Annual Meeting June 5-8 | Amelia Island, Fla

April 2014 Volume 19 Number 6

2014 State Bar of Georgia Annual Meeting June 5-8 | Amelia Island, Fla.

4_14GBJ_Cover.indd 1 4/23/2014 11:06:22 AM Trial By Jury: What’s the Big Deal?

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

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

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

You may view “Trial By Jury: What’s the Big Deal?” at www.gabar.org/ forthepublic/forteachersstudents/lre/ teacherresources. For a free DVD copy, email [email protected] or call 404- 527-8792. For more information on the LRE Program, contact Deborah Craytor at [email protected] or 404-527-8785.

4_14GBJ_Cover.indd 2 4/23/2014 11:06:46 AM T ur n to

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al res ea rcc h.h Visualizeuaal search resultsesesulltst to ssee the beststt rresultseesults

Only Fastcase featurestu an interactivetit vve mmap of search results, soo youy can see ttheheh mmosmostt important cases at a gglance. Longg lilistsstts of text search results (even when sortededd wewell),ell), only show one ranking at a time. Sortingng tthehhe most relevant case to the top might sortrt tthehee most cited case to the bottom. Sorting thtthehe most cited case to the top might sort thehehe ® most recent case to the bottom.m.

Fastcase’s patent-pending Interactive Timeline view shows all of the search results on a single map, illustrating how the results occur over time, how relevant each case is SmarterS by association.based on your search terms, how many LogL in at www.gabar.org times each case has been “cited generally” by all other cases, and how many times each case has been cited only by the super-relevant cases within the search result (“cited within” search results). The visual map provides volumes more information than any list of search results – you have to see it to believe it!

LTN Free to members of the State Bar of Georgia. #1 2010 Customer Satisfaction Survey Members of the State Bar of Georgia now have access to Fastcase for free. Unlimited search using Fastcase’s smarter legal research tools, unlimited printing, and unlimited reference support, all free to active members of the State Bar of Georgia. Log in at www.gabar.org and click the Fastcase logo. And don’t forget that Fastcase’s free apps for iPhone, Android and iPad connect to your bar account automatically by Mobile Sync. All free as a benefit of membership in the State Bar of Georgia. Quick Dial Editorial Board Attorney Discipline 800-334-6865 Editor-in-Chief ext. 720 404-527-8720 Bridgette E. Eckerson Consumer Assistance Program 404-527-8759 Members Conference Room Reservations 404-419-0155 Julia Anderson Christina Virginia Hendrix Fee Arbitration 404-527-8750 Robert Henry Beer Michelle J. Hirsch CLE Transcripts 404-527-8710 Diversity Program 404-527-8754 Donald P. Boyle Jr. Michael Eric Hooper ETHICS Helpline 800-682-9806 John Clay Bush Hollie G. Manheimer 404-527-8741 Clayton Owen Carmack Edward Alexander Marshall Georgia Bar Foundation/IOLTA 404-588-2240 Georgia Bar Journal 404-527-8791 James William Cobb Addison Johnson Schreck Lawyer Assistance Program 800-327-9631 Timothy Jerome Colletti Jack P. Smith III Lawyers Foundation of Georgia 404-659-6867 Lynn Gavin Pamela Y. White-Colbert Law Practice Management 404-527-8773 Law-Related Education 404-527-8785 Membership Records 404-527-8777 Editors Emeritus Meetings Information 404-527-8790 Robert R. Stubbs, 10-12 William L. Bost Jr., 91-93 Pro Bono Project 404-527-8763 Professionalism 404-225-5040 Donald P. Boyle Jr., 07-10 Charles R. Adams III, 89-91 Sections 404-527-8774 Marcus D. Liner, 04-07 L. Dale Owens, 87-89 Unlicensed Practice of Law 404-527-8743 Rebecca Ann Hoelting, 02-04 Donna G. Barwick, 86-87 Young Lawyers Division 404-527-8778 Marisa Anne Pagnattaro, 01-02 James C. Gaulden Jr., 85-86 Manuscript Submissions D. Scott Murray, 00-01 Jerry B. Blackstock, 84-85 The Georgia Bar Journal welcomes the submission of unsolicited legal manuscripts on topics of interest to the State Bar of William Wall Sapp, 99-00 Steven M. Collins, 82-84 Georgia or written by members of the State Bar of Georgia. Theodore H. Davis Jr., 97-99 Walter M. Grant, 79-82 Submissions should be 10 to 12 pages, double-spaced (including endnotes) and on letter-size paper. Citations should con- L. Brett Lockwood, 95-97 Stephen E. Raville, 77-79 form to A UNIFORM SYSTEM OF CITATION (19th ed. 2010). Stephanie B. Manis, 93-95 Please address unsolicited articles to: Bridgette Eckerson, State Bar of Georgia, Communications Department, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303. Authors will be notified Officers of the State Bar of Georgia of the Editorial Board’s decision regarding publication. Charles L. Ruffin President The Georgia Bar Journal welcomes the submission of news about local and circuit bar association happenings, Bar Patrise M. Perkins-Hooker President-Elect members, law firms and topics of interest to attorneys in Robin Frazer Clark Immediate Past President Georgia. Please send news releases and other information to: Sarah I. Coole, Director of Communications, 104 Robert J. Kauffman Treasurer Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: Rita A. Sheffey Secretary 404-527-8791; [email protected]. Darrell L. Sutton YLD President Disabilities V. Sharon Edenfield YLD President-Elect If you have a disability which requires printed Jon Pannell YLD Past President materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Communications Committee Headquarters Jay Cook Co-Chair 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 800-334-6865, 404-527-8700, FAX 404-527-8717 Robert Ingram Co-Chair Visit us on the Web at www.gabar.org. South Georgia Office Communications Staff 244 E. Second St. (31794) P.O. Box 1390 Sarah I. Coole Director Tifton, GA 31793-1390 800-330-0446, 229-387-0446, FAX 229-382-7435 Jennifer R. Mason Assistant Director Coastal Georgia Office Derrick W. Stanley Section Liaison 18 E. Bay St. Stephanie J. Wilson Administrative Assistant Savannah, GA 31401-1225 877-239-9910, 912-239-9910, FAX 912-239-9970 Publisher’s Statement The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (February, April, June, August, October, December) with a special issue in November by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. Copyright State Bar of Georgia 2014. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia and additional The opinions expressed in the Georgia Bar Journal mailing offices. Opinions and conclusions expressed in articles herein are those of the authors and not necessarily those of the are those of the authors. The views expressed herein Editorial Board, Communications Committee, Officers or Board are not necessarily those of the State Bar of Georgia, of Governors of the State Bar of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement its Board of Governors or its Executive Committee. does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. 10

April 2014 Volume 19 Number 6

GBJ Legal Departments 10 4 From the President 16 Discovering Clarity: 8 From the YLD President A Call to Renovate Georgia’s 44 Bench & Bar Discovery Landscape by Joseph C. Sullivan 52 Office of the General Counsel GBJ Features 54 Lawyer Discipline 16 58 Law Practice Management Constitutional Symposium: 62 Section News Celebrating the U.S. 64 Member Benefits 28 Constitution 225 Years 66 Writing Matters After Ratification 68 Professionalism Page by Prof. David Oedel 72 In Memoriam 24 74 CLE Calendar 23rd Annual Georgia Bar 76 Notices Media & Judiciary Conference by Stephanie J. Wilson 91 Classified Resources 92 Advertisers Index 28 2013 Georgia Corporation 52 and Business Organization Case Law Developments by Thomas C. Richey and Michael P. Carey 38 Georgia Legal Services Program “And Justice for All” See details on the 2014 Honor Roll of Contributors Annual Meeting on the 66 inside back cover of this issue. More information is available online at www.gabar.org. From the President

by Charles L. Ruffin Photo by Zach Porter Photography In Celebration of the Constitution “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”—Preamble to the U.S. Constitution

he first official engagement of the American The first constitution of the United States of America—known as the Articles of Confederation— Revolutionary War—the firing of the had been created in 1777, and its ratification was completed in 1781. The Articles were barely sufficient “Shot Heard Round the World”—took to enable the Continental Congress to legitimate- T ly direct the Revolutionary place just after dawn on War, engage in diplomacy with Europe and address ter- April 19, 1775, setting off “I, for one, am thankful that ritorial issues and relations with the Native Americans. the battle of Lexington and we have a Constitution, one But following the success of the Revolution, many of Concord. Less than 15 months built on the foundational the Founding Fathers recognized the need for a stronger later, on July 4, 1776, the principles of upholding the set of laws and a stronger federal government. Continental Congress formal- In the summer of 1787, rule of law and protecting the 55 delegates, out of 74 ly adopted the Declaration of appointed, from 12 states liberties of all Americans.” (all but Rhode Island, which Independence. The rebellion refused to participate) gathered in Philadelphia for the by the 13 American colonies Constitutional Convention and set about writing and approving a “supreme law of against Great Britain continued until 1783, when the the land” for the United States, our present Constitution. According to Roger A. Bruns’ introduction to A Treaty of Paris ended the war and recognized the sov- More Perfect Union: The Creation of the United States Constitution, published in 1986 by the National Archives ereignty of the United States. in Washington, D.C., the major players in Philadelphia

4 Georgia Bar Journal included Gen. George Washington, who was elected unanimously to preside over the convention; an 81-year-old Benjamin Franklin, who was crippled by gout; Alexander Hamilton of New York; and, Bruns wrote, “the small, boyish-looking, 36-year-old delegate from Virginia, James Madison.” Among those absent were John Adams abroad on foreign missions, John Jay in New York and Patrick Henry who refused to attend because of his opposition to the establishment of a central government. It was Madison who saw America’s government under the Articles of Confederation as futile and weak and one which needed to be replaced with a strong central government to provide order and sta- bility. He looked to the Constitutional Convention as the opportunity to forge a government in this mold. Throughout the sessions, Madison sat in front of the presiding officer, George Washington, and compiled a record of the proceedings, not missing a single day or a single major speech. From the opening of the convention on May 25 through its adjournment on Sept. 17, the delegates held their sessions in secret. No reporters or visitors were permitted. In often sweltering conditions, they debated various plans for establishing the government and resolving issue after issue. The most acri- monious debate over whether the states would be represented in the legislative branch equally or based on population would deadlock the convention for a period of weeks before the “Great Compromise” split the difference: the states would be represented equally in the Senate and by population in the House of Representatives. Part of the compromise addressed a division between the northern and southern states by declaring that representation in the House would be based on the number of free persons and three- fifths of “all other persons,” a euphemism for slaves. On the final day of the convention, and just before the delegates formally signed the Constitution, Benjamin Franklin made an appeal for unity, declaring, “I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats.” Copies of the six-page Constitution would leave Philadelphia the next morning, the debate over a national form of government moving to a larger arena: ratification by the states. By January 1788, five of the nine states necessary for ratification of the Constitution had done so: Delaware, Pennsylvania, New Jersey, Georgia and Connecticut. They were followed in order later that year by Massachusetts, Maryland, South Carolina, New Hampshire, Virginia and New York; by North Carolina in 1789; and, finally, by Rhode Island in 1790. The first Congress convened in New York City on March 4, 1789. George Washington,

April 2014 5 FROMBanished TOUnified

A History of the Legal Profession in Georgia

WRITTEN BY LINTON S. JOHNSON II | FOREWORD & EDITED BY CHARLES L. RUFFIN | DESIGNED BY SARAH I. COOLE

On the Occasion of the 50th Anniversary of the Establishment of the State Bar of Georgia

This 252-page leather-bound coffee table book helps celebrate the uniÀ ed State Bar’s 50th anniversary by following the growth of Georgia lawyers and courts from their humble beginning up to the modern justice system that serves the people today. The cost of the book is $65, which includes tax and shipping. To order, visit www.gabar.org or contact Stephanie Wilson at 404-527-8792 or [email protected]. unanimously elected as the first Bar of Georgia proudly hosted a (including the Bill of Rights), the president, and John Adams, the National Celebration of the U.S. last amendment having been rati- first vice president, were sworn in Constitution on the occasion of the fied in 1992. These amendments on April 30, 1789. 225th anniversary of its ratification have, for example, abolished slav- So the period that began with (see page 16). Our first keynote ery and ensured that women and the first shots fired at Lexington speaker was historian and author minorities have the right to vote. and Concord, continued with David McCullough, who remind- It is still and always will be a work the Declaration of Independence, ed us that the Founding Fathers in progress. the Articles of Confederation, were all imperfect mortals with I, for one, am thankful that we the conclusion of the eight- human weaknesses, and that the have a Constitution, one built on the year Revolutionary War, drafting Constitution as written in 1787 was foundational principles of uphold- and ratification of a whole new not a perfect document. After all, ing the rule of law and protecting Constitution and ending with the as Thomas Jefferson noted in the the liberties of all Americans. Or, as seating of a new national govern- Declaration of Independence, the David McCullough said in a 2003 ment, spanned only 14 years. birth of our nation was taking place speech to the National Endowment Two hundred twenty-five “in the course of human events.” for the Humanities, “Blessed we years later, we can only marvel During the ratification period, are. And duty bound, to continue at our Founding Fathers’ ability for example, support had grown the great cause of freedom, in their to produce a written instrument for a “Bill of Rights” to be added spirit and in their memory and for that, while embodying our foun- to the Constitution. By the fall of those who are to carry on next in dational principles, established a 1788, Roger Bruns wrote, James their turn.” government and the rule of law Madison had been convinced that When I first took office as State and guaranteed certain rights for not only was a bill of rights neces- Bar president, I said I believe the a relatively small population in sary to ensure acceptance of the Constitution is only as good as the the 18th century. Amazingly, that Constitution but that it would people for whom it was enacted Constitution has stood the test of have positive effects. He wrote, and who are covered by its provi- time and continues to meet the on Oct. 17, that such “fundamen- sions. The character of the popula- more complex and challenging tal maxims of free Government” tion for whom the Constitution needs of more than 300 million would be “a good ground for an provides guiding principles is par- citizens in the 21st century. appeal to the sense of community” amount to its longevity. It should be noted that during our against potential oppression and At the close of the Constitutional nation’s formative years, England would “counteract the impulses of Convention in 1787, Benjamin was ruled by a king, Germany by interest and passion.” On Oct. 2, Franklin was asked, “Well, Doctor, a kaiser, Russia by a czar, China by 1789, President Washington sent what have we got—a republic or a an emperor and Japan by a shogun. to each of the states a copy of the monarchy?” Franklin replied suc- Situations have, of course, changed 12 amendments adopted by the cinctly, “A republic, if you can dramatically for all of those super- Congress in September. By Dec. 15, keep it.” powers past and present. The one 1791, three-fourths of the states had I ask you, are we keeping it? constant republic has been the ratified the 10 amendments known United States and our Constitution, as the Bill of Rights. Charles L. Ruffin is president now the oldest in the world. In the 225 years since its ratifi- of the State Bar of Georgia and Last month, as this year’s cation, the Constitution has been can be reached at cruffin@ “President’s Project,” the State amended a total of only 27 times bakerdonelson.com.

The Georgia Bar Journal is available online at www.gabar.org. You can now:

$SULO9ROXPH1XPEHU Search the Georgia Bar Journal in its entirety by keywords. Access all the information of the printed edition, but electronically. Add “sticky notes” and “favorite” tabs to the copy you access.

2014 State Bar of Georgia Share the entire Journal or specific pages of the Journal with your Annual Meeting June 5-8 | Amelia Island, Fla. colleagues by sending an email or posting it on social networking sites. Link directly to advertisers within each issue. Try it now! www.gabar.org/newsandpublications/georgiabarjournal/

April 2014 7 From the YLD President

by Darrell L. Sutton Service: Our Duty and Our Honor

or as long as I have been a young lawyer the time to give? Why have Sharri Edenfield, Carl Varnedoe, John Jackson, Ivy Cadle, Adriana Capifali, Yari Lawson YLD has been known as “the service arm of and Rachel Fields, the past and current chairs of the YLD’s Leadership Academy, ensured that it devotes a the Bar.” Indeed, “to foster among YLD mem- full session each year to service to the public? Why did F Katie Willett and Brandon Elijah, two young lawyers bers the principles of duty and service to the public” is the who answered my challenge to this year’s slate of YLD Executive Council representatives and committee chairs third of the YLD’s six stated purposes in Article I, Section to develop and implement new programming, from scratch create the YLD Wills Clinic, a program devot- 2 of its bylaws. More than any ed to serving this state’s first responders by conducting clin- of the other five, though, it is ics where wills and other estate “You don’t have to be a planning documents are pre- this purpose that is fulfilled pared for them? To paraphrase member of the YLD to serve YLD past president Josh Bell, every day by the current crop they did so because it’s the our profession and the public; only means they (and we) have of young lawyers. One needs to pay the debt we owe the public simply for the privilege look no further than the lat- to join us in the journey down of being a lawyer. As lawyers we have been est edition of the YLD Review that uncertain path.” given an opportunity to succeed that few others have. (the YLD newsletter and sister Before we were lawyers we were given the opportunity publication to the Journal) to to obtain a first-rate education. Once we became lawyers we were given the daily opportunity to influence see that. justice with our every professional move, and be hand- somely rewarded for it. How many other professionals Why is “duty and service to the public” so important find themselves regularly with another’s fate in their that it’s a stated purpose of the YLD? Why did Meredith hands—whether the accused criminal or the victim of Sutton and Jessica Sabbath, the co-chairs of the 2014 a crime, the injured plaintiff or the alleged tortfeasor? YLD Signature Fundraiser, devote time to organizing a But with every opportunity comes a corresponding fundraiser when they, like the rest of us, have so little obligation. In other words, nothing in life is free. We

8 Georgia Bar Journal cannot continue to reap the benefits, financial and otherwise, our profession provides us without acting to fulfill the obligation that comes with it. How we fulfill this obligation is not important; that we do so is. It is not lost on me that doing so is difficult, though. It requires that we make the hard choice to serve the public, community and Bar. This choice is hard because the benefit of service is not only uncertain, it is often unquantifiable. And everyone knows that lawyers like certainty and tangible results. We want to know the DISCOVER THE MEMBERSHIP answer to a question before we ask it. We want to know ADVANTAGE. 401(k)s BUILT how a provision will be construed before it is inserted into a contract. EXCLUSIVELY FOR LAW FIRMS. The choice to serve also is hard because it requires time, of which there is a finite amount. In our business, time truly is money. So the choice to allocate an hour to a pro bono case means the choice to take that hour away from a paying case. The choice to spend a day volunteering for charity means the corresponding choice to allocate that day to a non-revenue-generating pursuit. The choice to attend a Bar function means the choice to spend time with other lawyers in a context where money likely won’t be made. When deciding whether to make this hard choice, remember that excellence, professionally and otherwise, can be achieved only by making the hard choice. While doing so might lead to monumental failure if we make the wrong choice, it will lead to roaring, lasting success if we make the right choice. It is no secret that the hard choice requires a willingness to take risk. We The ABA RETIREMENT FUNDS have to convince ourselves to go after a result that is PROGRAM (“the Program”) uncertain and far from guaranteed. And at the same was created as an American time we have to ignore the easy choice, which is the Bar Association member benefit pursuit of a result we feel reasonably confident will in 1963. The size and strength occur. To use a gambling analogy, only with high risk of the Program’s membership do we acquire high reward. means you have access to a The only certain thing about the hard choice to serve comprehensive and affordable causes other than our practices is that the result of retirement plan no matter the Please visit the doing so is uncertain. But if there is a tangible result to ABA Retirement size of your firm. be gained by doing it—and I truly believe there is—the Funds Booth at the only way we’ll find it is to take the risk and head down upcoming State Bar Call an ABA Retirement Funds of Georgia Annual that uncertain path. Meeting for a free Program Regional Representative You don’t have to be a member of the YLD to serve cost comparison today at (866) 812-1510. our profession and the public; to join us in the journey and plan evaluation. www.abaretirement.com June 5-8, 2014 down that uncertain path. So won’t you fulfill the Omni Amelia [email protected] obligation to serve that comes with the opportunity to Island Resort, be lawyer? Become an active member of a Bar section. Amelia Island, FL Volunteer to serve a Bar initiative. Go beyond the Bar and volunteer to take a case pro bono, either on your own or from Atlanta Legal Aid or the Georgia Legal Services Program. Volunteer for a local charity. The Program is available through the State Bar of Georgia as a member benefit. This No matter your chosen outlet for service, just find communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security. time to serve. It is vital because it positively impacts the Securities offered through ING Financial Advisers, LLC (Member SIPC). Bar and everything beyond it. The ABA Retirement Funds Program and ING Financial Advisers, LLC, are separate, unaffiliated companies and are not responsible for one another’s products and services. Darrell L. Sutton is the president of the Young Lawyers Division of the State Bar of Georgia and can CN0311-8583-0415 be reached at [email protected].

April 2014 9

A Look at the Law

Discovering Clarity: A Call to Renovate Georgia’s Discovery Landscape by Joseph C. Sullivan

ou have experienced it before: an Outlook Ignoring the increasing sweat consolidating around your eyebrows, you casually (yet quickly) ask your reminder appears on the computer screen officemates for some guidance, but remain befuddled. Half of your neighbors indicate that you can still serve and you are bluntly reminded that the discovery so long as the initial six-month discovery Y period, which they claim is automatically provided discovery period in one of your cases is set to expire at under Georgia law, remains open. The other half indicate that immediate, hand-service of your discovery the end of the month (or so you think). Your stomach requests is required. They explain that if the initial six- month discovery period expires before the responses begins to churn and little beads of sweat start to form to your requests are actually due (i.e., if responses to your proposed requests are not due within the next 30 just above your ever-increasing receding hairline—you days), the opposing side can simply avoid responding altogether because, by operation of law, the discovery ask yourself: “have five months already passed?” After period would be over at that time. Unsatisfied with the resulting uncertainty, you struggle to remember your a frantic review of the case documents, depositions and Westlaw password and conduct actual legal research. Your research uncovers the following: discovery initial discovery responses, it becomes apparent that need not be completed within six months, just promptly and diligently pursued within that time period if one clarification is required on a previous interrogatory seeks to utilize the compulsory powers of the court.1 If discovery need not be completed within six months, response or that recently obtained deposition testimo- you ask, then why are you so worried? Although you have determined that discovery need not be completed ny has unearthed additional documentation not previ- within six months, you continue your research to ascertain what constitutes the “prompt” and “diligent” ously produced. Although you believe 30 days remain pursuit of discovery under Georgia law. Instead of finding comforting clarification, you are left even more in the discovery period, confusion (then panic) begins confused with a Georgia Uniform Superior Court Rule2 (the Rule) that provides: to set in: can you serve additional discovery requests In order for a party to utilize the court’s compulsory at any time before the next 30 days expires, or must process to compel discovery, any desired discovery procedures must first be commenced promptly, you immediately hand-serve the requests so the oppos- pursued diligently and completed without unnecessary delay and within six months after the filing of ing side is afforded its statutorily provided 30 days in the answer. At any time, the court, in its discretion, may extend, reopen or shorten the time to utilize the which to serve its responses? court’s compulsory process to compel discovery.3

April 2014 11 As a result, you have established within the six-month discovery discovery, both the courts and the that, although discovery need not period a condition of using the attorneys of this state are subject be completed within six months, in trial court’s compulsory process. to the same nebulous discovery order to compel responses to your It does not require the compulso- system. When an existing discov- anticipated discovery requests, the ry process itself to be requested ery rule continually confuses both same must have been “commenced within the discovery period. . . . the gatekeepers of a legal sys- promptly, pursued diligently and So long as discovery is promptly tem and its practitioners, that rule completed without unnecessary and diligently pursued by the must be amended for the benefit delay and within six months after moving party within the dis- of us all. the filing of the answer.”4 In other covery period, . . . a motion to In fact, despite explicit acknowl- words, there is no “Black Letter compel or for sanctions may be edgement by the Supreme Court Law” when it comes to discovery brought after the expiration of of Georgia (more than 25 years deadlines in civil actions filed in the discovery period.7 ago), that the Rule simply does Georgia’s superior and state court not account for cases in which a systems. Indeed, the entire system As such, there is no set discov- default exists (“due to oversight appears to be built towards forcing ery period, and there is no set in drafting,” no less), the Rule has our already overcrowded, over- deadline before which a motion remained unchanged since that worked and understaffed judiciary to compel or motion for sanctions time.12 Although a defendant in to get involved in the undisputed must be brought. All that the Rule default cannot contest liability in bane of their legal existence: dis- requires is that such a motion be a Georgia court, that defendant covery disputes. In response, you brought within six months after is nonetheless entitled to contest quickly draft the required discov- the answer was filed and that the the plaintiff’s entitlement to dam- ery requests and serve them via discovery sought was promptly ages.13 However, the current Rule hand-delivery on your opposing and diligently pursued. does not provide clear guidance as counsel in hopes of avoiding any The Court of Appeals of Georgia to whether a defendant in default is additional conflict. Next time, you has often referred to a set six-month entitled to seek discovery to contest tell yourself, you will set the cal- discovery period, even though the damages at trial (because no answer endar reminder for an earlier date. Rule is not so clear. To be sure, would, as a matter of operation of The sequence of discovery in in several opinions on the issue, the default, be on file with the Georgia’s legal system should not the court continually refers to a court) and, if so, any deadline asso- be so complicated. For instance, “six month discovery period” so ciated with that ability. Instead, the although one must engage in as to provide the impression that parties once again must engage in “prompt” and “diligent” discov- litigants in Georgia courts are actu- a “paper war” to force the court ery (that must also have been con- ally afforded a blanket six month to decide, in its own undefined ducted within six months of the period after the answer is filed to discretion, whether the defaulting filing of the answer) in order to engage in discovery. For instance, party is entitled to engage in dis- compel discovery responses, nei- in Pascal v. Prescod,8 the Court of covery, as well as the scope of that ther party is actually entitled to a Appeals of Georgia calculated discovery (if permitted). full six months to conduct discov- the discovery period as being an Ensuring prompt and diligent ery under the existing Rule.5 This unconditional six months from the discovery should not be an ardu- fact is simply inconceivable to most filing of the answer by citing to ous process, despite the impracti- litigators in our state, due in part to the Rule: “[t]he answer was filed cal rules of our state and superior confusing uniform superior/state on April 12, 2007. The discovery court systems. These rules essen- court rules (and even more perplex- period did not expire until October tially force their stewards to engage ing cases analyzing those rules): 12, 2007, six months after the filing in a guessing game as to whether in Georgia, no litigant is provided of the answer. See Uniform Superior discovery is permitted and when six months (or any other defined Court Rule 5.1.”9 In Walker v. Metro discovery concludes, ultimate- period) within which to engage Atlanta Rapid Transit Auth.,10 the ly requiring the assistance of an in discovery. Indeed, U.S.C.R. 5.1 court once again referred to “the already burdened court to play the “does not . . . require that [a litigant] six-month discovery period”11 role of referee in a game destined be given six months in which to afforded by the Rule, as if to sug- for an expensive and protracted complete discovery.”6 Nor does the gest the existence of a six-month finale. By amending the Rule to Rule require that a litigant move to period that the current confines of provide clear and unmistakable compel within the initial six months Georgia law simply do not provide. deadlines to conduct discovery, we after an answer is filed. Because neither the Rule, nor can eradicate: the requirements that the vast majority of controlling a judge make a fact-specific deter- The [R]ule makes the commence- case law, provides six months in mination on whether the parties ment and pursuit of discovery which the parties shall complete promptly and diligently pursued

12 Georgia Bar Journal discovery, the existing confusion the rampant and false impression months thereafter) was promptly over the length of the “default” that a blanket six-month discovery and diligently pursued. Again, the discovery period (if any), as well period exists. Given the apparent result is that each case must be con- as whether the parties can serve universal acceptance of this suppo- sidered on an individualized, fact- discovery in cases of default. sition, it does appear that six months specific basis, leading to increased Addressing these lingering is a sufficient default period for time and expense. issues would not only lower the civil litigants to obtain the discov- Consequently, the proposed stress associated with litigation ery necessary to support or defeat new discovery rule must clearly (and frantic calls to malpractice the claims at issue. Nevertheless, define when discovery is to com- carriers), but also eliminate the instead of simply applying a six- mence, terminate, and, more to court’s involvement in adjudicat- month discovery deadline from the the point, clarify that the parties ing discovery disputes that can filing of the answer, the current request the assistance of the court be more quickly and effectively framework allows for broad inter- only in the rarest of circumstances. resolved before a motion to com- pretation in when the discovery A proposed uniform rule, based pel is ever filed. The procedural period actually expires. As a result, loosely on the existing law in North framework in handling such dis- some attorneys believe that they Carolina, is as follows: covery issues should be set up can request written discovery so to require the assistance of the long as they serve the requests Subject to an order modifying court only as a last resort. As within six months of the filing of these discovery procedures for the law currently exists, discovery the answer, while others maintain good cause shown, all written disputes are rampant and litigants that they can request written dis- discovery must be served, and are effectively encouraged to seek covery so long as the responses to depositions taken, within one the assistance of the court to adju- same are due before the expiration hundred and eighty (180) days dicate disputes that can be expe- of six months from the filing of from the filing of the answer. diently handled with a straight- an answer. Still others maintain Objections to discovery must be forward amendment to the Rule that they can serve discovery at timely made, and, if not assert- clarifying the muddied waters we any time, it being the duty of the ed before the expiration of the now navigate. court to determine whether that initial one hundred and eighty The Rule already provides discovery (be it served five months (180) days provided, must be Georgia’s judiciary and attorneys after the filing of the answer or 10 filed within fifteen days (15)

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April 2014 13 from the service of the written litigants in Georgia will only be to compel or for sanctions after discovery in dispute, or will be permitted to seek the assistance receipt of the alleged insufficient considered waived. of the court on limited and clearly discovery responses. Such a frame- defined terms, as opposed to the work would ensure that both par- Motions seeking an extension of previous Rule in which litigants ties are provided the opportunity the discovery period or permis- were at their leisure to seek the to seek (to the extent required) the sion to take more discovery than assistance of the court at any time assistance of the court for any writ- is permitted under the rules shall they deemed necessary. ten discovery that would require a be made or presented prior to Second, the proposed rule pro- response after the initial 180 days the expiration of the initial one vides a date certain to timely provided for by the proposed rule. hundred and eighty (180) days object to discovery. Specifically, The proposed terms would also, as provided to complete discovery. objections to discovery must be stated earlier, prevent a party from Such motions must set forth good “timely made.” In other words, simply sleeping on its rights until cause justifying the additional all objections to discovery served the final days leading up to trial. time or additional discovery, and within the 180 days following the Finally, the proposed rule sole- will be granted only upon such a filing of an answer are waived if ly requires the assistance of the showing of good cause. not subject to a formal objection court should the parties move for within those 180 days. Although extraordinary relief. The proposed A party in default shall have it can be argued that such a vast rule explicitly states the discovery no right to engage in discovery deadline would enable litigants to deadlines and leaves no need for unless that default is opened pur- wait until the last minute to raise the court to determine if discov- suant to the terms of O.C.G.A. an objection to requests that are ery was “diligently” or “promptly” § 9-11-55(a). If the default is overbroad or responses that are pursued. The parties either have opened pursuant to O.C.G.A. insufficient, it must be mentioned to move to extend the explicit 180- § 9-11-55(a), the one hundred that the current Rule has no time day discovery period before the and eighty (180) day discovery bar whatsoever. Accordingly, the expiration of the time provided, or period shall commence from the Rules permit a litigant to file a no further discovery can be taken. 45th day after service on the motion to compel or a motion Whereas, in the current Rule, the defaulting party. for sanctions after the expiration court can use its discretion, “at of the (poorly defined) discov- any time”14 to extend, re-open The proposed rule contains the ery period, even on the eve of or shorten the time to utilize the following benefits: first, it sets a trial if not otherwise barred by court’s compulsory process to com- deadline certain within which all a pre-trial order. Discovery dis- pel discovery; the court’s role in written discovery must be served putes are, unfortunately, going to involving itself in discovery dis- and depositions must be taken: 180 exist given the nature of litigation. putes between the parties should days from the filing of the answer, Nevertheless, the Rules should be lessened as a result of the pro- resolving the confusion as to encourage litigants to seek rapid posed modifications. whether a party must serve discov- resolution of such disputes. Under Of course, the proposed rule is ery before the current and vaguely the proposed rule, if a litigant does not without criticism. For instance, defined six-month “deadline.” In not take the time and/or attention a party in default would not be so requiring, the rule permits a to utilize the court’s compulsory able to participate in any discov- party to serve (via regular mail or powers or to move for sanctions ery whatsoever (including discov- hand-delivery), on the 180th day during the initial 180 days after ery limited to damages) unless from the filing of the answer, writ- the answer is filed in a particular that party was able to open the ten discovery to which the recipi- case, the right to do so is forfeited. default “as a matter of right” pur- ent can respond in accordance with Third, the proposed rule also suant to O.C.G.A. § 9-11-55(a). the existing statutory rules. All provides that a party must object However, the case law and proce- written discovery served or deposi- to any written discovery requir- dural rules currently in place are tions taken after the initial 180-day ing a response after the initial 180 already detrimental to the rights period are barred unless provided days permitted (for written dis- of parties in default. Indeed, for for by court order for good cause covery served on days 150–180, for cases in which a default is opened shown. This change clearly defines instance) within 15 days from the for “providential cause” pursu- the discovery period and requires service of the disputed discovery. ant to O.C.G.A. § 9-11-55(b), the the assistance of the court only in For example, a party must object to defaulting party is not entitled situations in which additional dis- such a request either via a motion to engage in any discovery but, covery is arguably required after to quash from the recipient after instead, must announce that it is the initial 180 days provided for receiving service of the subject dis- immediately “ready to proceed by the proposed rule. As such, covery requests, or via a motion with the trial.”15 Given the already

14 Georgia Bar Journal existing policy to discourage par- es and a new crop of attorneys are in the Uniform Superior Court Rules, the word ‘state’ shall apply ties from entering into default, the forced to tread this same treacher- in lieu of the word ‘superior.’”). proposed rule does not generate ous territory. 3. Ga. Unif. Super. Ct. R. 5.1 (2013). much additional sacrifice. 4. Id. Although discovery may not Joseph C. Sullivan is 5. See Alexander v. Macon-Bibb constitute the most exciting aspect an attorney with Taylor County Urban Dev. Auth., 257 Ga. to the practice of law, there is no English Duma LLP. He 181, 184, 357 S.E.2d 62, 65 (1987). question that it serves perhaps the practices in the fields of 6. Id. at 184. 7. See Fisher, 200 Ga. App. 353, 353, most important functions, includ- business litigation and ing, without limitation, “issue for- 408 S.E.2d 120, 121. labor and mulation and factual revelation.”16 8. 296 Ga. App. 359, 674 S.E.2d 623 employment. Sullivan graduated, The significance attributed to the (2009). 9. Id. at 360 n.1 (emphasis added). discovery process in Georgia courts cum laude, from the University of 10. 226 Ga. App. 793, 487 S.E.2d 498 requires that its litigants be provid- Georgia in 2001 and from the Emory University School of Law in (1997). ed with clear, concise and straight- 11. Id. at 796. forward rules in which to engage. 2005. He has been recognized as a 12. Gray v. Whisenaut, 258 Ga. 242, Although the rule proposed herein Rising Star by Georgia Super 242, 368 S.E.2d 115, 115 (1988). may not be the supreme alternative Lawyers every year since 2012. 13. See O.C.G.A. § 9-11-55 (2013) to the system of discovery cur- (“in the event a defendant, rently in place, it will (hopefully) Endnotes though in default, has placed at a minimum encourage further 1. See Fisher v. Bd. of Commissioners damages in issue by filing a discussion and reflection on how of Douglas County, 200 Ga. App. pleading raising such issue, we can continue to foster the most 353, 353, 408 S.E.2d 120, 121 (1991). either party shall be entitled, upon demand, to a jury trial of effective and productive legal sys- 2. See Ga. Unif. St. Ct. Note (2013) the issue as to damages.”). tem possible for Georgia. In any (“The Uniform Rules for the Superior Courts shall be applicable 14. Ga. Unif. Super. Ct. R. 5.1 (2013). event, we should work to improve in State Courts except as follows: 15. O.C.G.A. § 9-11-55(b) (2013). the current landscape and amend Wherever the words ‘superior 16. Int’l Harvester Co. v. Cunningham, already acknowledged drafting court’ or ‘superior courts’ appear 245 Ga. App. 736, 738, 538 S.E.2d errors before another 25 years pass- 82, 85 (2000). Claims against attorneys are reaching new heights. Are you on solid ground with a professional liability policy that covers your unique needs? Choose what’s best for you and your entire firm while gaining more control over risk. LawyerCare® provides: How does Company-paid claims expenses—granting your firm up to $5,000/$25,000 outside policy limits Grievance coverage—providing you with immediate your firm assistance of $15,000/$30,000 in addition to policy limits Individual “tail” coverage—giving you the option face risk? to cover this risk with additional limits of liability PracticeGuard® disability coverage—helping your firm continue in the event a member becomes disabled Risk management hotline—providing you with immediate information at no additional charge

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April 2014 15 GBJ Feature

Constitutional Symposium: Celebrating the U.S. Constitution 225 Years After Ratification

by Prof. David Oedel

efore State Bar of Georgia President

Charles L. Ruffin took office last year, B he noted an omission among our Bar’s sections. We had no section devoted to constitutional law. Georgia’s Bar exam heavily tested, and still heavily tests, constitutional law for bar admission.

