Maintaining Judicial Independence in Drug Courts

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June 2008 Volume 13 Number 7

GBJ Legals 42 14 Law Day Rules 14 Maintaining Judicial in Glynn County! Independence in Drug Courts by Linda T. Muir by Hon. Jeffrey S. Bagley GBJ Fiction GBJ Features 46 22 The Dark Part of the Road State Bar Celebrates Successful by Lisa Siegal 2008 General Assembly by Mark Middleton Departments 4 From the President 26 6 From the Executive Director 22 17th Annual Georgia Bar Media & Judiciary Conference 10 From the YLD President by Stephanie J. Wilson 56 Bench & Bar 32 62 Office of the General 28 Counsel Vladivostok Memories by Nicholas A. Lotito 64 Lawyer Discipline 68 Law Practice Management 32 70 South Georgia Office The Monroe County Pro Bono Honor Roll Courthouse at Forsyth: 72 The Grand Old Courthouses 76 Section News of Georgia 78 Casemaker by Wilber W. Caldwell 80 Writing Matters 34 82 Professionalism Page 2007 Annual Review of Case 86 In Memoriam 38 Law Developments Georgia 88 CLE Calendar Corporate and Business 92 Notices Organization Law 95 Classified Resources by Thomas S. Richey 46 96 Advertisers Index 38 What’s in Your Client’s Employee Handbook? A Guide to Ensuring Compliance with Georgia Law by Gina M. Cook 06-08gbj.qxp 5/22/2008 12:40 PM Page 2 State Bar of Georgia We’re here for you! Law Practice Management Program The Law Practice Management Program is a member service to help all Georgia lawyers and their employees put together the pieces of the office management puzzle. Whether you need advice on new computers or copiers, personnel issues, compensation, workflow, file organization, tickler systems, library materials or software, we have the resources and training to assist you. Feel free to browse our online forms and article collections, check out a book or videotape from our library, or learn more about our on-site management consultations and training sessions, 404-527-8772. Consumer Assistance Program The Consumer Assistance Program has a dual purpose: assistance to the public and attorneys. CAP responds to inquiries from the public regarding State Bar members and assists the public through informal methods to resolve inquiries which may involve minor violations of disciplinary standards by attorneys. Assistance to attorneys is of equal is importance: CAP assists attorneys as much as possible with referrals, educational materials, sugges- help onlya tions, solutions, advice and preventive information to help the attorney with consumer matters. The program pledges its best efforts to assist attorneys in making the practice of law more efficient, ethical and professional in nature, 404-527-8759. Lawyer Assistance Program call, This free program provides confidential assistance to Bar members whose personal problems may be interfering with their ability to practice law. Such or problems include stress, chemical dependency, fam- click ily problems, and mental or emotional impairment, 800-327-9631. Fee Arbitration The Fee Arbitration program is a service to the gen- e-mail eral public and lawyers of Georgia. It provides a convenient mechanism for the resolution of fee disputes between attorneys and clients. The actual arbitration is a hearing conducted by two experi- away. enced attorneys and one non-lawyer citizen. Like judges, they hear the arguments on both sides and decide the outcome of the dispute. Arbitration is impartial and usually less expensive than going to court, 404-527-8750.

404-527-8700 ■ 800-334-6865 ■ www.gabar.org 06-08gbj.qxp 5/22/2008 12:40 PM Page 3

