability software or the hardware on which more difficult for providers of online to negotiate notice provisions may the copy of the software resides. service and software that rely on self- vary greatly with the relative strength While UCITA contains a number of help measures. The self-help rules of of the parties). Moreover, even if a provisions regarding the rights of Section 816 generally make self-help licensor complied with all of the financiers who hold a security provisions unenforceable unless they requirements of Section 816, the interest in computer information comply with a long list of require- licensor will not be permitted to outside of Article 9, UCITA permits ments, including (1) the licensee must exercise self-help if it “will result in Article 9 to govern the effect of separately manifest assent to a provi- substantial injury or harm to the security interests in computer infor- sion authorizing electronic self-help; public health or safety or grave harm mation to the extent Article 9 applies. (2) the self-help provision must provide to the public interest substantially Generally, a provision in a software for advance notice of exercise, state the affecting third persons not involved in license subject to UCITA may name of the licensee representative to the dispute.”20 include a provision that prohibits the receive such notice and provide a The impact of these provisions is licensee from assigning any rights “simple” procedure for the licensee to further complicated by the potential under the contract.18 A secured change its representative to receive damages a licensee may recover for a creditor with an Article 9 security notice; and (3) the licensor must wrongful exercise of self-help. In the interest in a computer on which provide at least 15 days’ prior notice to current environment, licensors often resides a piece of software that is the licensee of the exercise of licensor’s try to limit contractually their liabil- subject to a license in which there is self-help remedies. That notice must ity for consequential damages. an anti-assignment clause will need to indicate the nature of the claimed Section 816 permits a licensee to somehow unload, destroy or return to breach, and the name, title and address recover consequential damages the licensee/debtor the software if the (including direct telephone number, fax (notwithstanding a contractual creditor forecloses on its security or e-mail address) of a person with provision excluding consequential interest in the computer. Such an whom the licensee may communicate damages) for a wrongful exercise of

DECEMBER 1999 45 self-help if: (1) within the 15-day the disclaimer of warranties much in tures or not, the problem of providing notice period licensee gives notice to the way disclaimers are permitted a stable and predictable body of law licensor of the “general nature and under Article 2 of the UCC, though on which to base online contracts is magnitude” of licensee’s damages, (2) questions arise as to how some likely to remain for some time. U licensor has reason to know the related concepts translate onto the exercise of self-help will result in Web. Like Article 2 of the UCC, Jonathan B. Wilson is an attorney with King substantial injury to public health and under UCITA, in most transactions a & Spalding in Atlanta and is the founding safety or the public interest under disclaimer of warranties must be chair of the Internet Industry Committee of 25 Section 816(f), or (3) licensor fails to “conspicuous.” The parallel term in the ABA Public Utility, Communications and give the requisite prior notice re- Section 316 of Article 2 of the UCC Transportation Law Section. quired by Section 816(d).21 En dn otes Recogn ition of In n early every 1. The version of the Uniform Computer Information Transactions Act (herein- Click-wrap Con tracts web-based tran saction , after “UCITA”) presented for adop- UCITA reflects current commer- tion by the NCCUSL at its meeting in Denver, Colorado, in July 1999 in- cial and legal practice in that it the purchaser will be cluded a preface and a commentary expressly recognizes the validity and that gave some insights to the inten- enforceability of click-wrap contracts asked to click on an tion of the drafting committee. Refer- entered into on the Web. In nearly ences to that draft are hereinafter every Web-based transaction, the “I Accept” or “I Agree” made to the “Committee Draft.” The Committee Draft is available at http:// purchaser will be asked to click on an www.law.upenn.edu/bll/ulc/ucita/ “I Accept” or “I Agree” button before button before the citam99.htm. Subsequent to its adop- the purchaser’s order is confirmed. tion by the NCCUSL on July 29, The Web site in most cases will purchaser’s order is 1999, the NCCUSL Style Committee modified the draft of UCITA in a new prompt the user to review its terms con firmed. draft dated October 15, 1999. Refer- and conditions of sale and to click on ences to that draft are hereinafter the acceptance button if the terms are also requires that such waivers be made to the “October 15th Draft.” agreeable. Practitioners reasoned that “conspicuous.” In practice, and The October 15th Draft is available at http://www.law.upenn.edu/bll/ulc/ this method created a contract through judicial interpretation, this ucita/cita10st.htm. References to between the site owner and the user has come to mean that waivers must “UCITA” in the text of this article by analogy to other contract forms be printed in bold text or in capital- refer to the October 15th Draft. and from the few cases available on ized letters.26 What this will mean for 2. A representative of the NCCUSL, in 22 a telephone conversation with the au- the subject. In Section 209, UCITA disclaimers or warranties in Web- thor on November 16, 1999, and sev- provides that “[a] party adopts the based contracts is uncertain. eral memoranda available on the NC- terms of a mass-market license . . . CUSL’s website at http:// only if the party agrees to the license, www.law.upenn.edu/bll/ulc, suggest The Future of UCITA that the NCCUSL style committee such as by manifesting asset, before may make further changes and that or during the party’s initial perfor- There is a fair level of doubt the final “official” text may not be mance or use of or access to the whether UCITA will ever be adopted available until January, 2000. information.”23 Section 211 provides in a majority of the states. Its adop- 3. Committee Draft, Preface at 2. that a Web site owner makes the tion by the NCCUSL was opposed in 4. Id. at 4. 5. Id. at 5. terms of its license available if the a letter signed by the Attorneys 6. October 15th Draft, § 103(a). terms are posted on the site or there is General of 13 states, together with 7. Id. § 102(a)(11). a hypertext link to the terms “in close the Administrator of the Georgia Fair 8. The October 15th Draft of UCITA proximity to” the description of the Business Practices Act.27 Certainly defines “computer information” as “information in electronic form which computer information being licensed the history of the development of is obtained from or through the use of on the site. 24 UCITA, with the last-minute aban- a computer or which is in a form ca- Web site terms and conditions donment of the project by the ALI, pable of being processed by a com- and other online contracts often also suggests that this is a matter of some puter. The term includes a copy of the information and any documentation or include disclaimers of warranties and controversy. Whether UCITA is packaging associated with the copy.” liability by the seller. UCITA permits adopted by one or more state legisla- Id. § 102(a)(10). Because this defini-

46 GEORGIA BAR JOURNAL tion relies on the format of the infor- 20. Id. § 816(f). Davidson & Scott J. Bergs, Open, mation, and not its content, it effec- 21. Id. § 816(e). Click or Download: What Have You tively includes every type of informa- 22. While the facts deal with a “shrink- Agreed To? The Possibilities Seem tion that is available on the Internet wrap” contract, and not click-wrap Endless, COMPUTER LAWYER, Apr. and the contents of any form of elec- terms and conditions, the court in 1999 at 1. tronic media, including compact ProCD, Inc. v. Zeidenberg, 86 F.3d 23. October 15th Draft, § 209(a). disks, whether that information in- 1447 (7th Cir. 1996), held that a 24. Id. § 211. cludes text, graphics, music, comput- shrink-wrap contract on the exterior 25. Id. § 406(b). er programs or any other kind of data. of a software package could be en- 26. See, e.g., O.C.G.A. § 11-2- Later provisions exclude from UCI- forceable between the software devel- 316(2)(1994) (requiring warranty dis- TA’s coverage videos and audio re- oper and the purchaser of the package claimer to be “conspicuous”); Apex cordings in digital format. Id. § if the purchaser had the opportunity to Supply Co. v. Benbow Indus., Inc., 103(d)(2)(B). review the terms of the license before 189 Ga. App. 598, 376 S.E.2d 694 9. Id. § 103(b). purchasing the package or if the pur- (1988) (holding that language was 10 Id. § 103(b). chaser had the opportunity to return “conspicuous” if it was set forth in all 11. Id. § 103(b)(1). the package for a refund after review- capital letters, in a separate paragraph 12. Id. § 103(c). ing, and disagreeing with, those and in a distinct type font). 13. Id. § 103(d)(6). terms. In practice, attorneys have re- 27. Letter to Gene Lebrun, President, NC- 14. Id. § 103(d)(1). lied on the reasoning in Zeidenberg in CUSL (July 23, 1999) (available at 15. Id. § 103(d)(2). developing web site “terms and con- http://www.2bguide.com/docs/ 16. Id. § 103(d)(3). ditions” that have purported to limit 799ags.html). 17. Id. § 103(d)(4). the web site owner’s liability and to 18. Id. § 503(2). give notice of copyright claims, trade- 19. Id. § 816(d). mark claims and the like. Stephen J.

West new 1/2 p 4C

DECEMBER 1999 47 the process of preparing a pamphlet that identifies ethical pitfalls for THE YLD IS WORKING younger lawyers. The proposed pamphlet has caught the eye of the ABA/YLD, which recently provided FOR THE BAR the committee with a grant to assist with production costs. The pamphlet The Law-Related Education will be an excellent resource tool and Committee sponsored its second is yet another example of how the annual golf tournament, raising more YLD is providing service to the Bar. than $15,000 for the Law-Related Under the direction of Brad Education Consortium. The tourna- McFall, the Solo and Small Firm ment was a huge success, thanks to Practice Committee plans to hold the tireless efforts of Beth Ellen Shaw panel discussions about being a sole and Alla Shaw. Much gratitude is also practitioner or working in a small due to Jay Sadd and Chief Judge firm at each of the law schools during By Joseph W. Dent Edward Johnson of the Georgia Court Law Week. What an excellent way to hen this article goes to of Appeals for their support of the participate in the Law Week celebra- press, we will be about tournament. tion. halfway into the 1999- The High School Mock Trial Speaking of Law Week, the YLD W th 2000 Bar year. With that in mind, I Program is in its 14th season this year. has scheduled the 5 Annual Great would like to take this opportunity to Day of Service to coincide with the highlight the many accomplishments kick-off of Law Week 2000. This of the Division thus far, and to thank year, the event will be held on all the many volunteers for their I am proud to be Saturday, April 29. The Great Day of dedicated efforts. presiden t of this Service is a State Bar project coordi- The YLD has already sponsored nated by the Young Lawyers Division several seminars this year. Ben Finley organ ization . We are that gives lawyers throughout the and Tim Buckley chaired Bridge-the- state the opportunity to participate in Gap, which 311 new admittees fulfillin g our mission a service project coordinated in the attended. Evaluations indicate communities in which they practice Bridge-the-Gap is a worthwhile which is to provide and live. A special thanks goes to seminar that helps new admittees Damon Elmore, Beth Guerra, Sharell transition into the practice. service to the Bar an d Lewis and the many others who are Thurston Lopes chaired a helping to make this year’s Great seminar sponsored by the Criminal to the public. Day event a huge success. Law Committee, where several As I look back on the first half of prominent criminal trial lawyers Owing to the dedication of Joyce the year and consider the many discussed the various elements of a Averils and Rhonda Klein, the worthwhile projects and programs of criminal trial from both the perspec- Committee also hosted a very suc- the YLD, I am proud to be president tive of the prosecutor and the defense cessful Law Academy in November. of this organization. We are fulfilling attorney. The Academy provided intense and our mission which, in a nutshell, is to The Employer’s Duties and valuable training for high school provide service to the Bar and to the Problems Committee sponsored a students participating in the Mock public. Due to space limitations, I seminar chaired by Christine MacIver Trial Competition. Through the hard cannot identify everyone who has and Stewart Duggan. Under their work of committee chair Roy Manoll made a contribution to the efforts of leadership, the committee is also and vice-chairs Jennifer Mann and the Division. So, to all those who updating a pamphlet that addresses Christine Barker, the High School have volunteered their time, I thank common employer/employee prob- Mock Trial Program will undoubtedly you for your efforts and commend lems, which is distributed to new have yet another successful year. you for a job well done. U businesses by the Secretary of State’s The Ethics and Professionalism office. Committee, led by Andy Lewis, is in

48 GEORGIA BAR JOURNAL Search Begins For Mock Trial Coordinator

THE STATE BAR OF GEORGIA is searching for a new coordinator for its high school mock trial program, to assume the post in the summer of 2000. Applications are being received Coaches, Judges, Evaluators Needed! through Jan. 15, and details about the job and search process may be found Inquire about coaching opportunities or volunteer for judging on the program’s Web site at, www.gabar.org/ga_bar/yld.htm, or be opportunities by contacting the mock trial office. requested from the mock trial office Judges/evaluators may also register for regional competitions and at 800/334-6865 (ext. 779) or State Finals online at www.gabar.org/ga_bar/yld.htm [email protected]. Philip Newton is leaving the post at the end of his For more information, contact the Mock Trial Office 13th season to pursue a degree in 404/527-8779w 800/334-6865w [email protected] sacred music. Compensation is negotiable based on experience, skills, and education. U

So. Ga. Mediation new --

DECEMBER 1999 49 In Atlan ta that G. Brian Raley has joined the Kilpatrick Stockton announces firm as head of its commercial the addition of Bradley Miller to the Hunton & Williams has named litigation practice. The office is firm’s litigation group. Also, Jason Kristen L. Hathcoat as associate on located at 2931 N. Druid Hills Road, Jasper has joined the firm’s con- the labor & employment practice Suite C, Atlanta, GA 30329; (404) struction law and public contracts team at the firm’s Atlanta office. 320-9979. group. Hathcoat is a 1999 graduate of Wake Robert A. Elsner and Guerry Nelson Mullins Riley & Forest University School of Law. Her T. Thornton Jr. have moved their Scarborough LLP has added 10 practice focuses on employment practice. The firm will continue to associates to the firm’s Atlanta office: litigation and preventive labor handle matters of civil litigation, Rebecca Culpepper (real estate), relations. Also, Lynn Gavin has personal injury, wrongful death, Robert Elzey (litigation), Laura F. joined the firm’s Atlanta office as an negligence, family law, DUI, mal- Gartin (real estate), Mary Sellers associate in the public finance section practice mediation and dispute Kirby (litigation), Jennifer A. of the banking & finance group. Her resolution. The new office is located McCoid (corporate/technology practice centers on public finance, at 3379 Peachtree Road, NE, Suite corporate), Elisa Smith (litigation), municipal bonds, corporate trust and 255, Atlanta, GA 30326-1054; (404) Lee Ann Sparks (litigation), Gene state and federal governmental law. 995-0610; fax (404) 237-4527. Watkins (litigation), Patrick J. The Atlanta office is located at Kennedy, Davis & Hodge LLP Whelchel (corporate/international) NationsBank Plaza, Suite 4100, 600 an intellectual property law firm of and Steve R. Wilson (corporate). Peachtree Street, NE, Atlanta, GA five registered patent attorneys, The Atlanta office is located at 999 30308-2216; (404) 888-4000. announces the relocation of its Peachtree Street, NE, First Union Ganek, Wright & Dobkin PC is Atlanta office to Five Concourse Plaza, Suite 1400, Atlanta, GA pleased to announce that it has named Parkway, Suite 900, Atlanta, GA 30309; (404) 817-6000. D. Mark Seib as associate. Seib will 30328; (770) 396-2244. Insley and Race LLC is pleased work at the firm’s Midtown office, Barksdale and Associates, a to announce that Evan W. Jones has located at One Midtown Plaza, Suite new staff counsel office of the become a partner with the firm. Jones 900, 1360 Peachtree Street, NE, Hanover Insurance Companies, has will continue to concentrate in the Atlanta, GA 30309; (404) 892-7300; opened at 1455 Lincoln Parkway, areas of medical malpractice defense, Fax (404) 892-726. Suite 100, Atlanta, GA 30346; (770) product liability, wrongful death and Finley & Buckley PC announces 353-6038; fax (770) 353-6625. personal injury. The office is located at Two Midtown Plaza, 1349 West Peachtree Street, NW, Suite 1450, Atlanta, GA 30309; (404) 876-9818. N.GA Mediation In Norcross The law firm of Thompson, O’Brien, Kemp & Nasuti PC new announces that Sylvia K. Morrow has become an associate of the firm, located at 4845 Jimmy Carter Blvd., Norcross, GA 30093; (770) 925- 0111; e-mail [email protected].