Thereafter, though, the Bar seemed to give the subject short shrift, as if the Constitution is barely more than fodder for a secondary-school civics lesson and subsequent testing gymnastics.

Recognizing that omission as an under-appreciation of the backbone of our American rule of law, Ruffin called around. He collected a group of Georgia lawyers interested in the Constitution, and organized a new constitutional law section. The new section’s first order of business, Ruffin’s presidential project for the year, was a celebration of the Constitution 225 years after the original rati- Photos by Sarah I. Coole fication led to the first session of Congress in March, State Bar of Georgia President Charles L. Ruffin gives introductory 1789. That first Congress referred 12 possible amend- remarks and welcomes distinguished guests and attendees to the Constitutional Symposium, celebrating 225 years of the ratification of ments to the states later in 1789. That year and the the U.S. Constitution.

16 Georgia Bar Journal next, 10 of the 12 proposals were ratified by enough states as the Bill of Rights. Our modern celebration of that constitutional history took place in Atlanta over three days in March 2014. It was perhaps the most memorable version of continuing legal education that many veteran attendees like me had ever experienced. What made it special was the accomplished, thoughtful and diverse group of legal luminaries from around the country who convened to discuss, from their respective vantage points, the deep, yet ongoing, life of our Constitution. The presentation of colors by the color guard opened the symposium. Graciously flying across the country to join us in an opening debate, University of California Irvine Law School Dean Erwin Chemerinsky challenged New York University Law Professor Richard Epstein in a heated, intense and occasionally-amusing back- and-forth about how we should interpret constitutional language, crafted in past days, under the conditions of modern America. Implications of that same fun- damental conundrum peppered the celebration. The theme, for instance, was revisited at length by our final speaker, Justice Antonin Scalia of the U.S. Supreme Court. He joined the celebrants in showing his own appreciation for the nation’s long constitutional history, Georgia Gov. Nathan Deal (left) and Supreme Court of Georgia Chief Justice Hugh P. Thompson (right) give welcoming remarks to those in attendance, stressing the importance of the U.S. as well as the relevance of constitu- Constitution and all that went into creating the document. tional history to contemporary law and politics. With a keen sense for the contemporary political polemics of the Constitution, Scalia twice poked gentle fun at congressper- son Sheila Jackson Lee of Texas, though without naming her specifically. Lee apparently misspoke on the floor of the U.S. House March 12, at about the same time we were hearing from three distinguished historians, Akhil Amar, Jack Pratt and Mel Urofsky, about the enduring meanings of our written Constitution, and the constitutional ratification process, for con- 11th Circuit U.S. Court of Appeals Judge Frank M. Hull joins others in opening remarks at the temporary purposes. Constitutional Symposium.

April 2014 17 123

5 7 8

1. University of California Irvine School of Law Dean Erwin Chemerinsky participates in the session “Interpreting the Constitution: A Debate.” 2. New York University School of Law Prof. Richard A. Epstein participates in the session “Interpreting the Constitution: A Debate.” 3. (Left to right) University of South Carolina School of Law Dean Walter F. “Jack” Pratt Jr., American University Prof. Melvin Urofksy and Yale Law School Prof. Akhil Reed Amar participate in the panel “How the Ratification Process Should Affect Our Understanding of the Constitution: A Discussion.” 4. (Left to right) State Bar President Charles L. Ruffin introduces the speakers for “The Constitutional Limits of Federal Legislative and Executive Power: A View from the States,” Attorney 9 General of Colorado John W. Suthers, Attorney General of Georgia Samuel S. Olens and Attorney General of North Carolina Roy A. Cooper III. 5. Attendees and guests in a packed ballroom at the Constitutional Symposium dinner wait to hear David McCullough’s keynote address. 6. Author and historian David McCullough, two-time Pulitzer Prize winner and Presidential Medal of Freedom recipient, delivers the keynote address “The Founding Fathers and the Founding Time.” 7. (Left to right) 11th Circuit U.S. Court of Appeals Judge Beverly B. Martin, Supreme Court of Georgia Chief Justice Hugh P. Thompson and Court of Appeals of Georgia Chief Judge Herbert E. Phipps preside over the re-enactment of the 1972 oral arguments in Furman v. Georgia with Stephen B. Bright, for the petitioner William Henry Furman. 8. (Left to right) Bancroft PLLC partner, Georgetown University Adjunct Prof. and former U.S. Solicitor General Paul D. Clement, and WilmerHale partner and former U.S. Solicitor General Seth P. Waxman served as speakers for the session “Convincing the Court: How Advocates 10 Seek to Shape the Interpretation of the Constitution” moderated by Mercer University Walter F. George School of Law Prof. David Oedel. 9. (Left to right) Panelists SCOTUSblog editor Amy Howe and New York Times U.S. Supreme Court correspondent Adam Liptak with moderator and Jones Day partner Peter C. Canfield in the session “News Media Panel: Covering the Constitution and the Supreme Court.” 10. (Left to right) Co-chairs of the Constitutional Symposium: Supreme Court of Georgia Justice David E. Nahmias, State Bar President Charles L. Ruffin and Walter F. George Prof. David Oedel. 1 2

1. (Left to right) Panelists: The Volokh Conspiracy blogger and University of California Los Angeles School of Law Prof. Eugene Volokh, National Online Review blogger and Ethics and Public Policy Center President Edward Whelan, 5 and Balkinization blogger and Yale Law School Prof. Jack M. Balkin with moderator Emory University School of Law Dean Robert Schapiro in the session “Expanding the Constitutional Conversation: A Discussion with Leading Legal Bloggers.” 2. United States Institute of Peace Past President and CEO and former Congressman Jim Marshall speaks on “Our Constitution as a Model for the World,” while attendees wait to ask questions. 3. (Left to right) Moderator and Georgia State University College of Law Prof. Eric Segall along with panelists University of Texas School of Law Prof. Sanford V. “Sandy” Levinson, University of California Los Angeles School of Law Prof. Adam Winkler and George Mason University School of Law Prof. Nelson Lund during the session “Gun Rights and Regulations: A Recently Renewed Constitutional Debate.” 4. (Left to right) Panelists: 9th Circuit U.S. Court of Appeals Judge Alex Kozinski and Supreme Court of Georgia Justice David E. Nahmias with moderator, Young Harris College President and former Secretary of State of Georgia Cathy Cox in the session “Interpreting the Constitution: Views from the ‘Lower’ Courts.” 5. U.S. Attorney for the Northern District of Georgia Sally Q. Yates (right) introduces Urban Institute at the Interdenominational Theological Center Dean and Presidential Medal of Freedom recipient Rev. Dr. C.T. Vivian (left) who served as speaker for the session “The Constitution in the Real World: Recollections From the Civil Rights Movement.” All told, the State Bar of Georgia’s celebration of our Constitution was both unprecedented and unforgettable. We honor and thank all who made it possible, and look forward to a reprise at some future moment of constitutional celebration. In the meantime, we can individually ponder how the Constitution impacts our own lives, as both lawyers and citizens.

Lee was saying that same after- of Confederation, together with moment. It proved to be a saving noon on the House floor that she the Constitution’s elaborate state- evening of togetherness. Our own was “thankful for the opportunity by-state ratification process, was dinner speaker on the first day to have a deliberative constitu- unique in the history of gover- of our celebration 227 years later, tional conversation that reinforces nance. Representative Lee more David McCullough, winner of the the sanctity of this nation, and or less got that basic idea, as you Medal of Freedom and Pulitzer how well it is that we have lasted can intuit from her more com- Prize (the latter twice), warmed our some 400 years operating under a plete statement as quoted here, hearts, sharpened our perspectives Constitution that clearly defines so her press skewer was some- and steeled our resolve to share what is constitutional and what what unfair. the constitutional message with ris- is not.” Nonetheless, Scalia’s gentle ing generations. McCullough fol- Although those of us in Atlanta chiding of Lee was apt. We need lowed Franklin well in serving as were delighted to be simultane- more appreciation for why our a source of practical wisdom and ously engaged in our own “delib- Constitution means something good humor. erative constitutional conversa- special in the world, and to our On Thursday morning, the 500 tion,” Lee was skewered by some national future. attendees (registration was shut in the press for suggesting that the Three institutional embodiments off at 500) got to experience a Constitution itself might be 400 of federalism in the flesh—three replay of the arguments in one years old. Scalia picked up on that states’ attorneys general, Generals of the critical constitutional cases gaff in his remarks to us in Atlanta Cooper of North Carolina, Olens of of the 1970s, Furman v. Georgia, less than two days later. Georgia and Suthers of Colorado— that temporarily suspended Lee’s confusion was common- also shared their views with us operation of the death penalty place. Many citizens, if not congress- on the first day of the conference. throughout the United States on people as well, have trouble distin- They are on the front lines of what constitutional grounds. Hearing guishing between the brave experi- it legally means to be a sovereign re-arguments by two prominent mental settlements at Jamestown state, even if that may occasion- advocates, Steve Bright and Anne and Plymouth from another brave ally mean only to be a last bulwark Lewis, directed through the prob- venture, the remarkable legal-gov- against federal coercion. ing questions of Supreme Court ernmental-political venture that we Cooper gave us interesting of Georgia Chief Justice Hugh call our Constitution. perspectives on what it means to Thompson, 11th Circuit Judge As between the two types of ven- be a blue official in a largely red Beverly Martin and Court of tures, though, our American con- administration. Suthers conversely Appeals of Georgia Chief Judge stitutional venture has panned out offered candid observations about Herbert Phipps, we were given to be more historically significant. being a Republican attorney gen- special insights not only into the Most of Jamestowns adventurers eral in a Democratic-leaning state. history of a past case, but the died. Plymouth’s settlers made Olens from Georgia offered wis- future of the death penalty under only a toe-hold on a future in the dom about his own experience in the Constitution. An additional New World that would probably fending off federal encroachment gift was to hear from Senior Judge have produced inevitable waves of against state sovereignty while Dorothy Beasley, who argued immigration no matter what those maintaining positive cooperation for Georgia at the U.S. Supreme early experiments showed. on matters of shared concern. Court in the original case. By contrast, our Constitution, Benjamin Franklin hosted a ter- The symposium attendees which re-calibrated the imbal- rific dinner party for the consti- next got the chance to enjoy a ances of the fledgling American tutional convention delegates in privilege often shared by the government under the Articles July 1787, at probably their lowest Supreme Court itself—hear-

April 2014 21 (Left to right) Supreme Court of Georgia Justice David E. Nahmias, U.S. Supreme Court Justice Antonin Scalia, Gov. Nathan Deal and State Bar of Georgia President Charles L. Ruffin during a reception in Justice Scalia’s honor. ing from Paul Clement and Seth engagement felt by the people The U.S. Constitution has been Waxman. Each of these illustrious of the various states who were touted as a prime example of former Solicitors General of the engaged in the 1787-91 ratifica- democracy in formal legal garb United States has argued about 70 tion debates in the newspapers, and practical import. What is the times before the Supreme Court, taverns and other public spots. experience, and what are the pros- and they continue a blistering Citizens today are being helped in pects, of other nations in their own pace of appearances. Clement making their constitutional con- forays in constitutionalism? Jim served under George W. Bush, nections intimate and informa- Marshall, former president of the and Waxman served under Bill tive by the reporting of people United States Institute of Peace, Clinton. At our symposium, they like Amy Howe of SCOTUSblog U.S. congressman and law profes- explored how, tactically and stra- and Adam Liptak of the New York sor, offered some practical impres- tegically, the Constitution today Times, who spoke after lunch on sions about cutting-edge constitu- is being shaped by advocates for March 13. tion-building abroad. He offered the federal government, state Their insights about the pro- a disturbing message about how governments and private chal- cess of reporting on the U.S. armed players get more deference lengers. They revealed how they Supreme Court opened paths in the final structure and content of think about their own work in for lawyer-bloggers Jack Balkin, many shaky constitutional experi- shaping argument at the Court Eugene Volokh and Ed Whelan ments worldwide. about the Constitution. While next to discuss what is happen- Speech and press made it first others may talk about a living ing at the busy juncture of public on the constitutional list of rati- Constitution, these advocates are conversation and expert analy- fied amendments, as we discussed living the Constitution, and their sis about what the Constitution earlier in the day on Thursday— discussion was riveting. means for all the people today. but arms were the subject of the Our nation is experiencing a Both panels were fascinating for Second Amendment. Some of the resurgence of everyday people the audience, who lined up for leading academic analysts of the owning their own Constitution, the chance to engage the panel- constitutionality of gun regula- perhaps not unlike the degree of ists with questions. tion, including Sandy Levinson,

22 Georgia Bar Journal U.S. Supreme Court Justice Antonin Scalia addresses the attendees of the Constitutional Symposium.

Nelson Lund and Adam Winkler, Nahmias of the Supreme Court ing immediately before our final joined us at the celebration next of Georgia and Hon. Richard speaker, Antonin Scalia. The two of to consider the Supreme Court’s Posner of the Seventh Circuit. them proved to be an able and com- 2008 landmark case of D.C. v. Their various views, some- plementary pairing, lending justice Heller, its implications for local times edgily provocative and to the notion that the Constitution and national gun regulation, and iconoclastic, were always also is a gift to every American, of every the amendment’s broader mean- thoughtful and memorable. political persuasion. ings. Georgia State’s Eric Segall The law can be the galvaniz- All told, the State Bar of led the panel, vigorously defending point for citizens who are Georgia’s celebration of our ing gun regulation as a counter- not experts in the law, but none- Constitution was both unprec- point to more deferential accep- theless rely on the law for their edented and unforgettable. We tance of the Heller ruling. safety and advancement in the honor and thank all who made With so much emphasis placed deep spirit of the American expe- it possible, and look forward to today on the rulings of the U.S. rience. After a warm introduc- a reprise at some future moment Supreme Court, one wonders tion by U.S. Attorney Sally Yates, of constitutional celebration. In what the many thousands of Rev. C.T. Vivian, age 89, Freedom the meantime, we can individu- other judges around the country Bus rider, compatriot to Martin ally ponder how the Constitution should think and do about con- Luther King Jr. and 2013 recipient impacts our own lives, as both stitutional interpretation. We of the Medal of Freedom, joined lawyers and citizens. invited three of the most bril- us to relay some of his personal liant judges not on the Supreme history of what the Constitution David Oedel teaches Court to speak for the judges meant for him, and can mean for constitutional law at who are practically applying the any and all Americans. Mercer University Law law in concrete cases on a daily Atlanta’s primary newspaper, School. basis in their far-flung jurisdic- the Atlanta Journal-Constitution, tions: Hon. Alex Kozinski of reported on the interesting jux- the Ninth Circuit, Hon. David taposition of Rev. Vivian speak-

April 2014 23 GBJ Feature

23rd Annual Georgia Bar Media & Judiciary Conference by Stephanie J. Wilson

n Saturday, Feb. 22, attorneys, judg-

es and journalists gathered at the Bar O Center in Atlanta for the 23rd annual Georgia Bar Media & Judiciary Conference. Each year, this event brings together panelists and speakers to focus on recurring and emerging issues impacting the

First Amendment. The conference is hosted by the

Institute of Continuing Legal Education in Georgia and offers 6 CLE hours, including 2 ethics hours and 1 professionalism hour. Making Movies

The first panel of the day, titled “Making Movies,” examined the economic impetus for and the legal issues associated with the new Atlanta and Georgia film industry. The panel explored the competing interests of citizens, visitors, businesses (both film-related

and non-film related) and First Amendment issues. Photos by Stephanie J. Wilson The panelists were Maida N. Morgan, location man- Stephen J. Wermiel, law professor and co-author of The Progeny: ager for feature films and television; Robin Joy Sahar, Justice William J. Brennan’s Fight to Preserve the Legacy of New chief counsel, Department of Law, city of Atlanta; and York Times v. Sullivan, shares a humorous moment with the audience during “New York Times v. Sullivan: A 50th Anniversary.” LaRonda Sutton, director, Office of Entertainment, city of Atlanta. Christopher G. Walker, assistant city attor- When the Georgia Entertainment and Industry ney, city of Atlanta, served as moderator. Investment Act was passed by the Legislature and

24 Georgia Bar Journal signed by Gov. Sonny Perdue in 2008, the law put into place tax credits for companies that produce films in Georgia. These big incen- tives would lead to a filming boom and a big economic impact for the state: $3.3 billion generated in 2013 alone. With the shooting of movies and television on the rise, Atlanta Mayor Kasim Reed real- ized that industry professionals needed a single point of contact for all of their inquiries; thus, the Mayor’s Office of Entertainment was created. According to their website, “To support the city’s rapidly expanding film industry; the Office of Entertainment will streamline the permitting pro- Jodie Fleischer, investigative reporter for WSB-TV, and Peter Canfield, partner at Jones Day, cess for film productions, facili- serve as panelists for “The Right to be Forgotten v. the Factual Record.” tate employment of local talent, create production-related educational and training opportunities, and safeguard the interests of residents and businesses affected by film productions.” Reed dealt with First Amendment issues when negotiating with members of Occupy Atlanta in 2011. Sahar said that when the Department of Law was constructing Atlanta’s film ordinance they knew that it had to be content neutral to avoid any First Amendment issues; therefore, the ordinance only regulates city property, not private property. It took six hours, and lots of back and forth, to write the ordinance. Courts and Electronic

Media: Old Rules and The team from CNN discusses their coverage of the Kendrick Johnson case during “Anatomy of New Practice a Modern News Story: Case Studies in Current Investigative Reporting.” (Left to right) Victor Blackwell, correspondent; Johnita Due, assistant general counsel; and Devon Sayers, field producer. The second panel was “Courts and Electronic Media: Old Rules ulates electronic and photographic under Rule 22, no persons other and New Practice.” Hon. Susan news coverage of judicial proceed- than the court reporter shall make E. Edlein, judge, Fulton County ings. But with the rise of mobile any audio, video, photographic, or State Court, served as moderator devices outside the courtroom in electronic recording of a court pro- to panelists Chief Judge David R. this modern age, more and more ceeding using any device unless Sweat, Superior Court of Georgia, citizen journalists, who may not expressly permitted by the court. Western Judicial Circuit; S. Lester abide by the same standards as Any such request must be submit- Tate III, vice chairman, Judicial their professional counterparts, are ted in writing to the court at least Qualifications Commission; and bringing technology inside. In an 24 hours prior to the proceeding, April Hunt, reporter, Atlanta attempt to strike a balance between with notice to all parties. A viola- Journal-Constitution. fair trial and free press, the Council tion of this rule may result in con- Professional journalists are of Superior Court Judges proposed fiscation of the recording, removal routinely familiar with Uniform Uniform Superior Court Rule 48, of the violator from the courtroom, Superior Court Rule 22 which reg- which states “Except as provided and subject the violator to con-

April 2014 25 tempt.” The proposed rule met with New York Times v. cases, the 1964 Supreme Court deci- great scrutiny. Sullivan: A 50th sion eased the way for news orga- Other states besides Georgia nizations covering the civil rights have struggled with this issue as Anniversary movement in the South.1 well. Courts in Utah have denied While attendees enjoyed lunch, use of audio or video recording, Hank Klibanoff, director of the The Right to Be but tweets are allowed. In Kansas, Journalism Program at Emory Forgotten v. the no device can be used without University, lead a conversation permission. Florida has opened all with Stephen J. Wermiel about Factual Record court proceedings, with the excep- the new book he co-authored, The Although criminal records can tion of Department of Children Progeny: Justice William J. Brennan’s be sealed and removed from public and Families cases. Only time Fight to Preserve the Legacy of New record altogether, the number of will tell how Georgia courts will York Times v. Sullivan. Wermeil is a websites displaying mug shots is accommodate the use of mobile professor at American University’s on the rise . . . and the accused will devices by professionals and Washington College of Law in be forced to pay big money to have citizens alike. Washington, D.C. He holds exper- his photo taken down. In response, tise in the U.S. Supreme Court, hav- the Georgia Senate passed SR 247 Under Siege: The ing covered the Court for the Wall creating the Senate Expungement Fate of Investigative Street Journal from 1979 until 1991. Reform Study Committee. CNN’s During his 12-year tenure at the Vice President and Senior Editorial Journalism Journal, Wermiel covered and inter- Director Richard T. Griffiths served The next panel, “Under preted more than 1,300 Supreme as interlocutor for a Fred Friendly- Siege: The Fate of Investigative Court decisions and analyzed trends style panel that delved into two Journalism,” was moderated by on a broad array of legal issues. fictitious scenarios presenting Lee Williams, assistant gener- In 1960, the New York Times ran the issues surrounding expunge- al counsel, CNN. The panel was a fundraising advertisement signed ment. Douglas B. Ammar, execu- comprised of Thomas M. Clyde, by civil rights leaders that criti- tive director of the Georgia Justice partner, Kilpatrick, Townsend & cized, among other things, certain Project; Peter C. Canfield, partner Stockton LLP; Dale Russell, senior actions of the Montgomery, Ala., at Jones Day (and all around good investigative reporter, FOX 5 police department. Some of the sport); Jodie Fleischer, investigative Atlanta; and Scott Zamost, senior facts in the advertisement were reporter for WSB-TV; and Chief investigative producer, CNN. The incorrect. Although no names Judge R. Rucker Smith, Superior panelists explored the future of were mentioned, L. B. Sullivan, Court of the Southwestern Judicial investigative journalism in a world Montgomery’s police commission- Circuit, served as panelists. that is always connected and what er, sued the Times for libel and won Scenario one was set in 1973 effects technology might have. $500,000 in an Alabama court. The in the middle of a snowstorm in James Rosen. Chelsea (former- newspaper appealed. At issue was Dahlonega, Ga. The one and only ly known as Bradley) Manning. the protection given press criticism snow plow that had been reported Edward Snowden. These are the of the official conduct of public missing has been found abandoned names of Americans most recently officials. In overturning the lower and out of gas with a drunk Peter charged by the U.S. government court’s ruling, the U.S. Supreme Canfield passed out at the wheel. with violating the Espionage Act Court held that First Amendment Canfield is arrested and bails him- of 1917 (the Act). In fact, there protection of free speech is not self out of jail. After his conviction, are eight cases pending under the dependent on the truth, popular- Canfield takes first offender sta- current administration. The gov- ity or usefulness of the expressed tus. Since he wants to be a lawyer ernment is now using the Act to ideas. The decision held that debate and is considering Yale, Canfield force reporters to divulge their on public issues would be inhibited asks the judge to seal his record. It sources and to subpoena Internet if public officials could recover for is now present day, and attorney service providers to turn over honest error that produced false Canfield is a candidate for Snow reporters’ Internet search records. defamatory statements about their Mitigtion Czar. Full background The language of the Act is vague official conduct. The court limited checks are concluded, after which and broad. To this end, it is being the right of recovery to public offi- rumors abound regarding his 1973 applied not only to written infor- cials who could prove actual mal- conviction. As the story continued mation revealed by whistleblowers ice (i.e., that the newspaper knew to unfold, the panelists dealt ably but to verbal information as well. the statement was false or acted in with piece of the puzzle as it was No intent to harm the government reckless disregard of the truth). By revealed by Griffiths. must be proven in order for charg- emphasizing that First Amendment In scenario two, a group of es to be handed down. protection applies to state court Georgia Tech students kid-

26 Georgia Bar Journal nap University of Georgia mas- abuse cases but didn’t remove the which defines marriage as a legal cot “Uga” and set him free in children from the adults’ care at union between one man and one Piedmont Park. “Uga” is attacked the time. Moss’ two other siblings woman. In that same month, the and Peter Canfield, who was out are currently in the department’s Court also confirmed its 2010 rul- taking his own dog to the park, custody. ing that California’s Proposition is arrested as a suspect. Canfield Judd went on to speak about 8 was unconstitutional. These knew the students, was seen talk- a number of other child murder actions allowed married same-sex ing to them and was assumed to be cases. He said that when investi- couples to gain more than 1,100 involved. The charges are eventu- gating these stories one of his first federal rights available by mar- ally dropped but the mug shot has steps is to make Open Records riage, even if those couples reside already been released. How does Act requests of the Child Fatality in a state that does not recognize Canfield restore his good name? Review Panel. Although officials their union. Panelist and investigative jour- redact significant portions of the Ed Bean, editor-in-chief of the nalist Jodie Fleischer said that cor- reports (e.g., the names of deceased Daily Report, moderated the final rections for local stories that were children and their parents, dates panel of the day, “Georgia and the picked up on a national level are of birth and death, time of day a Sexual Legal Revolution: Gaining seldom reported. Other panelists child died) enough data remains to Ground or Losing Pace?” Panelists went on to point out that even if determine the identity of the child. Superior Court Judge Cynthia J. the accused is successful in get- HIPAA laws have also restricted Becker, Stone Mountain Judicial ting content removed from the reporters’ ability to report the Circuit; Randy M. Kessler, found- world wide web, stories, posts and death of children. In the 2014 leg- ing partner at Kessler & Solomiany tweets still lives on in screen shots islative session, the Georgia House LLC; and Jeffrey M. Zitron, found- and cached versions. Summing of Representatives voted 168-0 ing member at Hendrick, Rascoe, up, Fleischer said, “You can’t in favor of HB 923 which would Zitron & Long, LLC, engaged in a undo the Internet.” revamp the Child Fatality Review lively discussion regarding recent Panel and repeal confidentiality national legal trends affecting mar- Anatomy of a Modern laws enacted five years ago that riage, adoption and divorce, and News Story: Case protect the identities of not only their potential impact in Georgia. the children reported to DFCS but Studies in Current of the state officials who fail the Conclusion Investigative Reporting abused children. As in years past, the 2014 The panel “Anatomy of a Modern The Kendrick Johnson case Georgia Bar Media & Judiciary News Story: Case Studies in in Valdosta, Ga., burst into the Conference did not fail to inform, Current Investigative Reporting,” national spotlight when CNN engage and enlighten the judges, provided a look behind the scenes began reporting the facts sur- attorneys and journalists in the of some of Georgia’s major inves- rounding the Lowndes High audience. A multitude of thanks tigative reporting efforts of the School student’s death. CNN cor- goes out to the moderators and last year. Hyde Post of Hyde Post respondent Victor Blackwell, who panelists who lent their time and Communications in Saint Simons has exclusively covered the case talents. And to Peter Canfield Island, Ga., served as moderator. since it began, served as a panel- and the many others who work First up was Atlanta Journal- ist along with Johnita Due, assis- diligently to plan this annual Constitution (AJC) reporter Alan tant general counsel for CNN, event: congratulations on a job Judd whose stories on the tragic and field producer Devon Sayers. well done! deaths of children highlight the Blackwell and his CNN co-work- failures of Georgia’s child protec- ers took the audience step-by- Stephanie J. Wilson is tion system. Judd spoke of Emani step through the process of cover- the administrative Moss, a 10-year-old Gwinnett ing the bizarre details of the case assistant in the Bar’s County girl whose emaciated body including video clips of reports communications was found burned in a trash can that have aired on CNN. department and a outside her family’s apartment contributing writer for building in November 2013. Moss’ Georgia and the Sexual the Georgia Bar Journal. father and stepmother were arrest- Legal Revolution: ed and charged with murder, con- Endnote cealing a body and child cruelty. Gaining Ground or 1. New York Times Company v. The AJC reported that Georgia’s Losing Pace? Sullivan, http://www.infoplease. Division of Family and Children In June 2013, the U.S. Supreme com/encyclopedia/history/new- Services (DFCS) had been involved Court struck down Section 3 of york-times-company-v-sullivan.html. with the family in prior child the Defense of Marriage Act,

April 2014 27 GBJ Feature

2013 Georgia Corporation and Business Organization Case Law Developments

by Thomas S. Richey and Michael P. Carey

This article presents an overview from a survey of Georgia corporate and business organization case law developments in 2013. The full version of the survey, which can be downloaded or printed at http://www.bryancave.com/2013-ga-survey/, contains a more in-depth discussion and analysis of each case. This article is not intended as legal advice for any specific person or circum- stance, but rather a general treatment of the topics discussed. The views and opinions expressed in this article are those of the authors only and not Bryan Cave LLP.

his article catalogs case law developments policies bar claims by the FDIC as receiver for the insured bank, with disagreement at the federal district dealing with Georgia corporate and busi- court level on both issues. The Georgia federal courts were also unusually ness organization law issues handed down active in deciding other business organization issues in T 2013—48 out of the 86 decisions profiled in this article by Georgia state and federal courts during 2013. Several were handed down by federal district, bankruptcy and appellate courts, including potentially significant deci- of 2013’s decisions have significant precedential value, sions regarding permissible restrictions on the transfers of corporate stock and the accrual of the statute of while others address less momentous questions of law limitations on claims among partners. Five decisions by the Georgia courts in 2013 involved interpretation as to which there is little settled authority. Even those and/or enforcement of business and nonprofit corporation bylaws. There were also a comparatively large cases in which the courts applied well-settled prin- number of cases in 2013 ruling on partnership issues. Transactional cases focused mainly on the results of ciples are instructive for the types of claims and issues corporate deals—the transfer of assets by operation of law in mergers and claims of successor liability in that are currently being litigated in corporate and busi- asset sales. Among litigation issues, the cases included an important ruling upholding the dismissal of a ness organization disputes. derivative action at the corporation’s request based on the results of an investigation by a special litigation The year 2013 is probably most notable for two committee of the board and a decision considering the unresolved issues arising from the Federal Deposit requirements for criminal liability of an LLC. Insurance Corporation’s litigation against directors The decisions are organized first by entity type— and officers of failed banks: first, whether bank offi- those specific to business corporations, nonprofit cor- cers and directors can be held to a simple negligence porations, limited liability companies and partner- standard of care, an issue now before the Supreme ships. The remaining sections of the survey deal with Court of Georgia on certified questions from the fed- (1) transactional issues potentially applicable to all eral courts and, second, whether the insured-versus- forms of business organizations, and (2) litigation insured exclusions in director and officer insurance issues, including derivative action procedure, alter