Editorial Board Quick Dial Donald P. Boyle Jr. Attorney Discipline 800-334-6865 ext. 720 Editor-in-Chief 404-527-8720 Robert Henry Beer Felipe Manuel Nunez Consumer Assistance Program 404-527-8759 Erika Clarke Birg Olivia Orza Conference Room Reservations 404-527-8712 Fee Arbitration 404-527-8750 Clayton Owen Carmack Jason Pedigo CLE Transcripts 404-527-8710 Linda Gail Carpenter Susan Lee Rutherford Diversity Program 404-527-8754 Charles Madden Cork III Paul Gregory Sherman ETHICS Helpline 800-682-9806 Bridgette Eckerson Robert R. Stubbs 404-527-8741 Georgia Bar Foundation/IOLTA 404-588-2240 John Michael Gross Martin Enrique Valbuena Georgia Bar Journal 404-527-8736 Ann A. Hammenecker Kristin H. West Lawyer Assistance Program 800-327-9631 Jennifer Carpenter Kane Pamela Y. White-Colbert Lawyers Foundation of Georgia 404-659-6867 Law Practice Management 404-527-8773 Ronald Arthur Lowry Gerry Lee Williams Law-Related Education 404-527-8785 Diane Marger Moore Membership Records 404-527-8777 Meetings Information 404-527-8790 Executive Committee Liaison Pro Bono Project 404-527-8763 Jonathan A. Pope Professionalism 404-225-5040 Sections 404-527-8774 Advisor Unlicensed Practice of Law 404-526-8603 Marcus D. Liner Young Lawyers Division 404-527-8778

Editors Emeritus Manuscript Submissions Marcus D. Liner, 04-07 Charles R. Adams III, 89-91 The Georgia Bar Journal welcomes the submission of unsolicited legal manuscripts on topics of interest to the Rebecca Ann Hoelting, 02-04 L. Dale Owens, 87-89 State Bar of Georgia or written by members of the State Marisa Anne Pagnattaro, 01-02 Donna G. Barwick, 86-87 Bar of Georgia. Submissions should be 10 to 12 pages, double-spaced (including endnotes) and on letter-size D. Scott Murray, 00-01 James C. Gaulden Jr., 85-86 paper. Citations should conform to A UNIFORM SYSTEM OF CITATION (18th ed. 2005). Please address unsolicited William Wall Sapp, 99-00 Jerry B. Blackstock, 84-85 articles to: Donald P. Boyle Jr., State Bar of Georgia, Theodore H. Davis Jr., 97-99 Steven M. Collins, 82-84 Communications Department, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303. Authors will be notified of the L. Brett Lockwood, 95-97 Walter M. Grant, 79-82 Editorial Board’s decision regarding publication. Stephanie B. Manis, 93-95 Stephen E. Raville, 77-79 The Georgia Bar Journal welcomes the submission of news William L. Bost Jr., 91-93 about local and circuit bar association happenings, Bar members, law firms and topics of interest to attorneys in Georgia. Please send news releases and other information Officers of the State Bar of Georgia to: Sarah I. Coole, Director of Communications, 104 Gerald M. Edenfield President Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: 404-527-8791; [email protected]. Jeffrey O. Bramlett President-Elect Jay Cook Immediate Past President Disabilities If you have a disability which requires printed S. Lester Tate III Treasurer materials in alternate formats, please contact the ADA Bryan M. Cavan Secretary coordinator at 404-527-8700 or 800-334-6865. Elena Kaplan YLD President Headquarters Josh Bell YLD President-Elect 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 Jonathan A. Pope YLD Past President 800-334-6865, 404-527-8700, FAX 404-527-8717 Visit us on the Internet at www.gabar.org. Communications Committee South Georgia Office Nancy Jean Whaley Chairperson 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Communications Staff 800-330-0446, 229-387-0446, FAX 229-382-7435 Sarah I. Coole Director Publisher’s Statement Jennifer R. Mason Assistant Director The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (February, April, June, August, October, Derrick W. Stanley Section Liaison December) with a special issue in November by the State Stephanie J. Wilson Administrative Assistant Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. ©State Bar of Georgia 2008. 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 mailing offices. Opinions and conclusions expressed The opinions expressed in the Georgia Bar Journal in articles herein are those of the authors and not necessar- are those of the authors. The views expressed herein ily those of the Editorial Board, Communications Committee, Officers or Board of Governors of the State Bar are not necessarily those of the State Bar of Georgia, of Georgia. Advertising rate card will be furnished upon its Board of Governors or its Executive Committee. request. Publishing of an advertisement does not imply endorsement of any product or service offered. POSTMAS- TER: Send address changes to same address. 06-08gbj.qxp 5/22/2008 12:40 PM Page 4