50 GEORGIA BAR JOURNAL Official Opin ion s Un official Opin ion s of education contracts with that system for use of its middle and high Open Teachers Retirement System. A schools. (10/15/99 No. U99-7) Records. Deci- teacher at a charter school, which is Education, County boards of, sions of the Office operated by a non-profit corporation vacancies. Where a vacancy is of State Adminis- as permitted by the Charter Schools created by the prospective resignation trative Hearings Act of 1998, shall be a member of the of a member of a local board of are public records Teachers Retirement System. (9/21/99 education, the board may move to fill unless they contain No. U99-4) that vacancy prior to the effective information from Probation; community service. date of the resignation. (10/22/99 No. evidence received Attorney General Persons sentenced to community U99-8) in the course of a Thurbert Baker service may be utilized to assist Georgia Indigent Defense hearing which has counties or municipalities in preserv- Council. Interest from cash bonds been sealed pursuant to a confidenti- ing and protecting abandoned cemeter- transferred by a sheriff to the appro- ality provision. (9/7/99 No. 99-13) ies or burial grounds. (10/15/99 No. priate clerk of court is not required to Probation detention centers; U99-5) be remitted to the Georgia Indigent confinement in. While Judges, Probate court; author- Defense Council unless the statute misdemeanants may only be referred ity. A probate judge may not employ governing the particular clerk of to probation detention centers upon an attorney to prosecute criminal cases court requires that the clerk remit initial sentencing pursuant to in the probate court. (10/15/99 No. interest to the Council. Also, since O.C.G.A. § 42-8-35.4, U99-6) O.C.G.A. § 15-16-27(b) applies to misdemeanants may also be referred Education, County boards of. cash bonds held by the sheriff, it does to such facilities pursuant to proba- Members of a county board of educa- not apply to bonds posted by profes- tion revocation proceedings under tion may be employed by a separate sional bondspersons. (10/22/99 No. O.C.G.A. § 42-8-34.1, and housed in school system even if the county board U99-9) U detention centers by the Department of Corrections after a probation revocation proceeding pursuant to O.C.G.A. § 17-10-1(a)(3)(A). (10/1/ 99 No. 99-14) Real estate brokers, price opinions. A licensed real estate broker who is not licensed as a real estate appraiser may provide a real estate broker’s price opinion to a lending institution for financing purposes. (10/1/99 No. 99-15) Golden Lantern pick up 10/99 p67

In Savan n ah “Advertisement” at Savage & Turner PC announces top that Christie Register has joined the firm as an associate. Register is a registered nurse and a 1998 graduate of the Mercer University Walter F. George School of Law. The firm is located at 304 East Bay Street, Savannah, GA 31401; (912) 231- 1140. U

DECEMBER 1999 51 A SIMPLISTIC INDICTMENT OF THE CRIMINAL JUSTICE SYSTEM

Getting Away with Murder: How Politics is Destroying ticed in the system every day,” Professor Estrich sets the the Criminal Justice System by Susan Estrich stage for her thesis which is based on no experience in the Harvard University Press. 176 pages. $20.50 practice of criminal law, anecdotal evidence, and kaffee Reviewed by Bruce S. Harvey klatsch stereotypes. Of course the criminal justice system is shaped by n John Lescroart’s recent novel, the Mercy Rule, a politics. No news flash there. Our history is replete with lawyer defending an accused murderer wrestles with example after example of overreaction to political expedi- Iputting on a defense that his client actually committed ency: from Lincoln’s suspension of habeas corpus, pas- the act (a so-called mercy killing of his terminally ill sage of the alien and seditions laws during and after World father). Even though he War I and World War II, and believes and the accused the incarceration of Japanese denies committing the act: Americans during World War II, to name just a few. As Driving back uptown, Estrich finally acknowledges, Hardy was going around it’s not that we cannot or do with it. It was starting to not draw lines — it’s who look as though his defense draws them and where they would be to admit that Gra- are drawn. Complain at the ham, who couldn’t admit it ballot box or deal with the to himself had committed a reality of politically moti- murder that in fact he vated draconian sentences hadn’t committed. For a and policies in the court- reason he didn’t have. And house. this, if it worked, might set Professor Estrich also his client free. The law, he looks at recent calls for thought, was a sublime and group-based “jury nullifica- terrible thing. tion,” a concept that has been around since the founding of In Getting Away with this country.1 Throwing lip Murder, Professor Susan service to the obvious — that Estrich boldly indicts the the system is awash in a criminal justice system, cesspool of racism — Estrich including criminal defense nonetheless sees the system lawyers whom she catego- as one in which the “thugs rizes as having a “traditional rule the roost.” The framers license to lie.” It is just such of the Constitution consid- generic hyperbole that ered the jury in criminal characterizes this short, and trials to be a fundamental wholly simplistic look at the safeguard against liberty system she so cavalierly threatening incursions by a dismisses. central government. The jury The criminal justice system, according to Estrich, is has been central to the hallmark of Anglo-American purely political at base. While acknowledging that teach- jurisprudence standing between a potentially oppressive ing criminal law to first-year law students at the Univer- government and private citizens. It is juries who confront sity of Southern California is “not criminal law as prac- the core issue of fairness and justice in our society.

52 GEORGIA BAR JOURNAL In fact, many have argued that jury nullification does changed. And, as always in our profession, it is the moral not subvert the law, but in fact occurs within the law and equation which is the sine qua non of our profession. Let’s is morally correct.2 Estrich’s call for a reexamination of keep it that way. U whether the jury system is a “political idea worth preserv- ing and safeguarding” is one which deserves ridicule Bruce Harvey is 1977 graduate of the University of Georgia School of rather than respect. Law. Harvey is a sole practitioner in Atlanta concentrating in criminal Estrich swings into one area, however, that even I can defense. He has defended a number of defendants in high-profile cases, agree with — politicians who outdo each other to prove including the Columbus Strangler, the mail bomber and the Tokars case. who is toughest and legislatures that pass draconian laws. Since 1985, the prison population has doubled, with En dotes almost two million Americans currently incarcerated. Three strikes statutes, mandatory minimums, and guideline 1. See e.g. Stanton D. Krauss, An Inquiry into the Right of no-discretion sentencing schemes are ubiquitous. Contrary Criminal Juries to Determine the Law in Colonial America, THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY, 89:1 (Fall to popular belief, the guilty person who walks free is the 1998). spectacular exception. But there is a cost, both human and financial. It is still 2. See, e.g., Brown, D.K., Jury Nullification Within the Rule of the disenfranchised who are being hammered by the new Law, 81 MINNESOTA L. REV. 1149 (1997); Butler, P., Racially Based Jury Nullification: Black Power in the Criminal Jus- laws. Over recommendation by the Sentencing Commis- tice System, 105 YALE L.J. 677 (1995). See also Niedermeier, sion itself, Congress maintained the “100 to one” ratio et al., Informing Jurors of Their Nullification Power: A which treats crack cocaine 100 times more harshly than Route to a Just Verdict or Judicial Chaos, 23 LAW & HUMAN powder cocaine (possession of 5 gms of crack, an amount BEHAVIOR 331 (1999) (finding that nullification instructions actually heightened jurors’ concerns about fairness and did equal to five packets of Sweet-n-Low, triggers a five-year not result in runaway or rogue juries). mandatory minimum no parole sentence). That mandatory minimums and sentencing guidelines have interacted in untoward ways is, in the words of Supreme Court Chief Justice William Rehnquist (no bed-wetting liberal), “a good example of the law of unintended consequences.” Do not misunderstand the basic premise: adopting a system of mandatory minimums, no parole and broad prosecutorial power had a rational purpose. For the dangerous felon who has committed genuine crimes, the Insurance new schemes have drastically ratcheted up the conse- quences. For these crimes, prosecutors can and should come down equally hard on everyone. But lesser, non- Specialists violent crimes are a different matter. Measured by time served, the average people are carrying the freight. As new 1 of 2 Estrich puts it, “the shadow of Willie Horton gets in the way.” She’s right. To answer the gods of the polls, we invest too little in prevention and we are paying the price. ads The basic problem with the Estrich book is that it is written for those who are still preaching the decade old “lock-em-up-and-throw-away-the-key” philosophy. During the 1980s when violent crime was escalating (at least in the mind of the public), society called for blood, and was rewarded by trashing the old rehabilitation model of punishment and replacing it with a pure retributive model. It was popular, even defensible, for the law-abiding citizen to feel that even if some people suffered unjustly under a severe sentencing scheme, it was preferable to allowing violent offenders to escape punishment. But now, the system has become so efficient in locking up all types of offenders — violent or not, the moral equation has

DECEMBER 1999 53 Narrowing the Gap From Law School to Law Practice

FRESH OUT OF LAW SCHOOL, members have a professional obliga- program called “Bridge the Gap,” but equipped with learning skills and tion to assist beginning lawyers. They this program includes only a 12-hour information derived from countless must help all lawyers entering the curriculum. It does not provide a new hours of reading, note-taking, analyz- profession to acquire the practical lawyer with one-on-one contact with ing cases and perhaps some clinic skills, seasoned judgment and sensi- a seasoned lawyer. With this in mind, experience, a young lawyer crosses 1996 Bar President Ben Easterlin the threshold. With degree in hand appointed a Committee on the and Bar exam passed, ideals and Standards of the Profession during commitment for the future swelling “The cen tral feature of his term. He charged this committee inside, the young lawyer steps into with investigating whether the State the practice of law. this program is to help Bar should require a period of This tremendous step is a chal- internship or other supervised work lenge that every practicing attorney begin n in g attorn eys ... prior to admission to membership in must meet. Some beginning lawyers the State Bar. Chaired by John T. have the benefit of an experienced tran slatin g classroom Marshall, partner at Powell, lawyer to guide them. They have the Goldstein Frazer & Murphy LLP in opportunity to ask questions and gain exposure in to problems Atlanta, the committee studied insights from a long-practicing internship, apprenticeship, and professional. On the other hand, some of actual law practice courses for newly admitted lawyers in new lawyers are left to rely on by addressin g issues other states. Attempting to use the classroom lessons and trial and error, most effective features of these and to as they assume the responsibilities of such as relation ships avoid the attendant problems, the attorneys and counselors at law. committee recommended mentorship Fortunately, something is being with clien ts, the integrated with an extensive curricu- done to forge a closer link between lum component. The program would law school and the practice of law. judiciary an d allow a new lawyer to be paired in a The State Bar of Georgia, the Chief learning relationship with a more Justice’s Commission on Profession- colleagues.” experienced Georgia lawyer. alism and ICLE are conducting a Marshall said that the goal is to help statewide Transition Into Practice –John T. Marshall new lawyers become competent Pilot Project to test the feasibility of a practitioners through assisting them mentorship program for newly tivity to ethical and professional in the extremely formative period admitted members of the State Bar. values that are necessary to practice right after law school. The combina- Funded by the State Bar, the Georgia law in a highly competent manner tion of mentoring with intense skills Bar Foundation, the Commission, and serve the needs of the public. and values education is the dynamic ICLE and grants from private The State Bar of Georgia cur- aspect of this project: sources, the project recognizes that rently requires newly admitted w Mentorship. Every beginning the State Bar and its individual attorneys to participate in the ICLE lawyer would be provided with

54 GEORGIA BAR JOURNAL access to meaningful counsel and support from the legal community. translating classroom exposure into professional guidance from an The actual phase where new attor- problems of actual law practice by experienced lawyer (mentor) neys are paired with seasoned addressing issues such as relation- during the first two years after lawyers will be in early 2000. ships with clients, the judiciary and admission to the bar. A number of questions must be colleagues.” w Curriculum component. Every answered before it can be determined Evaluating the results of the pilot beginning lawyer would be re- whether this program will be useful program will allow the committee quired to complete practical skills for beginning lawyers throughout the members to decide what works best. and values training courses during state. The Standards Committee is in Of course, in the end, the goal is to the first two years after starting to the process of selecting a test group continue legal education by assisting practice. These courses will of mentors and beginning lawyers. the transition from law school to law replace the current “Bridge the One of the most important goals in practice in a way that equips each Gap” program. this selection process is to make sure beginning lawyer to discharge During the first year, the basic that the test pool is diverse, with competently his or her professional curriculum will focus on topics such regard to areas of law, geography, obligations. U as Client Relations, Counseling, race and gender. Negotiations, ADR, Law Practice Several other areas being worked Reprinted with Permission of THE CHRONICLE, Management, Legal Ethics and on are developing CLE courses and the newsletter of the Institute of Continuing Professionalism. For example, in a determining CLE credit. Since the Legal Education, and adapted for the Georgia course on Client Relations, matters program would replace “Bridge the Bar Journal. such as oral and written communica- Gap,” both mentors and new attor- tion skills, recognition and resolution neys will receive CLE credit for the of conflicts of interest, proper use of curriculum components of the escrow accounts and billing will be program. Ideally, the mentorship will taught. In the second year, beginning turn into a lasting relationship lawyers will be encouraged to select between the mentor and mentee. AAA - courses in such practice areas as Through the process of continual Litigation (Civil or Criminal), teaching, learning and guidance, the Business Practice, Real Estate relationship will assist the new pickup Practice, Family Law, Trusts and lawyer with practical skills and Probate Law. “I think everyone professional challenges. 10/99 agrees on the need for a program to “The central feature of this help young attorneys,” Marshall said. program is to help beginning attor- “I have heard no dissent on that neys,” Marshall said. “That means p63 point. The main purpose of this pilot program is to determine what will work.” Authorized by the Supreme Court of Georgia and the Board of Governors of the State Bar, the Pilot Project will include 150 newly Garrett Group pickup admitted lawyers and an appropriate number of mentors. The Standards of 10/99 p27 the Profession Committee, represent- ing a broad cross-section of the practicing bar and the organized bar as well as the law schools, is direct- ing the project. The Pilot Project spans four years. Work on the program began in 1997 with preliminary research, securing funding, and garnering