28 Georgia Bar Journal ego and other forms of secondary liability, jurisdiction and insurance issues. Finally, we cover several significant decisions handed down by the Fulton County Business Court during the year 2013. Duties and Liabilities of Corporate Directors, Officers and Employees The most significant development of 2013 is as of yet unresolved. In two separate decisions, FDIC v. Loudermilk, ___ F. Supp. 2d ___, 2013 WL 6178463 (N.D. Ga. Nov. 25, 2013) (Thrash, J.) and FDIC v. Skow, 741 F.3d 1342 (11th Cir. 2013), a Georgia federal district court and the 11th Circuit asked the Supreme Court of Georgia to decide whether the business judgment rule insulates bank directors from liability for claims of ordinary negligence. The Supreme Court of Georgia has docketed the two appeals as S14Q0454 and S14Q0623, with briefing underway and oral argument currently scheduled for April and May, 2014, respectively. The immediate question before the Supreme Court is whether the FDIC, acting as receiver for failed sions, holding that the business in Georgia preclude as a matter of Georgia banks, may rely on an judgment rule applied but that its law a claim for ordinary negligence ordinary negligence theory in pur- presumption could be overcome against the officers and directors of suing claims against the banks’ by allegations of ordinary negli- a bank in a lawsuit brought by the former directors and officers. The gence. In November, the district FDIC as receiver for the bank?” FDIC has filed 21 such suits in court in Loudermilk, supra, went a Shortly thereafter, in the Skow Georgia federal district courts since step further, stating that it was “not appeal, the 11th Circuit also the onset of the financial crisis of convinced” that the business judg- decided to certify questions to the the late 2000’s, and the defendants ment rule applied to bank direc- Supreme Court of Georgia. The 11th have moved to dismiss the FDIC’s tors in the first place. The court Circuit did not address the poli- ordinary negligence claims in sev- specifically questioned whether it cy points raised in Loudermilk, but eral of the cases. Beginning with made sense to treat bank directors instead found that Flexible Products the district court’s February 2012 and officers in the same manner and Brock Built may conflict with decision in Skow, the initial deci- as corporate directors and officers, the statutory standard of care set sions agreed that the business judg- reasoning that bank failures harm forth in the Banking Code, O.C.G.A. ment rule as described in Flexible not only shareholders but also the § 7-1-490, which it (like many previ- Products Co. v. Ervast, 284 Ga. App. FDIC and ultimately, taxpayers. ous courts) interpreted as an ordi- 178, 182 (2007) and Brock Built, LLC While the court clearly hinted at a nary negligence standard. The court v. Blake, 300 Ga. App. 816 (2009) policy-based rationale for denying thus certified its own questions to foreclosed the FDIC’s ordinary business judgment rule protection the Supreme Court of Georgia: (1) negligence claims. to bank directors and officers, it did “Does a bank director or officer In early 2013, the district court not resolve the question, instead violate the standard of care estab- in FDIC v. Adams, 2013 WL 604411 certifying to the Supreme Court lished by O.C.G.A. § 7-1-490 when (N.D. Ga. Apr. 10, 2013) (Forrester, of Georgia the following question: he acts in good faith but fails to J.), broke from these early deci- “Does the business judgment rule act with “ordinary diligence,” as

April 2014 29 that term is defined in O.C.G.A. against bank directors and officers sentation. The court also declined § 51-1-2?” and (2) “In a case like runs from the time of making bad to apply the federal “intracorpo- this one, applying Georgia’s busi- loans, not the time when loans rate conspiracy doctrine” to bar ness judgment rule, can the bank went into default. a state law conspiracy claim. The officer or director defendants be A different standard of care issue Georgia federal courts in two cases, held individually liable if they, in was pending before the Supreme Lamonica v. Safe Hurricane Shutters, fact as alleged, are shown to have Court of Georgia at the end of 2013 Inc., 711 F.3d 1299 (11th Cir. been ordinarily negligent or to have in an appeal from Rollins v. Rollins, 2013) and Stuart v. Resurgens Risk breached a fiduciary duty, based 321 Ga. App. 140, 741 S.E.2d 251 Management, Inc., 2013 WL 2903571 on ordinary negligence in per- (2013). There, the Court of Appeals (N.D. Ga. June 12, 2013), reaffirmed forming professional duties?” The of Georgia held that trustees manag- that personal liability of a corpo- Supreme Court’s response to the ing family business entities in which rate officer under the Federal Labor certified questions will undoubt- the trusts held minority interests Standards Act requires operational edly be significant to the ongoing may be held liable to beneficiaries control or direct supervision over FDIC litigation and to any litigation under trust standards of care for the offending conduct. Finally, in involving bank officers and direc- their actions at the entity level and Mecca Construction, Inc. v. Maestro tors. The Court’s response may also they may also be required under Investments, LLC, 320 Ga. App. 34, have wider effects on the business trust law principles to provide an 739 S.E.2d 51 (2013), the Court of judgment rule in Georgia generally, accounting of those entities. The Appeals applied the familiar rule particularly if the Court address- Supreme Court of Georgia recently that an officer who personally par- es the interplay between the rule reversed the Court of Appeals on ticipates in a tort can be held indi- and the statutory standard of care. both counts, holding that because vidually liable to an injured party Notably, the standard set forth in the trusts owned minority interests by default without resort to veil- the Banking Code, O.C.G.A. § 7-1- in the entities, the trustees’ conduct piercing principles. 490, uses substantially the same as officers and directors must be wording as its counterparts in the governed by corporate law prin- Corporate Stock Corporations Code, see O.C.G.A. ciples. As for the accounting, the and Debt—Issuance, §§ 14-2-830 (applicable to corporate Court of Appeals failed to consid- directors) and 14-2-842 (applicable er the discretion exercised by the Restrictions and Blue to corporate officers). trial court in denying the account- Sky Law Application The Adams decision was signifi- ing. Rollins v. Rollins, Appeal No. In In re Beauchamp (Mossy Dell, cant in a second respect: it also S13G1162, ___ S.E.2d ___, 2014 WL Inc. v. AB&T National Bank), 500 addressed a failure of oversight 819500 (Mar. 3, 2014). B.R. 235 (M.D. Ga. 2013), the Middle claim under the principles estab- In other cases examining the con- District addressed what constitutes lished in In re Caremark Int’l Inc. duct of corporate officers and direc- a valid stock transfer restriction Deriv. Litig., 698 A.2d 959 (Del. tors in 2013, in Georgia Dermatologic under O.C.G.A. § 14-2-627(d), hold- Ch. 1996), making it the second Surgery Centers, P.C. v. Pharis, 323 ing that the statute’s list of four decision in two years to consider Ga. App. 181, 746 S.E.2d 678 (2013), valid mechanisms for stock trans- applying Caremark to a Georgia the Court of Appeals held that fer restrictions is exhaustive, and banking corporation. Without the president of a two-shareholder any restrictions not consistent with deciding whether Georgia would corporation exceeded his author- the statute are impermissible. The follow Caremark in adjudicating ity under corporate bylaws and a court ruled that restricting transfers director liability claims not involv- shareholder agreement in terminat- to family members is permitted, ing business decisions, the court ing the other shareholder/direc- but a 10-year prohibition against all held that the FDIC failed to allege tor without board and shareholder transfers is not valid under the stat- the complete absence of internal approval, even where that approv- ute. In Ward v. Ward, 322 Ga. App. controls or the conscious failure al would have to come from the 888, 747 S.E.2d 95 (2013), the Court to monitor such controls, and thus terminated shareholder/director. of Appeals applied O.C.G.A. § 14-2- failed to meet the “high threshold” In Coast Buick GMC Cadillac, Inc. 621(b) in holding that stock issued for a Caremark claim. Another issue v. Mahindra & Mahindra, Ltd., 2013 by a corporation’s president was regarding claims against failed WL 870060 (N.D. Ga. Mar. 7, 2013), invalid because it was not autho- bank directors and officers was the Northern District addressed rized by the corporation’s board of decided in FDIC v. Cameron, ___ the rule permitting fraud claims directors as required by its bylaws. F. Supp.2d ___, 2013 WL 6490247 to be based on misrepresentations In Cushing v. Cohen, 323 Ga. App. (N.D. Ga. Dec. 11, 2013), in which made to third parties where the 497, 746 S.E.2d 898 (2013), the Court the court held that the Georgia defendant allegedly knows that of Appeals held that unsecured statute of limitations for claims of the plaintiff will rely on a third promissory notes given to investors negligence and gross negligence party who received the misrepre- in connection with a “leveraged

30 Georgia Bar Journal lending program” were securities Limited Liability by obtaining its own independent subject to the Georgia Securities Act. Company Developments valuation of the LLC interest. An officer of the corporation that Several other cases addressed issued notes was held liable under The courts considered a variety questions of individual liability of O.C.G.A. § 10-5-14. In Olegbegi v. of issues involving limited liabil- LLC members and management. Hutto, 320 Ga. App. 436, 740 S.E.2d ity companies in 2013. In Denim In Jones Creek Investors, LLC v. 190 (2013), the Court of Appeals North America Holdings, Inc. v. Columbia County, Georgia, 2013 WL held that the purchaser of stock that Swift Textiles, LLC, 532 Fed. Appx. 1338238 (S.D. Ga. Mar. 28, 2013), the was not delivered to him was not 853(11th Cir. 2013), the 11th Circuit Southern District addressed issues entitled to consequential damages strictly construing O.C.G.A. § 14-11- of individual liability of LLC offi- stemming from tax liabilities and 305, held that non-managing mem- cers under the federal Clean Water penalties he incurred in withdraw- bers of a member-managed LLC Act and Georgia common law. In ing funds from his 401(k) account do not owe fiduciary duties to the American Arbitration Association v. to pay for the stock, finding that the LLC or to other members. In so Bowen, 322 Ga. App. 51, 743 S.E.2d plaintiff’s evidence was insufficient. holding, the 11th Circuit reversed 612 (2013), the Court of Appeals the Middle District, which had held that members of an LLC were Nonprofit reasoned that the non-managing individually liable for the LLC’s Organization Decisions member gained de facto control by unpaid arbitration fees, since the virtue of having the power under members personally participated The year 2013 saw several cases in the operating agreement to appoint in the arbitration in their individ- which the courts were called upon half of the managers. In Raiford v. ual capacities as well. Finally, in to interpret or apply the bylaws National Hills Exchange, LLC, 2013 Primary Investments, LLC v. Wee and incorporation documents of WL 1286204 (S.D. Ga. Mar. 27, 2013) Tender Care III, Inc., 323 Ga. App. nonprofit corporations. In God’s LLC non-member equity holders 196, 746 S.E.2d 823 (2013), the Court Hope Builders, Inc. v. Mount Zion were found unable to challenge of Appeals held that a non-compe- Baptist Church of Oxford, Georgia, an undisclosed sale of partner- tition clause in an LLC’s sale agree- Inc., 321 Ga. App. 423, 741 S.E.2d ship assets under the unanimous ment did not bind members of the 185 (2013), the Court of Appeals consent requirements of O.C.G.A. LLC who had signed the agreement examined a church’s bylaws for the § 14-11-308. In Kaufman Development only in their capacities as represen- purposes of determining whether Partners, LP v. Eichenblatt, 324 Ga. tatives of the LLC. the plaintiffs were properly mem- App. 71, 749 S.E.2d 374 (2013), the In STC Two, LLC v. Shuler-Weiner, bers of the church and had stand- Court of Appeals held that a for- ___ Ga. App. ___ 750 S.E.2d 730 ing to sue. In Hall v. Town Creek mer LLC member who remained a (2013), the Court of Appeals of Neighborhood Association, 320 Ga. party to the operating agreement Georgia again honored the separ- App. 897, 740 S.E.2d 816 (2013), retained rights under the agree- ateness of an LLC from its mem- the Court of Appeals held that a ment and had standing to sue for bers, holding that an LLC would homeowners association’s declara- breaches of the agreement. In Davis not be bound to extend a lease by tions and bylaws did not permit v. VCP South, LLC, 321 Ga. App. payments promised by the lessee the developer to forego appointing 503, 740 S.E.2d 410 (2013), the Court to the LLC’s member. Also apply- a board of directors or to act in lieu of Appeals held that a member of ing the principle of separateness, of a board. In McGee v. Patterson, a two-member LLC did not waive the court in Uhlig v. Drayprop, LLC, 323 Ga. App. 103, 746 S.E.2d 719 its rights under a buy-sell provision 2013 WL 5532883 (S.D. Ga. Oct. 4, (2013), the Court of Appeals held that a homeowners’ association’s documents permitted residents to enforce the association’s cov- enants notwithstanding that the residents were delinquent in paying assessments. Finally, in Xerox Corp. v. Light for Life, Inc., 2013 WL 1748327 (M.D. Ga. Apr. 23, 2013), the Middle District declined to rule on which of two competing groups purporting to represent a corporation in the lawsuit was the proper party, since the issue had been mooted by the plaintiff’s voluntary dismissal of the corporation.

April 2014 31 2013), granted summary judgment for fraud and breach of contract Transactional Cases to two LLC members on third-par- claims against the partnership aris- The cases in this area in 2013 ty claims that they misrepresented ing from investment agreements reflect the courts’ increasing the condition of a condominium with the plaintiffs, even though the attention to and reliance on the building to a purchaser. The court general partner was not a signa- Georgia Business Corporation concluded, we submit erroneous- tory to the agreements. In Crippen Code in resolving disputes over ly, that the members were shield- v. Outback Steakhouse International, major transactions and the rights ed from personal liability under L.P., 321 Ga. App. 167, 741 S.E.2d and liabilities of successor entities. O.C.G.A. § 9-11-1107(j) so long as 280 (2013), the Court of Appeals Several decisions in 2013 addressed they were acting on behalf of the held that a limited partnership offi- the rights and liabilities of suc- LLC, not on behalf of themselves. cer/employee’s pursuit of outside cessor entities following corporate interests and his failure to devote mergers. These issues have most Partnership Law full time to partnership business, frequently come up in the fore- Developments while it violated his employment closure context. In National City agreement, did not breach any fidu- Mortgage Co. v. Tidwell, 293 Ga. 697, The U.S. District Court for Middle ciary duty to the partnership and 749 S.E.2d 730 (2013), the Supreme District of Georgia addressed issues the partnership was not entitled to Court held that the surviving entity of partnership formation and com- recover his profits, because there in a bank merger succeeded to the pletion in Durkin v. Platz, 920 F. was no evidence that the outside rights of the original defendant Supp. 2d 1316 (M.D. Ga. 2013), interests were adverse to the part- to a wrongful foreclosure suit by holding that parties who contract- nership or caused it any harm. The operation of O.C.G.A. § 14-2-1106. ed to write a screenplay formed a Court of Appeals in Petrakopoulos v. Because of this, the Court conclud- partnership for that purpose, but Vranas, ___ Ga. App. ___, 750 S.E.2d ed, it was immaterial that the sur- that the partnership ceased upon 779 (2013) addressed procedural viving entity had not been formally completion of the screenplay. As requirements in a partnership dis- substituted as a party. Similarly, in a result, the partners’ fiduciary pute, reversing the appointment of Diaz v. JP Morgan Chase Bank, 2013 duties ceased and did not extend a receiver for the partnership at a WL 750480 (N.D. Ga. Feb. 27, 2013) to producing a movie from it. The hearing on a motion for appoint- and Abdullahi v. Bank of America, same court handed down a poten- ment of an auditor, deciding which N.A., 2013 WL 1137022 (N.D. tially far-reaching decision in First of the plaintiff’s claims were direct Ga. Mar. 15, 2013), aff’d, ___ Fed. Benefits, Inc. v. Amalgamated Life and which were derivative, and Appx. ___, 2013 WL 6085241 (11th Insurance Co., 2013 WL 4011015 finding factual issues in a claim Cir. Nov. 20, 2013), the Northern (M.D. Ga. Aug. 6, 2013), holding for wrongful dissolution. In NEF District applied O.C.G.A. § 14-2- that the statute of limitations for Assignment Corp. v. Northside Village 1106 in favor of security deed hold- claims between partners does not Partnership GP, LLC, 2013 WL ers who obtained the deeds via begin to accrue until the partner- 3755606 (N.D. Ga. Jul. 15, 2013), the merger, holding that title passed ship is dissolved, basing its ruling Northern District held that guaran- to the surviving entities by opera- on old Supreme Court of Georgia tors of all of a general partner’s obli- tion of law and that no formal authority and rejecting a recent, gations were liable for the general assignment of the deeds was neces- inconsistent Court of Appeals of partner’s obligation to repurchase sary. Abdullahi was later affirmed Georgia decision that suit must be another partner’s interest under the on appeal by the 11th Circuit. In filed within four years of the defen- buy-sell provisions of the partner- Patel v. Ameris Bank, 324 Ga. App. dant partner’s action. ship agreement. Finally, in T.V.D.B. 227, 749 S.E.2d 809 (2013), a bank According to the court in Sarl v. KAPLA USA, 2013 WL obtained a note by assignment after Alliant Tax Credit Fund XVI, Ltd. 6623186 (S. D. Ga. Dec. 16, 2013), the initial holding bank was closed v. Thomasville Community Housing, the District Court for the Southern by the FDIC, but the first bank had LLC, 2013 WL 321548 (N.D. Ga. District of Georgia found that the changed its name and the docu- Jan. 28, 2013), general partners who principal of the general partner of ments therefore did not reflect an failed to obtain audited financial a limited partnership may be held assignment from the initial holder statements exactly as specified in liable for breach of fiduciary duty to the current holder. The Court of the limited partnership agreement to a creditor for the unpaid debt Appeals found that the evidence may be subject to removal for mate- of the partnership because she had was sufficient to support a judg- rial breach of the agreement. In diverted the partnership’s business ment in favor of the assignee, since Pullar v. General MD Group, 2013 WL to a newly formed LLC. The court the initial holder’s name change 5781609 (N.D. Ga. Sept. 17, 2013), held that the new LLC may be had been properly recorded with the court held that, under O.C.G.A subject to successor liability, but the Georgia Secretary of State. §§ 14-8-13 and 14-8-15, a general that the evidence did not support In Herren v. Sucher, ___ Ga. App. partner can be liable to investors veil-piercing. ___, 750 S.E.2d 430 (2013), the court

32 Georgia Bar Journal ruled that an indemnity clause in an challenge to the independence of decision in Acree v. McMahan, 276 asset purchase agreement did not the special committee members, Ga. 880 (2003), it could not permit constitute an agreement to assume finding that their independence reverse piercing to enable a creditor the seller’s liabilities. Successor lia- was not destroyed by their various to reach the assets of alleged sham bility was also at issue in Fieldturf business and social relationships corporations. In Carrier 411 Servs., USA Inc. v. Tencate Thiolon Middle with some of the defendants. Inc. v. Insight Tech., Inc., 322 Ga. App. East, LLC, 945 F. Supp. 2d 1379 Two other decisions addressed 167, 744 S.E.2d 356 (2013), the court (N.D. Ga. 2013), in which the court whether corporate litigation found that a judgment creditor’s held that an acquirer of an artifi- claims were direct or derivative successful traverse of a corporate cial turf manufacturer had agreed in character. In In re Pervis, 497 garnishee’s answer regarding funds to assume the company’s liability B.R. 612 (Bankr. N.D. Ga. 2013), owed by its majority owner did for fraud claims against the prede- the Bankruptcy Court for the not constitute reverse piercing. In cessor. In Freund v. Warren, 320 Ga. Northern District of Georgia held RMS Titanic, Inc. v. Zaller, 2013 WL App. 765, 740 S.E.2d 727 (2013), the that an individual shareholder’s 5675523 (N.D. Ga. Oct. 17, 2013), the Court of Appeals held that assets suit against the corporation’s only court rejected the plaintiff’s attempt purchased by a corporation’s share- other shareholder for misappro- to apply an alter ego theory in a holders in their individual capaci- priation and usurpation of corpo- Lanham Act dispute and also reject- ties were property of the sharehold- rate opportunity did not need to ed an effort to use “reverse piercing” ers, not the corporation. In In re be brought derivatively, because to create personal jurisdiction over Foster, 500 B.R. 197 (Bankr. N.D. the typical reasons for requiring two foreign corporations through Ga. 2013), the Bankruptcy Court derivative suits were not present. their Georgia shareholder. for the Northern District of Georgia The court also held fraud claims Two decisions from the Southern held that a corporation’s convey- against the debtor could not be District rejected attempts to hold a ance of real estate was valid even determined to be nondischarge- parent company liable for alleged in the absence of a corporate seal, able because corporate officers and wrongs committed by its subsid- because the conveyance complied directors are not fiduciaries with- iary. In Roberts v. Wells Fargo Bank, with all requirements of O.C.G.A. in the strict meaning of 11 U.S.C. N.A., 2013 WL 1233268 (S.D. Ga. § 14-5-7. Finally, in UWork.com, Inc. § 523(a)(4). In Bobick v. Community Mar. 27, 2013), the district court v. Paragon Technologies, Inc., 321 Ga. & Southern Bank, 321 Ga. App. 855, declined to pierce the corporate App. 584, 740 S.E.2d 887 (2013), the 793 S.E.2d 518 (2013), the Court of veil to allow a class action plaintiff Court of Appeals rejected claims Appeals held that a shareholder’s to assert claims against the par- that parties to an arm’s-length con- suit against a bank alleging mis- ent corporation of an insurance tract had developed a confidential management by its directors and company accused of participating relationship through their course of officers resulting in devaluation of in a kickback scheme. In Sullivan’s conduct, finding that the relation- her stock was subject to dismissal Administrative Managers II, LLC v. ship was instead adversarial. The because the claims were derivative. Guarantee Insurance Co., 2013 WL court also addressed the circum- 4511319 (S.D. Ga. Aug. 23, 2013), stances in which fraud and negli- Alter Ego, Piercing the the district court held that evi- gent misrepresentation claims can Corporate Veil and Other dence that a parent performed cer- be based on representations made Forms of Secondary Liability tain administrative functions for its to a third party, similar to Mahindra, The year brought the usual array subsidiary was not enough to cre- discussed above, however, finding of alter ego and piercing the veil ate an inference that the corporate the claims before it were insufficient. decisions, none of which reflect- form was abused. ed any change in Georgia law. In The Court of Appeals in Cancel v. Litigation Issues Instituforum Techs, LLC v. Cosmic Sewell, 321 Ga. App. 523, 740 S.E.2d Tophat, LLC, 959 F. Supp. 2d 1335 870 (2013) (cert. granted, appeal Derivative Action Procedure (N.D. Ga. 2013), the Northern pending in Ga. S. Ct.) declined to In one of the most significant District addressed both tradition- hold that a newly-formed profes- cases of 2013, Benfield v. Wells, 324 al alter ego theories and “reverse sional association was the alter Ga. App. 85, 749 S.E.2d 384 (2013), piercing,” which is not recognized ego of the individuals who orga- the Court of Appeals addressed in Georgia (and which the court nized it and the hospital where a corporation’s motion to dis- refused to adopt). Reverse piercing they practiced, rejecting a claim miss a shareholder’s derivative was also addressed by the Court by members of the former associa- suit under O.C.G.A. § 14-2-744(a), of Appeals in two other cases. In tion who were not invited to join holding that dismissal was proper Holiday Hospitality Franchising, the new association. Finally, the in light of the recommendation Inc. v. Noons, 324 Ga. App. 70, 749 bankruptcy court In re Palisades of a special litigation committee. S.E.2d 380 (2013), the court held at West Paces Imaging Center, LLC, Specifically, the court rejected a that in light of the Supreme Court’s 501 B.R. 896 (Bankr. N.D. Ga. 2013)

34 Georgia Bar Journal addressed alter ego claims by the lenges to personal jurisdiction by Evidence trustee for the debtor-LLC against an overseas manufacturer alleged to In Levine v. Suntrust Robinson the principals of the LLC and cer- be the alter ego of its Georgia-based Humphrey, 321 Ga. App. 268, 740 tain family entities that received distributor and a former Georgia S.E.2d 672 (2013), a professional some of the allegedly fraudulent resident living in France. In Springer liability suit against a financial transfers. The court found liability v. Bank of America, N.A., 2013 WL advisor, the Court of Appeals held for the transfers that benefited the 2297053 (N.D. Ga. May 24, 2013), that expert testimony regarding the family entities, but not for other the Northern District addressed the value of a business over the course transfers that the principals made. rules governing service of a cor- of time was admissible and should poration under Federal Rule 4 and not have been excluded. The Jurisdictional Cases its Georgia counterpart, O.C.G.A. court rejected arguments that the There were no major develop- § 9-11-4(e)(1), holding that service of expert’s valuation approach was ments involving jurisdiction, venue process on a bank’s law firm did not not testable and that the expert had or service of process. The following constitute valid service on the bank not used the methodology before, decisions addressed personal juris- in a wrongful foreclosure action. In holding that these alleged flaws diction and service of process issues: Gardner v. TBO Capital, LLC, 2013 were best addressed through cross- In Gregory v. Preferred Financial WL 6271897 (N.D. Ga. Dec. 4, 2013), examination at trial. Solutions, 2013 WL 5725991 (M.D. an attempt to serve a corporation Ga. Oct. 21, 2013), officers of a corpo- by serving the Georgia Secretary Director and Officer Liability ration were held subject to personal of State was held ineffective under Insurance Decisions jurisdiction on the basis of their O.C.G.A § 9-11-4 for purposes of The year saw a sudden and sig- personal participation in alleged deciding the timeliness of a removal nificant rise in disputes involv- wrongdoing that targeted Georgia petition, and in Seeney v. Nationstar ing coverage under directors’ and consumers. In an earlier ruling in Mortgage, LLC, 2013 WL 6499359 officers’ (D&O) liability insurance T.V.D.B. Sarl v. KAPLA USA, LP, (N.D. Ga. Dec. 11, 2013), service policies. Most of this litigation 2013 WL 1898158 (S.D. Ga. May 7, by registered mail on an LLC was involved policies issued to banks 2013), the Southern District allowed ruled ineffective under O.C.G.A. that later failed. Among the issues discovery in connection with chal- § 9-11-4 and the Georgia LLC Code. that have received close attention Earn your Online LL.M. in Advocacy From the nation’s #1 law school in trial advocacy. – U.S. News & World Report

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April 2014 35 are the policies’ exclusionary claus- the carve-out to be ambiguous as (Bankr. S.D. Ga. Feb. 5, 2013), the es and the sufficiency of notices applied to director liability claims, Bankruptcy Court for the Southern given by the insureds. but did not decide the issue in District of Georgia held that a cred- Three decisions from the light of its ruling on the insured- itor sufficiently stated a claim for Northern District of Georgia vs.-insured clause. relief under 11 U.S.C. § 523(a)(6) reached different and sometimes In Bank of Camilla v. St. Paul by alleging that a corporate officer conflicting conclusions as to Mercury Ins. Co., 939 F. Supp. 2d personally participated in the cor- whether a D&O policy’s “insured 1299 (M.D. Ga. 2013), the Middle poration’s allegedly malicious and vs. insured” exclusion was District held that common law willful failure to pay the creditor. invoked by lawsuits filed by the fraud and RICO claims brought The court in In re Edelson, 2013 WL FDIC in its receivership capacity against a bank that allegedly par- 5145714 (Bankr. N.D. Ga. Jul. 3, against former directors and offi- ticipated in a Ponzi scheme fell 2013) rejected a nondischargeability cers of the bank. In January, the within an exclusion to coverage complaint against an LLC member district court held in Progressive because they involved “Lending who locked out the other member Casualty Ins. Co. v. FDIC, 926 F. Acts” as defined in the policy. because the debtor did not conceal Supp. 2d 1337 (N.D. Ga. 2013) that Finally, two decisions found—on his actions and lacked fraudulent an exclusion for claims brought completely different grounds—that intent. In In re Melton, 2013 WL “by, or on behalf of, or at the the FDIC should not be a party 2383657 (Bankr. N.D. Ga. May 20, behest of the Company” was to coverage litigation involving 2013), the Bankruptcy Court for ambiguous when applied to suits claims against failed bank offi- the Northern District of Georgia brought by the FDIC, since the cers and directors. In OneBeacon held that the personal liability of FDIC represents multiple interests Midwest Ins. Co. v. FDIC, 2013 WL an LLC’s sole owner/manager for and does not merely step into 1337193 (N.D. Ga. Mar. 28, 2013), fraud and conversion in divert- the shoes of the bank. In March, the Northern District rejected an ing funds that were supposed another district judge decided insurer’s attempt to sue the FDIC to be held in escrow by the LLC in Davis v. Bancinsure, Inc., 2013 in a declaratory judgment action to was nondischargeable. WL 1223696 (N.D. Ga. Mar. 20, determine coverage under a D&O 2013) that an insured-vs.-insured policy issued to a bank before its Miscellaneous Litigation exclusion applied to the FDIC’s failure, holding that the suit inter- Procedure Issues claims, citing that the relevant fered with the FDIC’s exercise of In Superior Roofing Co. of Georgia, exclusionary language specifically its powers and duties under fed- Inc. v. American Professional Risk included the word “receiver.” The eral law. In a separate ruling in the Services, Inc., 323 Ga. App. 416, court in Davis also denied cov- Davis v. BancInsure, Inc. case, 2013 744 S.E.2d 400 (2013), the Court erage because it found that the WL 1226491 (N.D. Ga. Mar. 18, of Appeals held that the Georgia insureds failed to comply with 2013), the court denied the FDIC’s Insurance Commissioner, as receiv- the policy’s notice requirements. motion to intervene in an insurance er for an insolvent trust fund, had Finally, in August, the court in St. coverage dispute, finding that the exclusive standing to pursue claims Paul Mercury Ins. Co. v. Miller, ___ FDIC’s potential interest in poli- common to the receivership estate, F. Supp. 2d ___, 2013 WL 482520 cy proceeds was not sufficient to but that claimants could individu- (N.D. Ga. Aug. 19, 2013) held that establish intervention of right. ally pursue claims that are strict- an exclusion containing “by or on ly personal in nature. In Artson, behalf of” language similar to the Nondischargeability of Breach LLC v. Hudson, 322 Ga. App. 859, policy in Progressive, and making of Fiduciary Duty Claims 747 S.E.2d 68 (2013), the Court of no explicit reference to receivers, The bankruptcy court in In re Appeals held that absent members did apply to suits brought by the Allen, 2013 WL 6199304 (Bankr. of an LLC were indispensable par- FDIC. The St. Paul decision did N.D. Ga. Nov. 25, 2013), applied ties to a lawsuit against a managing not cite the Progressive decision principles established in the cor- member that involved a dispute and the two cases are difficult to porate context, holding that the among all of the LLC’s members. reconcile. St. Paul is currently on fiduciary duties owed by mem- Two cases were disposed of on appeal to the 11th Circuit, and a bers of a partnership venture or principles of res judicata. In Bank decision by the appellate court LLC do not qualify those entities of the Ozarks v. DKK Development could restore some clarity in the as the “express or technical trust” Company, 2013 WL 2555834 (S.D. area. Another coverage defense required in the 11th Circuit for Ga. June 10, 2013), the Southern raised by the insurer in the St. Paul purposes of nondischargeability of District held that a debtor’s statuto- case was the effect of a carve-out fiduciary liability under 11 U.S.C. ry setoff claims against a bank were for unpaid loans from the defini- § 523(a)(4). See also In re Pervis, 497 precluded by an earlier state court tion of the “loss” covered under B.R. 612 (Bankr. N.D. Ga. 2013), equitable setoff lawsuit, since both the policy. The court considered supra. In In re May, 2013 WL 441440 cases turned on the same question

36 Georgia Bar Journal of whether the bank and its hold- because the corporation was not an LLC who was found to have mis- ing companies were alter egos of a governmental entity. In McGee appropriated LLC assets. In Zelby one another. In Coffee Iron Works v. Sentinel Offender Services, LLC, v. Thomas, No. 2012-cv-225412, the v. QORE, Inc., 322 Ga. App. 137, 719 F.3d 1236 (11th Cir. 2013), the court allowed an LLC member’s 744 S.E.2d 114 (2013), the Court of 11th Circuit addressed the circum- contractual claims under the oper- Appeals found that a shareholder stances under which an LLC may ating agreement to go forward, was in privity with her corpora- be held criminally liable under but dismissed contractual claims tion, which had previously litigat- principles of respondeat superi- brought against other parties who ed the same issues, and that the or. Finally, in Goodwill v. BB&T did not owe the contractual obli- shareholder’s suit was thus barred. Investment Services, Inc., 2013 WL gations, as well as a non-contrac- Four cases addressed attorney- 6271868 (N.D. Ga. Dec. 4, 2013), tual breach of fiduciary duty claim client issues in the corporate con- the court applied a four year sta- that was not based upon a duty text. In St. Simons Waterfront, LLC tute of limitations under O.C.G.A. independent of the agreement. In v. Hunter, Maclean, Exley & Dunn, § 9-3-31 to a breach of fiduciary Etowah Environmental Group, LLC P.C., 293 Ga. 419, 746 S.E.2d 98 duty claim against an investment v. Walsh, No. 2012-cv-211149, the (2013), the Supreme Court held advisor based on alleged misrepre- court addressed the crime-fraud that communications between law sentations to its client. exception to the attorney-client firm attorneys and the firm’s in- privilege in the context of a dis- house general counsel were priv- Fulton County Business pute concerning the valuation of ileged and constituted attorney Court Decisions an LLC. work product, in a professional liability suit brought by one of the There were also a handful of Thomas S. Richey firm’s clients, despite alleged con- noteworthy decisions from the concentrates his flicts of interest. The 11th Circuit Fulton County Business Court practice in corporate, held in Abdulla v. Klosinski, 523 in 2013. Raser Technologies, Inc. v. securities, banking and

Fed. Appx. 580 (11th Cir. 2013) Morgan Stanley & Co., LLC, No. financial litigation and that an attorney for a company 2012-cv-214140 was a mass action insurance coverage at in connection with its bankruptcy by an issuer and investors against Bryan Cave LLP. He serves on the filing did not also represent its Wall Street firms engaging in the principal in his individual capac- controversial practice of “naked” business section of the State Bar of ity when negotiating a person- short selling, in which the plain- Georgia’s Corporate Code Revision al guaranty to be signed by the tiffs brought claims under the Committee. Richey has published principal. In Oxmoor Portfolio, LLC Georgia RICO Act and the Georgia annual surveys of Georgia corporate v. Flooring and Tile Superstore of Securities Act, among other theo- and business organization case law Conyers, Inc., 320 Ga. App. 640, ries, for the loss in stock value developments for the years 2005- 740 S.E.2d 363 (2013), the Court allegedly caused by the defen- 2013, copies of which are available of Appeals held that an answer dants. On the defendants’ motion on request to tom.richey@ filed on behalf of a corporation to dismiss, the court held that the bryancave.com. Richey is co-author by a non-attorney was a nullity, plaintiffs’ Georgia Securities Act of a chapter on “Director and reiterating the settled rule that a and Georgia RICO claims were Officer Liability” in a book published corporation must be represented sufficiently pled, finding allega- in 2013, Georgia Business Litigation by an attorney in court proceed- tions that the defendants created ings. In Vig v. All Care Dental, P.C., false documentation supported (Daily Report 2013). 2013 WL 210895 (N.D. Ga. Jan. a market manipulation claim. In 18, 2013), the Northern District Melamud v. Page, Perry & Associates, Michael P. Carey addressed the same principle in LLC, No. 2012-cv-219444, the court practices corporate, considering an attorney’s motion held that there were issues of fact securities and other to withdraw from representing regarding whether an attorney- complex litigation at a corporation. client relationship developed Bryan Cave LLP, with a Other miscellaneous proce- between an investor and counsel focus on director and dural decisions include Rigby v. for an investment advisor with officer liability issues. Carey is Boatright, 294 Ga. 253, 751 S.E.2d whom the plaintiff was invest- co-author of a chapter on 851 (2013) in which the Supreme ing and doing other business. In “Director and Officer Liability” in a Court of Georgia held that man- Hatcher Management Holdings, LLC book published last year, Georgia damus is not a proper remedy to v. Hatcher, No. 2009-cv-179145, the compel a public utility corporation court awarded over $4 million in Business Litigation (Daily Report to include a candidate’s name on compensatory and punitive dam- 2013). He can be reached at the ballot for election to the board, ages against a former manager of [email protected].