From the President

by Gerald M. Edenfield photo by www.lorigrice.com Judicial Pay Legislation: A True Team Effort

wenty-three minutes before midnight on and Supreme Court judges, including salary stagnation at the state level. April 4, the final day of the 2008 session of the Chaired by Larry Walker, a Perry lawyer and former state House Majority Leader, this blue-ribbon commis- Georgia General Assembly, the Senate gave sion’s findings uncovered an alarming disparity between T judicial compensation in Georgia and that offered in pri- final passage to legislation that calls for the first sub- vate law practice. Among other revelations, it was learned that first-year associates in some of the major stantial salary increase for judges in our state in nine Atlanta law firms were paid more than the base salary of our Superior Court judges and not much less than the years. Unfortunately, on May 14, just before this edition chief justice of the Supreme Court. Other than small cost of liv- of the Georgia Bar Journal went ing adjustments, Georgia judi- “Because of your efforts, our cial salaries had not been to press, Gov. Sonny Perdue increased since 1999. During lawmakers received literally that time, income for lawyers in vetoed the legislation. private practice continued to thousands of e-mails from grow significantly. Judges We are extremely disap- began leaving the bench before pointed by the governor’s veto around the state.” retirement for greener pastures of House Bill 119, which would in the private sector. To address have raised the salaries of the widening compensation Georgia’s judges and district attorneys by a modest 5 gap and enable the state to continue attracting and percent. But our success in the legislature, where the retaining the best and brightest legal minds to judicial bill passed by overwhelming margins in both the service, the commission recommended a 20 percent House and Senate, is the result of a monumental, two- across-the-board pay increase. year effort as a top item on the State Bar’s legislative During the term of my predecessor, Jay Cook, the agenda for 2007 and 2008. It is also a testament as to Board of Governors took an official position in support what can be accomplished through teamwork and of the commission’s recommendation, and the Bar bringing people together. undertook an intense lobbying effort at the State Capitol. The process actually began in 2006, when the Bar’s Rep. Wendall Willard (R-Atlanta), chairman of the Commission on Judicial Service completed a compre- House Judiciary Committee, introduced HB 119, which hensive study of a number of issues involving the work proposed the 20 percent increase in the early part of the of our Superior Court judges, Court of Appeals judges 2007 legislative session. The House soon passed a reduced