DECEMBER 1999 55 Alcohol/Drug Abuse an d Men tal Health Hotlin e

If you are a lawyer and have a personal problem that is causing you significant concern, the Lawyer Assistance Program (LAP) can help. Please feel free to call the LAP directly at (800) 327-9631 or one of the volunteer lawyers listed below. All calls are confidential. We simply want to help you. Area Committee Contact Phone Albany ...... H. Stewart Brown ...... (912) 432-1131 Athens...... Ross McConnell ...... (706) 359-7760 Atlanta ...... Melissa McMorries ...... (404) 522-4700 Florida ...... Patrick Reily ...... (850) 267-1192 Atlanta ...... Henry Troutman ...... (770) 980-0690 Atlanta ...... Brad Marsh ...... (404) 876-2700 Atlanta/Decatur ...... Ed Furr ...... (404) 231-5991 Atlanta/Jonesboro ...... Charles Driebe ...... (404) 355-5488 Cornelia ...... Steven C. Adams ...... (706) 778-8600 Fayetteville ...... Glen Howell ...... (770) 460-5250 Hazelhurst ...... Luman Earle ...... (912) 375-5620 Macon ...... Bob Daniel...... (912) 741-0072 Macon ...... Bob Berlin ...... (912) 745-7931 Norcross ...... Phil McCurdy ...... (770) 662-0760 Rome ...... Bob Henry ...... (706) 234-9442 Savannah ...... Tom Edenfield ...... (912) 234-1568 Valdosta ...... John Bennett ...... (912) 242-0314 Waycross ...... Judge Ben Smith ...... (912) 285-8040 Waynesboro ...... Jerry Daniel ...... (706) 554-5522

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56 GEORGIA BAR JOURNAL Interference in Medical Practice Summary of Recently Published Trials Results in a $1,037,000 Verdict Plaintiff anesthesiologist declined to join defendant’s local anesthesiology Clarke U.S. District Ct. .... Youth Detention Center - Medical Treatment - Fatality ...... $1,750,000 group resulting in the local hospital Clayton State Ct...... Falldown - Apartment - Water on Floor ...... $23,000 assigning her to fewer surgeries. Clayton State Ct...... False Arrest - Theft of Own Truck - Emotional Distress ...... $80,000 (Gibbons v. Alta Anesthesia; Glynn Clayton Superior Ct...... Auto/Truck Accident - Rear-End - Following Too Closely ...... $150,000 County Superior Court) Clayton Superior Ct...... Multi-Vehicle Accident - Disabled Truck on Roadway ... Defense Verdict w w w Cobb State Ct...... Auto Accident - Rear-End - High Speed Impact ...... $28,800 Falldown at Kroger Results in Cobb Superior Ct...... Auto Accident - Rear-End - Liability Admitted ...... Defense Verdict Herniated Disc and Verdict for Cobb Superior Ct...... Professional Services - Leg Brace Repair - Falldown ...... $250,000 $10,000,000 DeKalb State Ct...... Auto/Bus Accident - Rear-End - Liability Admitted ...... $35,000 While shopping at Kroger this 18 DeKalb State Ct...... Auto/Truck Accident - Rear-End - Following Too Closely ..... Defense Verdict year-old plaintiff slipped and fell on a DeKalb Superior Ct...... Truck/SUV Accident - Left of Center - Fatality ...... $1,200,000 wet spot resulting in a herniated lumbar Fayette State Ct...... Auto Accident - Turning - Right-of-Way ...... $276,409 disc and multiple surgeries. (Brice v. Fulton State Ct...... Apartment - Rape - Broken Sliding Glass Door ...... $500,000 Kroger; Newton County Superior Court) Fulton State Ct...... Auto Accident - Head-On - Red Traffic Light ...... $200,000 w w w Fulton State Ct...... Auto/Truck Accident - Speeding on Curve - Loss of Control ...... $1,000,000 Farm Laborer Suffers Severe Facial Fulton State Ct...... Auto/Truck Accident - Turning - Right-of-Way ...... $230,000 Injuries From Defective Farm Equip- Fulton State Ct...... FELA - Falldown - Catwalk Collapse ...... $1,465,000 ment Yielding a Verdict of $2,600,000 Fulton State Ct...... Medical Malpractice - Medications - Contraindication ...... $1,000,000 This 62-year-old farm laborer was Fulton State Ct...... Medical Malpractice - Placental Abruption - Diagnosis ...... Defense Verdict turning a crank handle on a disk farrow Fulton State Ct...... Shooting - Truck Driver - Vicarious Liability ...... $75,000 when it fractured and struck his face, Fulton Superior Ct...... Bus Accident - Winter Storm - Passenger Injured ...... $250,000 resulting in catastrophic injuries Fulton Superior Ct...... Premises Liability - Intoxicated Patron Falls on Patron ...... Defense Verdict (Cunningham v. Case Corp; Richmond Fulton U.S. District Ct. .... Auto Accident - Rear-End - Stopped at Traffic Light ...... $50,000 County Superior Court) Fulton U.S. District Ct. .... Falldown - Loading Dock - Broken Metal Bar ...... $27,500 w w w Gwinnett State Ct...... Assault & Battery - Bar Patron - Unprovoked Attack ...... $369,000 Hospital Malpractice Results in Gwinnett State Ct...... Auto/Truck Accident - Turning - Right-of-Way ...... $225,000 Severe I/V Infiltration and $300,000 Gwinnett Superior Ct...... Auto Accident - Exiting Driveway - Right-of-Way ...... $237,370 Verdict Muscogee State Ct...... Auto Accident - Head-On - Liability Admitted ...... $1,000,000 Defendant Hospital was found Polk U.S. District Ct...... Malicious Prosecution - Shoplifting - Probable Cause.. Defense Verdict negligent when an I/V administered to Richmond Superior Ct. ... Property Damage - Condominium - Sinking Foundation ...... $76,000 the 6-week-old infant plaintiff infil- trated surrounding tissue resulting in severe muscle damage and scarring. Let us help you settle your case (Lewis v. Putney Memorial Hospital; The Georgia Trial Reporter is the litigator's best source for impartial verdict Dougherty County State Court) and settlement information from State, Superior and U.S. District courts. w w w For 10 years GTR case evaluations have assisted the Georgia legal Assault on Plaintiff Bar Patron by community in evaluating and settling difficult cases. Our services Defendant’s Bouncers Results in include customized research with same-day delivery, a fully searchable $265,487 Verdict CD-ROM with 10 years of data and a monthly periodical of recent case Plaintiff suffered head injuries after summaries. Call 1-888-843-8334. being attacked by defendant’s bouncers Wade Copeland, of Webb, Carlock, Copeland, Semler & Stair of Atlanta, in the parking lot of defendant’s bar says, “Our firm uses The Georgia Trial Reporter's verdict research on a regular basis to where he had been a patron. (Nichelson assist us in evaluating personal injury cases. We have been extremely pleased with both v. Cadillac Ranch; Forsyth County State the results and service and would recommend them to both the plaintiff's and defense bar.” Court)

DECEMBER 1999 57 Chief Justice Benham Honored for LAP Work Chief Justice Robert Benham working to support funding for the 1994. This is only the second time the of the Supreme Court of Georgia was program; promoting mandatory awards have been presented. The among 16 judges recognized by the continuing legal education in the area recognition of addictions within the American Bar Association (ABA) for of chemical dependency; supporting legal profession has spurred bar their work with lawyer assistance confidentiality and immunity for association involvement. Some type programs in their jurisdictions. The program participants; and supporting of lawyer assistance program or awards were presented by the ABA alternative dispensation rather than committee now exists in every state, Commission on Lawyer Assistance suspension in cases of lawyer addic- compared to 26 state bar programs in Programs on Sept. 29, during the tion. The Commission on Lawyer 1980. The ABA Commission pro- 12th National Workshop for Lawyer Assistance Programs first presented vides guidance, support and an Assistance Programs, in Stevenson, certificates of recognition for judges exchange of information for lawyer Wash. Judges receiving the awards working to promote lawyer or assistance programs throughout the were nominated by the lawyer judicial recovery from addiction in U.S. and Canada. U assistance program in their region for

Emory University School of Law General Counsel and Secretary for has presented its Distinguished IBJ Whitehall Financial Group. She Alumni Award to three individuals also serves on the Emory Law School who have contributed extensively to Council and the Alumni Career their communities and the law: J. Network in New York City. A New Guy Beatty Jr., class of 1957; York regional officer in the Associa- Dan Fulton County Superior Court Senior tion of Emory Alumni since 1995, Judge Elmo Holt, class of 1948; and Zimmerman became president of the Turner Jean Zimmerman, class of 1975. New York alumni group this past fall. Beatty is a senior partner with the She lives in New York. law firm of Miller & Martin, located James W. Butler III has been pickup in Chattanooga, Tenn. An Atlanta appointed by Commerce Secretary native, he currently serves as secre- William M. Daley to the President’s 10/99 tary of Coca-Cola Enterprises Inc. Export Council Subcommittee on and is a founding member of the Encryption (PECSENC). PECSENC Emory Law School Council. Holt, serves as a senior-level advisory p7 who served in the U.S. Army during committee to the Department of World War II, is past president of the Commerce and, specifically, to the Atlanta Board of Education, the Bureau of Export Administration. Georgia Council of Juvenile Court Butler will represent the Association Judges and the Georgia Council of of On-line Professionals (AOP), Superior Court Judges. He is also where he sits on the Board of Direc- known as one of the “framers” of the tors and serves as secretary. The current Georgia Constitution as well AOP is the leading trade association as the revised juvenile code in for Internet access, business and Georgia. Holt resides in Roswell. electronic commerce in the U.S. Zimmerman is Senior Vice President, Butler is a partner at one of Atlanta’s

58 GEORGIA BAR JOURNAL THE DOUGHERTY CIRCUIT BAR Association, Georgia Legal Services and the Pro Bono Project of the State Bar of Georgia sponsored a CLE program called Boosting Your Family Law Practice –Child Support and Family Violence: What you Need to Know. Among the presenters were Judge Loring A. Gray, Chief Judge of the Dougherty Circuit; Judge John Frank Salter, State Court Judge for the Dougherty Circuit; Francis D. Hand, Assistant D.A. for the Dougherty Circuit; Brian Nichols, Program Coordinator for Men Stopping Violence Inc.; Mike Above (l-r) Dougherty Superior Court Judge Stephen S. Goss, State Court Monahan, Director of the Pro Bono Judge John Frank Salter and Judge Salter’s Law Clerk, Susan Elrod Huff. At Project for the State Bar of Georgia; right, participants at the the Dougherty Circuit Bar seminar. and Vicky Kimbrell, Family Violence Project Director, Georgia Legal Services. The satellite office of the State Bar of Georgia facilitated the program. If your local bar is interested in a similar program, contact the satellite office at (800) 330-0446 for assis- tance. U

largest law firms, Arnall Golden & only the third lawyer to be elected to the Offices Emory Schwall located in Gregory LLP. He also teaches Board of GEDA. Atlanta, has been admitted to Internet law at the Georgia Institute Donald F. Samuel has been membership in the Commercial Law of Technology. elected as a fellow in the American League of America (CLLA). John Gornall, also a partner with Board of Criminal Lawyers, a Founded in 1895, the CLLA is North Arnall Golden & Gregory LLP, has distinguished group of criminal America’s premier organization of been unanimously elected to serve as a attorneys from throughout the U.S., bankruptcy and commercial law member of the Board of Directors of Canada and the Philippines. The professionals; its members are the Georgia Economic Developers standards of acceptance include major regularly invited to provide expert Association (GEDA) for 1999-2001. felony trial requirements, the highest testimony before Congressional GEDA is a 35-year-old statewide ethical standards, and exceptional committees and other administrative association of professional economic recommendations from distinguished agencies on behalf of the fair and developers and service providers with jurists and lawyers. equitable administration of bank- more than 1,000 members. Gornall is Timothy M. Curtin, of Law ruptcy and other commercial laws. U

DECEMBER 1999 59 DISCIPLINE NOTICES (As of November 1, 1999)

Disbarred failed to take further action. She the requests. He also informed the failed to return telephone calls from client that the client’s case was Ronald A. Cohen her clients. In one instance, Samsky proceeding as it should when it was Thomasville, GA led her client to believe she had filed not. Grindle failed to respond to a Attorney Ronald A. Cohen (State Bar the divorce papers when she had not. pretrial calendar notice resulting in No. 175000) voluntarily surrendered In another instance, Samsky never the dismissal of the client’s case by his license to practice law in the State filed the divorce papers and the client the court. He failed to inform the of Georgia. The Supreme Court was forced to hire another attorney to client that the court had dismissed the accepted Cohen’s surrender by represent her. client’s case. Afterwards, Grindle Supreme Court Order dated October failed to return the client’s telephone 18, 1999. Cohen admitted that he Floyd W. Keeble Jr. calls. Grindle later informed the conspired to commit wire fraud in Lavonia, GA client that the case had been dis- violation of Title 18, United States Attorney Floyd W. Keeble Jr. (State missed, withdrew from representing Code, Sections 1343, 1956(h) and 2. Bar No. 410200) has been disbarred the client, and returned the $1,000.00 from the practice of law by Supreme retainer to the client. In a second Robert E. Lowe Court Order dated November 1, case, Grindle received a $2,500.00 Decatur, GA 1999. Keeble failed to respond to retainer to represent a client in a real Attorney Robert E. Lowe (State Bar State Bar disciplinary charges. estate matter. Grindle abandoned the No. 459880) has been disbarred from Accordingly, the Court found that legal matter entrusted to him by the the practice of law by Supreme Court Keeble was retained to file a bank- client and failed to return the client’s Order dated October 18, 1999. Lowe ruptcy petition on behalf of his client, documents and retainer. failed to respond to State Bar disci- and told his client he had filed the plinary charges. Accordingly, the petition when he had not. The Court Suspen sion Supreme Court found that in three considered the fact that Keeble disciplinary cases, Lowe abandoned received an Investigative Panel Perry O. Lemmons legal matters entrusted to him by his reprimand for his violation of Stan- Atlanta, GA clients, and failed to handle client dard 65(D) in deciding to disbar him. Attorney Perry O. Lemmons (State funds properly. Bar No. 446400) has been suspended B. Dean Grindle Jr. from the practice of law for two Paige Elizabeth Samsky Dahlonega, GA years with conditions on his reinstate- Decatur, GA Attorney B. Dean Grindle Jr. (State ment by Supreme Court Order dated Attorney Paige Elizabeth Samsky Bar No. 312600) has been disbarred October 18, 1999. Lemmons falsely (State Bar No. 624445) has been from the practice of law by Supreme represented himself as a certified disbarred from the practice of law by Court Order dated November 1, public accountant duly licensed to Supreme Court Order dated October 1999. Grindle failed to respond to practice public accountancy in 18, 1999. Samsky failed to respond State Bar disciplinary charges. Georgia to the Internal Revenue to State Bar disciplinary charges. Accordingly, the Court found that Service, the Superior Court of Fulton Accordingly, the Court found that Grindle received a $1,000.00 retainer County, the Supreme Court of Samsky was retained to represent to represent a client in a timber Georgia, and others after his permit clients in divorce proceedings, but dispute. After conferring with the to practice public accountancy had after accepting payment of attorney client about responses to discovery expired. Following his two year fees and filing fees from her clients, requests, Grindle failed to respond to