April 2014 37 Honor Roll of Contributors 2013 “And Justice for All” State Bar Campaign for the Georgia Legal Services Program®

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VISIONARIES CIRCLE Walter E. Jospin Hon. James F. Bass Jr. Susan Kupferberg Gina E. Bailey ($10,000 & UP) and Hon. Wendy L. Shoob James W. Boswell III and Richard Mitchell Patricia T. Barmeyer Hon. Hardy Gregory Jr. Middle District of Georgia Law Offices of John D. Jenny K. Mittelman Hon. Dorothy Toth Beasley and Ms. Toni Gregory Bankruptcy Law Institute, Inc. Christy P.C. and William C. Thompson Steven L. Beauvais The Legal Division of The Willis L. Miller III James A. Clark and Mary Hon. Margaret H. Murphy Bondurant, Mixson Coca-Cola Company Andrew M. Scherffius III Jane Robertson Gretchen E. Nagy & Elmore, LLP Mary Allen Lindsey Tattnall County Law Library Hon. Susan S. Cole Charles L. Newton II Beth Boone Branan Foundation David F. Walbert Custer, Custer & Clark LLC Kimberly J. Prior Phillip Bradley Marguerite Salinas Trust Richard H. Deane Jr. Alison B. Prout and Cathy Harper Sutherland PRESIDENT’S CIRCLE David H. Gambrell Jill A. Pryor James J. Breen The Wilson Family Foundation ($1,500 - $2,499) M. Ayres Gardner and Annette T. Quinn Harry W. Brown Jr. Melinda P. Agee William J. Cobb Brian D. Rogers Mr. and Mrs. Aaron L. PATRON’S CIRCLE Baker, Donelson, Bearman, Robert L. Goldstucker Rotary Club of Savannah Buchsbaum ($5,000 - $9,999) Caldwell & Berkowitz, PC Daniel P. Griffin Tonia C. Sellers Chambless, Higdon, Patrick J. Flinn Joshua C. Bell Wade W. Herring II and Seth G. Weissman Richardson, Katz & Griggs, LLP Flint Energies Foundation Inc. James P. Bond Phyllis J. Holmen Kenneth L. Shigley Daniel C. Cohen C. Ben Garren Jr. GABWA Hon. James C. Marshall Elizabeth Steele Cohen & Caproni, LLC King & Spalding LLP Eve B. Klothen and Ms. Camille L. Hope Nancy Terrill Steven M. Collins Lisa J. Krisher Steven K. Leibel R. William Ide III and Camp Bacon Randall A. Constantine and John P. Batson Michael N. Loebl Hon. Sallie R. Jocoy Randolph W. Thrower Victoria and Southern States, LLC Mauldin & Jenkins, LLC N. Wallace Kelleman Tull Charitable Foundation, Inc. Charles M. Cork III Weissman, Nowack, Curry Oliver Maner LLP Paul Kilpatrick Jr. John Whaley Harold T. Daniel Jr. & Wilco, P.C. Schiff Hardin LLP Linda A. Klein Gregory J. Digel Silver & Archibald, LLP and Michael S. Neuren LEADERSHIP CIRCLE Clare H. Draper IV BENEFACTOR’S CIRCLE Strickland Brockington Lawler Green Prinz ($500 - $749) Damon E. Elmore ($2,500 - $4,999) Lewis LLP & Gleklen, LLC Anonymous (1) Thomas M. Finn Alston & Bird LLP Weiner, Shearouse, Weitz, Allegra J. Lawrence Adams & Jordan, P.C. John H. Fleming John T. Batson Greenberg & Shawe, LLP Long County Law Library Fund Addleton Ltd. Co. Daisy H. and and Kathryn J. McGarr Macon Bar Association Akin, Webster & Matson, P.C. Timothy W. Floyd Kate Brash EXECUTIVE CIRCLE Martin Snow, LLP Douglas W. Alexander Gautreaux & Adams, LLC John A. Chandler ($750 - $1,499) Mercer University Carol L. Arnall Emmett L. Goodman Jr. Anonymous (2) School of Law W. David Arnold William S. Goodman Patricia A. Gorham Robert L. Allgood J. Kevin Buster Bertis E. Downs IV Ernest V. Harris Hon. Adele P. Grubbs Paul H. Anderson Jr. S. Kendall Butterworth William M. Dreyer Sally A. Haskins Edward J. Hardin Hon. Lanier and Ivy N. Cadle Thomas V. Duck III Eugene S. Hatcher James I. Hay Nancy Anderson III Maureen Agnes Cahill Charles J. Durrance James A. Hatcher Charles and Zoe M. Hicks Laura M. Andrew Elizabeth C. Calhoun Willis A. Duvall Jane Middleton Haverty John V. Hogan V Stephen C. Andrews Peter C. Canfield W. Randy Eaddy Franklin D. Hayes Charles S. Johnson III Janet M. Ansorge Jane R. Carriere Jesse L. Echols H. Daniel Hayes Jr. Forrest B. Johnson Thomas J. Anthony Jason J. Carter R. M. Edmonds Gregory K. Hecht Stanley Jones Margaret L. Argent Fern D. Carty William A. Edmundson Rachael G. Henderson and Bobbi Cleveland William H. Arroyo Joseph P. Carver Margaret P. Eisenhauer Carlton M. Henson Elena Kaplan Richard J. Azar Jennifer Reeves Cave Hassan H. Elkhalil Kenneth M. Henson Jr. Hon. Patricia M. Killingsworth Ryan W. Babcock Lisa E. Chang C. Ronald Ellington Robert E. Herndon Gregory G. Lawton Bridget B. Bagley and William W. Buzbee Anne S. Emanuel Caroline Whitehead LOCAL 420 AFSCME AFL-CIO Hon. Jeffrey S. Bagley Michael L. Chapman Dale S. Erickson Herrington Long & Holder, LLP Emily S. Bair Gregory H. Chastain Benjamin P. Erlitz Theodore M. Hester Macon Younger Ansley B. Barton Socheat Chea Frances A. Estes G. Lemuel Hewes Lawyers Division William D. Barwick John P. Cheeley Hon. Philip F. Etheridge Jonathan W. Hewett Meghan H. Magruder Rhonda L. Bass Childers & McCain, LLC Jane E. Fahey W. Rowland Heyward Marie E. Massey William R. Bassett Childs & Noland Sean C. Fahey Megan J. Hilley Richard L. Menson William R. Bassett Jr. Linda Dagle Chmar Lynn Fant-Merritt Daniel M. Hirsh Hon. Carson D. Perkins Tina G. Battle Sean D. Christy James G. Farris Jr. Frederick S. Hitchcock Jeffrey N. Powers Henry R. Bauer Jr. James C. Cifelli Eric R. Fenichel Inman G. Hodges Pro Bono Partnership Steven L. Beard William R. Claiborne R. Jeffrey Field Michael J. Hofrichter of Atlanta David H. Bedingfield Robin F. Clark Hon. Norman S. Fletcher Louis L. Hogue Reichert Family Foundation Jacob Beil John L. Coalson Jr. Hon. Robert E. Flournoy III Philip E. Holladay Jr. Rotary Club of Savannah Frank J. Beltran William B. Cody Benjamin E. Fox Gwenn D. Holland Sacred Heart Catholic Church Hon. Robert Benham Katherine Meyers Cohen Peter A. Fozzard William P. Holley III J. Ben Shapiro Jr. Mary T. Benton Peter M. Cohen Dorothy Black Franzoni April L. Hollingsworth Rita A. Sheffey Richard H. Bishoff Arlene L. Coleman Robert A. Fricks Keith W. Holman Thomas W. Talbot Hon. James G. Blanchard Jr. Addi K. Cook J. Randall Frost Catherine A. Hora Anderson Evelyn Y. Teague Piers A. Blewett Steven A. Cornelison John P. Fry Melissa R. Hourihan Hon. Hugh P. Thompson Mr. and Mrs. Charles R. Bliss Arturo Corso Murray A. Galin Harry C. Howard Tort and Insurance Practice Emmet J. Bondurant Cramer & Peavy Galloway & Lyndall, LLP Ruth A. Hughes Section of the State Bar David W. Boone J. Michael Cranford David A. Garfinkel William H. Hughes Jr. of Georgia Thomas C. Bordeaux Jr. Richard W. Creswell E. Reid Garrett Hon. Willis B. Hunt Jr. Unitarian Universalist Jesse G. Bowles III Eleanor M. Crosby-Lanier William C. Gentry Howard O. Hunter III Beloved Community of Hon. William T. Boyett Delia T. Crouch Michael G. Geoffroy Charles D. Hurt Jr. Savannah/Joined In Giving David G. Brackett Christy D. Crow Kevin B. Getzendanner Michael D. Hurtt Patrick F. Walsh Jeffrey O. Bramlett Raymond L. Crowell Cynthia Gibson John M. Hyatt Hon. Robert G. Walther Nancy F. Bramlett Eileen M. Crowley James B. Gilbert Jr. Thomas B. Hyman Jr. Hon. Charles H. Weigle Sam L. Brannen Jr. Ruben J. Cruz Neil J. Ginn Jennifer N. Ide Westmoreland, Patterson, L. Travis Brannon Jr. Thomas W. Curvin Richard G. Goerss Leon A. Immerman Moseley & Hinson, LLP Brent M. Bremer Neal K. Daniel Steven I. Goldman Humberto Izquierdo Jr. Katherine K. Wood Eric S. Broome Peter S. Dardi Gina G. Greenwood Heather L. James Tamera M. Woodard Alex M. Brown Hugh M. Davenport John W. Greer III Mary B. James Daniel D. Zegura Kristine E. Brown Melissa J. Davey William H. Gregory II William R. Jenkins Jerome A. Zivan William A. Brown A. Kimbrough Davis Charles C. Grile Francys Johnson Jr. Norman E. Zoller Brownstein & Nguyen LLC Cedric B. Davis Rebecca H. Grist Frederick W. Johnson Callie D. Bryan Peter H. Dean Emily G. Gunnells Todd M. Johnson SUSTAINER’S CIRCLE Robert C. Buck William D. DeGolian Stephen H. Hagler Theodore C. Jonas ($250 - $499) Christine Pamela Bump Gilbert H. Deitch Stacey A. Haire James C. Jones III Harold E. Abrams Carolyn “Tippi” Cain Burch Joseph W. Dent F. Sheffield Hale Pamela M. Jones Alfred B. Adams III Sheryl L. Burke Foy R. Devine Hon. Carolyn Coberly Hall Richard S. Jones Hon. William P. Adams Anne S. Burris Hon. Neal W. Dickert Rebecca A. Hall Donald W. Jordan Tara L. Adyanthaya Bryon S. Burton Sally Ann Dorn Earline L. Ham William H. Jordan Thomas Affleck III Robert W. Bush Sharon E. Dougherty Joshua L. Harbour Darren T. Kaplan Richard and Mary Katz C. James McCallar Jr. Lynn Rainey Robin V. Spivey Deborah J. Winegard Robert N. Katz Wes R. McCart Marie T. Ransley Charles T. Staples Timothy W. Wolfe Gary M. Kazin Julian B. McDonnell Jr. Kimberly A. Reddy E. Dunn Stapleton Joel O. Wooten Jr. Marcus G. Keegan Kevin J. McDonough Joan S. Redmond John D. Steel Christopher A. Wray Kirk W. Keene Kenneth P. McDuffie Tera L. Reese-Beisbier Grant T. Stein W. Scott Wright Michael B. Keene Brad J. McFall Mr. and Mrs. Albert P. Mason W. Stephenson Carla E. Young William W. Keith III James R. McGibbon Reichert Jr. Stanley M. Stevens Hon. Gordon R. Zeese Bennett L. Kight Daniel R. McKeithen Jaimi A. Reisz David J. Stewart Kathryn M. Zickert Cada T. Kilgore IV Marci W. McKenna Robert B. Remar J. Douglas Stewart Alex L. Zipperer F. Carlton King Jr. Rod G. Meadows James H. Rion Jr. Lever F. Stewart III Frances A. Zwenig Jason M. King Sandra L. Michaels Rockefeller Law Center Mary J. Stewart Karen A. King Lester M. Miller Tina S. Roddenbery Aleksandra Strang DONOR’S CIRCLE Kevin W. King Steven M. Mills Matthew S. Roessing A. Thomas Stubbs ($150 - $249) Marsha D. King Michael L. Monahan Gail E. Ronan Malcolm S. Sutherland Anonymous (2) William R. King James H. Morawetz Joseph A. Roseborough Darrell L. Sutton Clark C. Adams Jr. Mr. and Mrs. Dow N. Carlton H. Morse Jr. Teresa W. Roseborough Meredith W. Sutton Benjamin Allen Kirkpatrick II Rosemarie Morse Michael Rosenbloum Hon. David R. Sweat Wanda Andrews Seth D. Kirschenbaum Steven J. Mudder George C. Rosenzweig Allan J. Tanenbaum Anthony B. Askew Rhonda L. Klein Brian M. Murphy Robert G. Rubin Elizabeth V. Tanis Lash S. Askew James M. Koelemay Jr. Heather E. Murphy Charles L. Ruffin John A. Tanner Jr. Alan P. Babbitt Frank J. Kralicek Dorian Murry M. Shayla Rumely Bernard Taylor E. Noreen Banks-Ware Stanley E. Kreimer Jr. Jeffrey D. Nakrin Michael C. Russ Ann Terrill-Torrez Juanita P. Baranco Sid M. Kresses Gwyn P. Newsom Michael J. Rust Laura G. Thatcher Hon. Patricia D. Barron Edward B. Krugman Matthew W. Nichols Mark W. Sanders Jr. Laura B. Traylor Marshall B. Barton Jennifer A. Kurle Elizabeth J. Norman Hon. W. Louis Sands Thomas W. Tucker Donna G. Barwick Hon. Jean Miller Kutner Victoria A. O’Connor C. Franklin Sayre David L. Turner Thomas A. Bauer Benjamin A. Land Mark D. Oldenburg Mark Schaefer Michael W. Tyler Lamont A. Belk Hon. John T. Laney III Mary Margaret Oliver Neil C. Schemm Rex R. Veal Hubert J. Bell Jr. W. Pope Langdale III Harry A. Osborne Ryan A. Schneider Robert J. Veal Kevin E. Belle Isle Susan P. Langford Suzanne R. Pablo and Jennifer B. Tourial Raye A. Viers Wenona C. Belton John L. Latham Paul W. Painter III Jason R. Schultz Eric M. Wachter Joseph J. Berrigan Nancy F. Lawler Jonathan B. Pannell David M. Schwartz Julie M. Wade Peter M. Birnbaum David N. Lefkowitz Dianne P. Parker Haley A. Schwartz Carol Walker Bennie H. Black Robert N. Leitch W. Henry Parkman Robert C. Schwartz Phillip J. Walsh Joseph I. Bolling Guy E. Lescault Mary B. Parks Charity Scott Bryan M. Ward Paula Bosworth Charles T. Lester Jr. Clifford C. Perkins Jr. and Evans Harrell Daniel J. Warren Noble L. Boykin Jr. Ralph B. Levy Patrise M. Perkins-Hooker Daniel Shim Thomas H. Warren Eugene C. Brooks IV Dawn M. Lewis Alan R. Perry Jr. Edward M. Shoemaker Wilson M. Watkins William E. Bubsey Keith L. Lindsay W. R. Persons Arnold B. Sidman Janet G. Watts Burt Buchtinec David S. Lipscomb Jerry G. Peterson Beverlee E. Silva Joseph D. Weathers Bruce K. Buhl Mary B. Long Michael T. Petrik Hon. Lamar W. Sizemore Jr. Jack M. Webb Burnette Law, P.C. Sarajane Newton Love Hon. Guy D. Pfeiffer Charles E. Sloane John P. Webb Jeanette Burroughs Linda S. Lowe Ben B. Philips Tamara L. Slogar David A. Webster Katharine S. Butler Charles W. Lykins Geraldine C. Phillips Christina C. Smith Spencer C. Weiss Louis T. Cain Jr. John F. Lyndon Terri B. Pierce Hon. J. D. Smith Hon. A. J. Welch Jr. Timothy F. Callaway III Jonathan R. Macey W. Warren Plowden Jr. John H. Smith Ellene Welsh, P.C. Fred L. Cavalli Daniel I. MacIntyre IV Timothy S. Pollock Lynette E. Smith Nancy J. Whaley Nickolas P. Chilivis Rosser A. Malone Amy M. Power Margaret R. Smith Benjamin T. White Carol C. Conrad Leonard T. Marcinko Warren R. Power Matthew T. Smith Diane S. White Thomas M. Cook Law Offices Elizabeth A. Price Cubbedge Snow Jr. John A. White Jr. Denise Marshelle Cooper of Edwin Marger, LLC Bryan M. Pulliam Roy M. Sobelson Larry J. White Leslie F. Corbitt Hon. Beverly B. Martin Gail S. Pursel Lawrence S. Sorgen Larry Joe. White Daniel M. Covino Hope L. Martin Mary F. Radford Robert M. Souther Damon A. Wiener John P. Cowan Suzanne G. Mason Norman J. Radow John I. Spangler III Robert J. Wilder Raymon H. Cox Hon. James E. Massey Michael W. Rafter Jr. Steven L. Sparger Kristin B. Wilhelm Terrence L. Croft Stuart C. Mathews Ronald L. Raider Stephen O. Spinks Connie L. Williford Rev. John L. Cromartie Jr. Hon. John D. Crosby Sondra Johnson David A. Roby Jr. Khaki and Ray Lerer IN-KIND GIFTS Matthew B. Crowder Elaine Gerke and Walter P. Rowe in honor of R. Keegan Alpha Phi Alpha Fraternity Jackson L. Culbreth Hon. Cliff Jolliff Amelia T. Rudolph Federal Jr. Beth Boone Thomas A. Cullinan Kenneth J. Jones Cornelia S. Russell Hon. Margaret H. Murphy Hon. Kathlene F. Gosselin Peter Cutrone Donald J. Jordan Stanton J. Shapiro in honor of Georgia Legal Mr. and Mrs. Robert Tomieka R. Daniel Robert J. Kauffman Rita A. Sislen Services Attorneys and Karen Wildau Deryl D. Dantzler Crawley M. Kemp II Wilson R. Smith McKenney & Jordan in honor Prof. Donal Christopher Wells Danielle D. D’Eor-Hynes Traci D. Kemp Lesley Hanchrow Solomon of Cubbedge Snow Jr. Susan E. Dignan Judy C. King Huey W. Spearman Rachael B. Schell in honor of 2013 ASSOCIATES’ William D. Dillon Klamon Family Foundation Law Office of G. Brian Amanda Kent Smith CAMPAIGN FOR LEGAL Ronald J. Doeve Lynn S. Koch Spears, P.C. Dennis Stansell in honor of SERVICES Dozier Law Firm, LLC Darlene G. Lackey-Rushing Don E. Stephens Marta Shelton Ryan W. Babcock Gail D. Drake Sarah H. Lamar Robert L. Stevenson II Elizabeth Steele in honor of Bondurant, Mixson DuBose Law Group LLC John Lamberski David A. Stockton Robert McCormack & Elmore, LLP Diane Durgin Brady M. Larrison Kice H. Stone Ann Terrill-Torrez in honor of Jason J. Carter Joan T. Dwoskin J. Alvin Leaphart J. Lindsay Stradley Jr. Nancy Terrill King & Spalding LLP Donald P. Edwards Milton E. Lefkoff Charles W. Surasky Nancy J. Whaley in honor of Alison Berkowitz Prout A. James Elliott Joyce G. Lewis Michael J. Tafelski Phyllis J. Holmen Nancy O. Ewing Lisa K. Liang Hon. Coy H. Temples Sandy Wei in honor of VENDORS Martha Jane Fessenden Joel I. Liss Daniel R. Tompkins III Jeanette Burroughs Barracuda Networks Raul Figueroa Hubert C. Lovein Jr. Gregory W. Valpey Neal Weinberg in honor of ACC Business David H. Fink L. Joseph Loveland Jr. Vansant & Corriere, LLC Phil Bond CDW James C. Fleming Peter C. Lown The Victor Firm, LLC Theodore Hertzberg in honor Cisco Networks Ira L. Foster J. Rodgers Lunsford III Homer J. Walker III of Angela Welch Colotraq Joseph H. Fowler Timothy J. MacMillan Susan M. Walls Elizabeth Wilson in honor of Digital Concierge Robert A. Freyre LaRee K. Martin Hon. Margaret Gettle Washburn William D. NeSmith III at She’s Wired John H. Gaines III Hon. Johnny W. Mason Jr. Joseph W. Watkins FastNeuron Inc. Karen C. Gainey Rowena Gillmore McAllister Rickey Watson MEMORIAL GIFTS Frazier Marketing and Design Terrica Redfield Ganzy Richard A. McCall Daniel E. Wehrenberg Melinda P. Agee in memory Hewlett Packard D. A. Garner Angus N. McFadden Neal Weinberg of Kay Y. Young InfoExpress Karen Geiger Max R. McGlamry Richard A. White Hon. R. Lanier Anderson III Microsoft Jerry L. Gentry June D. McKenzie Robert P. Wildau in memory of PSTI Hon. Martha K. Glaze Hon. T. Penn McWhorter Jeffrey L. Williamson Robert L. Anderson Peachtree Benefits Group Shona B. Glink Kenneth Mitchell Dana M. Wilson Carol L. Arnall in memory of PrintTime Nadeen W. Green Sarah Morris Robert E. Wilson Alvan S. Arnall RGI Ralph H. Greil Neil A. Moskowitz Frank C. Winn Hon. Dorothy Beasley in StormWood Collen V. Grogan Yolanda M. Mott Carol M. Wood memory of Hon. Stephen Toth Techbridge Rebecca A. Haltzel-Haas Maria E. Mucha Alex R. Yacoub Fern D. Carty in memory of Unidesk Andrew M. Harris Michael T. Nations Malcolm and Jewel Carty Vmware Lanita A. Harris Terry L. Nevel HONORARIUM GIFTS Michael G. Geoffroy in Dewey N. Hayes Jr. Scott P. Newland John T. Batson and Kathryn memory of Hon. Clarence R. 2013 CAMPAIGN Lisa and Scott Haynsworth Leslie A. Oakes J. McGarr in honor of Vaughn Jr. COMMITTEE Chris S. Hester Mary Ann B. Oakley Lisa Krisher Joyce G. Lewis in memory of Charles L. Ruffin Jeffrey F. Hetsko Patrick T. O’Connor Carolina Den Brok-Perez Fred Orr President, State Bar Salome M. Heyward Marnique Williams Oliver in honor of J. Rodgers Lunsford III in of Georgia Karen D. Hill Henry G. Pannell Carly and Nicolas Perez memory of Julius R. Lunsford Jr. Robin Frazer Clark Daniel F. Hinkel Mary L. Parker Karlise Y. Grier in honor of Mr. and Mrs. Michael S. Immediate Past President, Susan Hirsch John P. Partin Susan Warren Cox Meyer Von Bremen in State Bar of Georgia Mr. and Mrs. Alex H. Hodges W. Russell Patterson Jr. and Vera Sharon Edenfield memory of Robert Baynard Brinda Lovvorn Clifford G. Hoffman Craig K. Pendergrast David E. Hudson in honor of Mr. and Mrs. John Sheftall in Director of Membership, George M. Hubbard III Daniel S. Rader Hon. William M. Fleming memory of Lee R. Grogan State Bar of Georgia David L. Hudgins Ernest C. Ramsay Hon. Cliff Jolliff and Ms. Sandy Wei in memory of Judy Hill David E. Hudson Judith A. Rausher Elaine Gerke in honor of Dan Wang Assistant Director Carolyn R. Huggins Lisa R. Reeves Wendy Glasbrenner Law Office of William R. of Membership, Raymond H. Jarvis Michael S. Reeves Katherine M. Kalish McCracken in memory of State Bar of Georgia J. Alexander Johnson Joycia C. Ricks in honor of Phil Bond Hon. Edward E. Carriere Jr. Georgia Legal Services Building a Foundation D. Wesley Jordan Robert B. Remar Mary C. Cooney Program Board of Directors for Justice Paul Kilpatrick Jr. Udai V. Singh Hon. Lawrence A. Cooper Gertie R. Beauford The following individuals and Mr. and Mrs. Lawrence P. J. Lindsay Stradley Jr. Philip B. Cordes Beth Boone law firms are contributors to Klamon UNUM Group Hon. John D. Crosby Gwenita M. Brinson the “Building a Foundation for Linda A. Klein Patrick F. Walsh Robert M. Cunningham Kristine “Kris” E. Orr Brown Justice Campaign” launched and Michael S. Neuren David D. and John D. Dalbey Wanda Collier in 2001 by the Georgia Legal Catherine E. Long Melody Wilder Wilson GLSP Dalton Office Amy Lee Copeland Services Foundation. Willis L. Miller III Brian M. Worstell Hugh M. Davenport Terence A. Dicks Roger E. Murray Thomas C. Dempsey Gregory S. Ellington JUSTICE BUILDERS Gretchen E. Nagy OTHER DONORS Joseph W. Dent Damon Elmore ($1,000 & Up) Kenneth S. Nugent, P.C. Anonymous (7) Mary Irene Dickerson Patrick J. Flinn Anonymous (3) Thomas E. Prior Anthony H. Abbott Gregory J. Digel Terrica Redfield Ganzy Robert L. Allgood Hon. Mae C. Reeves Bettye E. Ackerman Robert N. Dokson C. Ben Garren Jr. Joel S. Arogeti Mr. Alan F. Rothschild Jr. Aaron I. Alembik John L. Douglas Michael Geoffroy Mr. and Mrs. R. Lawrence Sanford Salzinger Evan M. Altman J. Michael Dover Patricia A. Gorham Ashe Jr. J. Ben Shapiro Jr. Peter J. Anderson Lester Z. Dozier Jr. America Gruner Alice H. Ball Silver & Archibald, LLP Wanda Andrews Dozier Law Firm, LLC Isabelle P. Harper Joseph R. Bankoff Hon. Philip C. Smith Anthony B. Askew Terri H. Duda Wade W. Herring II Patricia T. Barmeyer Charles W. Surasky Cathy and Bucky Askew Kathryn Durham, J.D., P.C. Stanley S. Jones Jr. The Barnes Law Group, LLC Sutton Law Group, LLC Bruce and Lisa Aydt Randy J. Ebersbach Elena Kaplan Ansley B. Barton Michael H. Terry S. C. Baird Robert G. Edge Angela Lingard James L. Bentley III Randolph W. Thrower Michelle R. Barclay William A. Erwin Gwen Littleton Jean Bergmark William A. Trotter III Robert A. Barnes Roslyn S. Falk Michael N. Loebl Lynne Borsuk Thomas W. Tucker Charles H. Battle Jr. William H. Ferguson Martha Lowe and Robert Smulian Weissman, Nowack, Curry Hon. T. Jackson Bedford Jr. Karen J. Fillipp Emily Macheski-Preston James W. Boswell III & Wilco, P.C. Lamont A. Belk Thomas M. Finn Mary J. Macon Bouhan, Williams & Levy, LLP William F. Welch Kevin E. Belle Isle Dean Daisy H. Floyd Dorian Murry Phil Bradley Derek J. White William T. Bennett III Ira L. Foster Adelina Nicholls and Cathy Harper Diane S. White Bentley, Bentley & Bentley Samuel A. Fowler Jr. Bernadette Olmos Jeffrey and Nancy Bramlett Timothy W. Wolfe Harvey G. Berss Paula J. Frederick John W. Pruitt Sr. James J. Breen Paula L. Bevington Christine A. Freeman Jill Pryor William A. Brown JUSTICE PARTNERS Terry C. Bird Gregory L. Fullerton Gail S. Pursel Aaron L. Buchsbaum ($500 - $999) Martin J. Blank Peter B. Glass Albert P. Reichert Jr. Sheryl L. Burke Anonymous David J. Blevins Susan H. Glatt Marisol Carrero Roman Business Law Section of the Renee C. Atkinson Mr. and Mrs. Charles R. Bliss Hon. Martha K. Glaze Mark Schaefer State Bar of Georgia JWP Barnes Marcia W. Borowski Judy Glenn H. Burke Sherwood Sr. Thalia and Michael C. Carlos Paul R. Bennett Edward E. Boshears Yvonne K. Gloster Kazuma Sonoda Jr. Foundation, Inc. Mary Jane Cardwell Rosemary M. Bowen Morton J. Gold Jr. Nancy Terrill John A. Chandler Steven M. Collins Thomas A. Bowman Alan B. Gordon Karina Vasquez James A. Clark and Mary Randall A. Constantine Barbara S. Boyer Kevin R. Gough Ruth White Jane Robertson John H. Fleming John H. Bradley Mark P. Grant Nettie M. Williams David H. Cofrin Kevin B. Getzendanner Daryl Braham Thomas S. Gray Jr. Tamera M. Woodard Harold T. Daniel Jr. R. William Ide III Thomas B. Branch III Gary G. Grindler Benjamin S. Eichholz, P.C. Paul S. Kish Dianne Brannen Divida Gude Georgia Legal Services J. Melvin England William H. Kitchens Bill Broker Stephen H. Hagler Foundation R. Keegan Federal Jr. Leslie and Judy Kemperer Brooks Law Firm Nedom A. Haley The Georgia Legal John P. Fry Rita J. Kummer The Brown Firm, LLC Warren R. Hall Jr. Services Foundation is a David H. Gambrell Celeste McCollough George E. Butler II Christopher Harrigan separate 501(c)(3) nonprofit Edward J. Hardin Jenny K. Mittelman and John D. Carey Kirk E. Harris, Esq. organization with a mission to Harris & Liken, LLP William C. Thompson John R. Carlisle Jeanne D. Harrison build an endowment to sustain Phyllis J. Holmen Patrick T. O’Connor Thomas D. Carr Alexsander H. Hart the work of the Georgia Hunter, Maclean, Exley The Oldenburg Law Firm Hon. Edward E. Carriere Jr. James A. Hatcher Legal Services Program for & Dunn, P.C. Carl S. Pedigo Jr. Nickolas P. Chilivis Karen G. Hazzah generations to come. Inglesby, Falligant, Horne, J. Robert Persons Edward B. Claxton III Gregory K. Hecht Courington & Chisholm, P.C. Steven L. Pottle James H. Coil III Philip C. Henry Mary B. James Jill A. Pryor Arlene L. Coleman Kenneth M. Henson Jr. Mr. and Mrs. Andrew M. James McBee Otis L. Scarbary Hon. Lawrence D. Young The Georgia Legal Services Hepburn Jr. Elizabeth L. McBrearty Cathy L. Scarver Daniel D. Zegura Program is a nonprofit Sharon B. Hermann Mary F. McCord S. Alan Schlact Norman E. Zoller law firm recognized as a Chris Hester Robert L. McCorkle III Bryan D. Scott 501(c)(3) organization by Jeffrey F. Hetsko James T. McDonald Jr. Claude F. Scott Jr. 2013 HONORARIUMS the IRS. Gifts to GLSP are Charles F. Hicks Jane S. McElreath Janet C. Scott Anonymous Donor in honor tax-deductible to the fullest Jon E. Holmen Christopher J. McFadden Martin J. Sendek of Hon. Hugh Lawson extent allowed by law. Matthew A. Horvath James B. McGinnis Mark A. Shaffer Renee C. Atkinson in honor Edward M. Hughes McKenney & Jordan Hon. Marvin H. Shoob of Brian Atkinson The Georgia Legal Services Hon. Carol W. Hunstein Hon. Jack M. McLaughlin Ann A. Shuler Erica Craven-Green in honor (GLS) Foundation is Cindy Ingram Merrill & Stone, LLC Viveca Sibley of William H. Orrick recognized as a 501(c) Initial Public Offerin Metropolitan Regional Silvis, Ambrose Cathy Jacobson in honor of (3) nonprofit organization Securities Litigation Information System Inc. & Lindquist, P.C. Lisa Krisher by the IRS. Gifts to the Hon. James T. Irvin Michael S. and Douglas K. Silvis Janet C. Scott in honor of GLS Foundation are tax- Hon. Phillip Jackson Peggy Meyer Von Bremen Ethelyn N. Simpson Mary R. Scott deductible to the fullest Cathy Jacobson Garna D. Miller John E. Simpson extent allowed by law. Mr. J. Scott and Martha A. Miller George B. Smith Georgia Legal Services Mrs. Tanya Jacobson Terry L. Miller Jay I. Solomon Foundation Jackson & Schiavone C. Wingate Mims David N. Soloway Board of Directors Jaurene K. Janik John T. Minor III John D. Sours Patricia T. Barmeyer W. Jan Jankowski R. Carlisle Minter Thomas A. Spillman Lynn Y. Borsuk Weyman T. Johnson Jr. Mitchell & Shapiro, LLP State Bar of Georgia James W. Boswell III Howard H. Johnston Ann Moceyunas Mason W. Stephenson Phillip A. Bradley Jane M. Jordan H. Bradford Morris Jr. Michael P. Stevens Paul T. Carroll III Lise S. Kaplan Diane M. Mosley Joseph F. Strength James A. “Jock” Clark Mary M. Katz Jerold L. Murray C. Deen Strickland Edward J. Hardin To make a contribution, go Melinda M. Katz The National Association Jay L. Strongwater Harold T. “Hal” Daniel Jr. online at www.glsp.org, or Robert N. Katz of Realtors David R. Sweat Jane M. Jordan mail your gift to Georgia Legal Lisa Kennedy NAR Legal Affairs Robert E. Talley Mary Mendel Katz Services, Development Office, Robbman S. Kiker James A. Neuberger Jeffrey D. Talmadge Mickael L. McGlamry 104 Marietta St., Suite 250, Vicky Kimbrell Charles L. Newton II Susan C. Tarnower Alan F. Rothschild Jr. Atlanta, GA 30303. Jeff S. Klein Amber L. Nickell Jackie Taylor Darrell L. Sutton Jonathan I. Klein Rakesh N. Parekh, PC G. William Thackston Evelyn Y. Teague Thank you for your support. Alex Kritz A. Sidney Parker Daniel R. Tompkins III Thomas W. “Tommy” Tucker Edward B. Krugman Mr. and Mrs. Dianne P. Parker William L. Tucker Harry S. Kuniansky G. Cleveland Payne III, PC Leslie W. Uddin We appreciate our donors Steven J. Labovitz Hon. George M. Peagler Jr. Frederick D. Underwood and take great care in L. Robert Lake Cathy Peterson Joseph M. Ventrone compiling the Honor Roll Kipler S. Lamar Hon. Albert M. Pickett and Jeanne Broyhill of Contributors. If we Clifford S. Lancey Loretta L. Pinkston Jennifer B. Victor have inadvertently omitted Gregory G. Lawton John L. Plotkin Rose Marie Wade your name, or if your Hon. Kelly A. Lee Linda L. Holmen Polka Christopher A. Wagner name is incorrect in the Stanley M. Lefco Jeffrey N. Powers Hon. Ronit Z. Walker records, we apologize and Mrs. Esther and Thompson T. Rawls II Walker Wilcox Matousek LLP encourage you to contact Mr. Kristian Leibfarth Michael S. Reeves Ellene Welsh the Development Office at Zane P. Leiden Clinton D. Richardson Brian K. Wilcox 404-206-5175, so that we R. O. Lerer Ritter Law Firm, LLC Mark Wilcox can correct our records and Lightmas & Delk Timothy D. Roberts Robert J. Wilder acknowledge you properly Jack N. Lincoln Richard B. Roesel Frank B. Wilensky in the future. Some donors J. Rodgers Lunsford III Carmen Rojas Rafter Paul C. Wilgus have requested anonymity. Herman O. Lyle James H. Rollins Kathryn B. Wilson Edwin Marger Charles L. Ruffin Norman D. Wilson Andrew H. Marshall David A. Runnion Robert E. Wilson H. Fielder Martin Dorothy W. Russell William N. Withrow Jr. Raymond S. Martin Phillip B. Sartain Leigh M. Wilco F. P. Maxson Christopher G. Sawyer and Carolyn C. Wood Bench & Bar