4 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:40 PM Page 5

version (10 percent for Superior the session. It was well attended by but this is my final president’s page Court judges and 5 percent for lawmakers and judges and provid- commentary for 2007-08. It has appellate judges), but the measure ed an opportunity for the one-on- been a wonderful year and a very was not taken up in the Senate one communication and relation- interesting one as well. A full report before the 2007 session adjourned. ship-building that will help shape on the year’s activities will be pub- Upon taking office last summer, public policy on legal issues in a lished in the August issue, with I pledged to continue to make the positive way now and in the future. appropriate acknowledgements, judicial compensation issue a top Perhaps the most crucial compo- but I would like to take a moment priority for the Bar’s legislative nent of this effort was the response right now to thank my wife Sharon advocacy program. Also since that of Bar members to our Legislative for her support and patience during time, the Bar has reached out to our Action Network e-mail alerts dur- my term as Bar president. state representatives and senators ing the 2008 session. Because of Sharon retired from her position like never before in an effort to your efforts, our lawmakers with the school system so she could enhance the working relationship received literally thousands of e- travel with me around the state, between the judicial branch of gov- mails from around the state. and I am most grateful that she did. ernment, which we represent, and Legislators will politely listen to While I spent our time on Georgia’s the legislative branch. and perhaps act when they are highways and byways, either on Also, we broadened the scope of approached by the State Bar presi- the cell phone or the laptop, Sharon support beyond the legal community dent or our lobbyists, but nothing did all the driving. We would often by enlisting some of Georgia’s most is more effective than when they travel from Statesboro to Atlanta influential business and political lead- hear directly from you, their con- without exchanging a word, and ers to join us on this issue. In stituents from back home. Thank she was most understanding of December, Georgia Chamber of you again for such a tremendous how this helped me meet the Commerce President George Israel response to our calls for action. demands of this office, along with III, former U.S. Sen. Sam Nunn, Later in the session, I testified keeping up a law practice. Georgia Republican Party General before a special Senate Appro- Speaking of my law practice, I Counsel Randy Evans, Commission priations subcommittee that was also want to thank my law partners, on Judicial Service Chairman Larry considering HB 119 and had the associates and law firm staff for car- Walker and I co-authored a letter of opportunity to share the Bar’s posi- rying the load for me during my support that appeared in a number of tion in a public forum. Chaired by extensive travel on State Bar busi- newspapers and was also sent to each Sen. Preston Smith (R-Rome), ness. I could not have fulfilled my member of the General Assembly. chairman of the Senate Judiciary obligations without their tremen- The diverse and bipartisan Committee, the panel favorably dous support the past 12 months. nature of this group sent a clear reported the legislation. On April It was about this time last year message that maintaining the quali- 2, the full Senate adopted an when we posed for a family photo- ty of our judges and judicial candi- amended version that implements graph for the Bar Journal at our dates is important to all Georgians. I a 5 percent increase for our judges farm outside Statesboro, and I have want to thank George Israel and the on July 1, 2009, following a 2.5 per- scarcely had time to set foot on the entire business community for their cent cost of living adjustment on farm since then. But Sharon and I support of the judicial pay increase. Jan. 1, 2009. The House agreed to have come to know all of the bell Working with the Bar’s legisla- those changes and also a 5 percent staff, waiters and custodial tive advocacy team led by Tom pay increase for district attorneys. crewmembers at the Omni Hotel Boller and Rusty Sewell of Capitol Despite the governor’s veto, we down the street from the Bar Partners, I was personally involved consider the legislature’s approval Center in Atlanta on a first-name in the lobbying effort before and of a 5 percent increase a positive basis! during the 2008 session. We met first step toward closing the com- Seriously, we have had an excit- with Gov. Perdue, Lt. Gov. Casey pensation gap for our judges. I am ing year, and I hope that Jeff Cagle, Speaker Glenn Richardson most appreciative to everyone who Bramlett and all who follow him as and numerous key legislators over helped see the measure through State Bar president have an equal- a period of several months in sup- the legislature and onto the gover- ly rewarding experience. I thank port of HB 119. We also visited the nor’s desk, and we will continue all of you once again for this editorial boards of several of the working on behalf of adequate opportunity! state’s major newspapers and compensation for members of our received positive coverage on the judiciary. Gerald M. Edenfield is the pay raise issue—further solidifying president of the State Bar of the message to our legislators. * * * Georgia and can be reached at The Bar sponsored a very suc- It is hard to believe how quickly [email protected]. cessful legislative luncheon early in the past year has come and gone,

June 2008 5 06-08gbj.qxp 5/22/2008 12:40 PM Page 6

From the Executive Director

by Cliff Brashier

Advantages of Being a Section Member

hat’s a better way to get to know others. For the public, sections are particularly effective in helping to pass legislation that serves the public and ers who practice the same type of law improves the delivery of legal services to all Georgians. One of the most valuable commodities for any attor- as you? Get up-to-date information ney is knowledge, and one of the best ways to provide W a constant flow of accurate and timely information is about your area of the law? Earn CLE credit by going to through CLE seminars. The Institute of Continuing Legal Education in Georgia (ICLE) is the professional luncheons and seminars education arm of the Bar. ICLE is a consortium that cover topics relevant whose Board of Trustees is “As you can see, the Bar’s sec- composed of officers of the to your practice? The Bar and the Young tions play an important role not Lawyers Division, repre- answer is to become a sentatives of Georgia’s five only in enhancing the practice of ABA accredited law member of a section of the schools and at-large mem- law in Georgia for the section bers from the Bar. State Bar of Georgia. It’s a ICLE values the relation- members, but also protecting the ship with its members and is great way to be informed, especially mindful of the rights of all Georgians.” correlative obligation it has network with your peers to the sections of the Bar. Many of ICLE’s seminars and get involved in the Bar. and institutes are co-sponsored by these sections. They look to these groups to provide leadership and to plan Currently, there are 40 sections of the Bar. These sec- seminars that deal with the most relevant subject matter tions not only provide service to the legal profession, but within their respective practice areas or areas of interest. also to the public. As a conduit for information in partic- ICLE dedicates its resources to ensure that these legal edu- ular areas of law, sections provide newsletters, programs cational events provide the highest possible quality at the and the chance to exchange ideas with other practition- lowest possible cost to Georgia attorneys.