60 GEORGIA BAR JOURNAL suspension, Lemmons must show the misdemeanor conviction in New York ment as requested by his client, and Office of the General Counsel that he constitutes a violation of Standard 66 delivered the amended agreement to has been reinstated as a certified of Bar Rule 4-102(d). his client. His client returned mo- public accountant or has discontinued ments later with an executed agree- holding himself out to the public as a Review Pan el Repriman d ment witnessed by one of Hasty’s certified public accountant. secretaries. The Court concluded Jason Roy Hasty that Hasty caused his client to Steven Robert Schrader Marietta, GA communicate directly with a party Centereach, NY Attorney Jason Roy Hasty (State Bar Hasty knew to be represented in the Attorney Steven Robert Schrader No. 336727) has been ordered to legal matter. (State Bar No. 629790) has been receive a Review Panel reprimand by suspended from the practice of law in Supreme Court Order dated Novem- Rein statemen t Georgia for one year by Supreme ber 1, 1999. Hasty assisted his client Court Order dated November 1, in the negotiation and execution of a Harold W. Spence 1999. Schrader has been a member separation agreement with the client’s Atlanta, GA of the State Bar of Georgia since wife knowing that the client’s wife Harold W. Spence filed a petition for 1990. He moved to Suffolk County, was represented by counsel. Hasty reinstatement to the practice of law New York in 1996. Schrader pled was informed by his client that the and the Supreme Court approved his guilty to filing a pleading to probate a client’s wife had discharged her petition by order dated November 1, will in the Surrogate’s Court of attorney and was proceeding on her 1999. Spence must take the bar Suffolk County, New York, without own. He failed to confirm his client’s examination before he may be first seeking pro hac vice admission statement with opposing counsel. readmitted. U in the probate matter. Schrader’s Hasty revised the separation agree-

Morningstar pickup 10/99 p94

DECEMBER 1999 61 January 6-9, 2000, the State Lawyers for the Arts for their Bar’s Midyear Meeting will be Annual SchmoozeFest Recep- held at the Swissotel in Atlanta. tion. This year it took place on Seventeen sections will sponsor November 21 at Loca Luna in functions during the meeting. Atlanta. This event provided Section notices were mailed at the an opportunity for section end of October. members, hip artists and The Individual Rights Section entertainers of all kinds to mix held its annual Halloween Party on and mingle. Events are also October 28 at the Lynne Farris scheduled for December and Gallery, located in the lobby of the January, so stay tuned, mem- In costume from the Individual Rights Sec- Hurt Building in downtown Atlanta. bers. tion (l-r) are Michel Phillips; Georgia Lord; Products Liability Law Visit the New Section Megan Gideon; and Susan Garrett, chair). members just received their first Web Pages. Go to newsletter! On November 12, the trust is chaired by Barbara Tinsley, www.gabar.org, select “site map,” Section held its “Product Liability Computer by Jeffrey Kuester and then “sections” and click on the Megaconference II” at the Ritz Intellectual Property by Jason section of your choice. The State Carlton in downtown. Bernstein. Bar’s Web site has a forum on the The Computer Law discussion board that can be used to Section held a breakfast share ideas, discuss important topics November 12 at the or broadcast messages to other Buckhead Club in Atlanta. section members. Section members David Brown, a partner are now listed under each Web page. with Alston & Bird’s Important information on joining a Washington office, ad- section is available. dressed the section on e- commerce and technology legislative developments. Brown’s comments focused Some of the Products Liability seminar speak- on federal legislation ers pictured are (l-r) Laura Ellsworth; Stephanie relating to electronic Parker, chair of the Section; Laura Owens; and signatures, privacy in the Ursula Henninger. financial and medical industries and legislation School & College Law members that will soon be considered by many received their first newsletter in states dealing with electronic and December. The Section is chaired by computer transactions. Pictured from the Computer Law Patrick McKee. Corporate Counsel sections of Section (l-r) are Sandra Cuttler, David Antitrust, Computer & Intel- the Atlanta Bar and State Bar of Brown and Jim Meadows. lectual Property co-sponsored a Georgia will join together to co- Holiday Dinner Party on December 1 sponsor a holiday party in December. Join a Section for half price at the Houston Mill in Houston, Ray Willoch chairs the State Bar’s after January 1, 2000. For informa- Atlanta. These sections also co- Corporate Counsel Section. tion, visit the State Bar’s Web site or sponsored a seminar on December 2 The Entertainment & Sports call State Bar Membership at (404) titled “Navigating the Distribution Law Section, chaired by Ivory T. 527-8777 or (800) 334-6865. U Revolution in E-Commerce.” Anti- Brown, teamed up with the Atlanta — Lesley T. Smith, Section Liaison

62 GEORGIA BAR JOURNAL he Lawyers Foundation of Georgia Inc. sponsors activities to promote charitable, scientific and educational purposes for the public, law students and lawyers. Memorial contributions may be sent to the Lawyers Foundation of Georgia TInc., 800 The Hurt Building, 50 Hurt Plaza, Atlanta, Georgia 30303, stating in whose memory they are made. The Foundation will notify the family of the deceased of the gift and the name of the donor. Contributions are tax deductible.

Barlow, Robert D. Admitted 1960 Kenan, James G. Admitted 1938 Atlanta Died September 1999 Atlanta Died October 1999

Brookins, Ernest D. Admitted 1952 Lee, Glenda M. Admitted 1967 Villa Rica Died September 1999 Marietta Died May 1999

Buice, R. Avon Admitted 1958 Lee, Ralph Monroe Admitted 1952 Perry Died September 1999 Atlanta Died September 1999

Bullock, Loren J. Admitted 1959 Lunsford, Jr., Julius R. Admitted 1936 Birmingham, AL Died May 1999 Atlanta Died September 1999

Chavis, Sharon Marquetta Admitted 1990 Murphy, Rupert L. Admitted 1938 East Point Died November 1998 Rome Died January 1999

Dillingham, Lee D. Admitted 1964 Paxton, Ronald Lamar Admitted 1976 Acworth Died October 1999 Atlanta Died September 1999

Harris, James W. Admitted 1974 Ronick, Howard Robert Admitted 1974 Atlanta Died September 1999 Atlanta Died September 1999

Hinely, Lacy W. Admitted 1933 Smith, Roland P. Admitted 1947 Rincon Died January 1999 Canton Died September 1999

West (Chap 7...) pickup 10/ 99- p76 BW

DECEMBER 1999 63 NOTICES Supreme Court Issues Formal Advisory Opinion During the month of October, interest under Standards 35 and 36. sibility, Ethical Considerations 3-1 & 1999, the Supreme Court of Georgia This prohibition does not, however, 3-8; Georgia Code of Professional issued a formal advisory opinion that prevent in-house counsel from attend- Responsibility, Directory Rule 3-101, was proposed by the Formal Advisory ing closings as attorney for the and ABA Model Rules of Professional Opinion Board. Following is the full institution and preparing the docu- Conduct, Model Rule 5.4(d). Stan- text of the opinion issued by the court. ments necessary to effectuate the dards 35 and 36 prohibit such conduct closing including those documents that if the ability to exercise independent STATE BAR OF GEORGIA must be signed by the customer and professional judgment on behalf of one ISSUED BY THE SUPREME that may benefit both the institution client will be or is likely to be ad- COURT OF GEORGIA ON and the customer. Nor does the versely affected by the obligation to OCTOBER 18, 1999 prohibition prevent the institution another client. See also, Georgia Code FORMAL ADVISORY OPINION from seeking reimbursement for the of Professional Responsibility, Canon NO. 99-2 (Proposed Formal legal expenses incurred in the transac- 5; Georgia Code of Professional Advisory Opinion No. 94-R11) tion by including them in the cost of Responsibility, Ethical Consideration doing business when determining its 5-14 - 5-20; Georgia Code of Profes- QUESTION PRESENTED: charge to its customer. The charge, sional Responsibility, Directory Rule In a transaction involving a real however, may not be denominated as a 5-105, and ABA Model Rules of estate lending institution and its legal or attorney fee but must be Professional Conduct, Model Rule customer, may the in-house counsel included in the charge being made by 1.7. Specifically, in-house counsel for the institution provide legal the institution. There is inherent risk may not provide legal services at a services to the customer relative to the of confusion on the part of the cus- closing or elsewhere to a customer transaction? May the real estate tomer regarding the role of in-house borrowing from the lending institution lending institution charge the customer counsel. Prudent lawyers will act on and arising out of the existing relation- a fee for any legal services rendered the assumption that courts will honor ship between the customer and the relative to the transaction? the customer’s reasonable expectation institution. This is true whether or not of in-house counsel’s duties created by the customer is charged for these SUMMARY ANSWER: the closing attorney’s conduct at the services. The role of employee renders The answer to both questions is closing. the actions of in-house counsel the “no.” An in-house counsel for a real action of the employer. The employer, estate lending institution assists that OPINION: not being a lawyer, is thus being entity in the unauthorized practice of Standard 24, proscribing assis- assisted in and is engaging in the law in violation of Standard 24, if he tance in the unauthorized practice of unauthorized practice of law. The in- or she provides legal services to its law, prohibits in-house counsel for a house counsel by virtue of the existing customers which are in any way real estate lending institution from employer/employee relationship and related to the existing relationship providing legal services to its custom- its accompanying obligation of loyalty between the institution and its cus- ers. See also, Georgia Code of Profes- to the employer cannot exercise tomer. Such conduct would also sional Responsibility, Canon 3; independent professional judgment on constitute an impermissible conflict of Georgia Code of Professional Respon- behalf of the customer.

64 GEORGIA BAR JOURNAL This prohibition does not, how- ship be restricted to the lending negligence to a borrower. See, e.g., ever, prevent in-house counsel from institution, and (2) prohibits the direct Seigle v. Jasper, 867 S.W. 2d 476 attending the closing as the billing for legal services by the (Ky. Ct. App. 1973). A similar result institution’s legal representative and institution, the fact remains that the may obtain under traditional contract preparing those documents necessary customer may benefit from the actions or agency principles regarding third to effectuate the closing. This includes of in-house counsel. Thus the risk of party beneficiaries. This position is those documents that must be signed confusion about the role of in-house supported by the Restatement of the by the customer. In such a situation, counsel at the closing will be high. Law of Lawyering. While declaring in-house counsel is providing legal Prudent in-house counsel should the current state of Georgia law on services directly to the institution even anticipate that courts may treat the this issue would be inappropriate and though others, including the customer, reasonable customer expectations beyond the scope of this Formal may benefit from them. regarding these legal services as Advisory Opinion, it is clear that The prohibition on assisting in the creating duties even in the absence of prudent in-house counsel will not unauthorized practice of law does not a lawyer-client relationship. The ignore these risks both in advising the prevent the lending institution from Restatement (Second) of Torts reports lending institution and in his or her including the expense of in-house that an attorney who represents only conduct toward the customer as a counsel in the cost of doing business the lender may still be held liable in matter of good lawyering. U when determining the fee to charge its customer. The lending institution may, in other words, recoup the expenses of the transaction including the cost of legal services. This conduct does not in and of itself, create a duty to the Notice of Amendments to customer on the part of the in-house counsel nor does it constitute a the 11th Circuit Rules violation of the prohibition against the sharing of legal fees with a non- Following receipt and consider- appropriate and accurate. lawyer. On the other hand, charging ation of comments to the proposed The court also adopted MORE the cost of legal services to the amendments to the Rules of the STRINGENT rules that provide for customer (1) is likely to create an United States Court of Appeals for DISMISSAL WITHOUT FUR- unintended expectation in the mind of the Eleventh Circuit, the court has THER NOTICE in civil appeals the customer, (2) constitutes a non- adopted the proposed amendments, when appellant fails to file or correct lawyer receiving the fee for legal with modifications, effective January a brief or record excerpts within the services rather than an attorney, (3) 1, 2000. time permitted, and that establish constitutes a lawyer splitting a fee Please note the court adopted MORE STRINGENT procedures for with a non-lawyer, or (4) directly new procedures for requesting requesting reinstatement of a civil invites the unauthorized practice of extensions of time to file briefs and appeal thus dismissed. See 11th Cir. law. It is accordingly prohibited even record excerpts in civil appeals R. 42-2 and 42-3. if limited to actual costs. The cus- THAT ARE MORE STRINGENT. The court also determined to tomer cannot be made a part of the The revised rules distinguish between make additional minor revisions to attorney/client, employer/employee a party’s first request for an exten- the following Rules and Internal relationship. sion of time of seven calendar days Operating Procedures (IOP) of the The situation in which in-house or less, a party’s first request for an court: IOP 1 (p. 57); 11th Cir. R. 31- counsel attends closings as attorney extension of time of more than seven 2; and IOP 2 (p. 85). Pursuant to 28 for the lending institution and prepares calendar days, and a party’s second U.S.C. §2071(e), these additional the documents necessary to effectuate request for an extension of time. See amendments also take effect on the closing is fraught with both legal 11th Cir. R. 31-2. PRACTICE January 1, 2000, at the same time as and ethical risks beyond assistance in NOTE: Standards for granting a the other amendments to the Rules. the unauthorized practice of law and second request are higher than the The circuit rules, including conflict of interests. Even though the standards for granting a first request. amendments thereto, may be found at above analysis (1) requires that in- Parties are well advised to properly the Eleventh Circuit’s Internet Web house counsel’s lawyer-client relation- plan and make the first request site at www.call.uscourts.gov. U

DECEMBER 1999 65 NOTICES

First Publication of Proposed Formal Advisory Opinion Request No. 99-R2 Pursuant to Rule 4-403 (c) of the PROPOSED FORMAL SUMMARY ANSWERS: Rules and Regulations of the State ADVISORY OPINION REQUEST I. Disclosure of Billing Statements Bar of Georgia, the Formal Advisory NO. 99-R2 to Non-Clients. Opinion Board has made a prelimi- A lawyer may not disclose to a nary determination that the following QUESTIONS PRESENTED: person who pays the lawyer’s proposed opinion should be issued. I. Disclosure of Billing Statements billings other than the client, or to State Bar members are invited to file to Non-Clients. third-parties such as an insurer’s comments to this proposed opinion May a lawyer whose profes- outside auditing service, confiden- with the Office of General Counsel of sional services are paid by a tial information concerning the the State Bar of Georgia at the person other than the client client without the client’s consent, following address: disclose to the person paying the except for disclosures that are bill, or to third-parties such as an impliedly authorized to carry out Office of General Counsel insurer’s outside auditing service, the representation. State Bar of Georgia client confidences or secrets II. Non-Client Request to Obtain 800 The Hurt Building contained in detailed, narrative Client’s Consent to Disclose 50 Hurt Plaza billing statements which describe Billing Statements. Atlanta, Georgia 30303 the professional services rendered? A lawyer should not comply with Attention: John J. Shiptenko II. Request by Non-Client to Obtain the requirement of a person who pays Client’s Consent to Disclose the lawyer’s billings, other than the An original and eighteen copies Billing Statements. client, that the lawyer seek or obtain of any comment to the proposed May a lawyer ethically comply the client’s consent to disclosure of opinion must be filed with the Office with a request by a person who client confidences or secrets in billing of General Counsel by January 15, pays the lawyer’s billings, other statements to be submitted to an 2000 in order for the comment to be than the client, to seek or obtain outside audit service. considered by the Formal Advisory the client’s consent for the lawyer III. Guidelines for Professional Opinion Board. Any comment to a to disclose client confidences or Services Imposed by Non-Client. proposed opinion should make secrets contained in billing A lawyer whose professional reference to the request number of the statements to be submitted to an services are paid for by a person proposed opinion. After consideration outside audit service? other than the client can ethically of comments, the Formal Advisory III. Guidelines for Professional comply with guidelines of the Opinion Board will make a final Services Imposed by Non-Client. person paying the bill, provided determination of whether the opinion May a lawyer whose profes- the guidelines do not require should be issued. If the Formal sional services are paid by a disclosure of confidential or Advisory Opinion Board determines person other than the client secret information of the client, that an opinion should be issued, final ethically comply with detailed without the client’s consent, or drafts of the opinion will be pub- guidelines regarding billings or interfere with the attorney’s lished, and the opinion will be filed services rendered as imposed by a independent professional judg- with the Supreme Court of Georgia person other than the client who is ment in rendering legal services to for formal approval. paying the bill for legal services? the client or with the attorney- client relationship.