Kudos event in March. The deal involved the foreclo- > Chilivis, Cochran, Larkins & Bever, sure/Article 9 sale of Midstate Mills, Inc., a North LLP, announced that Brian F. McEvoy Carolina flour mill, to a subsidiary of firm client was named the chair of the State Bar of Renovo Capital, LLC. Schneider was a member of Georgia’s Health Law Section. Under the team that guided Renovo through the bankrupt- McEvoy’s leadership, the section will cy process resulting in Renovo, through its newly focus on increasing its membership and formed subsidiary Renwood Mills, providing the supporting health care based community outreach winning bid in a bankruptcy court-sanctioned fore- programs. Since leaving his position as health care closure sale of Midstate’s assets. fraud coordinator in the U.S. Attorney’s Office for the Southern District of Georgia, McEvoy focuses > Hasner Law PC announced that partner his practice on health care litigation and federal Tracee R. Benzo was inducted as presi- white collar criminal defense. dent of the Georgia Association of Black Women Attorneys (GABWA). > Mercer University announced that GABWA was founded in 1981 by a Heather Darden, a 1998 graduate of the group of African-American women College of Liberal Arts and corporate who desired to form a voluntary bar organization counsel at RaceTrac Petroleum in with a focus on women’s and children’s issues, Atlanta, was installed as a member of increasing black female representation in the judi- the university’s Board of Trustees. The ciary and in public offices, and taking a proactive 45-member board is charged with overall policy- stance on political issues. Today, GABWA has an making for the university. active membership of nearly 700 women and men.

> Holland & Knight LLP announced that > Evans Harrison Hackett PLLC Atlanta partner Kevin Coventon was announced that partner Timothy L. honored with the 2013 Pro Bono Attorney Mickel was installed as president of the of the Year award by Cooperative for Chattanooga Bar Association at the Assistance & Relief Everywhere (CARE) association’s 116th Annual Meeting. for his extraordinary contributions sup- The purpose of the association is to porting CARE’s mission to end global poverty. work for the betterment of the legal profession and CARE’s efforts improve basic education, end gender- the administration of justice; to take an active inter- based violence, provide health care and nutrition, est in governmental affairs; to stimulate a feeling of increase access to clean water and sanitation, and respect, esteem and good fellowship among mem- expand economic opportunity. bers of the profession; to maintain a high standard of ethics among the members of the Bar of > Hunton & Williams LLP Chattanooga; and to correlate its activities with announced that litigation those of the American Bar Association, the Tennessee and intellectual property Bar Association, and such other professional orga- partner Rita A. Sheffey nizations as may appear appropriate. received the Litigation Counsel of America’s inau- The Council of Superior Sheffey Schneider > gural Peter Perlman Service Court Judges awarded Award. Sponsored by LCA 2013 President Peter Hon. John D. Allen and Perlman, the award is presented to 25 LCA fellows Hon. Cynthia D. Wright who go above and beyond in commitment and ser- the third annual Emory vice to their communities. Sheffey has served as Findley Award for Allen Wright director of Hunton & Williams’ Southside Legal “Outstanding Judicial Center pro bono clinic since it opened in 1995. As Service.” Allen has served as a Chattahoochee chair of the Atlanta office’s pro bono committee, she Judicial Circuit superior court judge for 20 years dedicates half her time to pro bono work and men- and chief judge for four years. Wright has served as toring other lawyers in the firm. Sheffey also cur- an Atlanta Judicial Circuit superior court judge for rently serves as secretary of the State Bar of Georgia. 18 years and chief judge for almost four years. The Partner John R. Schneider received the award is named for the late Atlantic Judicial Circuit Distressed M&A Deal of the Year Award during superior court Judge Emory Findley, who served in M&A Advisor’s 8th annual Turnaround Awards that role from 1976-1994, and given to honor a judge

44 Georgia Bar Journal Bench & Bar

who exemplifies Findley’s virtues of visionary lead- encourage prevention and foster support for people ership, resolve and dedication. living with HIV/AIDS, the RRLC comprises young professionals actively working toward AID Atlanta’s > Bryan Cave LLP announced mission to reduce new HIV infections and improve that partner Thomas R. the quality of life of its members and the community McNeill was elected chair of by breaking barriers and building community. the Board of Directors of the Boys & Girls Club of Metro > Baker Donelson announced that senior Atlanta (BGCMA). BGCMA counsel Nedom A. Haley was recognized McNeill Wilson operates 27 clubs throughout among the 2013 Attorneys of the Year by the metro-Atlanta area and serves more than 3,400 the Pro Bono Partnership of Atlanta children on a daily basis. McNeill has been a member (PBPA). PBPA provides free legal servic- of the Board of Directors of BGCMA since 2010. es to community-based nonprofits that Associate Amy Taylor Wilson was selected by the operate programs benefitting low-income or disad- Association of Corporate Growth (ACG) Atlanta vantaged individuals. In the past eight years, PBPA to participate in the 2014 ACG University. ACG is has assigned and supported more than 1,500 volun- highly regarded as the ultimate resource for profes- teer lawyers in aiding about 650 nonprofit clients. sionals in mergers and acquisitions. ACG University is directed towards high-potential individuals with > Edenfield, Cox, Bruce & Classens, P.C., two to seven years of experience in their respective announced that partner Susan W. Cox fields related to driving corporate growth. assumed the position of chair of the Georgia Board of Bar Examiners. The six > Rizza Palmares O’Connor, a former members of the Board are appointed by assistant district attorney for the Middle the Supreme Court of Georgia for a six- Judicial Circuit, was named chief magis- year term and assist in the twice-yearly administra- trate judge of Toombs County. She was tion of the state’s bar exam and develop policies and appointed to the position by Middle procedures governing admission to the State Bar. Judicial Circuit Chief Judge Kathy Palmer and Judge Robert Reeves. The appointment makes On the Move her the first Filipina-American judge in Georgia. Atlanta > Burr & Forman LLP announced that > Birmingham-based partner Bryance Metheny was named to the Tennessee Chamber of Commerce & Industry’s 2014 board of directors. Metheny is serving a three-year term, and is working to Brouillette Cao Donnalley Johnson promote the organization’s mission to increase pro- ductivity and global competitiveness in Tennessee. Kilpatrick Townsend & Stockton LLP announced the addition of Amanda Brouillette, Carrie Cao, > Nelson Mullins Riley & Scarborough Kelsey Donnalley and Daniel Johnson as associ- LLP announced that partner Michelle ates. Brouillette joined the firm’s patent litigation Johnson received the 2013 Attorney of team. Cao joined the firm’s trademark and copy- the Year Award from Pro Bono right team in the intellectual property depart- Partnership of Atlanta, an organization ment. Donnalley joined the firm’s mergers and that matches volunteer lawyers with acquisitions and securities team in the corporate, local nonprofits in need of free legal counsel. finance and real estate department. Johnson Nelson Mullins also received the 2013 Law Firm of joined the firm’s construction and infrastructure the Year Award. team in the litigation department. The firm is located at 1100 Peachtree St. NE, Suite 2800, > Kilpatrick Townsend & Stockton LLP Atlanta, GA 30309; 404-815-6500; Fax 404-815- announced that associate Lindsay 6555; www.kilpatricktownsend.com. Hopkins was elected co-chair of the Red Ribbon Leadership Council (RRLC) for AID Atlanta. To spread awareness,

April 2014 45 Bench & Bar

> >

Rafuse Hill Hodges Sharp Dorminey Jennings Joslyn-Gaul Klein

Wimberly, Lawson, Steckel, Schneider & Stine, P.C., announced the promotion of Elizabeth K. Dorminey, Kathleen J. Jennings, Danette Joslyn-Gaul and Rhonda L. Klein to partner, and the

Swartz Bartko Harrison Hill Steckel addition of Peter H. Steckel as an associate. Dorminey’s practice areas primarily Polsinelli PC include wage and hour, Title VII and workplace announced that safety law in food processing, farming, manufactur- the 11 attor- ing and construction. Jennings defends clients in the neys at Rafuse areas of discrimination, sexual harassment, restrictive Hill & Hodges covenant enforcement, wrongful discharge, wage-

Knoop Palesch Stone LLP joined the and-hour matters as well as advising clients in the firm. The group development and implementation of human resourc- includes five shareholders and six associates who es policies and procedures. Joslyn-Gaul focuses on serve local and national clients in labor and matters involving class and collective actions, wage employment and litigation matters. Nancy E. and hour litigation, employment discrimination and Rafuse, William B. Hill Jr., Kenneth B. Hodges commercial litigation. Klein represents clients in the III, Joseph C. Sharp and James J. Swartz Jr. joined areas of equal opportunity laws, restrictive covenant the firm as shareholders. Alex Bartko, Teeka K. provisions and discrimination matters. Steckel has Harrison, J. Stan Hill, Matthew S. Knoop, Amy experience in the areas of labor and employment law, M. Palesch and Ellenor J. Stone joined the firm as business law and general practice and trial law. The associates. The office is located at 1355 Peachtree firm is located at 3400 Peachtree Road NE, Lenox St. NE, Suite 500, South Tower, Atlanta, GA 30309; Towers, Suite 400, Atlanta, GA 30326; 404-365-0900; 404-253-6000; www.polsinelli.com. Fax 404-261-3707; www.wimlaw.com.

> > Baker Donelson announced the addition of Sabrina L. Atkins, Ian P. Calhoun and Cooper Gal Hill Nash Atkins Calhoun Ruffin Charles W. Taylor English Duma LLP announced “Chase” Ruffin as associates in the firm’s Atlanta the addition of David S. Cooper, office. Atkins assists clients on a variety of commer- Raanon Gal, Mitzi Hill, Brian T. Nash cial and real estate litigation matters, with a particu- and Christine Tenley to the firm. lar focus on residential mortgage litigation. Calhoun Cooper and Hill are members of the is a member of the firm’s securities and corporate

Tenley firm’s corporate and business practice. governance group, where he assists with public Gal and Tenley are members of the securities offerings, SEC compliance, including 1933 firm’s employment, labor and immigration practice. Act filings and 1934 Act reporting, “Blue Sky” regu- Nash is a member of the firm’s corporate and busi- latory compliance and private placements. He also ness and intellectual property practice groups. The handles matters related to formation of business firm is located at 1600 Parkwood Circle, Suite 400, entities and other general corporate matters with a Atlanta, GA 30339; 770-434-6868; Fax 770-434-7376; specific emphasis on real estate investment trusts. www.taylorenglish.com. Ruffin is a member of Baker Donelson’s advocacy department in the firm’s Atlanta and Macon offices, where he assists clients in general business litiga-

46 Georgia Bar Journal Bench & Bar

tion matters. The firm is located at 3414 Peachtree class actions, and staffing and contingent workers. Road NE, Suite 1600, Atlanta, GA 30326; 404-577- The firm is located at 3344 Peachtree Road NE, Suite 6000; Fax 404-221-6501; www.bakerdonelson.com. 1500, Atlanta, GA 30326; 404-233-0330; Fax 404-233- 2361; www.littler.com. > Clements & Sweet, LLP, announced that Daniel S. Levitas joined the firm’s > BakerHostetler announced that it closed its com- Atlanta office as an associate. Levitas’ bination with leading intellectual property firm practice focuses on workers’ compensa- Woodcock Washburn following the unani- tion, public employee disability retire- mous approval of the partnerships of both firms. ment benefits and social security dis- BakerHostetler is located at 1180 Peachtree St. NE, ability. The firm is located at 1355 Peachtree St., Suite 1800, Atlanta, GA 30309; 404-459-0050; Fax Suite 1800, Atlanta, GA 30309; 404-688-6700; 404-459-5734; bakerlaw.com. Fax 404-688-6703; www.clements-sweet.com. > Smith, Gambrell & Russell, LLP, > McGuireWoods LLP an- announced the addition of John R. Autry nounced that George J. to its partnership. Autry focuses his Barry III and Michael G. practice in commercial litigation. He is Parisi were elevated to part- also a key member of the firm’s special nership. Barry represents assets group. The firm is located at 1230 individual and corporate cli- Peachtree St. NE, Suite 3100, Atlanta, GA 30309; 404- Barry Parisi ents in intellectual property 815-3500; Fax 404-815-3509; www.sgrlaw.com. and patent infringement litigation across the United States. Parisi represents lenders and borrowers in > Carlock, Copeland & Stair, LLP, leveraged debt financings, focusing on transactions announced that Brent A. Meyer was involving borrowers operating in the health care, selected to join the firm’s partnership. media, communications, retail and manufacturing Meyer focuses his practice in the areas industries. The firm is located at 1230 Peachtree St. of construction litigation, general liabil- NE, Suite 2100, Atlanta, GA 30309; 404-443-5500; Fax ity and premises liability. He has repre- 404-443-5599; www.mcguirewoods.com. sented architects, engineers, surveyors, property owners and property managers during litigation. > Swift, Currie, McGhee & The firm is located at 191 Peachtree St. NE, Suite Hiers, LLP, announced that 3600, Atlanta, GA 30303; 404-522-8220; Fax 404-523- Thomas B. Ward and 2345; www.carlockcopeland.com. Melissa A. Segel were named to the firm’s partner- > Holland & Knight LLP announced that Ward Segel ship. Ward practices in a Joshua I. Bosin was elected to partner- wide variety of litigated mat- ship. He was previously a senior associ- ters dealing primarily with insurance coverage and ate. Bosin, a member of the firm’s litiga- damage to real and personal property, including con- tion section, concentrates his practice on struction defect claims. Segel practices commercial liti- the defense of major corporations, educa- gation and insurance coverage with an emphasis on tional institutions and governmental entities in a broad bad faith and arson and fraud. The firm is located at range of labor and employment matters, including 1355 Peachtree St. NE, Suite 300, Atlanta, GA 30309; those arising under federal and state anti-discrimina- 404-874-8800; Fax 404-888-6199; www.swiftcurrie.com. tion laws. The firm is located at 1201 W. Peachtree St., One Atlantic Center, Suite 2000, Atlanta, GA 30309; > Littler Mendelson P.C. 404-817-8500; Fax 404-881-0470; www.hklaw.com. announced that Lisa A. “Lee” Schreter was > Jones Day announced that Peter C. appointed chair of the Canfield joined the firm as a partner in firm’s board of directors, the business and tort litigation practice. and Benson E. Pope was He was previously a partner in Dow Schreter Pope elevated to shareholder. Lohnes, LLP’s Atlanta office. With his Schreter is the first non-California lawyer to serve media and publishing industries focus, in this role in Littler’s 70+ year history. Pope’s prac- Canfield is a pre-eminent First Amendment author- tice areas include discrimination and harassment, ity with extensive experience defending libel, defa-

April 2014 47 Bench & Bar

mation and invasion of privacy claims, counseling Atlanta, GA 30363; 404-322-6000; Fax 404-322-6050; authors and publishers, securing access to informa- www.nelsonmullins.com. tion, and safeguarding distribution and intellectual property rights. The firm is located at 1420 Peachtree > Sutherland announced that David F. Reid, Christina St. NE, Suite 800, Atlanta, GA 30309; 404-521-3939; B. Rissler and Dr. David E. Wigley were elected Fax 404-581-8330; www.jonesday.com. partners with the firm. Reid regularly advises institutional clients on the formation of joint ventures and > funds to invest in asset classes including industrial, multifamily, hospitality, agribusiness and debt, and on the purchase, financing and sale of those assets. Rissler represents clients in secured and unsecured commercial lending and structured finance. Wigley

Biggerstaff Ellis Han Simpson combines his legal experience with years of academic research in chemistry to develop intellectual proper- Hunton & Williams, LLP, welcomed ty strategies that protect both established and fledg- Audrey Biggerstaff, M. Clare Ellis, ling businesses. The firm is located at 999 Peachtree Benjamin Han, Carney Simpson and St. NE, Suite 2300, Atlanta, GA 30309; 404-853-8000; Laura Thayer Wagner as associates in Fax 404-853-8806; www.sutherland.com. the firm’s Atlanta office. Biggerstaff works with Hunton’s pro bono practice. Womble Carlyle Sandridge & Rice, LLP, Wagner > Ellis joined Hunton’s environmental announced that Louis Barbieri III, Kimberly S. compliance, litigation and defense practice. Han Justus and L. Christine Lawson became partners joined Hunton’s labor and employment practice. with the firm. Barbieri has significant experience Simpson works with Hunton’s real estate capital representing corporate clients in sophisticated and markets practice. Wagner joined Hunton’s financial technical transactions from formation to exit. He services litigation practice. The firm is located at also guides clients through state and federal cor- Bank of America Plaza, Suite 4100, 600 Peachtree St. porate compliance issues. Justus represents finan- NE, Atlanta, GA 30308; 404-888-4000; Fax 404-888- cial institutions in real estate-secured commercial 4190; www.hunton.com. lending and in resolving troubled loans. She has extensive experience representing landlords and > tenants in commercial leases and developers in real estate transactions. Lawson is an experienced product liability litigation attorney who focuses her practice on the defense of tobacco companies in smoking and health litigation. The firm is located

Norcross VanderBroek Culves Huddletson at 271 17th St. NW, Suite 2400, Atlanta, GA 30363; 404-872-7000; Fax 404-888-7490; www.wcsr.com. Nelson Mullins Riley & Scarborough LLP announced that Amanda Norcross was elected to > Alston & Bird the partnership and Mark VanderBroek and Sherry LLP announced Culves joined the firm as partners, and Charles that Stephanie Huddleston joined the firm as of counsel. Norcross B. Driggers, concentrates her practice in the areas of corporate Samuel R.

finance, venture capital, private equity, equity Driggers Rutherford Saporito Rutherford and financings, general corporate matters and securities. Holly Hawkins VanderBroek represents clients in intellectual prop- Saporito were named partners with the firm. Driggers erty litigation, commercial and business litigation concentrates her practice on complex litigation mat- (including business torts), and franchise litigation. ters, with an emphasis on class action defense and Culves practices in the areas of education law, data privacy litigation. Rutherford is in the firm’s liti- employment law and general litigation. Huddleston gation and trial practice group. He focuses his prac- litigates commercial, employment and labor issues, tice on complex commercial litigation, with an drafts employment agreements and restrictive cov- emphasis on the health care and financial services enants, and conducts training on preventing dis- industries. Rutherford is also a member of the firm’s crimination and harassment and managing diversi- health care, financial services and appellate litigation ty. The firm is located at 201 17th St. NW, Suite 1700, teams. Saporito is in the firm’s intellectual property

48 Georgia Bar Journal Bench & Bar

litigation group, focusing her practice on all aspects corporate governance and disclosure matters. of intellectual property litigation and counseling, Williams’ practice involves advising and represent- with a particular emphasis on patent and trademark ing clients in all facets of employment law. Zeldin litigation. The firm is located at One Atlantic Center, practices primarily in the areas of employment dis- 1201 W. Peachtree St., Atlanta, GA 30309; 404-881- crimination and wage and hour litigation. Duffield’s 7000; Fax 404-881-7777; www.alston.com. traditional labor relations practice includes union organizing campaigns and elections, unit clarifica- > Fisher & Phillips LLP tions, collective bargaining negotiations, grievance announced that Jessica T. arbitrations and contract administration under the Cook and Terri R. Stewart National Labor Relations Act and the Railway were elected to partner. Labor Act. The firm is located at 191 Peachtree St. Cook is a member of the NE, Suite 4800, Atlanta, GA 30303; 404-881-1300; firm’s global immigration Fax 404-870-1732; www.ogletreedeakins.com. Cook Stewart practice group. Cook’s practice focuses on immigration and > Leitner, Williams, Dooley & nationality law. Stewart represents management in Napolitan, PLLC, announced that all areas of labor and employment law in state and Christopher D. Gunnels joined the federal courts as well as before state and federal firm as of counsel in their Atlanta agencies. The firm is located at 1075 Peachtree St. office. Gunnels specializes in the NE, Suite 3500, Atlanta, GA 30309; 404-231-1400; defense of general liability matters, Fax 404-240-4249; www.laborlawyers.com. business litigation and the handling of all manners of business disputes, as well as divorce and other > Miller & Martin PLLC announced that Eileen domestic matters, and is highly skilled in appellate Hintz Rumfelt was elected to membership in the practice. The firm is located at Two Ravinia Drive, firm and F. Donald Nelms Jr. joined the firm as Suite 1630, Atlanta, GA 30346; 770-557-3360; Fax of counsel. Rumfelt concentrates her practice in 770-810-3560; www.leitnerfirm.com. the area of complex commercial litigation, including white collar crime and corporate investigations > MendenFreiman LLP and Siavage Law Group, and intellectual property matters. Nelms practices LLC, announced that their firms have combined. in the areas of commercial and real estate lending, The combined firm will serve a cross-section of representing both lenders and borrowers in a vari- business industries, including the automobile ety of lending transactions and loan work-outs and dealer, franchise, distribution and manufacturing restructurings. The firm is located at 1170 Peachtree industries, as well as the electronic payments, tech- St. NE, Suite 800, Atlanta, GA 30309; 404-962-6100; nology, software, software as a service, hardware, Fax 404-962-6300; www.millermartin.com. reseller, distributor, health care and services sec- tors. The firm is located at Two Ravinia Drive, Suite > 1200, Atlanta, GA 30346; 770-379-1450; Fax 770-379- 1455; www.mendenfreiman.com.

> Constangy, Brooks & Smith, LLP, announced the promo-

Eckard Morrison Williams Zeldin tion of Steve G. Hopkins and Joseph M. Murray to Ogletree, Deakins, Nash, Smoak & partner. Hopkins concen-

Stewart, P.C., announced that Michael Hopkins Murray trates his practice on employ- Eckard, John Morrison, Thornell ment law litigation, defend- Williams Jr. and Lauren Zeldin were ing employers against claims that arise under Title elected to shareholder and Todd C. VII of the Civil Rights Act, ADEA, ADA, and other

Duffield Duffield joined the firm as a share- federal and state laws. Murray’s practice is devoted holder. Eckard focuses his practice on to representing employers in all areas of employment human resources and employment-related litiga- law litigation. The firm is located at 230 Peachtree St. tion matters. Morrison’s practice encompasses all NW, Suite 2400, Atlanta, GA 30303; 404-525-8622; Fax aspects of executive compensation and employee 404-525-6955; www.constangy.com. benefits, focusing on the design and analysis of executive compensation arrangements and related

April 2014 49 Bench & Bar

> Smith, Currie & Hancock In Augusta LLP announced that Garrett > Kenneth D. Crowder and E. Miller and Douglas L. David M. Stewart announced Tabeling were named part- the opening of Crowder ners with the firm. Miller Stewart LLP. As former and Tableing practice in the assistant U.S. attorneys in the Miller Tabeling areas of commercial litiga- Crowder Stewart U.S. Attorney’s Office for the tion, construction law and government contracts. Southern District of Georgia, The firm is located at 2700 Marquis One Tower, 245 Crowder was civil division chief and Stewart was Peachtree Center Ave. NE, Atlanta, GA 30303; 404- health care fraud coordinator. Their new firm focuses 521-3800; Fax 404-688-0671; www.smithcurrie.com. on federal criminal and civil litigation. The firm is located at 431 Walker St., Lower Level, Augusta, GA > Harman Law LLC announced that J. 30901; 706-434-8799; www.crowderstewart.com. Kyle Califf joined the firm as an associate. Califf concentrates his practice on In Cartersville pharmaceutical and medical device > Jenkins & Bowen P.C. announced that product liability law, professional mal- Robert L. Walker was named partner. practice law and commercial litigation. His practice areas include personal inju- The firm is located at 3414 Peachtree Road NE, Suite ry, insurance defense and coverage, 1250, Atlanta, GA 30326; 404-554-0777; 888-554- condemnation, zoning and land use, 2576; Fax 404-424-9370; www.harmanlaw.com. and debtor’s rights. The firm is located at 15 S. Public Square, Cartersville, GA 30120; 770- > Pursley Friese Torgrimson announced 387-1373; Fax 770-387-2396; www.ga-lawyers.pro. that Louis J. Papera joined the firm as of counsel. As a member of the real estate In Conyers transactions team, he helps business cli- > Michael Nation, Russ Moore and Russel Moore ents effectively negotiate and close legal announced the formation of their new firm, Nation, transactions related to commercial leas- Moore & Associates, LLC, in Rockdale County. The ing, construction and development of commercial firm’s practice areas include criminal law, domestic properties, property sales and purchases and other and juvenile law, as well as general practice. The firm commercial real estate transactions. The firm is is located at 957 Bank St., Conyers, GA 30012; 678-374- located at 1230 Peachtree St. NE, Suite 1200, Atlanta, 1040; Fax 770-922-1877; www.nationmoorelaw.com. GA 30309; 404-876-4880; www.pftlegal.com. In Macon In Albany > Jason E. Downey announced the creation of his new > Lee Durham, LLC announced that law firm, The Downey Law Firm, LLC. The firm spe- Negin Kalantarian joined the firm as cializes in personal injury plaintiff’s practice, with a an associate. Her practice focuses on focus on motor vehicle wrecks, as well as civil and personal injury, professional malprac- domestic mediation. The firm is located at 544 Mulberry tice and general civil litigation. The St., Suite 902A, Macon, GA 31201; 478-743-4771. firm is located at 1604 W. Third Ave., Albany, GA 31707; 229-431-3036; Fax: 229-431- > Constangy, Brooks & Smith, LLP, 2249; www.leedurham.com. announced the promotion of Jason C. Logan to partner. Logan represents employ- > Watson Spence LLP announced that ers and insurers in all aspects of workers’ Sarah Finney Kjellin was named part- compensation litigation including media- ner. She maintains an active litigation tion, subrogation and appeals. The firm is practice with a concentration in matters located at 577 Mulberry St., Suite 710, Macon, GA 31201; of complex commercial, estate and 478-750-8600; Fax 478-750-8686; www.constangy.com. fiduciary, and general civil litigation. The firm is located at 320 Residence Ave., > Anderson, Walker & Reichert, LLP, announced that Albany, GA 31701; 229-436-1545; Fax 229-436-6358; Hon. S. Philip Brown joined the firm as of counsel www.watsonspence.com. and Allen E. Orr joined the firm as an associate. Following his retirement from the bench, Brown resumed the private practice of law. He practices gen-

50 Georgia Bar Journal Bench & Bar

eral trial law, including personal injury, domestic and firm is located at 101 W. Washington St., Summerville, criminal law. Orr’s practice areas include general liti- GA 30747; 706-857-3497; Fax 706-857-2236. gation, estate planning, insurance defense, contracts, property disputes, business sales and acquisitions, In Charlotte, N.C. secured transactions and probate. The firm is located > Alston & Bird LLP announced that T. at 577 Mulberry St., Suite 500, Macon, GA 31201; 478- Scott Kummer was named a partner 743-8651; Fax 478-743-9636; www.awrlaw.com. with the firm. Kummer is a member of the corporate transactions and securi- > Hall, Bloch, Garland & ties group in the firm’s Charlotte Meyer, LLP, announced office. He concentrates his practice on that Amanda Rodman private equity, LBO, venture capital and merger Smith and Walker S. and acquisition transactions, along with general Stewart became partners in corporate matters. The firm is located at Bank of the firm. Smith and Stewart America Plaza, 101 S. Tryon St., Suite 4000, Smith Stewart continue to focus their legal Charlotte, NC 28280; 704-444-1000; Fax 704-444- practices in the areas of railroad law and transpor- 1111; www.alston.com. tation litigation, insurance defense and business litigation. The firm is located at 577 Mulberry St., In Clearwater, Fla. Suite 1500, Macon, GA 31201; 478-745-1625; Fax > Andy Gaunce was promoted to depu- 478-741-8822; www.hbgm.com. ty ethics and compliance officer at Tech Data Corporation. Gaunce man- In Marietta ages the corporation’s ethics and com- > O’Dell & O’Neal announced that Leslee pliance program throughout the west- Champion joined the firm. She practices in ern hemisphere. Tech Data is located at the areas of family/domestic law, probate 5350 Tech Data Drive, Clearwater, FL 33760; 727- and civil litigation. The firm is located at 538-5810; www.techdata.com. 506 Roswell St., Suite 210, Marietta, GA 30060; 770-405-0164; www.odelloneal.com. In Greenville, S.C. > Nelson Mullins Riley & Scarborough In Savannah LLP announced that Michael F. > Brennan & Wasden, LLC, announced Johnson was elected to partnership. that Robert S. D. Pace joined the firm as Johnson advises clients in connection a junior partner. He continues his prac- with public and private securities offer- tice in business, corporate and real ings, SEC compliance and reporting, estate matters as well as estate and pro- corporate law and mergers and acquisitions. The bate matters, contracts, banking, bank- firm is located at Poinsett Plaza, Suite 900, 104 S. ruptcy and civil litigation. The firm is located at 411 Main St., Greenville, SC 29601; 864-250-2300; Fax E. Liberty St., Savannah, GA 31401; 912-232-6700; 864-232-2925; www.nelsonmullins.com. Fax 912-232-0799; www.brennanandwasden.com. In Winston-Salem, N.C. > Weiner, Shearouse, Weitz, Greenberg > Spilman Thomas & Battle announced & Shawe, LLP, announced that Helen that Robert H. “Rob” Wall joined the Bacon joined the firm. Bacon’s practice firm as counsel. Wall regularly coun- is in the fields of real estate, commercial sels and advises high-net-worth indi- and construction litigation as well as viduals on estate and tax planning complex business litigation. The firm is matters and represents clients before located at 14 E. State St., Savannah, GA 31401; 912- the IRS. He also assists businesses and individuals 233-2251; Fax 912-235-5464; www.wswgs.com. in matters such as acquisitions, divestitures, business combinations and entity selection. The firm is In Summerville located at 110 Oakwood Drive, Suite 500, Winston- > Farrar & Corbin, P.C., announced that Salem, NC 27103; 336-725-4710; Fax 336-725-4476; Catherine Farrar Jackson joined the firm www.spilmanlaw.com. as an associate. Jackson has a general practice with a focus on estate planning, family law and real estate matters. The

April 2014 51 Office of the General Counsel

Never Gonna Give It Up

by Paula Frederick

“ e’ve been served with a subpoena

for a bunch of documents relat- W ed to our representation of Johnny Booth,” your partner announces. “They want every-

thing from the client file to the bills we sent!”