6 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:40 PM Page 7

Steve Harper, director of programs at We asked our section chairs: ICLE, said, “It is this special and continuing relationship with the State Bar of Georgia and Georgia’s ABA accredited Personally, how has being a law schools that is one of the single most Q: section member benefited you? important factors in allowing ICLE to meet the challenge of providing high- quality seminars.” “The CLEs, which we do in con- John P. Hutchins, chair, Technology Law Section junction with ICLE, are fantastic,” said A: Being a member of the Technology Law Section has benefited me in many ways, too Jan Rosser, chair of the Creditors numerous to list. But examples of the ways it has benefited me are that it has greatly expanded my professional network, helped build my reputation in the field and provided Rights Section. “Several years ago, the a way for me to give back to the Bar through section leadership. section began seminars that focused on more advanced subjects for the more experienced practitioner. We Beth Crocker, chair, Agriculture Law Section also retain speakers who are known A: Being a section member has benefited me personally because it has increased my name recognition and other lawyers’ awareness of my specialization in agricultural legal issues. experts in particular subject matters, and of course, we always have excellent local attorneys participate.” William J. Linkous III, chair, The Real Property Law Section is Labor and Employment Law Section just one of many sections who work A: I have gained friendships, knowledge and important contacts in my area of law. with ICLE to provide seminars that their members find beneficial. They Melinda Hart, co-chair, Military/Veterans Section annually co-sponsor five seminars A: Being a section member has greatly benefited our members’ ability to network with other with ICLE: the Title Standards semi- attorneys who practice this type of law. We have held section breakfasts during the nar, the Commercial Real Estate sem- annual and semi-annual meetings of the Bar, which allow time for planning future events inar, the Residential Real Estate semi- for our section. This is a critical time for our members to have sufficient knowledge and training to be able to serve our returning heroes. nar, the Georgia Foreclosure seminar and the Real Property Law Institute. Dale C. Hetzler, chair, Dispute Resolution Section According to Edward P. Hudson, A: The greatest benefit is knowing the other professionals that are interested in the same chair of the section, “The benefit of area of practice that attracts my attention. It is a group that speaks the same language, receiving CLE credit through section- and that helps raise the profile of the profession and of the attorneys involved. sponsored seminars is that an attorney has the opportunity to hear top Jan Rosser, chair, Creditors’ Rights Section speakers on topics that are focused on A: One of the big advantages of being a member of the Creditor’s Rights Section is that the the section’s area of interest.” membership creates a resource database for discussion of all of the obscure issues that When asked what he felt like the arise and appear to have no precedent in the law. Each time I have had an issue I have found someone that has experienced a similar set of facts and has been able to help me biggest advantage of being a section resolve the matter. member was, John P. Hutchins, chair of the Technology Law Section, said, “I Martin A. Shelton, chair, Environmental Law Section think the greatest advantage of being a A: I think it has allowed me to get to know more environmental practitioners in Georgia section member is that it gives you a than I would have normally though practice. Because I do a lot of environmental place, outside of your law firm, to litigation, I often do not deal with my environmental peers on the other side, so the ‘belong’ and helps you have a profes- section is a nice way to keep in touch with other like-minded professionals. sional identity in this enormous Georgia Bar that is broader than just Ward Stone, incoming chair, Bankruptcy Law Section your own law firm.” A: Personally, I have most enjoyed the opportunity section membership has provided for meeting and working with other section members. Membership on the Board of the Sections work closely with the Bankruptcy Section is a five-year program. Those who agree to serve on the board rotate Bar’s Advisory Committee on through the positions of legislative liaison, treasurer, secretary, vice-chairman, chairman Legislation (ACL). The ACL reviews and immediate past chairman. Of course, the most coveted position is immediate past legislative recommendations generat- chairman. Each addition to the board injects fresh ideas and additional contacts, both of which I have found to be invaluable. ed from the various sections of the Bar. The Bar’s Board of Governors, in turn, debates the merits of each rec- Edward P. Hudson, chair, Real Property Law Section ommendation and decides whether A: I have personally benefited from membership in the Real Property Law Section in a number of ways. For example, I feel that I have had the opportunity to stay informed to endorse a particular measure for about the latest developments in Georgia real property law. Section membership has also inclusion in the annual legislative given me the opportunity to meet other real property attorneys throughout the state. agenda. Then, the Bar’s professional