66 GEORGIA BAR JOURNAL OPINION: counsel discloses client confidences Disciplinary Board Advisory Opinion I. Disclosure of Billing Statements to and secrets to a third party, such as a Nos. 17 and 42.3 Non-Clients. fee auditor, this can result in a waiver Must a lawyer consult with the of the attorney-client privilege or client to determine what is a confi- “Both the fiduciary relationship contravene the lawyer’s professional dence or secret (and therefore not to existing between lawyer and cli- ethics, or both. Griffin v. Williams, be disclosed to the auditors) or can ent and the proper functioning 179 Ga. 175, 175 S.E. 449 (1934). the decision be made unilaterally? In of the legal system require the The very nature of detailed the absence of actual full disclosure preservation by the lawyer of narrative billing statements for the and consultation with the client, confidences and secrets of one services rendered by a lawyer will prudence dictates that counsel should who has employed or sought to normally contain client confidences assume that any information about employ him.”1 and secrets. Ethical considerations the client and the representation is which define client confidences and confidential. It is the duty of every lawyer to secrets are broader than the attorney- What obligation does a lawyer maintain inviolate the confidences client privilege. EC 4-4 provides: have upon discovering that a state- and, at every peril to themselves, to The attorney-client privilege is ment for legal services has been preserve the secrets of their clients. more limited than the ethical produced to an unauthorized third Standards 28 and 29; O.C.G.A. §15- obligation of a lawyer to guard party without his client’s consent? A 19-14(3); see also, Rule 1.6, ABA the confidences and secrets of lawyer should object upon learning Model Rules of Professional Con- his client. This ethical precept, that a payer of his fee other than his duct. The attorney/client privilege is unlike the evidentiary privilege, client is forwarding bills for legal for the benefit of the client, not the exists without regard to the na- services to an outside auditor. See, lawyer. Marriott Corp. v. American, ture or source of information or Standard 29; see also, Maryland Academy of Psychotherapists Inc., the fact that others share the State Bar Association, Ethics Advi- 157 Ga. App. 497, 277 S.E.2d 785 knowledge. A lawyer should sory Opinion 99-7 (December 18, (1981). Therefore, a lawyer cannot endeavor to act in a manner 1998). No additional detailed bills disclose to a person who pays the which preserves the evidentiary may be sent by the lawyer to the non- lawyer’s billing, such as an insurer, privilege; for example, he client payer without the client’s or to third-parties such as an should avoid professional dis- consent after the lawyer learns that insurer’s outside auditing service, cussions in the presence of per- the bills are being forwarded to an confidential information concerning sons to whom the privilege does outside auditor. Vermont Bar Asso- the client without the client’s consent, not extend. A lawyer owes an ciation, Opinion 98-7. except for disclosures that are obligation to advise the client II. Request by Non-Client to Obtain impliedly authorized to carry out the of the attorney-client privilege Client’s Consent to Disclose representation. Standard 28(b); and timely to assert the privi- Billing Statements. EC 4-2. The exception for disclo- lege unless it is waived by the A lawyer may not ethically sures that are impliedly authorized is client. comply with the requirement of a to be narrowly construed and does The definition of client “confi- person other than the client who pays not allow the attorney’s disclosure, dence” or “secret” is expansive and the lawyer’s billings that the lawyer without specific client consent, of would include much of the kind of seek or obtain the client’s consent to confidential client information to a information that might normally be potential disclosure of client confi- third-party hired by the person or found in detailed narrative billing dences or secrets contained in billing entity paying the fee other than the statements. Rule 3-104, DR 4-101.2 statements to be submitted to an client. A client’s secret is not only anything outside audit service. Such a require- An insurance carrier that has that might be embarrassing to the ment would put the attorney in an undertaken a contractual obligation client but also anything that relates to ethical dilemma, precluding the to furnish legal services on behalf of the representation. See, In the Matter attorney from representing the client. an insured would have implied of T. Edward Tante, 264 Ga. 692, It is fundamental that a lawyer authorization to receive and review 453 S.E.2d 688 (1994). This body should exercise independent judge- the billing statements for professional has recognized that the mere identifi- ment on behalf of a client. Standard services in order to satisfy those cation or location of a client may be a 41; Rule 3-105. This requires that the contractual obligations. However, if confidence or secret. See, State professional judgment of a lawyer

DECEMBER 1999 67 should be exercised, within the be interested in furthering their than the mere fact that his or her bounds of the law, solely for the own economic, political, or so- billing records will be released to the benefit of the lawyer’s client, free of cial goals without regard to the auditors. See, Vermont Opinion 98-7. the compromising influences of either professional responsibility of The more prudent approach would his personal interests, the interests of the lawyer to his individual cli- arguably require that the client be other clients, or the desires of third ent. Others may be far more informed that releasing the billing persons. EC 5-1. The Ethical Consid- concerned with establishment statement to an outside party could erations under Rule 3-105 related to or extension of legal principles lead to a waiver of the attorney-client the “Desires of Third Persons” are than in the immediate protection privilege, as well as any other directly on point: of the rights of the lawyer’s in- adverse impact that the lawyer knew EC 5-21 The obligation of dividual client. On some occa- or should have known. The dilemma a lawyer to exercise profes- sion, decisions on priority of for the lawyer in providing the client sional judgment solely on behalf work may be made by the em- with the veritable “list of horrors” of his client requires that he dis- ployer rather than by the law- lies in the potential chilling effect that regard the desires of others that yer with the result that prosecu- might result from even a subcon- might impair his free judgment. tion of work already undertaken scious desire to avoid offending the The desires of a third person for the clients is postponed to person responsible for payment of the will seldom adversely affect a their detriment. Similarly, an lawyer’s services. lawyer unless that person is in employer may seek, consciously However, the most troubling a position to exert strong eco- or unconsciously, to further its dilemma in this situation can occur nomic, political, or social pres- own economic interests through when the client asks the lawyer for sures upon the lawyer. These the actions of the lawyers em- advice on whether or not to consent influences are often subtle, and ployed by it. Since a lawyer must to disclosure, and this request for a lawyer must be alert to their always be free to exercise his advice would be a normal and existence. A lawyer subjected to professional judgment without automatic reaction to any efforts to outside pressures should make regard to the interests or mo- fully inform. In order to avoid both full disclosure of them to his tives of a third person, the law- the subtle and obvious influences client, and if he or his client yer who is employed by one to which may come into play in situa- believes that the effectiveness of represent another must con- tions where a person other than the his representation has been or stantly guard against erosion of client pays the lawyer’s billings and will be impaired thereby, the his professional freedom. requests that the attorney seek or lawyer should take proper steps An unacceptable ethical dilemma obtain the client’s consent to potential to withdraw from representation would be created in situations where disclosure of client confidences or of his client. a person other than the client pays the secrets contained in billing state- EC 5-22 Economic, politi- lawyer’s billings and requests that the ments, the situation must be analyzed cal, or social pressures by third attorney seek or obtain the client’s from the perspective of any other persons are less likely to impinge consent to potential disclosure to independent lawyer whose fees are upon the independent judgment third parties of client confidences or not being paid by a person other than of a lawyer in a matter in which secrets contained in billing state- the client. Where disclosure of the he is compensated directly by his ments. A lawyer cannot disclose billing statements interjects the client. On the other hand, if a law- client confidences without the in- slightest risk that the client could be yer is compensated from a source formed consent of the client, and in prejudiced by agreeing to disclosure, other than his client, he may feel this scenario, fully and fairly inform- and the client gains nothing in return, a sense of responsibility to some- ing the client is fraught with danger a truly disinterested lawyer would not one other than his client. in the form of subtle influences on the conclude that the client should agree EC 5-23 A person or orga- manner and method used by the and would advise the client accord- nization that pays or furnishes lawyer to inform the client. A benign ingly. See, e.g., 98 Formal Ethics lawyers to represent others pos- written disclosure is not likely to Opinion 10, North Carolina State sesses a potential power to ex- “fully inform” the client, since the Bar Association; Washington State ert strong pressures against the client’s consent to release of confi- Bar Association, Formal Opinion independent judgment of those dential information must be com- 195 (January 12, 1999). lawyers. Some employers may pletely informed, based upon more Prudence dictates that a lawyer

68 GEORGIA BAR JOURNAL avoid situations which create a compensation for the reasonable time Con tin ued from Page 23 substantial potential for undermining spent on task necessary to the repre- 1305 (11th Cir. 1999). the attorney/client relationship. Our sentation is to be avoided. Billing 24. Id. Rules of Ethics require that a lawyer guidelines that impose a de facto or 25. Id. at 1375-76. shall not permit a person who recom- arbitrary rate for certain services, 26. Id. at 1376. mends, employs or pays him to such as compensating a lawyer at 27. Id. 28. Id. at 1376-77. render legal services for another to paralegal rates, are also to be 29. Id. at 1381. direct or regulate his professional avoided. See Washington State Bar 30. McGregor v. Autozone, Inc., 180 F.3d judgment. Standard 4l; Rule 3-105 Association, Formal Opinion 195 1305 (11th Cir. 1999). and DR5-107. Therefore, a lawyer (January 12, 1999). 31. Id. at 1307 (citing Chevron, U.S.A., may not ethically comply with the A lawyer must obtain the in- Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 requirement of a person other than formed consent of the client before S. Ct. 2778, 2782 (1984)). the client who pays the lawyer’s complying with any restrictions on 32. Id. billings that the lawyer seek or obtain representation of the client that are 33. Id. at 1308. the client’s consent to potential imposed by a party other than the 34. Wolke v. Dreadnought Marine, Inc., 954 F. Supp. 1133 (E.D. Va. 1997). disclosure of client confidences or client, such as the payer of the 35. Id. at 1135. secrets contained in billing statements attorney’s legal services. Vermont Bar 36. Id. to be submitted to an outside audit Association, Opinion 98-7. See also 37. Id. (citing Chevron, U.S.A., Inc. v. service. Alabama State Bar, RO-98-02. Natural Resources Defense Council, U Inc., 467 U.S. 837, 841-44, 104 S. Ct. III. Guidelines for Professional 2778, 2781-82 (1984)). Services Imposed by Non-Client. 38. Id. at 1136. Standard 41 A lawyer shall 39. Id. at 1137; cf. Dormeyer v. Comerica not permit a person who recom- Bank Ill., No. 96 C 4805, 1998 U.S. En dn otes Dist. LEXIS 16585, at * 11-*13 (N.D. mends, employs, or pays him to Ill. Oct. 14, 1998) (rejecting regula- render legal services for another 1. EC-4-1 tion that would have required employ- to direct or regulate his profes- 2. Rule 3-104, DR 4-101 er to offer FMLA leave to employee sional judgment in rendering Preservation of Confidences and Se- who had not worked 1,250 hours crets of a Client within a twelve month period because such legal services. A violation (a) “Confidence” refers to information employer failed to notify employee the of this standard may be punished protected by the attorney-client privi- she failed to qualify under the by disbarment. lege under applicable law, and “se- FMLA). A lawyer whose professional cret” refers to other information 40. See Henthorn, 1999 U.S. Dist. LEX- gained in the professional relationship services are paid by a person other IS 2029, at *6. that the client has requested be held 41. Id. at *10. than the client can ethically comply inviolate or the disclosure of which 42. Id. with guidelines of the person paying would be embarrassing or would like- 43. See Fry v. First Fidelity Bancorpora- the bill, provided the guidelines do ly be detrimental to the client. tion, No. 95-6019, 1996 U.S. Dist. not require disclosure of confidential 3. Ethics bodies have recognized in- LEXIS 875, at *1 (E.D. Pa. Jan. 30, 1996). or secret information of the client, stances where the mere fact that a client has sought legal assistance may 44. Id. at *13. without the client’s consent, or be a confidence or secret. See, Ver- 45. Id. at *4-*6. interfere with the attorney’s indepen- mont Opinion 98-7; Maryland Ethics 46. Id. at *4. dent professional judgment in render- Advisory Opinion 99-7; Washington 47. Id. at *6. Formal Opinion 195. 48. Id. at *16; see also Mora v. Chem- ing legal services to the client or with Tronics, Inc., 16 F. Supp. 2d 1192, the attorney-client relationship. See, 1127 (S.D. Cal. 1998) (“This Court Rule 3-105, DR 5-107; see also, Rule likewise holds that to succeed on a 1.8(f), 2.1 and 2.3, ABA Model Rules claim of interference based on inade- quate notice, a Plaintiff must show of Professional Conduct. that the Defendant’s failure to inform Guidelines cannot be followed if resulted in the unknowing forfeiture they interfere with the lawyer’s of the protection of the FMLA.”) (em- exercise of the lawyer’s professional phasis added). judgment, and the lawyer must inform the client about any guide- lines. Any guideline which arbitrarily and unreasonably limits or restricts