“That case is ancient history!” you respond. “What could anyone possibly want with Booth’s old business records? Johnny and his partner finally worked everything out. In fact, they started another business together a couple of years after accusing each other of fraud. I hear that one went bust too.” “His wife must think he’s hiding something,” your partner speculates. “He’s getting a divorce. The subpoena is from her lawyer. I guess I’ll go dig the file out of storage.” “Hold it! We can’t just turn over a former client’s file . . . can we?” you sputter. What are a lawyer’s obligations when someone sub- poenas a client file? Georgia Rule of Professional Conduct 1.6 requires a lawyer to “maintain in confidence all information gained in the professional relationship with a client.” Most, if not all, of the contents of a client file would be considered confidential under the rule. A lawyer may opposing the subpoena. If a court orders it, the lawyer only supply a client file in response to a subpoena if the may then ethically turn over the requested documents. situation falls within one of the rule’s exceptions. Note that Georgia’s version of Rule 1.6 is different Client consent may be the easiest way around from the ABA Model Rule, so the advice may be differ- the confidentiality requirement. The consent must be ent in other jurisdictions. “informed,” which means that the lawyer must advise the client about any “risks of and reasonably available Paula Frederick is the general counsel for alternatives to the proposed course of conduct.” the State Bar of Georgia and can be But what if the client says no, or what if you can’t reached at [email protected]. locate a former client to obtain consent? In those circumstances the rule would require a lawyer to resist disclosure of confidential or secret information by

52 Georgia Bar Journal Private Health Insurance Exchange

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Discipline Summaries (Dec. 14, 2013 through Feb. 24, 2014) by Connie P. Henry

Disbarments/Voluntary Surrenders William C. Nesbitt Stockbridge, Ga. Kristen Eugenia Richbourg Admitted to Bar 1982 Atlanta, Ga. On Jan. 27, 2014, the Supreme Court of Georgia Admitted to Bar 2000 disbarred attorney William C. Nesbitt (State Bar No. On Jan. 21, 2014, the Supreme Court of Georgia 538301) based upon his conduct in setting up a law prac- accepted the Petition for voluntary surrender of license tice with a client who was not a lawyer and for his finan- of attorney Kristen Eugenia Richbourg (State Bar No. cial misconduct. The special master found the following 604410). In October 2013, Respondent entered a guilty factors in aggravation: (1) Nesbitt had a dishonest or plea in the Superior Court of Fulton County to three selfish motive; (2) Nesbitt engaged in a pattern of deceit- counts of theft by taking by a fiduciary and two counts ful or fraudulent misconduct; (3) Nesbitt committed of forgery in the first decree, all felony violations. multiple offenses; (4) Nesbitt made false statements at the evidentiary hearing; (5) Nesbitt refused to acknowl- Hendrickx H. Toussaint edge the wrongful nature of his conduct; (6) the victims Atlanta, Ga. were vulnerable as a result of the trust they reposed in Admitted to Bar 2002 Nesbitt; (7) Nesbitt had substantial experience in the On Jan. 21, 2014, the Supreme Court of Georgia practice of law; and (8) Nesbitt showed an indifference accepted the Petition for voluntary surrender of to making restitution. Nesbitt had no prior discipline. license of attorney Hendrickx H. Toussaint (State Bar No. 723334). Respondent agreed to serve as escrow Richard Wesley Kelley agent for transactions between companies seeking to Atlanta, Ga. acquire, rehabilitate and resell 36 residential prop- Admitted to Bar 1998 erties. He received fiduciary funds from one of the On Feb. 24, 2014, the Supreme Court of Georgia companies to be used in the transactions. Between accepted the Petition for Voluntary Surrender of July 2009 and April 2010, he conducted over 60 License of Richard Wesley Kelly (State Bar No. 412398). counter transactions on his trust account involving On Oct. 15, 2012, and June 4, 2013, Kelley was arrested fiduciary funds and failed to keep records regard- on charges relating to his handling of clients’ funds and ing the source of the deposits or the payees on the the charges remain pending. withdrawals. Respondent currently is the subject of a State Disciplinary Board Docket No. 6449—Kelley federal criminal investigation for his conduct related represented a couple in 2010 in a business dispute to these transactions. and received $100,000 from one of his clients to hold

54 Georgia Bar Journal in his trust account. When his cli- fee, and failed to respond to the ent asked him to release some of clients’ grievances. Business the funds, Kelley failed to deliver Kelley submitted the following: the funds, failed to render a full (1) during the relevant time frame, Valuations accounting, and failed to respond he was suffering from major to a grievance. depression, had substance abuse Docket 6470—In March 2012 problems and these problems ren- Divorces ! Estates ! Gifts Kelley was paid $1,500 to repre- dered him incapacitated to prac- ESOPs ! FLPs sent a client arrested for driving tice law; (2) in February 2013, he Intangible Assets ! Disputes under the influence. On Sept. 1, and his wife were in a serious 2012, Kelley’s license to practice automobile accident; his wife was Mitchell Kaye, CFA, ASA law was suspended for non-pay- killed and he was severely injured, ment of Bar dues, but he did and during this time, he failed to (770) 998-4642 not inform his client. Kelley also update the Bar with his current American Society of Appraisers failed to notify his client of a court address, so the notices of investi- Past President, Atlanta Chapter date, failed to attend court, and as gation in these matters went to his a result, a warrant was issued for old office, and he did not receive Chartered Financial Analyst the client’s arrest. Kelley failed them; (3) in 2013, he attended a to address the problem, failed 28-day residential treatment pro- Affirmed by Court of Appeals to refund the fee and failed to gram in Idaho; and (4) that he respond to a grievance. maintained a cooperative attitude Court Testimony Docket 6471—Kelley settled a towards the disciplinary process. personal injury case without con- The State Bar showed as aggra- and sulting his client and without vating factors that these matters IRS Experience authorization. He failed to notify involved multiples cases, that his his client of the receipt of $50,000 clients suffered substantial harm, serving appraisal clients since 1981 from the liability insurer, failed that he made no restitution, that [email protected] to deliver the funds to her, and his misconduct was motivated by failed to render an accounting of dishonest and selfish motives, that the funds. When his client told him his misconduct constituted illegal that she had completed her medi- conduct and that he had a Review cal treatment several months after Panel Reprimand in 2012. he had settled the case, he told her he would begin working on her Suspensions claim but then ceased communi- Benjamin Scott Anderson cating with her. He also failed to Gretna, Neb. respond to her grievance. Admitted to Bar 2008 Dockets 6472 and 6473—While On Feb. 24, 2014, the Supreme representing the husband in a Court accepted the petition for divorce matter in 2009, Kelley voluntary discipline of attorney agreed with opposing counsel Benjamin Scott Anderson (State to hold funds received when the Bar No. 417095) and ordered that wife’s car was totaled during the he receive a 12-month suspension pendency of the divorce action. with conditions for reinstatement. In November 2011, he received Anderson accepted representation $16,910.50, the value of the totaled of three separate clients, but failed vehicle, from State Farm. He did to complete the matters for which not notify his client or opposing he was retained. He failed to fully counsel of the funds and misrep- communicate with his clients when resented the status of the funds to he ceased working on their mat- the court in a 2012 hearing. He did ters and failed to timely refund not deliver the funds and did not unearned fees. He made an agree- render an accounting of the funds. ment with one client to refund He ceased communications with fees if the client refrained from his client after the hearing, did not filing a grievance, but later agreed notify his client that his license was to refund all unearned fees with- suspended, did not complete the out condition. Anderson offered in divorce, did not refund the $23,000 mitigation the following: he has no

April 2014 55 HowSuicide To Awareness Save A Campaign Life

NEED HELP? Call the State Bar’s conﬁ dential Lawyer Assistance Program Hotline at 800-327-9631

The State Bar of Georgia has produced an educational DVD, titled “How to Save a Life,” which is directed toward those who are suffering from anxiety and depression and may be at risk for suicide, as well as all Bar members, who need to recognize the severity of the problem and be able to identify warning signs among colleagues.

If you are thinking about suicide or are worried a friend may be contemplating suicide, immediate action is critical. Call the conﬁ dential LAP Hotline 800-327-9631.

The DVD includes three video lengths: 24 minutes, 11 minutes and six minutes. For more information or to obtain your copy of the DVD, call 404-527-8792. prior discipline; during the time he had a practice of filing unverified ther legal action lacked merit, he was representing the clients he was foreclosure complaints alleging in agreed to research federal habeas struggling with alcohol addiction, the alternative that the note was corpus law. After performing that but that he has begun a treatment lost, without confirming that the research and advising his client program; he has expressed remorse client-lenders had in fact lost the that such an action likely would personally to his clients; he has note. Watson’s firm failed to noti- not succeed, the client allegedly agreed to refund all unearned fees; fy the court and opposing counsel demanded a full refund. Lloyd and he has been cooperative in the when associate attorneys left his claimed that he responded by disciplinary process. Anderson’s employ and to update the case offering $375 as a gesture of good- reinstatement is conditioned on his files with the appropriate attorney will and because he was disap- providing a report from a licensed of record. Prior to reinstatement pointed that he could not find any therapist or physician that he has in Georgia, Watson must demon- substantive help for his client’s maintained compliance with his strate that he has been reinstated situation. Lloyd explained that he treatment plan, along with docu- to the practice of law in Florida. could not offer more because his mentation of his participation in an Watson had no prior discipline in personal and business income had addiction recovery support group, Georgia or Florida. been reduced by his preparations and documentation of restitution to retire due to his wife’s and his to his clients. Public Reprimand health issues. In light of the aggra- John V. Lloyd vating and mitigating factors, the Marshall C. Watson Savannah, Ga. Court ordered that he receive a Fort Lauderdale, Fla. Admitted to Bar 1972 Public Reprimand and that he sub- Admitted to Bar 1984 On Feb. 24, 2014, the Supreme mit to binding fee arbitration pur- On Feb. 24, 1014, the Supreme Court of Georgia accepted the suant to the State Bar of Georgia’s Court of Georgia accepted as recip- petition for voluntary discipline Fee Arbitration Program. rocal discipline the petition for of attorney John V. Lloyd (State voluntary discipline of Marshall Bar No. 455310) for a Public Interim Suspensions C. Watson (State Bar No. 741737) Reprimand. The Court had rejected Under State Bar Disciplinary for a 91-day suspension nunc pro Lloyd’s initial petition. In that peti- Rule 4-204.3(d), a lawyer who tunc to June 5, 2013. The Supreme tion Lloyd admitted that he was receives a Notice of Investigation Court of Florida entered an order paid $4,500 to represent a criminal and fails to file an adequate on June 5, 2013, suspending defendant in an appeal, but by the response with the Investigative Watson for 91 days. Watson assert- time he entered an appearance, Panel may be suspended from the ed that in Florida he maintained a the appeal had already been dis- practice of law until an adequate high-volume foreclosure practice missed. Lloyd claimed that he had response is filed. Since Dec. 14, representing lenders, but that he done some work before the appeal 2013, five lawyers have been sus- failed to take reasonable steps to was dismissed, but admitted that pended for violating this Rule and supervise and train his employees. he did not earn the full $4,500. three have been reinstated. During the height of the national Lloyd refunded $375 to his client foreclosure crisis, Watson’s firm and asserted that he was unable Connie P. Henry is the was at one point handling over to refund any more. The Court clerk of the State 66,000 cases with 71 lawyers and rejected Lloyd’s petition finding it Disciplinary Board and 597 support staff. Watson’s firm “woefully inadequate” in explain- can be reached at employed an attorney to sign ing the amount of work performed [email protected]. Affidavits of Reasonable Fees in or the reasons that only $375 had foreclosure cases and many affida- been offered to the client. Lloyd vits were signed by that attorney then filed this amended petition outside the presence of a notary contending that the employment For the most up-to-date public, and without review by the agreement between him and his signer. Watson failed to have pro- client was fully honored because it information on cedures in place to ensure the only required him to file an entry lawyer discipline, visit integrity of the execution of the of appearance in the criminal affidavits. Additionally, some of appeal and to review the appel- the Bar’s website at his attorneys missed 22 case man- late decision issued to determine www.gabar.org/ agement conferences and failed to if any further legal action in the timely cancel foreclosure sales or appellate courts had merit. Lloyd forthepublic/ pay clerk fees in five cases. Also, claimed that, after discussing with recent-discipline/. before 2010, Watson’s law firm his client his conclusion that fur-

April 2014 57 Law Practice Management

The Ultimate Spring Cleaning Guide for Lawyers by Natalie R. Kelly

t’s the time of year for spring cleaning and I’m

sure you’re as excited about it as I am. But we I all know that to overlook this important time of the year has its consequences. This article will walk you through steps for conducting an annual tidying up of your practice. Starting with the physical stuff first, this guide will help you tackle the basics of clearing off desks, credenzas and file cabinets. I’m one of those

“clean from the top down” proponents myself! You will also get some clean up tips for a virtual practice or online presence. Yes, there are even some tips for clearing out your email inboxes! Cleaning the Physical Office Space Reception Area A clean reception area is not only inviting to those entering your office, it’s often one of the first places from which a person is to draw conclusions about you kets. Make sure that you take time to have the office and the firm. While arguments can be made for expen- dusted, and even think of steam cleaning carpets, rugs sive versus inexpensive yet quality furnishings, the and window coverings. baseline here is: always be neat and clean. This means no debris—yes, I’ve seen garbage at the front doors of a Conference Rooms firm before; no empty glasses or soda cans; no wadded During office visits, clients and potential clients are paper on the floor or torn magazines on the tables; no typically ushered into conference rooms to meet with unkempt toys in play areas or overflowing wastebas- lawyers and staff. Make sure your space is clear of clut-

58 Georgia Bar Journal ter and client files and materials have been arranged so confidential information is not inadvertant- ly revealed. This includes boxes readying for trial. Think of using another place for client meetings if you need the conference room for litigation prep. You could even The Georgia High School Mock Trial have a designated office space set Program would like to express our to be the Plan B conferencing area while file prep takes over a main sincerest gratitude to the Georgia legal conference room. community for their support during the Attorney/Staff Desks 2014 state mock trial season. Everyone likes to keep their stuff the way they want, and while this is possible without Thank you to the more than 500 Georgia attorneys much of an issue in many cases, and judges who served as attorney coaches for the 134 everyone should remember the teams who participated this season. health and safety of those around them. Firms can set up clean desk Twenty-one attorneys and judges prepared and policies to help with the overall conducted regional and district competitions. We appearance of the firm workplace. thank not only them for their time, but their firms (and Enforcing policies regarding not families) as well, for giving them this time to make eating at one’s desk or leaving out these competitions happen. files and other papers might help ease some of the common clean Lastly, we thank the attorneys and judges across the office issues. state that served as evaluators or presiding judges for our competitions. Law Firm Airspace The scent-free policies of some The result is that more than 1,800 high school students had offices are now getting a lot of the opportunity to compete in one of the most public programs buzz, and with an increased focus of the State Bar of Georgia. Without your support, they would on those working in or visiting offices who suffer from allergies not have had this opportunity. or respiratory illnesses, these can be mandatory in some places. Be sure to have your own legal team The 2014 State Champion Team is from review any of these for appropri- Jonesboro High School in Jonesboro. ateness. Take time during your spring cleaning period to review office policies to clear the air of The State Champion Team will represent Georgia at the issues, especially those affecting National High School Mock Trial Championship workplace health and safety— in Madison, Wis., May 9-10. smoking, perfume and even dress codes can be on the agenda. For more information about the program or to make a donation to the state champion team to support their participation at nationals, Kitchen/Eating Areas please contact the mock trial office: 404-527-8779 or toll free 800-334-6865 ext. 779; Doing dishes is not a favorite Email: [email protected] chore, but keeping kitchen and eating areas clean and sanitized can help everyone. Mishandling uncooked food, leaving food out and not disposing of waste properly can attract insects, causing a major problem around your water cooler and coffee pots. It is also important to keep these areas clean in case

April 2014 59 GET PUBLISHED

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

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

*Not all submitted articles are deemed appropriate for the Journal. The Editorial Board will review all submissions and decide on publication. guests/clients may accompany you to date. Tackle any upgrades or you want. Check out reputation in from time to time. You should also changes needed for your basic and management system if you have have policies to address dealing with most frequently-used software concerns about any negative infor- offensive or strong food odors. programs during your cleaning. mation that exists about you or your firm online. Common File Areas/ Backup Files Working Areas Get rid of duplicate backup files Blogs As in the kitchen, no one really and monitor the settings used to We know it’s hard to keep up-to- likes to clean up after someone save documents automatically date with blog posts, so while you else, so be sure to keep supplies at certain times. Freshen up file are spring cleaning, take some time organized and countertops cleared. back-up and restore routines to to write two or three extra posts There is nothing like wide open make sure you have documents and then schedule them to go live spaces for putting together huge, and firm in triplicate—on site, a few days or weeks later. Add tags paper-intensive projects. online and remote. and other categorization information to existing posts to make it Firm and Public Restrooms Online (and Paper) easier for visitors to find those that It goes without saying that every- Reading Files are relevant to their needs. one likes a clean restroom. Make Update reading files and online sure that the facilities are cleaned wishlists to cover what’s recent Social Media Channels regularly and have appropriate and relevant. You might also plan Update marketing content on products available for washing and a reading schedule to keep another the social media channels you are drying hands. Lotions, antibacterial pile-up at bay. using. Freshen up pictures and soaps and sanitizers are welcomed other pertinent information such by most everyone. If special instruc- Email Inboxes as contact numbers and directions tions are needed, be sure signage You are likely to have multiple to your office. is clear and readable by those who email accounts, and consequent- Cleaning may not always be will be using the facilities. Soothing ly, multiple inboxes to manage. fun, but it is certainly necessary if colors, soft fragrances, feel-good Clean out each and every inbox the goal is to have a more efficient, messages and motivational themes using search and sorting func- safe and healthy workplace. Make seem to work well in restrooms for tionality resident in most email your firm’s spring cleaning an some reason, too! If your restroom programs. Delete junk files and event to celebrate instead of one has a lounge area with chairs or a empty recycle bins and deleted to dread by using this ultimate couch, be sure that these items are items folders. You can convert spring cleaning guide. dusted and/or cleaned regularly. and create PDF files from email messages with Adobe Acrobat Natalie R. Kelly is the Cleaning Up Your and similar services. director of the State Online Spaces Bar of Georgia’s Law Passwords Practice Management Computer Files Update and change all of your Program and can be With a sparkling file cabinet in the passwords and system logins. reached at nataliek@ file room, one might wonder how Convert those easily guessed pass- gabar.org. you’ve maintained files on your com- words to stronger ones using let- puter systems. For spring cleaning, ters, numbers and special char- check out your online file storage acters. You can also work from areas. Keep files organized by practice a password management system area and by client and client matters or app to keep up with your new or other administrative groupings. passwords. Change administrator Use a file naming system consistently passwords and address changes throughout the firm. You can desig- needed in Access and security pro- nate someone the administrator over files within programs. document management procedures; Join the State Bar on and if a software product is used, be Websites sure to have it running on the most Perform maintenance on active recently recommended version. websites. You can gather data facebook! about who’s visiting and leaving General Firm Software your site and plan to include fresh www.facebook.com/ Service packs and product content or more clearly defined statebarofgeorgia releases are often not kept up information to attract the attention

April 2014 61 Section News Don’t Forget to Renew Your Section Membership by Derrick W. Stanley

his is the time of the year when the member-

ship department gets ready for their busy T season by preparing the dues statements which will be mailed to members at the end of April.

There is valuable information on your dues notice, so please read it carefully.

You should notice that sections you are currently a member of have been pre-checked for your conve- nience. You can add or delete sections by indicating your choice on the statement. The important thing to remember is that even though the sections are pre- selected on the statement, they have not been included in the total payment at the bottom of the page. You will need to include the amount of section dues on Line C in the Summary Box. This will ensure your section membership(s) are renewed for the upcoming Bar year. It is important to double-check your math. If there is any variance in the amount, it may delay your sections renewal. Also, if you are in a medium to large firm and your Q You are now on the “Pay Dues Online” page (see fig. 4) dues are paid through an accounting department, Q If there is a greyed check mark next to the section, please make sure they submit your section dues as well then your dues have been renewed. If the check as your Bar dues and include your dues notice with mark is black or missing, then the dues have not the payment. Many times, people are removed from been renewed (see fig. 5). sections because their section dues were not submitted with their Bar dues. Hopefully these tips will help keep your section To determine if your dues section dues have been memberships up-to-date. You can always join a sec- paid, follow the steps below: tion at any time by following the above steps and selecting additional sections. Q Log in to your account at www.gabar.org (see fig. 1) Q Select “Section Membership” from the left naviga- Derrick W. Stanley is the section liaison tion bar (see fig. 2) for the State Bar of Georgia and can be Q A list of the sections your are a member of, as well reached at [email protected]. as any committees you are on, will be displayed (see fig. 3) Q Click on the “Join Sections” link (see fig. 3)

62 Georgia Bar Journal 1 2

3 4

April 2014 63 Member Benefits Member Benefits Online Vendor Directory

by Sheila Baldwin

unning a business is a complicated using the code found on our vendor directory. Make sure you check the list before you book your next trip. endeavor, especially while practicing law Computer solutions may be on your list of needs. Look under “Computer Technology” to find several with one staff member or entirely on categories of services: discounted software designed to R help run your practice; web design to help with mar- your own. You will surely encounter a few obstacles keting needs; and computer consulting with complete IT solutions (see fig. 2). along the way. Where do you find solutions to some of For business needs, find help with printing, document management or payroll solutions. Look under these practice management challenges? The State Bar financial needs for retirement, title insurance or credit card processing services. Find a large group of profes- of Georgia Member Benefits Program offers Georgia sional liability insurers under the “Insurance” category along with a link to our recommended health, dental attorneys a practical solution, the online vendor direc- and vision insurance provider, Member Benefits, Inc. You can also view vendors by alphabetical order on tory, found by clicking on the Services/Discounts for the “Search by Name” option. Scroll the list and click on the name of a company to see their contact informa- Attorneys link located under the Attorney Resources tion, a brief description and a link to email addresses and website, if available. tab at www.gabar.org (see fig. 1). Keyword search is the other option available to sort through the vendor list. If you enter the terms “office Interested vendors are invited to reach out to our space” you will see a listing for Servcorp, a provider of members by listing their products and/or services on virtual office space or “legal research” to find Fastcase, our website, often giving a discount. Members can and Westlaw (see fig. 3). search by name, category or keyword to find a variety Hopefully, our members will benefit from and support of resources. Each vendor listing appears as a business the vendors who offer discounts. You may know a ven- card with contact information and a link to the company dor that you would like to promote because of exception- website, if available. This is not intended to be inclusive al service or good pricing; feel free to mention the vendor or a recommendation of any vendor and due diligence is directory to them. Our goal is to help our members find advised as in any purchase decision (see fig. 1). good products and services in order to run more success- If you’re planning a trip to Atlanta or Savannah, check ful and efficient practices. For questions or further infor- the directory under the category “Personal Services” mation regarding the Vendor Directory, contact me at and find hotels that offer special rates to our members. [email protected] or call 404-526-8618. The Omni Hotel at CNN Center offers a rate of $134 for a deluxe room when you ask for the preferred State Bar Sheila Baldwin is the member benefits rate. The Hilton Garden Inn in Savannah’s historic district coordinator of the State Bar of Georgia offers a rate of $132 for Sunday through Thursday stays; and can be reached at [email protected]. blackout rates apply; confirm at time of booking. The Hyatt Regency in Savannah offers a $167 rate, or check with any of the Hyatt properties for a corporate rate by

64 Georgia Bar Journal 1 Pro Bono on the go!

http://probono.mymobisite.us 3 Use Your Smartphone to learn about Pro Bono in Georgia.

Access available cases. Find training and resource materials. Read news about Pro Bono.

April 2014 65 Writing Matters

Improving Routine Documents Part 4: Disengagement Letters

by Karen J. Sneddon and David Hricik

ne week. Ten days. Two months. Three

years. Clients hire lawyers to achieve O goals. Many lawyers use engagement letters even when not required because the experience of others and ethics experts teach that sending well- crafted engagement letters can avoid many problems.

Writings matter. Engagement letters can anticipate client concerns and questions and outline the parameters of the particular representation. But, at some point, the client’s goals—or at least some of them—are achieved and the representation draws to a close. At that time, an attorney should memorialize the completion of the be adverse to a current client, but generally may be representation. This installment of “Writing Matters” adverse to a former client unless the adverse matter is substantially related to the lawyer’s work for the former continues our series describing how to improve routine client. In addition, a lawyer who fails to clarify that the attorney-client relationship has ended may cause mis- legal documents by focusing on disengagement letters. understandings about responsibilities for future tasks. A disengagement letter follows the conventions of At the outset, the focus here is on communications a standard business letter. The disengagement letter that occur when the purpose for which the lawyer was should begin and end with an expression of appreciation retained ends. In contrast, lawyers send withdrawal for the opportunity to represent the client. Retaining and letters when the representation ends before the scope working with an attorney reflected confidence by the of representation is completed. A future installment of client that the attorney could achieve the client’s goals. “Writing Matters” will address withdrawal letters. When the representation concludes, many clients will Disengagement letters serve many purposes. appreciate a lawyer acknowledging that fact. Foremost, failing to clarify the end of the attorney-client In substance, a disengagement letter must inform relationship may require the lawyer to treat the “for- the client that the purpose for creating the attorney- mer” client as a current client, and create unexpected client relationship has been achieved and, as a complications with conflict rules. A lawyer may not result, the relationship has ended. The letter should

66 Georgia Bar Journal identify the ending date of the In some instances, the disen- function. Both the attorney and the representation (in most cases, at gagement letter should recite any client benefit from the clarification of the latest this will be the date of ongoing or remaining tasks that the nature of the relationship. Two the letter). The letter should stress require the client’s future action or examples of disengagement letters, that the attorney will be under- attention. For example, a client may along with a variety of useful practice taking no further action on behalf need to pay a fee to a governmental forms, are available on the State Bar of of the client. It should clearly entity in the future; the letter should Georgia website at www.gabar.org/ inform the client that the attorney remind the client of the obligation committeesprogramssections/ will not owe an ongoing duty to and advise the client that the law- programs/lpm/forms. update the client on issues relat- yer will send no further reminders, ing to the representation. Beyond unless otherwise agreed in writing. Karen J. Sneddon is that central purpose, several top- Even though disengagement let- an associate professor ics should be addressed, and are ters end an attorney-client rela- of law at Mercer discussed below. tionship, they can and should University School of A disengagement letter should express the lawyer’s willingness Law. describe remaining administrative to be retained for future matters. A matters. For example, the letter disengagement letter can ethically David Hricik is a should explain the firm’s policy inform the client that, should it toward file retention. If the client have the need for legal services in professor at Mercer is responsible for document reten- the future, the client can retain the University School of tion, then the client’s file should attorney again. For instance, the Law who has written be returned with the letter (or by disengagement letter can explain several books and other appropriate means and in a that a new engagement letter more than a dozen reasonable period of time). If the would be prepared to govern any articles. The Legal Writing Program firm’s policy is to dispose of client new representation. at Mercer Law School continues to files after a certain time, without Although there may be some ini- be recognized as one of the further warning to the client, the tial reluctance to prepare and send nation’s top legal writing client should be so advised in a disengagement letter, the disen- programs. the letter. gagement letter serves an important Discover the legacy of Georgia’s great icons. NEW GIFT BOOK BY RHETT TURNER. eorgia’s communities are rooted in Gtheir 159 unique courthouses. With dignity and southern charm they stand strong to anchor and preserve the past and future of all Georgians. This new book captures their vast diversity in intriguing histories and majestic photographs.

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April 2014 67 Professionalism Page

2014 Justice Benham Awards for Community Service by Avarita L. Hanson

hen Justice Robert Benham served

as chair of the Chief Justice’s W Commission on Professionalism 15 years ago, a task force was created to address the importance of community and public service as a part of lawyer professionalism. Out of that task force, the

Justice Robert Benham Awards for Community Service were instituted to honor the legacy of former Chief

Justice Robert Benham. During his six-year tenure as chief justice, Benham focused the attention of lawyers and judges on the community and public service aspects of professionalism.

On Feb. 25, the Chief Justice’s Commission on Professionalism (the Commission) and the State Bar of Georgia celebrated the 15th anniversary of the Benham Awards Program and honored 10 special and deserving Georgia lawyers. Nearly 300 well- wishers came were there to celebrate their many achievements. State Bar President Charles L. Ruffin welcomed honorees, friends, family members and Photos by Don Morgan Photography & Video colleagues. WXIA-TV Business Editor and Help Desk William J. “Bill” Liss introduces Justice Robert Benham at the 15th Manager William J. “Bill” Liss, introduced Justice annual Justice Benham Awards for Community Service.

68 Georgia Bar Journal (Left to right) State Bar President-Elect Patrise Perkins-Hooker, Lifetime Achievement Award recipient Joseph R. Bankoff, Justice Robert Benham and Chief Justice’s Commission on Professionalism Executive Director Avarita L. Hanson. Benham, who took time to thank haps the most inspiring ideal but couldn’t afford an attorney. those in attendance, including of our society . . . . [I]t is funda- Bankoff has given his skills, expe- Commission staff, for upholding mental that justice should be the rience and leadership to a wide the tradition of presenting the same, in substance and availabil- variety of organizations, includ- awards. ity, without regard to economic ing the Woodruff Arts Center, the Supreme Court of Georgia Chief status.” As Georgia continues to Atlanta Symphony Orchestra, the Justice Hugh P. Thompson rec- grow in population and diversi- Georgia Chamber of Commerce, the ognized the lawyers and judges ty, access to justice is a challenge Georgia Tech College of Computing honored for their exemplary and requiring the commitment and Advisory Board, the City of Atlanta selfless service to the communi- hard work of us all.1 Policy Advisory Committee and ty, while charging lawyers with the governor’s Telecommunications their professional responsibility to The awards were then present- Advisory Committee. ensure access to justice. He pointed ed by Justice Benham, who was J. Edward Allen Jr., part- out that several Georgia counties assisted by past selection commit- ner, Fortson, Bentley & Griffin, have fewer than 10 lawyers and tee chair and State Bar President- P.A., Athens, gives back to his some have none. As Chief Justice Elect Patrise Perkins-Hooker. community through youth and Thompson said in his State of the Joseph R. Bankoff, chair, Sam church activities and University Judiciary Address on Feb. 5, before Nunn School of International of Georgia alumni and athlet- the Georgia Legislature: Affairs, Atlanta, was the recipient of ic organizations. He has served the Lifetime Achievement Award. on the Athens-Clarke County Most of us grew up saying the Bankoff is known not just for his Criminal Justice Task Force Pledge of Allegiance at school, in 34-year law practice in the area and is a member of the Western which we promised “liberty and of intellectual property with King Circuit and McMinn County bar justice for all.” I don’t believe we & Spalding, LLP, but also for his associations, in addition to the ever meant, “liberty and justice leadership with the Atlanta Arts Cornerstone Society of Athens only for those who can afford it.” Community and the Centennial Regional Medical Center, Athens Equal justice for all is the prom- Olympic Games. A member of the Area Chamber of Commerce and ise embodied in our Constitution State Bar of Georgia since 1972, the Georgia Football Letterman’s as envisioned by our forefathers. he has brought his training, prac- Club. Allen also works to positive- Supreme Court Justice Lewis tice and experience to his law firm, ly impact lives of those affected by Powell called equal justice, “per- clients and those who needed substance abuse.