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lobbyists create and implement a General Practice and Trial Law, Bar welcomes your participation in plan for navigating the agenda Judicial Administration and our profession through the section through the legislative process. Procedures, Appellate Practice, or sections most helpful to your “Sections are critical for our pro- Criminal Law and Elder Law sec- law practice. gram. Not only do sections gener- tions are just a few of the sections As always, your thoughts and ate most of our legislative agenda,” that work diligently with the Bar’s suggestions are welcome. My tele- said Tom Boller, legislative con- consultants and the ACL to ensure phone numbers are 800-334-6865 sultant with Capitol Partners that legislation is kept on track. (toll free), 404-527-8755 (direct Public Affairs Group, Inc., “but As you can see, the Bar’s sections dial), 404-527-8717 (fax) and 770- they review legislation introduced play an important role not only in 988-8080 (home). by others so the legislative team enhancing the practice of law in can respond to legislators. Their Georgia for the section members, Cliff Brashier is the executive expertise in developing, reviewing but also protecting the rights of all director of the State Bar of and advocating is essential.” Georgians. For a complete list of Georgia and can be reached at The Business Law, Real sections and more information, [email protected]. Property, Fiduciary, Family Law, visit www.gabar.org/sections. The Save Valuable Research Time

Casemaker is a Web-based legal research library and search engine that allows you to search and browse a variety of legal information such as codes, rules and case law through the Internet. It is an easily searchable, continually updated database of case law, statutes and regulations. Each State Bar of Georgia member may log in to Casemaker by going to the State Bar’s website at www.gabar.org. The Casemaker help line is operational Monday thru Friday, 8:30 a.m. to 5 p.m. locally at 404-527-8777 or toll free at 877-CASE-509 or 877-227-3509. Send e-mail to [email protected]. All e-mail received will receive a response within one business day.

8 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:41 PM Page 9 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. 06-08gbj.qxp 5/22/2008 12:41 PM Page 10

From the YLD President

by Elena Kaplan

Stepping Up to the Bar

came kicking and screaming into the world in crimination against women in the sale or rental of housing; state laws specifying that a husband has unilateral control June of 1971. That same year, both houses of over joint property; civic organizations limiting membership to men; and law firms discriminating on the basis of Congress, by joint resolution, designated that gender in promoting lawyers to partnership. I My parents were propo- August 26 of each year would “Because women compose a nents of the women’s rights movement and saw a future of be Women’s Equality Day, limitless opportunity for their substantial percentage of Bar daughter. They told me that I commemorating the day in could grow up to be anything I membership, it is important wanted. Encouraged by their 1920 when women were grant- confidence, as a young girl, I that Bar leadership is aware alternately stated that I wanted ed the right to vote in this coun- to be an angel (so I could of the needs and concerns of fly—I’m not sure I actually try. The president has issued a knew about the pilot option) this demographic in order or president of the United proclamation every year of my States. I recall being distinctly that they may be addressed.” annoyed with Geraldine life honoring this day. Ferraro, as not only did I want to be president, I wanted to be Throughout my childhood, women made great strides the first female president—and she was working to pre- towards equality. The movement was aided by Congress vent me from reaching that goal! enacting non-discrimination laws regarding employment I think my parents, like many people during the early and education, and the Supreme Court applying those 1970s, believed that complete equality between men laws in a variety of situations. The collective efforts of and women was just around the corner. Fifteen, twen- many resulted in the elimination of a variety of discrimi- ty-years max, and women would be on par with men in natory practices, such as: employers refusing to hire preg- all respects in our society. Thirty-seven years later, we nant women or women with young children; help wanted have moved mountains; but we can’t truly say that ads specifying the required gender of applicants; women women and men are on par in all respects. being excluded from juries; unemployment benefits being The mountains we have moved resulted in my not denied to women in their last trimester of pregnancy; dis- experiencing discrimination in school admission or