DECEMBER 1999 69 NOTICES

Notice of Filing of Proposed Formal Advisory Opinions in Supreme Court PROPOSED FORMAL ever a lawyer creates the reasonable The version of Proposed ADVISORY OPINION appearance to others that he or she Formal Advisory Opinion Re- REQUEST NO. 97-R6 has effectively substituted the legal quest No. 97-R6, which appears knowledge and judgment of the in the October 1999 issue of the QUESTION PRESENTED: nonlawyer for his or her own in the Georgia Bar Journal for second Is a lawyer aiding a nonlawyer in representation of the lawyer’s client. publication, was not the version the unauthorized practice of law As applied to the specific ques- approved by the Formal Advisory when the lawyer allows a nonlawyer tions presented, a lawyer permitting a Opinion Board. Due to a clerical member of his or her staff to prepare nonlawyer to give legal advice to the error, an incorrect version was and sign correspondence which lawyer’s client based on the legal inadvertently placed in the threatens legal action or provides knowledge and judgment of the October issue. Below you will legal advice or both? nonlawyer rather than the lawyer, find the version that was ap- would be in clear violation of Stan- proved by the Board. SUMMARY ANSWER: dards of Conduct 24, 4, and 5. A Yes, a lawyer is aiding a nonlaw- lawyer permitting a nonlawyer to yer1 in the unauthorized practice of prepare and sign threatening corre- Secon d Publication of law when the lawyer allows a non- spondence to opposing counsel or lawyer member of his or her staff to unrepresented persons would be in Proposed Formal Advisory prepare and sign correspondence violation of these Standards of Opin ion Request No. 97-R6 which threatens legal action or Conduct because doing so creates the provides legal advice or both. Gener- reasonable appearance to others that Members of the State Bar of ally, a lawyer is aiding a nonlawyer the nonlawyer is exercising his or her Georgia are hereby NOTIFIED that in the unauthorized practice of law legal knowledge and professional the Formal Advisory Opinion Board whenever the lawyer effectively judgment in the matter. has made a final determination that substitutes the legal knowledge and the following Proposed Formal judgment of the nonlawyer for his or OPINION: Advisory Opinion should be issued. her own. Regardless of the task in This request for a Formal Pursuant to the provisions of Rule 4- question, a lawyer should never place Advisory Opinion was submitted by 403(d) of Chapter 4 of the Rules and a nonlawyer in situations in which he the Investigative Panel of the State Regulations of the State Bar of or she is called upon to exercise what Disciplinary Board along with Georgia, this proposed opinion will would amount to independent profes- examples of numerous grievances be filed with the Supreme Court of sional judgment for the lawyer’s regarding this issue recently consid- Georgia on or after December 15, client. Nothing in this limitation ered by the Panel. Essentially, the 1999. Any objection or comment to precludes paralegal representation of request prompts the Formal Advisory this Proposed Formal Advisory clients with legal problems whenever Opinion Board to return to previously Opinion must be filed with the such is expressly authorized by law.2 issued advisory opinions on the Supreme Court within twenty (20) In order to enforce this limitation subject of the use of nonlawyers to days of the filing of the Proposed in the public interest, it is necessary see if the guidance of those previous Formal Advisory Opinion and should to find a violation of the provisions opinions remains valid for current make reference to the request number prohibiting aiding a nonlawyer in the practice.3 of the proposed opinion. unauthorized practice of law when-

70 GEORGIA BAR JOURNAL The primary disciplinary stan- conduct would be assisting in the After noting the very broad legal dard involved in answering the unauthorized practice of law in definition of the practice of law in question presented is: Standard 24, violation of Standard 24, the Board Georgia, the Board said that the issue (“A lawyer shall not aid a nonlawyer said. The Board specifically limited was instead one of “strict adherence in the unauthorized practice of law.”) this prohibition, however, to letters to a program of supervision and As will become clear in this Opinion, addressed to adverse or potentially direction of a nonlawyer.” however, Standard 4 (“A lawyer shall adverse parties that, in essence, This insight, an insight we not engage in professional conduct threatened or implied a threat of reaffirm in this Opinion, was that the involving dishonesty, fraud, deceit or litigation. Furthermore, the Board legal issue of what constitutes the willful misrepresentation.”) and noted that there was a broad range of practice of law should be separated Standard 5 (“A lawyer shall not make activities, including investigating, from the issue of when does the any false, fraudulent, deceptive, or taking statements from clients and practice of law by an attorney misleading communications about the other witnesses, conducting legal become the practice of law by a lawyer or the lawyer’s services.”) are research, preparing legal documents nonlawyer because of a lack of also involved. (under “direct supervision of the involvement by the lawyer in the In interpreting these disciplinary member”), and performing adminis- representation. Under this analysis, it standards as applied to the question trative, secretarial, or clerical duties is clear that while most activities presented, we are guided by Canon 3 that were appropriate for nonlawyers. conducted by nonlawyers for lawyers of the Code of Professional Responsi- In the course of performing these are within the legal definition of the bility, “A Lawyer Should Assist in activities, nonlawyers could corre- practice of law, in that these activities Preventing the Unauthorized Practice spond on the firm’s letterhead under are “action[s] taken for others in . . . of Law,” and, more specifically, the their own signature. This was permit- matter[s] connected with the law,” following Ethical Considerations: ted as long as the nonlawyer clearly lawyers are assisting in the unautho- Ethical Consideration 3-2, Ethical identified his or her status as a rized practice of law only when they Consideration 3-5, and Ethical nonlawyer in a manner that would inappropriately delegate tasks to a Consideration 3-6. avoid misleading the recipient into nonlawyer or inadequately supervise In Advisory Opinion No. 19, an thinking that the nonlawyer was appropriately delegated tasks. Opinion issued before the creation of authorized to practice law. Implicitly suggesting that the Formal Advisory Opinion Board Whatever the merits of the whether or not a particular task and the issuance of advisory opinions answer to the particular question should be delegated to a nonlawyer by the Supreme Court, the State presented, this Opinion’s general was too contextual a matter both for Disciplinary Board addressed the approach to the issue, i.e., does the effective discipline and for guidance, propriety of Georgia lawyers permit- conduct of the nonlawyer, considered the Disciplinary Board provided a list ting nonlawyer employees to corre- outside of the context of supervision of specific tasks that could be safely spond concerning “legal matters” on by a licensed lawyer, appear to fit the delegated to nonlawyers “provided the law firm’s letterhead under the broad legal definition of the practice that proper and effective supervision nonlawyer’s signature. The Board of law, would have severely limited and control by the attorney exists.” said that in determining the propriety the role of lawyer-supervised The Board also provided a list of of this conduct it must first define the nonlawyers to what might be de- tasks that should not be delegated, practice of law in Georgia. In doing scribed as in-house and investigatory apparently without regard to the so, it relied upon the very broad functions. This Opinion was followed potential for supervision and control language of a then recent Georgia two years later, however, by Advi- that existed. Supreme Court opinion, Huber v. sory Opinion No. 21, an Opinion in Were we to determine that the State, 234 Ga. 458 (1975), which which the State Disciplinary Board lists of delegable and non-delegable included within the definition of the adopted a different approach. tasks in Advisory Opinion No. 21 practice “any action taken for others The specific question presented fully governed the question presented in any matter connected with the in Advisory Opinion No. 21 was: here, it would be clear that a lawyer law,” to conclude that the conduct in “What are the ethical responsibilities would be aiding the unauthorized question, regardless of whether a law of attorneys who employ legal practice if the lawyer permitted the suit was pending, constituted the assistants or paraprofessionals and nonlawyer to prepare and sign practice of law.4 Any lawyer permit- permit them to deal with other correspondence to clients providing ting a nonlawyer to engage in this lawyers, clients, and the public?” legal advice (because it would be

DECEMBER 1999 71 “contact with clients . . . requiring the Standard of Conduct. expressly authorized by law.5 rendering of legal advice) or permit- For the purposes of enforcement, In addition to assisting in the ted the nonlawyer to prepare and sign as opposed to guidance, it is not unauthorized practice of law by correspondence to opposing counsel adequate to say that substitution of creating the reasonable appearance to or unrepresented persons threatening the nonlawyer’s legal knowledge and others that the lawyer was substitut- legal action (because it would be judgment for that of his or her own ing a nonlawyer’s legal knowledge “contacting an opposite party or his constitutes a violation of the appli- and judgment for his or her own, a counsel in a situation in which legal cable Standards. The information for lawyer permitting this would also be rights of the firm’s clients will be determining what supervision was misrepresenting the nature of the asserted or negotiated”). It is our given to the nonlawyer, that is, what services provided and the nature of opinion, however, that applying the was and was not a substitution of the representation in violation of lists of tasks in Advisory Opinion legal knowledge and judgment, will Standards of Conduct 4 and 5. In No. 21 in a categorical manner runs always be within the control of the those circumstances where nonlawyer risks of both over regulation and attorney alleged to have violated the representation is specifically autho- under regulation of the use of applicable Standards. To render this rized by regulation, statute or rule of nonlawyers and, thereby, risks both guidance enforceable, therefore, it is an adjudicatory body, it must be the loss of the efficiency nonlawyers necessary to find a violation of the made clear to the client that they will can provide and the loss of adequate Standards prohibiting aiding a be receiving nonlawyer representation protection of the public from unau- nonlawyer in the unauthorized and not representation by a lawyer. thorized practice. Rather than being practice of law whenever a lawyer Applying this analysis to the applied categorically, these lists creates the reasonable appearance to question presented, if by “prepare should instead be considered good others that he or she has effectively and sign” it is meant that the legal general guidance for the more substituted the legal knowledge and advice to be given to the client is particular determination of whether judgment of the nonlawyer for his or advice based upon the legal knowl- the representation of the client has her own. edge and judgment of the nonlawyer, been turned over, effectively, to the Thus, a lawyer is aiding a it is clear that the representation nonlawyer by the lawyer permitting a nonlawyer in the unauthorized would effectively be representation substitution of the nonlawyer’s legal practice of law whenever the lawyer by a nonlawyer rather than by the knowledge and judgment for that of creates a reasonable appearance to retained lawyer. A lawyer permitting his or her own. If such substitution others that the lawyer has effectively a nonlawyer to do this would be in has occurred then the lawyer is aiding substituted the legal knowledge and violation of Standards of Conduct 24, the nonlawyer in the unauthorized judgment of the nonlawyer for his or 4, and 5. A lawyer permitting a practice of law whether or not the her own. Regardless of the task in nonlawyer to prepare and sign conduct is proscribed by any list. question, lawyers should never place threatening correspondence to The question of whether the nonlawyers in situations in which the opposing counsel or unrepresented lawyer has permitted a substitution of nonlawyer is called upon to exercise persons would also be in violation of the nonlawyer’s legal knowledge and what would amount to independent these Standards of Conduct because judgment for that of his or her own is professional judgment for the by doing so he or she creates the adequate, we believe, for guidance to lawyer’s client. Nor should a nonlaw- reasonable appearance to others that attorneys in determining what can yer be placed in situations in which the nonlawyer is exercising his or her and cannot be delegated to decisions must be made for the legal knowledge and professional nonlawyers. Our task, here, however, lawyer’s client or advice given to the judgment in the matter. is broader than just giving guidance. lawyer’s client based on the For public policy reasons it is We must also be concerned in issuing nonlawyer’s legal knowledge, rather important that the legal profession this opinion with the protection of the than that of the lawyer. Finally, restrict its use of nonlawyers to those public interest in avoiding unautho- nonlawyers should not be placed in uses that would improve the quality, rized practice, and we must be aware situations in which the nonlawyer, including the efficiency and cost- of the use of this opinions by various rather than the lawyer, is called upon efficiency, of legal representation bar organizations, such as the to argue the client’s position. Nothing rather than using nonlawyers as Investigative Panel of the State in these limitations precludes parale- substitutes for legal representation. Disciplinary Board, for determining gal representation of clients with Lawyers, as professionals, are when there has been a violation of a legal problems whenever such is ultimately responsible for maintain-

72 GEORGIA BAR JOURNAL ing the quality of the legal conversa- office in the State of Georgia under 5. For example, it is perfectly permissi- tion in both the prevention and the the direction of a full-time associate ble for a nonlawyer, employed as a of that firm who was a member of the paralegal by a law firm or by a non- resolution of disputes. This profes- State Bar of Georgia. In determining profit corporation, such as the Georgia sional responsibility cannot be that it could, the Board warned about Legal Service Program, doing busi- delegated to others without jeopardiz- the possibility that the local attorney ness as a law firm, to represent his or ing the good work that lawyers have would be assisting the nonlicensed her own clients whenever paralegal lawyers in the unauthorized practice representation is permitted by law, as done throughout history in meeting of law in Georgia. In Formal Advisory it would be if the representation were this responsibility. Opinion No. 86-5, an Opinion issued on a food stamp problem at an admin- by the Supreme Court, the Board was istrative hearing, or before the Social asked if it would be improper for law- Security Administration, or in other En dn otes yers to permit nonlawyers to close circumstances where a statute or the real estate transactions. The Board authorized rules of the adjudicatory 1. The term “nonlawyer” includes para- determined that it would be if the re- body specifically allow for and regu- legals. sponsibility for “closing” was dele- late representation or counsel by per- 2. See footnote 5 infra. gated to the nonlawyer without partic- sons other than a lawyer. It must be 3. In addition to those opinions dis- ipation by the attorney. We view the made clear to the clients, of course, cussed in this opinion, there are two holding of Formal Advisory Opinion that what they will be receiving is other Advisory Opinions concerning No. 86-5 as consistent with the Opin- paralegal representation and not rep- the prohibition on assisting the unau- ion issued here. resentation by a lawyer. Nothing in thorized practice of law. In Advisory 4. The language relied upon from Huber this opinion is intended to conflict Opinion No. 23, the State Disciplin- v. State was later codified in with regulation, by statute or rule of ary Board was asked if an out-of-state O.C.G.A. §15-19-50. an adjudicatory body, of use of non- law firm could open and maintain an lawyers in such authorized roles.

Mainstreet pickup 10/99 p63

DECEMBER 1999 73 NOTICES

Notice of Filing of Proposed Formal Advisory Opinions in Supreme Court Secon d Publication of direct and constant to avoid any estate transaction.” Under the cir- charges of aiding the unauthorized cumstances described by the corre- Proposed Formal Advisory practice of law.” The lawyer’s spondent, the participation of the Opin ion Request No. 99-R3 physical presence at a closing will lawyer is less than meaningful. The assure that there is supervision of the lawyer is not in control of the actual Members of the State Bar of work of the paralegal which is direct closing processing from beginning to Georgia are hereby NOTIFIED that and constant. end. The lawyer is brought into the closing process after it has already the Formal Advisory Opinion Board OPINION: has made a final determination that begun. Even though the paralegal may Formal Advisory Opinion No. 86- state that they are not a lawyer and is the following Proposed Formal 5 (86-R9) issued by the Supreme Court Advisory Opinion should be issued. not there for the purpose of giving legal states that the closing of real estate advice, circumstances may arise where Pursuant to the provisions of Rule 4- transactions constitutes the practice of 403(d) of Chapter 4 of the Rules and one involved in this process as a law as defined by O.C.G.A. §15-19- purchaser, seller or lender would look Regulations of the State Bar of 50. Therefore, it is ethically improper Georgia, this proposed opinion will to the paralegal for advice and/or for lawyers to permit nonlawyers to explanations normally provided by a be filed with the Supreme Court of close real estate transactions. Corre- Georgia on or after December 15, lawyer. This is not permissible. spondent inquires whether it is ethically Formal Advisory Opinion No. 86- 1999. Any objection or comment to permissible to allow a paralegal to be this Proposed Formal Advisory 5 provides that “Supervision of the physically present at a remote site for work of the paralegal by the attorney Opinion must be filed with the the purpose of witnessing signatures Supreme Court within twenty (20) must be direct and constant to avoid and assuring that documents are signed any charges of aiding the unauthorized days of the filing of the Proposed properly. The paralegal announces to Formal Advisory Opinion and should practice of law.” By allowing a the borrower that they are there to paralegal to appear at closings at make reference to the request number assist the attorney in the closing of the proposed opinion. remote sites at which lawyers are process. The lawyer is contacted by present only by telephone conference PROPOSED FORMAL ADVISORY telephone by the paralegal during the will obviously increase the likelihood OPINION REQUEST NO. 99-R3 closing to discuss the legal aspects of that the paralegal may be placed in QUESTION PRESENTED: the closing. circumstances where the paralegal is Ethical propriety of lawyers The critical issue in this inquiry actually providing legal advice or telephonically participating in real is what constitutes the participation explanations, or exercising independent estate closings from remote sites. of the attorney in the closing transac- judgement as to whether legal advice or tion. The lawyer must be in control of explanation is required. SUMMARY ANSWER: the closing process from beginning to Standard 24 is not met by the Formal Advisory Opinion No. end. The supervision of the paralegal lawyer being called on the telephone 86-5 explains that a lawyer cannot must be direct and constant. during the course of the closing process delegate to a nonlawyer the responsi- Formal Advisory Opinion No. for the purpose of responding to bility to “close” the real estate 86-5 states that “If the ‘closing’ is questions or reviewing documents. The transaction without the participation defined as the entire series of events lawyer’s physical presence at a closing of an attorney. Formal Advisory through which title to the land is will assure that there is supervision of Opinion No. 86-5 also provides that conveyed from one party to another the work of the paralegal which is “Supervision of the work of the party, it would be ethically improper direct and constant. paralegal by the attorney must be for a nonlawyer to ‘close’ a real U