April 2014 69 Honorees, special guests and emcees. (Front row, left to right) Avarita L. Hanson, Justice Robert Benham, Chief Justice Hugh P. Thompson, Joseph R. Bankoff and Hon. Patricia M. Killingsworth. (Back row, left to right) Lovett Bennett Jr., C. Talley Wells, Charles T. Huddleston, President Charles L. Ruffin, Marquetta J. Bryan, John T. Longino, Cindy S. Manning, Hon. J. Lane Bearden and J. Edward Allen Jr.

Hon. J. Lane Bearden, judge, Marquetta J. Bryan, partner, of directors of Leadership DeKalb, Gordon County Juvenile Court, Carlock, Copeland & Stair, LLP, OnBoard, Inc., and the Lawyers and practicing attorney, Bearden Atlanta, serves the Junior League of Committee for Civil Rights Under Law Firm, gives countless Atlanta, teaches Sunday school to Law. He has chaired the State Bar’s hours coaching debate teams, vol- fourth and fifth grade girls at Word Diversity Program since 2006. untarily photographing commu- of Faith Family Worship Cathedral Hon. Patricia M. Killingsworth, nity events and lending his skills and is the co-founder of the legal mediator, BAY Mediation and elsewhere in Calhoun and Gordon education program, If You Can See Arbitration Services, and adjunct County. He has been recognized It, You Can Be It, a youth mentoring professor of law at Georgia State by the Gordon County School and encouragement project where University College of Law, Atlanta, Conselors Association, Gordon attorneys and judges visit urban has provided two decades of service County CASA and the Calhoun schools in metro-Atlanta. This wife to Kids’ Chance, a local and national Touchdown Club, served as and mother of three children under charity for children of workers cata- president of the Gordon County the age of 10 says she serves her strophically injured on the job. She Bar Association and was named community because it is her respon- is an esteemed community lead- to Leadership Calhoun-Gordon sibility to do so, thereby making the er having served with the DeKalb County (1999). community better for her children County Board of Ethics, Leadership Lovett Bennett, Jr., Statesboro, and theirs to come. DeKalb, Youth Leadership DeKalb, is engaged in private practice Charles T. Huddleston, of Glenn Memorial United Methodist and serves as the municipal court counsel, Nelson Mullins Riley Church and her neighborhood civic judge for the cities of Brooklet & Scarborough, LLP, Atlanta, is association. She has an outstand- and Register. He served as pres- a lawyer who is best known for ing record of service and dedica- ident of the Bulloch County mentoring and coaching young tion to her community that is an Bar Association, is a mem- women through the Georgia Metro inspiration to her family, neighbors ber of the board of directors of Girls Basketball Club and help- and colleagues. the Attorney’s Title Guaranty ing them secure a college educa- John T. Longino, John T. Longino Fund, Inc., and a member of the tion. He has served as an advisor Law Office, Waleska, exemplifies Advisory Board of the Citizens to three Atlanta mayors and led the consummate servant-leader to Bank of Bulloch County. He has the movement for advancement of his northern Georgia community. devoted himself to the Boy Scouts women and minorities through- He has been a member of several of America in many capacities, out the legal and greater commu- Rotary Clubs, (Cherokee, Canton the Ogeechee Area Hospice and nity. He is co-chair of Men With and Gilmer) and he and his fam- Kiwanis Club, among his several Vision Committee of the Atlanta ily have served as a host family for volunteer endeavors. Women’s Foundation, on the board a number of foreign students. He

70 Georgia Bar Journal spent time as a math and science honored at the Justice Benham Dr. Tene A. Davis. Thanks also to teacher for Gilmer County primary Community Service Awards pro- Eric Thomas for providing musi- and elementary schools, is a mem- gram, speak volumes to the pub- cal entertainment; videographer ber and small group leader at North lic and to their colleagues, pro- Vince Bailey for his profession- Point Community Church and was claiming that lawyers do care and ally prepared honoree videos; co-founder of Port Tack Ministries do share their talents without and photographer Don Morgan. for hurricane rescue and relief by the expectation of remuneration. Finally, we thank the Commission water. Longino also co-founded the Clearly, many individuals, asso- staff, Avarita Hanson, execu- Whitfield County service agency ciations, organizations, groups and tive director; Terie Latala, assis- Centro Latino, Inc., the oldest agency places of worship benefit from the tant director; and Nneka Harris- serving Hispanics in North Georgia. work of lawyers and judges beyond Daniel, administrative assistant. His leadership and involvements their daily duties. It is fitting that While lawyers who serve are not impact a wide range of individu- we pause each year to showcase doing so to be recognized, receipt als, particularly young people and just a few of our bench and bar of the Justice Benham Award for Spanish-speaking citizens. members who give so much for the Community Service is always a spe- Cindy S. Manning, partner, greater good. cial moment in their careers. Why Manning, Levine & Marlow, LLP, There are a lot of moving parts not start now thinking about a col- Peachtree City, provides leadership to present this program each year, league or two to nominate for next and support for the community as a and we appreciate the involve- year’s awards? In the fall of 2014, founding member of the Friends of ment of many. We thank the pro- look for the call for nominations Tyrone Public Library, as board chair gram participants—Chief Justice for the 16th annual Justice Benham of Advo-Kids CASA, Inc., as a coach Hugh P. Thompson, Justice Awards in the Georgia Bar Journal of the Sandy Creek High School Robert Benham, President Charles and on the State Bar of Georgia web- Mock Trial Team and the nursery L. Ruffin, President-Elect Patrise site, or contact Nneka Harris-Daniel coordinator at the Southern Crescent Perkins-Hooker and William J. at the Chief Justice’s Commission Church of Christ. Active with legal “Bill” Liss for making the pro- on Professionalism at nneka@ organizations, Manning is president- gram so successful. We acknowl- cjcpga.org or 404-225-5040. elect of the Georgia Association for edge the selection committee for Women Lawyers and serves on the reviewing the nominations and Avarita L. Hanson is Lawyers Club of Atlanta member- bringing forward this year’s hon- the executive director ship and technology committees. orees: Janet C. Watts, chair; Lisa of the Chief Justice’s C. Talley Wells, director, E. Chang; Mawuli M. Malcolm Commission on Disability Integration Project, Davis; Elizabeth L. Fite; Laverne Professionalism and Atlanta Legal Aid Society, Decatur, Lewis Gaskins; Michael D. Hobbs can be reached at works to provide housing and ser- Jr.; W. Seaborn Jones; William J. [email protected]. vices to persons with developmen- Liss; and Brenda C. Youmas. We tal disabilities and mental illness acknowledge the support of the Endnote through L’Arché Atlanta, an ini- Young Lawyers Division: Darrell 1. Chief Justice Hugh Thompson, tiative that enables persons with Sutton, president, and its commu- 2014 State of the Judiciary Address, developmental disabilities to live in nity service committee volunteers: (Feb. 5, 2014), at: http:// shared housing with persons who Ichechi Alikor, Katie Parvis and www.gasupreme.us/press_ don’t, and the Georgia Association Tiffany Ragland. Other volunteers releases/14JudiSpeech_1.pdf. for Supportive Housing, a group of include Faith Warren Avery and services providers and advocates for people with mental illness. He also works with the Center for Working N D L Families as a board member and Norwitch Document Laboratory chair of the strategic planning com- Forgeries - Handwriting - Alterations - Typewriting mittee, board development commit- Ink Exams - Medical Record Examinations - “Xerox” Forgeries tee executive committee and finance committee. He is actively involved F. Harley Norwitch - Government Examiner, Retired with the St. Paul United Methodist Court Qualified Scientist - 30+ years. Expert testimony given in Church as a children’s Sunday excess of four hundred times including Federal and Offshore school teacher, worship chair and regularly preaches at the services 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 when the pastor is absent. www.questioneddocuments.com The good deeds of Georgia Telephone: (561) 333-7804 Facsimile: (561) 795-3692 lawyers, as evidenced by the 10

April 2014 71 In Memoriam

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

Jeffrey Dean Anderson Robert Adolph De Metz Sr. Thomas R. Herndon McDonough, Ga. Peachtree City, Ga. Savannah, Ga. Mercer University Walter F. University of Mississippi School Atlanta’s John Marshall Law George School of Law (2005) of Law (1965) School (1980) Admitted 2007 Admitted 1988 Admitted 1981 Died February 2014 Died February 2014 Died January 2014

Alan B. Blaisdell Susan Kramer Feinberg James E. Johnson Jr. Lawrenceville, Ga. Chappaqua, N.Y. Charlotte, N.C. Woodrow Wilson College of Law Pace Law School (2005) Wake Forest University School (1954) Admitted 2007 of Law (1956) Admitted 1961 Died August 2013 Admitted 1962 Died January 2014 Died March 2014 Erwin A. Friedman John W. Bland Jr. Savannah, Ga. Waymon T. Knight Jr. Conyers, Ga. Emory University School of Law Marietta, Ga. Woodrow Wilson College of Law (1953) Emory University School of Law (1948) Admitted 1953 (1962) Admitted 1949 Died March 2014 Admitted 1963 Died December 2013 Died February 2014 Gary Gilbert Guichard Todd Wakefield Cline Denver, Colo. Cedric Thomas Leslie Charlotte, N.C. Tulane University Law School Macon, Ga. University of South Carolina (1982) Mercer University Walter F. School of Law (1990) Admitted 1993 George School of Law (1987) Admitted 1990 Died February 2014 Admitted 1987 Died August 2013 Died February 2014 Gail S. Harbour David M. Courtney Jr. Atlanta, Ga. Eugene McCracken Lilburn, Ga. Columbia Law School (1975) Savannah, Ga. Atlanta’s John Marshall Law Admitted 1980 University of Georgia School of School (1978) Died March 2013 Law (1957) Admitted 1979 Admitted 1958 Died November 2013 Frederick C. Heidgerd Died March 2014 Deerfield Beach, Fla. Jerry M. Daniel University of Florida Levin George K. McPherson Jr. Waynesboro, Ga. College of Law (1975) Marietta, Ga. Mercer University Walter F. Admitted 1975 University of Washington School George School of Law (1968) Died January 2014 of Law (1961) Admitted 1970 Admitted 1964 Died January 2014 Died March 2014

72 Georgia Bar Journal Clarence A. Miller James Larry Palmer Randolph W. Thrower Sylvester, Ga. Carrollton, Ga. Atlanta, Ga. University of Georgia School Atlanta Law School (1962) Emory University School of Law of Law (1967) Admitted 1973 (1936) Admitted 1967 Died March 2014 Admitted 1935 Died February 2014 Died March 2014 John Pat Sadler Gerald D. Mills Flat Rock, N.C. Charles H. Watt III Cumming, Ga. Emory University School of Law Houston, Texas University of Georgia School (1975) Mercer University Walter F. of Law (1971) Admitted 1975 George School of Law (1973) Admitted 1971 Died March 2014 Admitted 1973 Died August 2013 Died November 2013 Clayton Sinclair Jr. Shay Daniel Moorman Atlanta, Ga. Wrightsville, Ga. Howard University School of Law Florida State University College (1960) of Law (2008) Admitted 1971 Admitted 2008 Died February 2014 Died February 2014 Jo H. Stegall III Karen Kelly O’Riordan Rome, Ga. Salt Lake City, Utah University of Georgia School Emory University School of Law of Law (1984) (1996) Admitted 1984 Admitted 2004 Died March 2014 Died September 2013

Hardestwww.gab Working Site ar.orgon the Web.

April 2014 73 CLE Calendar

April-July APR 10 ICLE APR 25 ICLE Trial Evidence Solo and Small Firm Spring Seminar Atlanta, Ga. Atlanta and Tifton, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

APR 11 ICLE APR 30 ICLE Child Welfare Attorney Training The Trial of Leo Frank Atlanta, Savannah and Tifton, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 7 CLE 3 CLE

APR 11 ICLE MAY 1 ICLE Georgia Insurance Claims Law Animal Law Seminar Savannah, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

APR 17 ICLE MAY 1 ICLE Business Immigration Law VA Mentoring Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

APR 17 ICLE MAY 1 ICLE Construction Law for the General Dispute Resolution Practitioner Augusta, Ga. Atlanta, Savannah and Tifton, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE MAY 8 ICLE APR 24 ICLE Fulton Superior Court: Building Professional Presence Family Division Basics Boot Camp Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 7 CLE

APR 24 ICLE MAY 9 ICLE New Tax Laws Georgia DUI Update Atlanta, Savannah and Tifton, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

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

74 Georgia Bar Journal CLE Calendar

MAY 9 ICLE JUN 20 ICLE Entertainment Law Basics Boot Camp Persuasive Presentation Skills Atlanta, Savannah and Tifton, Ga. for Lawyers See www.iclega.org for location Atlanta, Ga. 3 CLE See www.iclega.org for location 6 CLE MAY 13 ICLE May Group Mentoring JUN 26-29 ICLE Atlanta, Ga. Gary Christy Memorial Georgia Trial See www.iclega.org for location Skills Clinic NO CLE Athens, Ga. See www.iclega.org for location MAY 15-17 ICLE 24 CLE 36th Real Property Law Institute Savannah, Ga. JUL 10-12 ICLE See www.iclega.org for location 2014 Fiduciary Law Institute 12 CLE St. Simons, Ga. See www.iclega.org for location MAY 22-24 ICLE 12 CLE 32nd Family Law Institute Amelia Island, Fla. JUL 25-26 ICLE See www.iclega.org for location Solo and Small Firm Institute 12 CLE Atlanta, Ga. See www.iclega.org for location MAY 30 ICLE 12 CLE Carlson on Evidence Savannah, Ga. See www.iclega.org for location 6 CLE

JUN 18 ICLE Selected Video Replays Atlanta, Ga. See www.iclega.org for location 6 CLE

JUN 19 ICLE Selected Video Replays Atlanta, Ga. See www.iclega.org for location 6 CLE

April 2014 75 Notices

NOTICE OF MOTION TO AMEND THE RULES AND REGULATIONS OF THE STATE BAR OF GEORGIA

No earlier than thirty days after the publication of be amended as set out below, and that a new Part IV this Notice, the State Bar of Georgia will file a Motion to regarding the Georgia Bar Foundation be added to the Amend the Rules and Regulations for the Organization Rules of the State Bar of Georgia. and Government of the State Bar of Georgia pursuant to Part V, Chapter 1 of said Rules, 2013-2014 State Bar I. of Georgia Directory and Handbook, p. H-7 (hereinafter referred to as “Handbook”). Proposed Amendments to Rule 1.15(I) of the I hereby certify that the following is the verbatim Georgia Rules of Professional Conduct text of the proposed amendments as approved by the Board of Governors of the State Bar of Georgia. Any The Board of Governors of the State Bar proposes member of the State Bar of Georgia who desires to that Rule 1.15(I), Safekeeping Property – General, of object to these proposed amendments to the Rules is the Georgia Rules of Professional Conduct be amended reminded that he or she must do so in the manner pro- by deleting the struck-through portions and adding the vided by Rule 5-102, Handbook, p. H-7. language in bold underlined text as set out below: This Statement and the following verbatim text are intended to comply with the notice requirements of RULE 1.15(I) SAFEKEEPING PROPERTY - GENERAL Rule 5-101, Handbook, p. H-7. a. A lawyer shall hold funds or other property of Robert E. McCormack clients or third persons that is are in a lawyer’s pos- Deputy General Counsel session in connection with a representation sepa- State Bar of Georgia rate from the lawyer’s own funds or other property. Funds shall be kept in a one or more separate IN THE SUPREME COURT accounts maintained in an approved institution STATE OF GEORGIA as defined by Rule 1.15(III)(c)(1). Other property shall be identified as such and appropriately safe- IN RE: STATE BAR OF GEORGIA guarded. Complete records of such account funds Rules and Regulations for its and other property shall be kept by the lawyer and Organization and Government shall be preserved for a period of six years after termination of the representation. MOTION TO AMEND 2014-1 b. For the purposes of this Rule, a lawyer may not MOTION TO AMEND THE RULES AND disregard a third person’s interest in funds or other REGULATIONS OF THE property in the lawyer’s possession if: STATE BAR OF GEORGIA 1. the interest is known to the lawyer, and COMES NOW, the State Bar of Georgia, pursuant to the authorization of its Board of Governors at its 2. the interest is based upon one of the following: regularly-called meeting on March 22, 2014, and presents to this Court its Motion to Amend the Rules and i. A statutory lien; Regulations of the State Bar of Georgia as originally set forth in an Order of this Court dated December 6, 1963 ii. A final judgment addressing disposition of (219 Ga. 873), and as amended by subsequent Orders, those funds or property; or published at 2013-2014 State Bar of Georgia Directory and Handbook, pp. 1-H, et seq. The State Bar respect- iii. A written agreement by the client or the law- fully moves that Rule 1.15(I), Rule 1.15(II) and Rule yer on behalf of the client guaranteeing pay- 1.15(III) of the Georgia Rules of Professional Conduct ment out of those funds or property.

76 Georgia Bar Journal The lawyer may disregard the third person’s custody. A lawyer may have a duty under applicable claimed interest if the lawyer reasonably concludes law to protect such third-party claims against wrong- that there is a valid defense to such lien, judgment, ful interference by the client, and accordingly may or agreement. refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate c. Upon receiving funds or other property in which a a dispute between the client and the third party. The client or third person has an interest, a lawyer shall obligations of a lawyer under this Rule are indepen- promptly notify the client or third person. Except dent of those arising from activity other than rendering as stated in this Rule or otherwise permitted by legal services. For example, a lawyer who serves as an law or by agreement with the client, a lawyer shall escrow agent is governed by the applicable law relating promptly deliver to the client or third person any to fiduciaries even though the lawyer does not render funds or other property that the client or third per- legal services in the transaction. son is entitled to receive and, upon request by the client or third person, shall promptly render a full [3A] In those cases where it is not possible to ascertain accounting regarding such property. who is entitled to disputed funds or other property held by the lawyer, the lawyer may hold such disputed d. When in the course of representation a lawyer is funds for a reasonable period of time while the interest- in possession of funds or other property in which ed parties attempt to resolve the dispute. If a resolution both the lawyer and a client or a third person claim cannot be reached, it would be appropriate for a lawyer interest, the property shall be kept separate by the to interplead such disputed funds or property. lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their [4] A “clients’ security fund” provides a means through respective interests, the portion in dispute shall be the collective efforts of the Bbar to reimburse persons kept separate by the lawyer until the dispute is who have lost money or property as a result of dishon- resolved. The lawyer shall promptly distribute all est conduct of a lawyer. Where such a fund has been portions of the funds or property as to which the established, a lawyer should participate. interests are not in dispute. If the proposed amendments to the Rule are adopt- The maximum penalty for a violation of this Rule is ed, the amended Rule 1.15(I), Safekeeping Property- disbarment. General, would read as follows:

Comment RULE 1.15(I) SAFEKEEPING PROPERTY - GENERAL

[1] A lawyer should hold property of others with the a. A lawyer shall hold funds or other property of care required of a professional fiduciary. Securities clients or third persons that are in a lawyer’s pos- should be kept in a safe deposit box, except when some session in connection with a representation sepa- other form of safekeeping is warranted by special cir- rate from the lawyer’s own funds or other prop- cumstances. All property which is the property of cli- erty. Funds shall be kept in one or more separate ents or third persons should be kept separate from the accounts maintained in an approved institution lawyer’s business and personal property and, if monies, as defined by Rule 1.15(III)(c)(1). Other property in one or more trust accounts. Separate trust accounts shall be identified as such and appropriately safe- may be warranted when administering estate monies or guarded. Complete records of such account funds acting in similar fiduciary capacities. and other property shall be kept by the lawyer and shall be preserved for a period of six years after [2] Lawyers often receive funds from third parties from termination of the representation. which the lawyer’s fee will be paid. If there is risk that the client may divert the funds without paying the fee, b. For the purposes of this Rule, a lawyer may not the lawyer is not required to remit the portion from disregard a third person’s interest in funds or other which the fee is to be paid. However, a lawyer may not property in the lawyer’s possession if: hold funds to coerce a client into accepting the lawyer’s contention. The disputed portion of the funds should be 1. the interest is known to the lawyer, and kept in trust and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration or 2. the interest is based upon one of the following: interpleader. The undisputed portion of the funds shall be promptly distributed. i. A statutory lien;

[3] Third parties, such as a client’s creditors, may have ii. A final judgment addressing disposition of just claims against funds or other property in a lawyer’s those funds or property; or

April 2014 77 iii. A written agreement by the client or the lawyer interpleader. The undisputed portion of the funds shall on behalf of the client guaranteeing payment be promptly distributed. out of those funds or property. [3] Third parties, such as a client’s creditors, may have The lawyer may disregard the third person’s just claims against funds or other property in a lawyer’s claimed interest if the lawyer reasonably concludes custody. A lawyer may have a duty under applicable that there is a valid defense to such lien, judgment, law to protect such third-party claims against wrong- or agreement. ful interference by the client, and accordingly may refuse to surrender the property to the client. However, c. Upon receiving funds or other property in which a lawyer should not unilaterally assume to arbitrate a client or third person has an interest, a lawyer a dispute between the client and the third party. The shall promptly notify the client or third person. obligations of a lawyer under this Rule are indepen- Except as stated in this Rule or otherwise per- dent of those arising from activity other than rendering mitted by law or by agreement with the client, legal services. For example, a lawyer who serves as an a lawyer shall promptly deliver to the client or escrow agent is governed by the applicable law relating third person any funds or other property that the to fiduciaries even though the lawyer does not render client or third person is entitled to receive and, legal services in the transaction. upon request by the client or third person, shall promptly render a full accounting regarding such [3A] In those cases where it is not possible to ascertain property. who is entitled to disputed funds or other property held by the lawyer, the lawyer may hold such disputed d. When in the course of representation a lawyer is funds for a reasonable period of time while the interest- in possession of funds or other property in which ed parties attempt to resolve the dispute. If a resolution both the lawyer and a client or a third person claim cannot be reached, it would be appropriate for a lawyer interest, the property shall be kept separate by the to interplead such disputed funds or property. lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their [4] A “clients’ security fund” provides a means through respective interests, the portion in dispute shall be the collective efforts of the Bar to reimburse persons kept separate by the lawyer until the dispute is who have lost money or property as a result of dishon- resolved. The lawyer shall promptly distribute all est conduct of a lawyer. Where such a fund has been portions of the funds or property as to which the established, a lawyer should participate. interests are not in dispute. II. The maximum penalty for a violation of this Rule is disbarment. Proposed Amendments to Rule 1.15(II) of the Georgia Rules of Professional Conduct Comment The Board of Governors proposes that Rule 1.15(II), [1] A lawyer should hold property of others with the Safekeeping Property - Trust Account and IOLTA, be care required of a professional fiduciary. Securities amended by deleting the struck-through portions and should be kept in a safe deposit box, except when some adding the language in bold underlined text as set out other form of safekeeping is warranted by special cir- below: cumstances. All property which is the property of clients or third persons should be kept separate from the RULE 1.15(II) SAFEKEEPING PROPERTY - TRUST lawyer’s business and personal property and, if monies, ACCOUNT AND IOLTA in one or more trust accounts. Separate trust accounts a. Every lawyer who practices law in Georgia, whether may be warranted when administering estate monies or said lawyer practices as a sole practitioner, or as a acting in similar fiduciary capacities. member of a firm, association, or professional corporation, and who receives money or property on [2] Lawyers often receive funds from third parties from behalf of a client or in any other fiduciary capacity, which the lawyer’s fee will be paid. If there is risk that shall maintain or have available a one or more trust the client may divert the funds without paying the fee, accounts as required by these Rules. All funds held the lawyer is not required to remit the portion from by a lawyer for a client and all funds held by a law- which the fee is to be paid. However, a lawyer may not yer in any other fiduciary capacity shall be deposited hold funds to coerce a client into accepting the lawyer’s in and administered from such a trust account. contention. The disputed portion of the funds should be kept in trust and the lawyer should suggest means for b. No personal funds shall ever be deposited in a prompt resolution of the dispute, such as arbitration or lawyer’s trust account, except that unearned attor-

78 Georgia Bar Journal ney’s fees may be so held until the same are earned. delay, subject only to any notice period Sufficient personal funds of the lawyer may be kept which the institution is required to reserve in the trust account to cover maintenance fees such by law or regulation. as service charges on the account. Records on such trust accounts shall be so kept and maintained as iii. An interest-bearing trust account may be to reflect at all times the exact balance held for each established with any approved institution client or third person. No funds shall be withdrawn as defined in Rule 1.15(III)(c)(1). Funds in from such trust accounts for the personal use of each interest-bearing trust account shall be the lawyer maintaining the account except earned subject to withdrawal upon request and attorney’s fees debited against the account of a spe- without delay. cific client and recorded as such. iv. iii. As required by Rule 15-103, tThe rate c. All client’s funds shall be placed in either an of interest payable on any interest-bearing interest-bearing account at an approved institu- trust IOLTA account shall not be less than tion with the interest being paid to the client or an the rate paid by the depositor institution interest-bearing (IOLTA) account at an approved to regular, non-lawyer depositors. Higher institution with the interest being paid to the rates offered by the institution to customers Georgia Bar Foundation as hereinafter provided. whose deposits exceed certain time periods or quantity minimums, such as those 1. With respect to funds which are not nominal in offered in the form of certificates of deposit, amount, or are not to be held for a short period may be obtained by a lawyer or law firm on of time, a lawyer shall, with notice to the clients, some or all of the deposited funds so long as create and maintain an interest-bearing trust there is no impairment of the right to with- account in an approved institution as defined in draw or transfer principal immediately. Rule 1.15(III)(c)(1), with the interest to be paid to the client. No earnings from such an account v. iv. Lawyers or law firms shall direct the shall be made available to a lawyer or law firm. depository institution:

i. No earnings from such an interest-bearing A. to remit to the Georgia Bar Foundation account shall be made available to a law- interest or dividends, net of any charges yer or law firm. or fees on that account, on the average monthly balance in that account, or ii. Funds in such an interest-bearing account as otherwise computed in accordance shall be available for withdrawal upon with a financial institution’s standard request and without delay, subject only to accounting practice, at least quarterly. any notice period which the institution is Any bank fees or charges in excess of the required to reserve by law or regulation. interest earned on that account for any month shall be paid by the lawyer or 2. With respect to funds which are nominal in law firm in whose names such account amount or are to be held for a short period of appears, if required by the bank; to time, such that there can be no reasonable remit to the Georgia Bar Foundation expectation of a positive net return to the interest or dividends, net of any allow- client or third person, a lawyer shall, with or able reasonable fees as defined in Rule without notice to the client, create and maintain 15-102(c), on the average monthly bal- an interest-bearing, government insured trust ance in that account, at least quarterly. account (IOLTA) at an approved institution as Any allowable reasonable fees in excess defined in Rule 1.15(III)(c)(1) in compliance of interest earned on that account for with the following provisions: any month, and any charges or fees that are not allowable reasonable fees, shall i. No earnings from such an IOLTA account be charged to the lawyer or law firm in shall be made available to a lawyer or law whose names such account appears, if firm. not waived by the approved institution;

ii. The account shall include all clients’ funds B. to transmit with each remittance to the which are nominal in amount or which are Foundation a statement showing the to be held for a short period of time. Funds name of the lawyer or law firm for whom in each IOLTA account shall be available the remittance is sent, the rate of interest for withdrawal upon request and without applied, the average monthly balance

April 2014 79 against which the interest rate is applied, [2] Nothing in this Rule shall prohibit a lawyer from the service charges or fees applied, and removing from the trust account fees which have been the net interest remittance; to transmit earned on a regular basis which coincides with the law- with each remittance to the Foundation a yer’s billing cycles rather than removing the fees earned statement showing the name of the law- on an hour-by-hour basis. yer or law firm for whom the remittance is sent, the applicable IOLTA account [3] In determining whether funds of a client or other number, the rate of interest applied, beneficiary can earn income in excess of costs, the the average monthly account balance lawyer may consider the following factors: against which the interest rate is being applied, the gross interest earned, the a. the amount of funds to be deposited; types and amounts of service charges of b. the expected duration of the deposit, includ- fees applied, and the amount of the net ing the likelihood of delay in the matter with interest remittance; respect to which the funds are held; c. the rates of interest or yield at financial institu- C. to transmit to the depositing lawyer or tions where the funds are to be deposited; law firm at the same time a report show- d. the cost of establishing and administering a ing the amount paid to the Foundation, non-IOLTA trust account for the benefit of the the rate of interest applied, the average client or other beneficiary, including service account balance of the period for which charges, the costs of the lawyer’s services and the report is made, and such other infor- the costs of preparing any tax reports that may mation provided to non-lawyer custom- be required; ers with similar accounts. to transmit to e. the capability of financial institutions, lawyers, the depositing lawyer or law firm peri- or law firms to calculate and pay earnings to odic reports or statements in accordance individual clients; and with the approved institution’s normal f. any other circumstances that affect the ability procedures for reporting to depositors. of the funds to earn a net return for the client or other beneficiary. 3. No charge of ethical impropriety or other breach of professional conduct shall attend the [4] The lawyer or law firm should review the IOLTA determination that such funds are nominal in account at reasonable intervals to determine whether amount or to be held for a short period of time, changed circumstances require further action with or to the decision to invest clients’ funds in a respect to the funds of any client or third party. pooled interest-bearing account. If the proposed amendments to the Rule are adopted, 4. Whether the funds are designated short-term the amended Rule 1.15(II), Safekeeping Property-Trust or nominal or not, a lawyer or law firm may, at Account and IOLTA, would read as follows: the request of the client, deposit funds into a separate interest-bearing account and elect to RULE 1.15(II) SAFEKEEPING PROPERTY - TRUST remit all interest earned, or interest earned net ACCOUNT AND IOLTA of charges, to the client or clients. a. Every lawyer who practices law in Georgia, wheth- The maximum penalty for a violation of Rule 1.15(II) er said lawyer practices as a sole practitioner, or as (a) and Rule 1.15(II)(b) is disbarment. The maximum a member of a firm, association, or professional cor- penalty for a violation of Rule 1.15(II)(c) is a public poration, and who receives money or property on reprimand. behalf of a client or in any other fiduciary capacity, shall maintain or have available one or more trust Comment accounts as required by these Rules. All funds held by a lawyer for a client and all funds held by a law- [1] The personal money permitted to be kept in the yer in any other fiduciary capacity shall be depos- lawyer’s trust account by this Rule shall not be used ited in and administered from a trust account. for any purpose other than to cover the bank fees and if used for any other purpose the lawyer shall have b. No personal funds shall ever be deposited in a violated this Rule. If the lawyer wishes to reduce the lawyer’s trust account, except that unearned attor- amount of personal money in the trust account, the ney’s fees may be so held until the same are earned. change must be properly noted in the lawyer’s finan- Sufficient personal funds of the lawyer may be kept cial records and the monies transferred to the lawyer’s in the trust account to cover maintenance fees such business account. as service charges on the account. Records on such