74 GEORGIA BAR JOURNAL Proposed Amendment to Uniform Superior Court

At its meeting on October 11, 3. Probable cause hearings; records of certified court reporters. 1999, the Executive Committee of the 4. Arraignment or waiver of Such tapes shall be part of the record Council of Superior court Judges arraignment; of the case and transmitted to courts elected to provide notice and pursue 5. Entry of pleas in criminal of appeal as if part of a transcript. comment regarding a proposal to cases; (E) Audio-Visual Minimum amend Rule 9 of the Uniform Supe- 6. Imposition of sentences upon Standards. Any audio-visual telecom- rior Court rules. The proposed pleas of guilty or nolo munications system utilized under amendment shows exactly which contendre; this rule must conform to the follow- language has been changed; the 7. Probation revocation hear- ing minimum requirements: additional language has been under- ings; 1. all participants must be able to lined. 8. Acceptance of special pleas see, hear, and communicate with each of insanity (incompetency to other simultaneously; and Rule 9: Telephone Conferencing stand trial); 2. video quality must be adequate (Executive Committee draft) 9. Special situations involving to allow participants to observe each inmates with highly sensitive other’s demeanor and nonverbal Rule 9. Telephone and Video medical problems or who pose a communication. U conferencing. high security risk; and 9.1 Telephone conferencing. The 10. Testimony of youthful trial court on its own motion or upon witnesses. the request of any party may in its Notwithstanding any other discretion conduct pre-trial or provisions of this rule, a judge may post-trial proceedings in civil actions order a defendant’s personal appear- by telephone conference with attor- ance in court for any hearing. neys for all affected parties. The trial (B) Confidential Attorney-Client judge may specify: Communication. Such communica- (A) The time and the person who tion shall be covered by Georgia law will initiate the conference; pertaining to attorney-client privilege. (B) The party which is to incur the (C) Expert Testimony. In any Health initial expense of the conference pending matter, an expert witness call, or the apportionment of such may testify via two-way audio-visual Care costs among the parties, while telecommunications system. In any retaining the discretion to make an criminal matter, timely objection by adjustment of such costs upon final any party to the use of such system Audi- resolution of the case by taxing for expert testimony shall be sus- same as a part of the costs; and, tained; however, such objection shall tors (C) Any other matter or require- act as a motion for continuance and ment necessary to accomplish or waiver of any speedy trial demand. facilitate the telephone conference. “Timely objection” means an objec- pickup tion made within ten (10) days of 9.2 Videoconferencing. filing written notice of a party’s 10/99 (A) The following matters may intention to present expert testimony be conducted by a two-way by means of a two-way audio-visual audio-visual telecommunications telecommunications system. p87 system: (D) Recording of Hearings. 1. Determination of indigence Every use of a telecommunications and appointment of counsel; system under this rule may be 2. Hearings on appearance and recorded on audio-visual tape and appeal bonds; such tapes shall be preserved as if

DECEMBER 1999 75 Board of Governors Meeting Attendance

1-99 3-99 4-99 6-99(Fri) 6-99(Sat) 8/99 1-99 3-99 4-99 6-99(Fri) 6-99(Sat) 8/99 Atlanta Macon Lanier Savannah Savannah Amelia Atlanta Macon Lanier Savannah Savannah Amelia • • • • • Ross Adams • • • • • Hubert C. Lovein • • • • • • Anthony B. Askew • • • • • • Leland M. Malchow • • • • • • William Steven Askew n/a n/a n/a n/a • • Edwin Marger • Thurbert E. Baker • • • • • • H. Fielder Martin • • • • Donna Barwick • • • • • • C. Truitt Martin, Jr. • • • • William D. Barwick n/a n/a n/a n/a • • Johnny W. Mason, Jr. • • • • • Robert L. Beard, Jr. • • • • William C. McCalley n/a n/a n/a n/a • J. Lane Bearden • • • • • • William C. McCracken • James D. Benefield III • • • • • Ellen McElyea • • • • • Barbara B. Bishop • • • • Joseph Dennis McGovern • • • • Joseph A. Boone • • • • Larry M. Melnick • • • • • • Wayne B. Bradley • • • • C. Patrick Milford • • • • • • Jeffrey O. Bramlett • • • • • J. Brown Moseley • • • • Sam L. Brannen • • • • A. L. Mullins • • • • James C. Brim, Jr. • • • • • • George E. Mundy n/a n/a n/a n/a • • William K. Broker • • • • • • Aasia Mustakeem • James Michael Brown • • • John A. Nix • • • Thomas R. Burnside, Jr. • • • • • • Dennis C. O’Brien n/a n/a n/a n/a • S. Kendall Butterworth • • • • Bonnie C. Oliver • • • • • • William E. Cannon, Jr. • • • • • • Rudolph N. Patterson • • • • • • Edward E. Carriere, Jr. • • Matthew H. Patton • • • Paul Todd Carroll, III • • • Carson Dane Perkins • • • • • • Bryan M. Cavan • • • Patrise Perkins-Hooker e • • • • • Thomas C. Chambers, III • • • • • J. Robert Persons • • F. L. Champion, Jr. • • • • • R. Chris Phelps • • • • • John A. Chandler • • • • • John C. Pridgen • • • • • Joseph D. Cooley, III • • • • Thomas J. Ratcliffe, Jr. • • • • • Delia T. Crouch • • • • • George Robert Reinhardt • • • • • William D. Cunningham • • • Jeffrey P. Richards • • • • • William V. Custer, IV n/a n/a n/a n/a • • Robert V. Rodatus • • • • • • David P. Darden • • • • • Tina Shadix Roddenbery • • • • Dwight J. Davis • • • • • Joseph Roseborough • • • • • Joseph W. Dent • • • • William C. Rumer • • • • • • Ernest De Pascale, Jr. n/a n/a n/a n/a • • Dennis C. Sanders • • • • Foy R. Devine • • • • • Thomas G. Sampson • • • • • • Charles J. Driebe n/a n/a n/a n/a • • Robert L. Shannon, Jr. • • • • • • C. Wilson DuBose • • • • • • Michael M. Sheffield • • • • • • James B. Durham n/a n/a n/a n/a • • Kenneth L. Shigley • • • • • • Myles E.. Eastwood • • • • • M.T. Simmons, Jr. • • • • • Gerald M. Edenfield • • • • • • Lamar W. Sizemore, Jr. • • J. Franklin Edenfield • • • • • William L. Skinner • • • • • • O. Wayne Ellerbee n/a n/a n/a n/a • • Philip C. Smith • • • • Michael V. Elsberry • • • • • R. Rucker Smith • • • • • J. Daniel Falligant • • • • • S. David Smith • • • • • • B. Lawrence Fowler n/a n/a n/a n/a n/a • Hugh D. Sosebee • • • • James B. Franklin • e • • • Huey Spearman • • • • • Gregory L. Fullerton • • • • • Lawrence A. Stagg • • • • • Gregory A. Futch • • • • John Stell • • • • • H. Emily George • • • • Frank B. Strickland • • • • • • Adele P. Grubbs • • • Richard C. Sutton n/a n/a n/a n/a • • Robert R. Gunn, II • • • • • Jeffrey B. Talley • • • • John P. Harrington • • • • • • John J. Tarleton • • • • • Walter C. Hartridge • • • • • S. Lester Tate, III n/a n/a n/a n/a • • Steven A. Hathorn • • • • Henry C. Tharpe, Jr. • • • • • • James A. Hawkins • • • • • Dwight L. Thomas • • • • • • Joseph J. Hennesy, Jr. • Edward D. Tolley • • • • • Phyllis J. Holmen • • • • • Christopher A. Townley • • • • Roy B. Huff • • • Carl A. Veline, Jr. • • • • Donald W. Huskins • • • Joseph L. Waldrep • • • • • • Robert D. Ingram • • • • • J. Henry Walker • • • • • • James Irvin • J. Tracy Ward • • • • Rachel K. Iverson George W. Weaver • • • • • Michael R. Jones, Sr. • • • • • • N. Harvey Weitz • • • • • William Alan Jordan • • • A. J. Welch n/a n/a n/a n/a • • J. Benjamin Kay, III • • • • Andrew J. Whalen, III n/a n/a n/a n/a • • Dow (Kip) N. Kirkpatrick • • • • James L. Wiggins • • • • • William P. Langdale, Jr. • • • Wiliam N. Withrow, Jr. • e e e • • Earle F. Lasseter • • • Gerald P. Word • • • • J. Alvin Leaphart • • • • • • Anne Workman • • • • Francis Marion Lewis • • • • Gordon R. Zeese • • • • • • David S. Lipscomb • • Marvin H. Zion

• - attended; e - excused; blank- did not attend; n/a - not on Board

76 GEORGIA BAR JOURNAL Financial Institutions Approved as Depositories For Attorney Trust Accounts As of November 1999 First Union National Bank BYRON, GA COLQUITT, GA If your bank is not listed, NationsBank, N.A. First Liberty Bank Peoples Community Bank please call the Office of the Regions Bank General Counsel at (404) 527- SouthTrust Bank, N.A. CAIRO, GA COLUMBUS, GA 8720 or (800) 334-6865. The Summit National Bank Cairo Banking Company SouthTrust Bank, N.A. SunTrust Bank, Atlanta Citizens Bank Columbus Bank & Trust Co. Wachovia Bank, N.A. First National Bank of Grady Regions Bank ABBEVILLE, GA County SunTrust Bank, West Georgia, Dorsey State Bank AUGUSTA, GA N.A. Wilcox County State Bank Georgia Bank & Trust Company CALHOUN, GA First National Bank of Northwest GA COMER, GA ACWORTH, GA of Augusta SunTrust Bank, Augusta, N.A. Georgia Bank & Trust Merchants & Farmers Bank Premier Bank BAINBRIDGE, GA CAMILLA, GA COMMERCE, GA ADAIRSVILLE, GA Bank of Camilla Community Bank & Trust-Jackson Bank of Adairsville First Community Bank of Southwest Georgia Planters & Citizens Bank First National Bank of Commerce First Port City Bank ADEL, GA CANTON, GA CONYERS, GA Adel Banking Company Bank of Canton Main Street Savings Bank, F.S.B. Farmers and Merchants Bank, Inc. BARNESVILLE, GA The First National Bank Bank of North Georgia Regions Bank Etowah Bank AILEY, GA United Bank Security State Bank CORDELE, GA Montgomery County Bank BARWICK, GA Central Bank & Trust ALAMO, GA Barwick Banking Company CARNESVILLE, GA Cordele Banking Company First Bank and Trust Regions Bank Wheeler County State Bank BAXLEY, GA CARROLLTON, GA CORNELIA, GA ALBANY, GA Peoples State Bank & Trust First National Bank of South Citizens Bank & Trust of West Community Bank & Trust BLACKSHEAR, GA Georgia Habersham Bank Georgia The Blackshear Bank Community First Bank Regions Bank Regions Bank Security Bank & Trust Company Peoples Bank Regions Bank West Georgia National Bank of COVINGTON, GA SunTrust Bank, South Georgia., N.A. BLAIRSVILLE, GA Carrollton First Newton Bank First National Bank of Union Co. Main Street Bank ALMA, GA Alma Exchange Bank & Trust United Community Bank CARTERSVILLE, GA Bartow County Bank CRAWFORD, GA First National Bank of Alma BLAKELY, GA First Community Bank & Trust The Commercial Bank Bank of Early ALPHARETTA, GA CUMMING, GA First Colony Bank First State Bank of Blakely CEDARTOWN, GA The First National Bank of Polk The Citizens Bank of Forsyth BLUE RIDGE, GA County AMERICUS, GA County Fannin County Bank, N.A. Premier Bank Citizens Bank of Americus Regions Bank Sumter Bank & Trust Company Peoples Bank of Fannin County Regions Bank CHATSWORTH, GA BROXTON, GA DAHLONEGA, GA ASHBURN, GA Cohutta Banking Company Colony Bank Southeast Bank of Dahlonega Ashburn Bank The First National Bank of Community National Bank Chatsworth Lumpkin County Bank BRUNSWICK, GA United Community Bank Atlantic National Bank ATHENS, GA CLAXTON, GA Barnett Bank, N.A. DALLAS, GA Athens First Bank & Trust The Claxton Bank First American Bank & Trust The Coastal Bank of Georgia Tippins Bank and Trust Regions Bank The First Bank of Brunswick Company First Georgia Bank CLAYTON, GA DALTON, GA SouthTrust Bank, N.A. Colonial Bank SunTrust Bank, Northeast NationsBank, N.A. First Clayton Bank & Trust SunTrust Bank, Southeast Company First Bank of Dalton Georgia, N.A. Georgia, N.A. Rabun County Bank Hardwick Bank & Trust Company Regions Bank ATLANTA, GA Regions Bank AmTrade International Bank of BUCHANAN, GA First National Bank of Georgia CLEVELAND, GA DANIELSVILLE, GA Georgia Regions Bank Bank of Danielsville Capitol City Bank & Trust BUFORD, GA White County Bank Company Peoples Bank & Trust DARIEN, GA CDC Federal Credit Union COCHRAN, GA Sapelo National Bank Citizens Trust Bank BUTLER, GA The Citizens Bank of Cochran Southeastern Bank Embry National Bank First Liberty Bank State Bank of Cochran

DECEMBER 1999 77 DAWSON, GA FAIRBURN, GA HIAWASSEE, GA LINCOLNTON, GA Bank of Dawson Fairburn Banking Company Bank of Hiawassee Farmers State Bank The Citizens State Bank Towns County Bank FAYETTEVILLE, GA LITHONIA, GA DAWSONVILLE, GA First Citizens Bank of Georgia HINESVILLE, GA Peoples Bank Dawson County Bank The Coastal Bank First Community Bank of FITZGERALD, GA The Heritage Bank LOUISVILLE, GA Dawsonville The Bank of Fitzgerald First National Bank & Trust Community Banking Company of HIRAM, GA Company DECATUR, GA Fitzgerald Community Trust Bank Bank Atlanta LUMBER CITY, GA Decatur First Bank FOLKSTON, GA HOGANSVILLE, GA Bank of Lumber City Fidelity National Bank First National Bank The Citizens Bank LUMPKIN, GA DONALSONVILLE, GA FORSYTH, GA HOMER, GA Farmers State Bank The Citizens State Bank The Farmers Bank Regions Bank MABLETON, GA First State Bank of Donalsonville Monroe County Bank HOMERVILLE, GA Georgia State Bank Merchants and Farmers Bank FORT VALLEY, GA Citizens Bank MACON, GA DORAVILLE, GA The Citizens Bank IRWINTON, GA Colonial Bank Global Commerce Bank First South Bank, N.A. Wilkinson County Bank First Liberty Bank FRANKLIN, GA First South Bank, N.A. DOUGLAS, GA JACKSON, GA First Liberty Bank Regions Bank Security Bank of Bibb County McIntosh State Bank First National Bank of Coffee SunTrust Bank, Middle Georgia, N.A. GAINESVILLE, GA County Gainesville Bank & Trust JASPER, GA MADISON, GA Crescent Bank & Trust Company DOUGLASVILLE, GA Georgia First Bank, N.A. Bank of Madison Jasper Banking Company Citizens and Merchants State Bank Lanier National Bank Regions Bank Regions Bank Regions Bank Douglas County Bank MANCHESTER, GA Regions Bank GLENNVILLE, GA JEFFERSON, GA F&M Bank & Trust Company Regions Bank DUBLIN, GA First Citizens Bank The Glennville Bank and Trust MARIETTA, GA Farmers & Merchants Bank JEFFERSONVILLE, GA Company Charter Bank & Trust Company Farmers State Bank Peoples State Bank First Alliance Bank The Morris State Bank South Georgia Bank, FSB JESUP, GA Riverside Bank GORDON, GA DULUTH, GA Wayne National Bank The Gordon Bank MCDONOUGH, GA Premier Bank First Community Bank of Henry Georgia First Bank, N.A. JONESBORO, GA GRAY, GA Heritage Bank County DUNWOODY, GA Bank of Gray McRAE, GA KENNESAW, GA Colonial Bank GREENSBORO, GA The Merchants & Citizens Bank The Enterprise National Bank of The Westside Bank & Trust Citizens Union Bank The Security State Bank Atlanta Company Premier Bank METTER, GA KINGSLAND, GA EAST POINT, GA GREENVILLE, GA The Brown Bank Regions Bank Citizens State Bank Greenville Banking Company Metter Banking Company EASTMAN, GA LAFAYETTE, GA Pineland State Bank GRIFFIN, GA The Bank of LaFayette, Georgia The Bank of Dodge County The Bank of Spalding County MILAN, GA Bank of Eastman First National Bank of Griffin Citizens Bank Citizens Bank and Trust Company LA GRANGE, GA United Bank Commercial Bank & Trust MILLEDGEVILLE, GA Company of Troup County EATONTON, GA HADDOCK, GA Century Bank & Trust Farmers & Merchants Bank Community Bank & Trust-Troup Jones County Bank Exchange Bank The Peoples Bank First Flag Bank First National Bank of Baldwin HAHIRA, GA LAKELAND, GA County EDISON, GA Citizens Community Bank The Bank of Edison Farmers and Merchants Bank Premier Bank HARTWELL, GA ELBERTON, GA LAVONIA, GA MILLEN, GA Bank of Hartwell Pinnacle Bank, N.A. Northeast Georgia Bank First National Bank & Trust Regions Bank HAWKINSVILLE, GA Peoples Bank Company Regions Bank Planters Bank ELLAVILLE, GA LAWRENCEVILLE, GA SunMark Community Bank Bank of Ellaville The Brand Banking Company MOLENA, GA HAZLEHURST, GA Colonial Bank First Bank of Pike ELLIJAY, GA Bank of Hazelhurst Premier Bank The Bank of Ellijay MONROE, GA Gilmer County Bank LENOX, GA The National Bank of Walton Regions Bank Bank of Lenox County Walton Bank & Trust Company

78 GEORGIA BAR JOURNAL MONTICELLO, GA RIVERDALE, GA STATESBORO, GA VALDOSTA, GA Bank of Monticello First Citizens Bank of Georgia Eagle Bank & Trust Commercial Banking Company Farmers & Merchants Bank First State Bank & Trust Company MOULTRIE, GA ROBERTA, GA First Bulloch Bank & Trust of Valdosta American Banking Company First Community Bank of Georgia Company The Park Avenue Bank Southwest Georgia Bank First Liberty Bank Sea Island Bank Valdosta Bank & Trust MOUNT VERNON, GA ROCKMART, GA STOCKBRIDGE, GA VIDALIA, GA Mt. Vernon Bank United Bank & Trust Company The First State Bank Altamaha Bank & Trust NASHVILLE, GA ROME, GA Wachovia Bank, N.A. Darby Bank & Trust Company Bank of Alapaha AmSouth Bank of Georgia SUMMERVILLE, GA VIENNA, GA The Citizens Bank Citizens First Bank Farmers & Merchants Bank Bank of Dooly The United Banking Company First Floyd Bank First National Bank of Chattooga Citizens Bank Greater Rome Bank County NEWINGTON, GA Regions Bank VILLA RICA, GA Bank of Newington SunTrust Bank, Northwest SUWANEE, GA HomeTown Bank of Villa Rica NEWNAN, GA Georgia, N.A. Quantum National Bank Regions Bank Bank of Coweta ROSSVILLE, GA SWAINSBORO, GA WADLEY, GA The Bank of Newnan Rossville Bank The Citizens Bank of Swainsboro First National Bank & Trust First Citizens Bank Spivey State Bank Company First South Bank, N.A. ROSWELL, GA Milton National Bank SYLVESTER, GA WARNER ROBINS, GA NORCROSS, GA Sylvester Banking Company CB&T Bank of Middle Georgia Excel Federal Credit Union ROYSTON, GA First Capital Bank Pinnacle Bank, N.A. TALBOTTON, GA WARRENTON, GA First Security National Bank The Peoples Bank of Talbotton Citizens Bank Regions Bank ST. MARYS, GA First National Bank THOMASTON, GA WATKINSVILLE, GA OCILLA, GA Bank of Upson Athens First Bank & Trust Citizens Security Bank ST. SIMONS ISLAND, GA Thomaston Federal Savings Bank Oconee State Bank The First State Bank of South Frederica Bank & Trust West Central Georgia Bank Georgia WAYCROSS, GA SANDERSVILLE, GA THOMASVILLE, GA First Georgia Bank PEACHTREE CITY, GA Citizens Bank of Washington Bank of Thomas County First Liberty Bank Fayette County Bank County Commercial Bank The Patterson Bank Peachtree National Bank The Geo. D. Warthen Bank Farmers & Merchants Bank Waycross Bank & Trust Thomasville National Bank PELHAM, GA SARDIS, GA WAYNESBORO, GA Family Federal Savings Bank Bank of Burke County THOMSON, GA First National Bank Pelham Banking Company First Bank of Georgia SAVANNAH, GA Regions Bank WEST POINT, GA PEMBROKE, GA AmeriBank, N.A. First National Bank of West Point First Bank of Coastal Georgia The Carver State Bank TIFTON, GA The Savannah Bank, N.A. Citizens Security Bank WINDER, GA PERRY, GA SunTrust Bank, Savannah, N.A. First Community Bank of Tifton Peoples Bank The Bank of Perry South Georgia Banking Company Regions Bank Crossroads Bank of Georgia SENOIA, GA Farmers & Merchants Community TOCCOA, GA WINTERVILLE, GA PINE MOUNTAIN, GA Bank The Bank of Toccoa Main Street Bank First Peoples Bank Liberty Bank & Trust SMYRNA, GA WOODBURY, GA Regions Bank POWDER SPRINGS, GA Regions Bank Woodbury Banking Company Independent Bank & Trust Stephens Federal Bank SNELLVILLE, GA WOODLAND, GA Company TRENTON, GA The Eastside Bank & Trust The Talbot State Bank Bank of Dade QUITMAN, GA Company The Citizens National Bank of Citizens Bank & Trust WOODSTOCK, GA SOCIAL CIRCLE, GA Citizens Bank (Cherokee County) Quitman TUCKER, GA Georgia Central Bank First National Bank of Cherokee Heritage Community Bank Community Bank of Georgia REIDSVILLE, GA SPARTA, GA Mountain National Bank WRENS, GA Tucker Federal Bank The Tattnall Bank Bank of Hancock County First State Bank United Security Bank TWIN CITY, GA RICHMOND HILL, GA WRIGHTSVILLE, GA Bryan Bank & Trust SPRINGFIELD, GA Durden Banking Company, Inc. Bank of Wrightsville First National Bank of Effingham UNION POINT, GA RINCON, GA ZEBULON, GA The Farmers Bank AmeriBank, N.A. United Bank RINGGOLD, GA Northwest Georgia Bank

DECEMBER 1999 79 80 Audited 1999 Financial Statement GEORGIA BAR JOURNAL Audited 1999 Financial Statement DECEMBER 1999 81 82 Audited 1999 Financial Statement GEORGIA BAR JOURNAL Audited 1999 Financial Statement DECEMBER 1999 83 Audited 1999 Financial Statement

84 GEORGIA BAR JOURNAL ANNOUNCEMENT Annual Fiction Writing Competition THE EDITORIAL BOARD standards of good taste or of the Georgia Bar Journal decency. is pleased to announce that (3). All articles it will again sponsor the submitted to the Competi- Annual Fiction Writing tion become the property of Competition in accordance the State Bar of Georgia, with the rules set below. and by submitting the The purposes of the compe- article, the author warrants tition are to enhance interest that all persons and events in the Journal, to encourage contained in the article are excellence in writing by fictitious, that any similar- members of the Bar, and to ity to actual persons or provide an innovative events is purely coinciden- vehicle for the illustration tal, and that the article has of the life and work of not been previously pub- lawyers. For further lished. information contact Jennifer (4). Articles should not M. Davis, Communications be more than 7,500 words Director, State Bar of in length and should be Georgia, 800 The Hurt submitted in triplicate on Bldg., 50 Hurt Plaza, double-spaced, typed, Atlanta, GA 30303. Phone (404) 527-8736. letter-size (8½” x 11”) paper. (5). Articles will be judged without knowledge of Rules for An n ual Fiction Writin g the identity of the author’s name and State Bar ID number should be placed only on a separate cover sheet Competition with the name of the story. The following rules will govern the Fiction Writing (6). All submissions must be received at State Bar Competition sponsored by the Editorial Board of the Headquarters in proper form prior to the close of Georgia Bar Journal: business on Friday, January 28, 2000. Submissions (1). The competition is open to any member in received after that date and time will not be considered. good standing of the State Bar of Georgia, except Please direct all submissions to: Fiction Writing current members of the Editorial Board. Authors may Competition, Georgia Bar Journal, 800 The Hurt collaborate, but only one submission from each mem- Bldg., 50 Hurt Plaza, Atlanta, GA 30303. The author ber will be considered. assumes all risks of delivery by mail. (2). Subject to the following criteria, the article (7). Depending on the number of submissions, the may be on any fictional topic, and may be in any form Board may elect to solicit outside assistance in review- (humorous, anecdotal, mystery, science fiction, etc.) ing the articles. The final decision, however, will be Among the criteria the Board will consider in judging made by majority vote of the Board. Contestants will the articles submitted are: quality of writing; creativity; be advised of the results of the Competition by letter. degree of interest to lawyers and relevance to their life Honorable mentions may be announced. and work; extent to which the article comports with the (8). The winning article, if any, will be published. established reputation of the Journal; and adherence to The board reserves the right to edit articles, and to specified limitations on length and other competition select no winner and to publish no article from among requirements. The Board will not consider any article those submitted if the submissions are deemed by the that, in the sole judgment of the Board, contains matter Board not to be of notable quality. U that is libelous, or that violates accepted community

DECEMBER 1999 85 Nextel new BW

86 GEORGIA BAR JOURNAL Con tin ued from Page 33 51. Document A201-1997, Section 4.3.10; Document B141-1997, Section 1.3.6. 45. Id. § 44-14-361.1(4). 52. Document A201-1997, Paragraph 4.3.10. 46. “Pay if paid” or “contingent payment” clauses are contrac- 53. Id. tual provisions which provide that payment to a subcon- 54. Document B141-1997, Paragraph 1.3.8.7. tractor or material supplier is contingent upon the general 55. Document A201-1997, Paragraphs 4.3.10 and 14.4. contractor’s receipt of payment from the owner. See, e.g., 56. Document A201-1997, Paragraph 6.2.3. St. Paul Fire & Marine Ins. Co. v. Georgia Interstate Elec. 57. United States v. Spearin, 248 U.S. 132, 39 S. Ct. 59 (1918). Co., 187 Ga. App. 579, 370 S.E.2d 829 (1988). In order to be 58. See, e.g., Federal Acquisition Regulations, § 52.249-2. effective, such clauses must use “condition precedent” 59. Document A201-1997, Paragraph 14.4. language or otherwise express and clearly show the inten- 60. Under O.C.G.A. §§ 13-6-2 through 13-6-9, a non-breaching tion of the parties. Id. at 580, 370 S.E.2d at 831 (citing party may generally recover its costs of performance to date Sasser & Co. v. Griffin, 133 Ga. App. 83, 86, 210 S.E.2d 34, plus the reasonably-anticipated benefit of future performance. 39 (1974); D.I. Corbett Elec. v. Venture Constr. Co., 140 Ga. 61. Document A201-1997, Paragraph 4.3.2. App. 586, 587, 231 S.E.2d 536, 537 (1976); Peacock Constr. 62. Document B141, Paragraph 1.3.2 and 1.3.8. Co. v. West, 111 Ga. App. 604, 606, 142 S.E.2d 332, 333 63. Id. (1965)). 64. Id. 47. 236 Ga. App. 793, 513 S.E.2d 759 (1999). 65. Document B141-1997, Paragraphs 1.3.8.1 and 1.3.9.1. 48. 232 Ga. App. 569, 502 S.E.2d 508 (1998). 66. Document B141-1997, Paragraph 1.2.2.1. 49. See Document A201-1997, General Information. 67. Document B141-1997, Paragraph 2.8. 50. The Engineers Joint Contract Document Committee, com- 68. Document B141-1997, Paragraphs 1.2.2.1 and 1.2.2.2. prising the American Society of Consulting Engineers coun- 69. Document B141-1997, Paragraph 2.6.1.1. cil, American Society of Civil Engineers, and the NSPE’s 70. Document A201-1997, Paragraph 3.12.10. Professional Engineers in Private Practice division, offer form 71. Document A201-1997, Paragraph 3.2. contracts. The Associated General Contractors and American 72. Document A201-1997, Paragraph 12.2.2. Subcontractors Association also offer forms. The Associated 73. Document A201-1997, Paragraph 2.4.1. Owners and Developers is in the process of creating another 74. Document A201-1997, Paragraph 2.1.1. set of form agreements. 75. Document A201-1997, Paragraph 2.1.1.

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