80 Georgia Bar Journal trust accounts shall be so kept and maintained as tors. Higher rates offered by the institution to reflect at all times the exact balance held for each to customers whose deposits exceed certain client or third person. No funds shall be withdrawn time periods or quantity minimums, such from such trust accounts for the personal use of as those offered in the form of certificates the lawyer maintaining the account except earned of deposit, may be obtained by a lawyer attorney’s fees debited against the account of a spe- or law firm on some or all of the deposited cific client and recorded as such. funds so long as there is no impairment of the right to withdraw or transfer principal c. All client’s funds shall be placed in either an inter- immediately. est-bearing account at an approved institution with the interest being paid to the client or an interest- iv. Lawyers or law firms shall direct the depos- bearing (IOLTA) account at an approved institu- itory institution: tion with the interest being paid to the Georgia Bar Foundation as hereinafter provided. A. to remit to the Georgia Bar Foundation interest or dividends, net of any allow- 1. With respect to funds which are not nominal able reasonable fees as defined in Rule in amount, or are not to be held for a short 15-102(c), on the average monthly bal- period of time, a lawyer shall, with notice to the ance in that account, at least quarterly. clients, create and maintain an interest-bearing Any allowable reasonable fees in excess trust account in an approved institution as of interest earned on that account for defined in Rule 1.15(III)(c)(1), with the interest any month, and any charges or fees that to be paid to the client. are not allowable reasonable fees, shall be charged to the lawyer or law firm in i. No earnings from such an interest-bearing whose names such account appears, if account shall be made available to a lawyer not waived by the approved institution; or law firm. B. to transmit with each remittance to the ii. Funds in such an interest-bearing account Foundation a statement showing the shall be available for withdrawal upon name of the lawyer or law firm for request and without delay, subject only to whom the remittance is sent, the appli- any notice period which the institution is cable IOLTA account number, the rate required to reserve by law or regulation. of interest applied, the average monthly account balance against which the inter- 2. With respect to funds which are nominal in est rate is being applied, the gross inter- amount or are to be held for a short period est earned, the types and amounts of of time, such that there can be no reasonable service charges of fees applied, and the expectation of a positive net return to the client amount of the net interest remittance; or third person, a lawyer shall, with or without notice to the client, create and maintain C. to transmit to the depositing lawyer or an interest-bearing, government insured trust law firm periodic reports or statements account (IOLTA) at an approved institution in accordance with the approved institu- as defined in Rule 1.15(III)(c)(1) in compliance tion’s normal procedures for reporting with the following provisions: to depositors.

i. No earnings from such an IOLTA account 3. No charge of ethical impropriety or other shall be made available to a lawyer or law breach of professional conduct shall attend the firm. determination that such funds are nominal in amount or to be held for a short period of time, ii. Funds in each IOLTA account shall be avail- or to the decision to invest clients’ funds in a able for withdrawal upon request and with- pooled interest-bearing account. out delay, subject only to any notice period which the institution is required to reserve 4. Whether the funds are designated short-term by law or regulation. or nominal or not, a lawyer or law firm may, at the request of the client, deposit funds into iii. As required by Rule 15-103, the rate of inter- a separate interest-bearing account and remit est payable on any IOLTA account shall not all interest earned, or interest earned net of be less than the rate paid by the depositor charges, to the client or clients. institution to regular, non-lawyer deposi-

April 2014 81 The maximum penalty for a violation of Rule 1.15(II)(a) RULE 1.15(III) RECORD KEEPING; TRUST and Rule 1.15(II)(b) is disbarment. The maximum penal- ACCOUNT OVERDRAFT NOTIFICATION; ty for a violation of Rule 1.15(II)(c) is a public reprimand. EXAMINATION OF RECORDS

Comment a. Required Bank Accounts: Every lawyer who practices law in Georgia and who receives money or [1] The personal money permitted to be kept in the law- other property on behalf of a client or in any other yer’s trust account by this Rule shall not be used for any fiduciary capacity shall maintain, in an approved purpose other than to cover the bank fees and if used financial institution as defined by this Rule, a trust for any other purpose the lawyer shall have violated account or accounts, separate from any business this Rule. If the lawyer wishes to reduce the amount of and personal accounts. Funds received by the law- personal money in the trust account, the change must yer on behalf of a client or in any other fiduciary be properly noted in the lawyer’s financial records and capacity shall be deposited into this account. The the monies transferred to the lawyer’s business account. financial institution shall be in Georgia or in the state where the lawyer’s office is located, or else- [2] Nothing in this Rule shall prohibit a lawyer from where with the written consent and at the written removing from the trust account fees which have been request of the client or third person. earned on a regular basis which coincides with the lawyer’s billing cycles rather than removing the fees earned b. Description of Accounts: on an hour-by-hour basis. 1. A lawyer shall designate all trust accounts, [3] In determining whether funds of a client or other whether general or specific, as well as all beneficiary can earn income in excess of costs, the law- deposit slips and checks drawn thereon, as an yer may consider the following factors: “Attorney Trust Account,” “Attorney Escrow Account,” “IOLTA Account” or “Attorney a. the amount of funds to be deposited; Fiduciary Account.” The name of the attorney b. the expected duration of the deposit, including or law firm responsible for the account shall the likelihood of delay in the matter with respect also appear on all deposit slips and checks to which the funds are held; drawn thereon. c. the rates of interest or yield at financial institutions where the funds are to be deposited; 2. A lawyer shall designate all business accounts, d. the cost of establishing and administering a non- as well as all deposit slips and all checks IOLTA trust account for the benefit of the client drawn thereon, as a “Business Account,” a or other beneficiary, including service charges, “Professional Account,” an “Office Account,” the costs of the lawyer’s services and the costs of a “General Account,” a “Payroll Account,” preparing any tax reports that may be required; “Operating Account” or a “Regular Account.” e. the capability of financial institutions, lawyers, or law firms to calculate and pay earnings to indi- 3. Nothing in this Rule shall prohibit a lawyer vidual clients; and from using any additional description or des- f. any other circumstances that affect the ability of ignation for a specific business or trust account the funds to earn a net return for the client or including fiduciary accounts maintained by the other beneficiary. lawyer as executor, guardian, trustee, receiver, agent or in any other fiduciary capacity. [4] The lawyer or law firm should review the IOLTA account at reasonable intervals to determine whether c. Procedure: changed circumstances require further action with respect to the funds of any client or third party. 1. Approved Institutions:

III. i. A lawyer shall maintain his or her trust account only in a financial institution Proposed Amendments to Rule 1.15(III) of the approved by the State Bar of Georgia, which Georgia Rules of Professional Conduct shall annually publish a list of approved institutions. The Board of Governors proposes that Rule 1.15(III), Record Keeping; Trust Account Overdraft Notification; A. Such institutions shall be located within Examination of Records, be amended by deleting the the State of Georgia, within the state struck-through portions and adding the language in where the lawyer’s office is located, or bold underlined text as set out below: elsewhere with the written consent and

82 Georgia Bar Journal at the written request of the client or sented against insufficient funds. If the fiduciary third person. The institution financial institution is located outside of shall be authorized by federal or state the State of Georgia, it shall also agree law to do business in the jurisdiction in writing to honor any properly issued where located and shall be federally State Bar of Georgia subpoena. insured. A financial institution shall be approved as a depository for lawyer B. In addition to the requirements trust accounts if it abides by an agree- above, the financial institution must ment to report to the State Disciplinary also be approved by the Georgia Bar Board Office of the General Counsel Foundation and agree to offer IOLTA whenever any properly payable instru- accounts in compliance with the addi- ment is presented against a lawyer trust tional requirements set out in Part XV account containing insufficient funds, of the Rules of the State Bar of Georgia. and the instrument is not honored. The agreement shall apply to all branches ii. The State Disciplinary Board Georgia Bar of the financial institution and shall not Foundation shall establish procedures for a be canceled except upon thirty days lawyer or law firm to be excused from may notice in writing to the State Disciplinary waive the requirements provisions of this Board Office of the General Counsel. Rule in whole or in part if the lawyer or The agreement shall be filed with the law firm has its principal office in a county Office of the General Counsel on a form where no bank, credit union, or savings approved by the Investigative Panel and loan association will agree to comply of the State Disciplinary Board. The with the provisions of this Rule for good agreement shall provide that all reports cause shown. A lawyer or law firm may made by the financial institution shall appeal the decision of the Georgia Bar be in writing and shall include the same Foundation by application to the Supreme information customarily forwarded to Court of Georgia. the depositor when an instrument is pre-

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April 2014 83 2. Timing of Reports: Comment

i. The financial institution shall file a report with [1] Each financial institution wishing to be approved the Office of the General Counsel of the State as a depository of client trust funds must file an over- Bar of Georgia in every instance where a prop- draft notification agreement with the State Disciplinary erly payable instrument is presented against Board Office of the General Counsel of the State Bar a lawyer trust account containing insufficient of Georgia. The State Bar of Georgia will publish a list funds and said instrument is not honored of approved institutions at least annually. within three business days of presentation. [2] The overdraft agreement requires that all overdrafts be ii. The report shall be filed with the Office of the reported to the Office of the General Counsel of the State General Counsel within fifteen days of the Bar of Georgia whether or not the instrument is honored. date of the presentation of the instrument, It is improper for a lawyer to accept “overdraft privileges” even if the instrument is subsequently hon- or any other arrangement for a personal loan on a client ored after the three business days provided trust account, particularly in exchange for the institution’s in (2)(i) above the preceding paragraph. promise to delay or not to report an overdraft. The institution must notify the Office of the General Counsel of 3. Nothing shall preclude a financial institution all overdrafts even where the institution is certain that its from charging a particular lawyer or law firm own error caused the overdraft or that the matter could for the reasonable cost of producing the reports have been resolved between the institution and the lawyer and records required by this Rule. within a reasonable period of time.

4. Every lawyer and law firm maintaining a trust [3] The overdraft notification provision is not intended account as provided by these Rules is hereby to result in the discipline of every lawyer who over- and shall be conclusively deemed to have draws a trust account. The lawyer or institution may consented to the reporting and production explain occasional errors. The provision merely intends requirements mandated by this Rule and shall that the Office of the General Counsel receive an early indemnify and hold harmless each financial warning of improprieties so that corrective action, institution for its compliance with the aforesaid including audits for cause, may be taken. reporting and production requirements. Waiver d. Effect on Financial Institution of Compliance: The agreement by a financial institution to [4] A lawyer may seek to have the provisions of this offer accounts pursuant to this Rule shall be Rule waived if the lawyer or law firm has its princi- a procedure to advise the State Disciplinary pal office in a county where no bank, credit union, or Board of conduct by attorneys lawyers and savings and loan association will agree or has agreed shall not be deemed to create a duty to exer- to comply with the provision of this Rule. Other cise a standard of care or a contract with third grounds for requesting a waiver may include signifi- parties that may sustain a loss as a result of cant financial or business harm to the lawyer or law lawyers overdrawing attorney trust accounts. firm, such as where the unapproved bank is a client of the lawyer or law firm or where the lawyer serves on e. Availability of Records: A lawyer shall not the board of the unapproved bank. fail to produce any of the records required to be maintained by these Standards Rules [5] The request for a waiver should be in writing, sent at the request of the Investigative Panel of to the Georgia Bar Foundation, and should include the State Disciplinary Board or the Supreme sufficient information to establish good cause for the Court. This obligation shall be in addition to requested waiver. and not in lieu of the procedures contained in Part IV of these Rules for the production [6] The Georgia Bar Foundation may request addi- of documents and evidence. tional information from the lawyer or law firm if necessary to determine good cause. f. Audit for Cause: A lawyer shall not fail to submit to an Audit for Cause conducted by Audits the State Disciplinary Board pursuant to Bar Rule 4-111. [4 7] Every lawyer’s financial records and trust account records are required records and therefore are prop- The maximum penalty for a violation of this Rule is erly subject to audit for cause. The audit provisions disbarment. are intended to uncover errors and omissions before

84 Georgia Bar Journal the public is harmed, to deter those lawyers who may drawn thereon, as a “Business Account,” a be tempted to misuse client’s funds and to educate “Professional Account,” an “Office Account,” and instruct lawyers as to proper trust accounting a “General Account,” a “Payroll Account,” methods. Although the auditors will be employed by “Operating Account” or a “Regular Account.” the Office of the General Counsel of the State Bar of Georgia, it is intended that disciplinary proceedings 3. Nothing in this Rule shall prohibit a lawyer will be brought only when the auditors have reason- from using any additional description or des- able cause to believe discrepancies or irregularities ignation for a specific business or trust account exist. Otherwise, the auditors should only educate including fiduciary accounts maintained by the the lawyer and the lawyer’s staff as to proper trust lawyer as executor, guardian, trustee, receiver, accounting methods. agent or in any other fiduciary capacity.

[5 8] An audit for cause may be conducted at any time c. Procedure: and without advance notice if the Office of the General Counsel receives sufficient evidence that a lawyer poses 1. Approved Institutions: a threat of harm to clients or the public. The Office of the General Counsel must have the written approval i. A lawyer shall maintain his or her trust of the Chairman of the Investigative Panel of the State account only in a financial institution Disciplinary Board and the President-elect of the State approved by the State Bar of Georgia, which Bar of Georgia to conduct an audit for cause. shall annually publish a list of approved institutions. If the proposed amendments to the Rule are adopted, the amended Rule 1.15(III), Record Keeping; Trust Account A. Such institutions shall be located within Overdraft Notification; Examination of Records, would the State of Georgia, within the state read as follows: where the lawyer’s office is located, or elsewhere with the written consent and RULE 1.15(III) RECORD KEEPING; TRUST at the written request of the client or ACCOUNT OVERDRAFT NOTIFICATION; third person. The institution shall be EXAMINATION OF RECORDS authorized by federal or state law to do business in the jurisdiction where a. Required Bank Accounts: Every lawyer who prac- located and shall be federally insured. tices law in Georgia and who receives money or A financial institution shall be approved other property on behalf of a client or in any other as a depository for lawyer trust accounts fiduciary capacity shall maintain, in an approved if it abides by an agreement to report financial institution as defined by this Rule, a trust to the Office of the General Counsel account or accounts, separate from any business whenever any properly payable instru- and personal accounts. Funds received by the law- ment is presented against a lawyer trust yer on behalf of a client or in any other fiduciary account containing insufficient funds, capacity shall be deposited into this account. The and the instrument is not honored. The financial institution shall be in Georgia or in the agreement shall apply to all branches of state where the lawyer’s office is located, or else- the financial institution and shall not be where with the written consent and at the written canceled except upon thirty days notice request of the client or third person. in writing to the Office of the General Counsel. The agreement shall be filed b. Description of Accounts: with the Office of the General Counsel on a form approved by the Investigative 1. A lawyer shall designate all trust accounts, Panel of the State Disciplinary Board. whether general or specific, as well as all The agreement shall provide that all deposit slips and checks drawn thereon, as an reports made by the financial institution “Attorney Trust Account,” “Attorney Escrow shall be in writing and shall include the Account,” “IOLTA Account” or “Attorney same information customarily forward- Fiduciary Account.” The name of the attorney ed to the depositor when an instrument or law firm responsible for the account shall is presented against insufficient funds. also appear on all deposit slips and checks If the financial institution is located out- drawn thereon. side of the State of Georgia, it shall also agree in writing to honor any properly 2. A lawyer shall designate all business accounts, issued State Bar of Georgia subpoena. as well as all deposit slips and all checks

April 2014 85 B. In addition to the requirements above, e. Availability of Records: A lawyer shall not the financial institution must also be fail to produce any of the records required approved by the Georgia Bar Foundation to be maintained by these Rules at the and agree to offer IOLTA accounts in request of the Investigative Panel of the compliance with the additional require- State Disciplinary Board or the Supreme ments set out in Part XV of the Rules of Court. This obligation shall be in addition to the State Bar of Georgia. and not in lieu of the procedures contained in Part IV of these Rules for the production ii. The Georgia Bar Foundation may waive the of documents and evidence. provisions of this Rule in whole or in part for good cause shown. A lawyer or law firm f. Audit for Cause: A lawyer shall not fail to may appeal the decision of the Georgia Bar submit to an Audit for Cause conducted by Foundation by application to the Supreme the State Disciplinary Board pursuant to Bar Court of Georgia. Rule 4-111.

2. Timing of Reports: The maximum penalty for a violation of this Rule is disbarment. i. The financial institution shall file a report with the Office of the General Counsel of the Comment State Bar of Georgia in every instance where a properly payable instrument is presented [1] Each financial institution wishing to be approved as against a lawyer trust account containing a depository of client trust funds must file an overdraft insufficient funds and said instrument is notification agreement with the Office of the General not honored within three business days of Counsel of the State Bar of Georgia. The State Bar of presentation. Georgia will publish a list of approved institutions at least annually. ii. The report shall be filed with the Office of the General Counsel within fifteen days of [2] The overdraft agreement requires that all overdrafts the date of the presentation of the instru- be reported to the Office of the General Counsel of ment, even if the instrument is subsequently the State Bar of Georgia whether or not the instru- honored after the three business days pro- ment is honored. It is improper for a lawyer to accept vided in the preceding paragraph. “overdraft privileges” or any other arrangement for a personal loan on a client trust account, particularly 3. Nothing shall preclude a financial institution in exchange for the institution’s promise to delay or from charging a particular lawyer or law firm not to report an overdraft. The institution must notify for the reasonable cost of producing the reports the Office of the General Counsel of all overdrafts and records required by this Rule. even where the institution is certain that its own error caused the overdraft or that the matter could have been 4. Every lawyer and law firm maintaining a trust resolved between the institution and the lawyer within account as provided by these Rules is hereby a reasonable period of time. and shall be conclusively deemed to have consented to the reporting and production [3] The overdraft notification provision is not intended requirements mandated by this Rule and shall to result in the discipline of every lawyer who over- indemnify and hold harmless each financial draws a trust account. The lawyer or institution may institution for its compliance with the aforesaid explain occasional errors. The provision merely intends reporting and production requirements. that the Office of the General Counsel receive an early warning of improprieties so that corrective action, d. Effect on Financial Institution of Compliance: including audits for cause, may be taken. The agreement by a financial institution to offer accounts pursuant to this Rule Waiver shall be a procedure to advise the State Disciplinary Board of conduct by lawyers [4] A lawyer may seek to have the provisions of this and shall not be deemed to create a duty Rule waived if the lawyer or law firm has its principal to exercise a standard of care or a contract office in a county where no bank, credit union, or sav- with third parties that may sustain a loss ings and loan association will agree or has agreed to as a result of lawyers overdrawing attorney comply with the provision of this Rule. Other grounds trust accounts. for requesting a waiver may include significant financial or business harm to the lawyer or law firm, such as

86 Georgia Bar Journal where the unapproved bank is a client of the lawyer or legal services for the poor, to improve the administra- law firm or where the lawyer serves on the board of the tion of justice, to provide legal education to Georgia’s unapproved bank. children, to provide educational programs for adults in order to advance understanding of democracy and our [5] The request for a waiver should be in writing, sent system of government, to aid children involved in the to the Georgia Bar Foundation, and should include justice system, and to promote professionalism in the sufficient information to establish good cause for the practice of law. requested waiver. Chapter 1 [6] The Georgia Bar Foundation may request additional IOLTA ACCOUNTS information from the lawyer or law firm if necessary to determine good cause. Rule 15-101. Bank Accounts.

Audits (a) Every lawyer who practices law in Georgia, whether as a sole practitioner or as a member of a firm, [7] Every lawyer’s financial records and trust account association or professional corporation, who receives records are required records and therefore are prop- money or other property on behalf of a client or in any erly subject to audit for cause. The audit provisions are other fiduciary capacity, shall maintain or have avail- intended to uncover errors and omissions before the able an interest-bearing trust account or accounts. public is harmed, to deter those lawyers who may be tempted to misuse client’s funds and to educate and (b) An “IOLTA Account” is a trust account benefiting instruct lawyers as to proper trust accounting methods. the Foundation. The interest generated by an IOLTA Although the auditors will be employed by the Office Account shall be paid to the Georgia Bar Foundation, of the General Counsel of the State Bar of Georgia, it is Inc. as hereinafter provided. intended that disciplinary proceedings will be brought only when the auditors have reasonable cause to Rule 15-102. Definitions. believe discrepancies or irregularities exist. Otherwise, the auditors should only educate the lawyer and the (a) An “IOLTA Account” means a trust account ben- lawyer’s staff as to proper trust accounting methods. efiting the Foundation, established in an approved institution for the deposit of pooled nominal or [8] An audit for cause may be conducted at any time short-term funds of clients or third persons, and and without advance notice if the Office of the General meeting the requirements of the Foundation as fur- Counsel receives sufficient evidence that a lawyer ther detailed below. The account product may be an poses a threat of harm to clients or the public. The interest-bearing checking account; a money market Office of the General Counsel must have the written account with, or tied to, check writing; a sweep approval of the Chairman of the Investigative Panel of account, portions of which are regularly moved into the State Disciplinary Board and the President-elect of a government money market fund or daily overnight the State Bar of Georgia to conduct an audit for cause. financial institution repurchase agreement invested solely in, or fully collateralized by, United States IV. government securities; or an open-end money market fund solely invested in, or fully collateralized by, Proposed New Part XV to the Rules of United States government securities. The State Bar of Georgia (1) “Nominal or short-term” describes funds of a The State Bar of Georgia proposes that a new Part client or third person that the lawyer has deter- XV, providing Rules for the Georgia Bar Foundation, be mined cannot provide a positive net return to the added to the Rules of the State Bar. The proposed new client or third person. Part XV would read as follows: (2) “Open-end money market fund” is a fund that PART XV identifies itself as a money market fund as defined by applicable federal statutes and regulations GEORGIA BAR FOUNDATION under the Investment Company Act of 1940 and, at Preamble the time of the investment, having total assets of at least $250,000,000. The Georgia Bar Foundation (“the Foundation”) is a 501(c)(3) organization named by the Supreme Court of (3) “United States government securities” are Georgia in 1983 to receive and distribute Interest On United States Treasury obligations and obligations Lawyer Trust Account (“IOLTA”) funds to support issued or guaranteed as to principal and interest by

April 2014 87 the United States or any agency or instrumentality (a) not less than the highest interest rate or dividend thereof. generally available from the approved institution to its non-IOLTA customers for each IOLTA Account (b) An “approved institution” is a bank or savings that meets the same minimum balance or other eligi- and loan association which is an approved institution bility qualifications, if any. In determining the high- as defined in Rule 1.15(III)(c)(1) and which voluntari- est interest rate or dividend generally available from ly chooses to offer IOLTA accounts consistent with the institution to its non-IOLTA customers, the insti- the additional requirements of this Rule, including: tution may consider factors, in addition to the IOLTA Account balance, customarily considered by the (1) to remit to the Foundation interest or dividends, institution when setting interest rates or dividends net of any allowable reasonable fees on the IOLTA for its customers if such factors do not discriminate Account, on the average monthly balance in that between IOLTA Accounts and accounts of non-IOL- account, at least quarterly. Any allowable reasonable TA customers. The institution also shall consider all fees in excess of the interest earned on that account product option types that it offers to its non-IOLTA for any month, and any fees or charges that are not customers, as noted at Rule 15-102(a), for an IOLTA allowable reasonable fees, shall be charged to the Account by either establishing the applicable prod- lawyer or law firm in whose names such account uct as an IOLTA Account or paying the comparable appears, if not waived by the approved institution. interest rate or dividend on the IOLTA Account in lieu of actually establishing the comparable highest (2) to transmit with each remittance to the interest rate or dividend product; or Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent, (b) alternatively, if an approved institution so chooses, the applicable IOLTA Account number, the rate a rate equal to the greater of (A) 0.65% per annum or (B) of interest applied, the average monthly account a benchmark interest rate, net of allowable reasonable balance against which the interest rate is applied, fees, set by the Foundation, which shall be expressed the gross interest earned, the types and amounts of as a percentage (an “index”) of the federal funds target service charges or fees applied, and the amount of rate, as established from time to time by the Federal the net interest remittance. Reserve Board. In order to maintain an overall comparable rate, the Foundation will periodically, but not (3) to transmit to the depositing lawyer or law firm less than annually, publish its index. The index shall periodic reports or statements in accordance with initially be 65% of the federal funds target rate. the approved institution’s normal procedures for reporting to depositors. (c) Approved institutions may choose to pay rates higher than comparable rates discussed above. (4) to pay comparable interest rates on IOLTA Accounts, as defined below at Rule 15-103. Chapter 2 INTERNAL RULES (c) “Allowable reasonable fees” for IOLTA accounts are per check charges, per deposit charges, a fee in Rule 15-201. Management and Disbursement of lieu of a minimum balance, Federal deposit insurance IOLTA Funds; Internal Procedures of Foundation fees, and sweep fees. (“Allowable reasonable fees” do not include check printing charges, NSF charges, over- (a) Mandatory Grants. The Georgia Bar Foundation, draft interest charges, account reconciliation charges, Inc. (the “Foundation”), which is the charitable arm stop payment charges, wire transfer fees, and courier of the Supreme Court of Georgia, is the named recipi- fees. Such listing of excluded fees is not intended to ent of IOLTA funds. The Foundation shall pay to the be all inclusive.) All other fees are the responsibility Georgia Civil Justice Foundation (“GCJF”) a grant of of, and may be charged to, the lawyer maintaining the ten percent (10%) of all IOLTA revenues received, less IOLTA account. Fees or charges in excess of the earn- administrative costs, during the immediately preced- ings accrued on the account for any month or quarter ing calendar quarter. GCJF must maintain its tax- shall not be taken from earnings accrued on other exempt charitable/educational status under Sections IOLTA accounts. Approved financial institutions may 115 and 170(C)(1) or under Section 501(c)(3) of the elect to waive any or all fees on IOLTA accounts. Internal Revenue Code, and the purposes and activities of the organization must remain consistent with Rule 15-103. IOLTA Accounts; Interest Rates the exempt purposes of the Foundation. If GCJF is determined either by the Internal Revenue Service or On any IOLTA Account, the rate of interest payable by the Georgia Department of Revenue to be a tax- shall be: able entity at any time, or its purposes and activities become inconsistent with the exempt purposes of the

88 Georgia Bar Journal Foundation, then the Foundation shall retain all IOLTA (e) Report to the Office of the General Counsel. The funds which would have been granted to GCJF. Foundation will provide the Office of the General Counsel with a list of approved financial institutions (b) Reporting by Organizations. As a condition to which have agreed to abide by the requirements of continued receipt of IOLTA funds, the Foundation this Part XV of the Rules of the State Bar of Georgia. and GCJF shall each present a report of its activities Such list will be updated with such additions and including an audit of its finances to the Supreme deletions as necessary to maintain its accuracy. Court of Georgia annually. GCJF shall also send to the Foundation a copy of its annual report and audit.

(c) Discretionary Grants. The Foundation shall devel- SO MOVED, this ______day of ______, 2014 op procedures for regularly soliciting, evaluating, and funding grant applications from worthy law- Counsel for the State Bar of Georgia related organizations that seek to provide civil legal assistance to needful Georgians, to improve the ______working and the efficiency of the judicial system, Robert E. McCormack to provide legal education to Georgia’s children, to Deputy General Counsel provide assistance to children who are involved with State Bar No. 485375 the legal system, to provide educational programs for adults intended to promote a better understanding OFFICE OF THE GENERAL COUNSEL of our democratic system of government, or to foster State Bar of Georgia professionalism in the practice of law. 104 Marietta Street, NW – Suite 100 Atlanta, Georgia 30303 (d) IOLTA Account Confidentiality. The Foundation (404) 527-8720 will protect the confidentiality of information regarding a lawyer’s or law firm’s trust account obtained in the course of managing IOLTA operations.

Notice of and Opportunity for Comment on Amendments to the Rules of the U.S. Court of Appeals for the Eleventh Circuit Pursuant to 28 U.S.C. § 2071(b), notice and opportu- website at www.ca11.uscourts.gov. A copy may also nity for comment is hereby given of proposed amend- be obtained without charge from the Office of the ments to the Rules of the U.S. Court of Appeals for the Clerk, U.S. Court of Appeals for the Eleventh Circuit, Eleventh Circuit. 56 Forsyth St. NW, Atlanta, Georgia 30303 [phone: 404- 335-6100]. Comments on the proposed amendments A copy of the proposed amendments may be may be submitted in writing to the Clerk at the above obtained on and after April 1, 2014, from the court’s address by May 2, 2014.

Proposed Amendments to Uniform Superior Court Rules 4 and 24 At its business meeting on Jan. 23, 2014, the Council Should you have any comments on the proposed of Superior Court Judges approved proposed amend- changes, please submit them in writing to the Council ments to Uniform Superior Court Rules 4 and 24. A of Superior Court Judges at 18 Capitol Square, Suite copy of the proposed amendments may be found at the 104, Atlanta, Georgia 30334, or fax them to 404-651- Council’s website at www.cscj.org. 8626. To be considered, comments must be received by Monday, July 14, 2014.

April 2014 89 iBOEKVTUJDFGPSBMMu 4UBUF#BS$BNQBJHOGPSUIF(FPSHJB-FHBM4FSWJDFT1SPHSBN *OD

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

OFFICE SPACE AVAILABLE at small, Buckhead firm. One exterior, one interior office, perfect for an attorney & paralegal. $1,800 monthly. Includes reception area, conference room, telephones, internet, copier, fax, kitchen. Located atop the Lenox MARTA station. Easy access to Georgia 400, I-85 and I-75. Respond only to [email protected].

Shared conference room in Midtown Atlanta law firm. $250/month. Receptionist, phone/internet, mail, copy/print, parking optional w/additional fees. Attorney would like to split usage of a second floor 225 sq. ft. Conference room with two attorneys. Overlooks Midtown office towers and Atlantic Station. Call 404- 766-8002 or email [email protected].

OFFICE SPACE—Class A office space for one or two attorneys, window offices with two other lawyers in Park Central building, 2970 Clairmont Road, near I-85. Includes conference room, phone/internet, copy/fax/scan, secretarial space, $1,200 to $1,500 per Attention all Local and month. Call Salu Kunnatha at 404-633-4200 or email: [email protected]. Voluntary Bars in Georgia, it’s time to submit your entries Boutique Family Law Firm seeking legal secretary. Duties would include reception, filing, scheduling, to be recognized for all your secretarial work and occasional paralegal work. 1+ hard work! The deadline for year of legal experience required, family law experience a plus. Located in Buckhead. Contact Lesley@ entry this year is May 9, 2014. kegelmcburney.com. Office available in South Fulton. Prestigious Visit www.gabar.org for Promenade Park building off Cascade Road (Exit 7, near airport). Free parking, internet, conference room categories and entry forms. usage, phone and e-fax. Secretarial services available at Or contact Stephanie Wilson reasonable cost. $600/month. Also, virtual offices with mailbox, phone, e-fax and conference room usage for at [email protected] $150/month. Call Robert at 404-549-6773. or 404-527-8792.

April 2014 91 Classified Resources

Prime Buckhead Peachtree Offices for Rent—Brand Position Available: Well-established five-person new, award-winning, high tech Class A offices on glass Northeast Georgia firm seeks associate with 2 – 8 years’ in new Peachtree Tower. Client wow factor Peachtree experience in business/real estate/estate matters. Short views. Concierge service, valet parking, three restau- partnership track. Compensation commensurate with rants, across from Phipps Plaza. Support staff. Share experience. Send resumes to [email protected]. with other former big firm lawyers. Referral work opportunities. Contact: [email protected]. SE LITIGATION FIRM SEEKING LAWYER (St. Simons Island, Georgia) – Full service AV-rated law Practice Assistance firm seeking attorney with litigation experience to Handwriting Expert/Forensic Document Examiner. handle and assist in a wide array of matters. Insurance Certified by the American Board of Forensic Document defense/coverage experience a plus. Candidates Examiners. Former Chief, Questioned Documents, should be self-starters. Exceptional research, writing U.S. Army Crime Laboratory. Member, American and computer skills are musts. Please submit writing Society of Questioned Document Examiners and sample and references with response. Send informa- American Academy of Forensic Sciences. Farrell tion to: [email protected]. Shiver, Shiver & Nelson Document Investigation Laboratory, 1903 Lilac Ridge Drive, Woodstock, GA Miscelleaneous 30189, 770-517-6008. EstatePlanningCareers.com. Are you too tired of working too hard, not making enough money and Forensic Accounting: Owner disputes, analysis of trans- being too tired or too broke to have the time to enjoy actions, commercial insurance claims, fraud investiga- life? The best, most effective way to break into— tions, bankruptcy and troubled businesses, business liti- and succeed—in the legal industry’s most rewarding gation, estate and trust matters, ADR. Greg DeFoor, CPA, sector: www.EstatePlanningCareers.com. CFE | 678-644-5983 | [email protected].

Korean Court Interpreter. Licensed by GA Commission on Interpreters. Extensive experience in depositions, trials, and other proceedings both civil and criminal. The only licensed Korean Court Interpreter in Georgia as of this month’s issue of the Advertisers Index Georgia Bar Journal. Call Accurate Language Services @ ABA Retirement Funds ...... 9 770-827-8820 and ask for Jason Lee (GA Commission on Interpreters, License No. CA-01065). Arthur T. Anthony ...... 31 Keenan’s Kids Foundation ...... 33 New York & New Jersey Transactions and Litigation. Member Benefits, Inc...... 53 Georgia bar member practicing in Manhattan and New Jersey can help you with your corporate trans- Mercer Health and Benefits Administration LLC .....13 actions and litigation in state and federal courts. Mitchell Kaye ...... 55 Contact E. David Smith, Esq., 570 Lexington Avenue, Norwitch Document Laboratory ...... 71 23rd Floor, New York, New York 10022; 212-661-7010; [email protected]. ProAssurance LawyerCare ...... 15 Position Wanted Rhett Turner ...... 67 SoftPro Corporation ...... 5 Personal Injury Attorney—Well-established, successful Atlanta plaintiff’s firm seeking personal injury Stetson University ...... 35 attorney. Excellent financial opportunity. Collegial, Thomson Reuters ...... BC professional environment. Great support. Send resume Warren R. Hinds, P.C...... 55 to: GBJ at [email protected].

92 Georgia Bar Journal 2014 State Bar of Georgia Annual Meeting June 5-8 | Amelia Island, Fla.

Early Bird Cut-off Date | May 9 Hotel Cut-off Date | May 9 Final Cut-off Date | May 23

Meeting Highlights Include: Opening Night Festival CLE Opportunities Presidential Inaugural Dinner Social Events Family Activities Register Online Exhibits www.gabar.org

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