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seeking employment. My law in-state members who are over 36; seats on the Board in order for the school class was almost 60 percent 27.67 percent of them, or 5,488, are Board to be representative of the female. The junior associate ranks women. So while women comprise membership would continue to of the firms for which I have 27.67 percent of the members who increase. worked have had large female would tend to run for Board seats, populations. I have been but one of they only comprise 14.6 percent of State Bar Executive many active women in our own Board members. Full representa- Committee Young Lawyers Division, which tion (at least of the demographic boasts great diversity at all levels of that the Board is drawn from) The Executive Committee of the involvement. would require increasing the num- Board is a 14-member body that However, the longer I practice ber of female Board members by 21 acts on behalf of the Board in law, the thinner the ranks of to a total of 44. between Board meetings. The women in my peer group. When you look at total Bar mem- Executive Committee is composed Numbers of my female peers have bership, the numbers are slightly of: the five State Bar Officers; the opted out of practice or scaled back. different. There are 27,169 active, president, president-elect, and They have chosen to leave the part- in-state members of the Bar of any immediate past president of the nership path or to not seek to move age. 33.63 percent of them, or 9,137, YLD (the YLD Officers); and six up in in-house or governmental are women. So to achieve full rep- representatives who are elected for roles. This lack of women is evident resentation based on all of the staggered two year terms by the not just in the legal workplace. In members, the number of female members of the Board (the Board fact, it is somewhat more marked in Board members would need to Representatives). State Bar of Georgia leadership increase by 30 to 53. Of course, as In the first two years I have positions, where women are under- law schools continue to graduate served on the Executive Committee, represented relative to the number classes of new lawyers that are the female representation, in addi- of women practicing law. Both the composed of nearly equal numbers tion to me, has been composed of State Bar Board of Governors and of men and women, the number of either one or two female Board the State Bar Executive Committee women that must seek and win Representatives. For the 2008-09 Bar are compromised of a smaller percentage of women than compromise the Bar membership from which they are drawn. State Bar Board of Governors

The State Bar is governed by a 158 member Board of Governors (the Board), with members elected from each of the various judicial circuits.1 Currently 23 (or 14.6 percent) members of the Board are women. While the percentage of women in the pool of members from which Board members are generally drawn is not as large as the percentage of women in the general population, the number of female members on the Board would still have to almost double in order to achieve full representation of female members of the State Bar. Board members tend to be in- state, practicing lawyers.2 In addition, there is not a significant over- lap with members of the YLD, so they tend to be over age 36. There are 19,831 members of the Bar who meet these characteristics—active,

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year, Amy Howell will join me as a eight men who have been elected Bar leadership position; if you YLD Officer on the Executive YLD president since 1998, seven know a woman who you think Committee. Elections for Board were married when they served would make a great State Bar Representatives have not yet and the same seven had young leader, encourage her to run and occurred as we go to press, so it children. support her in that endeavor. remains to be seen how many will As this is my last article as YLD be women, but two women have Why It Is Important for president, I want to thank all of you declared their intention to run for Women to Serve as for this incredible opportunity. I the three seats up for election. have very much enjoyed working If both women who are running Leaders in the State Bar with and for lawyers all over the prevail, the female representation The percentage of lawyers who state during the past year. In addi- on the Executive Committee over are female has increased dramati- tion, I appreciate your indulgence this three-year period will range cally and will continue to do so.4 in allowing me to author these from a low of two out of 14 (14.29 Because women compose a sub- columns and hopefully provide percent) to a potential high of four stantial percentage of Bar member- useful insight into the thoughts out of 14 (28.57 percent). If you ship, it is important that State Bar and feelings and viewpoints of one look at the female representation of leadership is aware of the needs young lawyer. the Executive Committee exclud- and concerns of this demographic ing YLD Officers, the female repre- in order that they may be Elena Kaplan is the president of sentation ranges from one out of 11 addressed. Women serving as Bar the Young Lawyers Division of the (9.09 percent) to two out of 11 leaders is the best way to achieve State Bar of Georgia and can be (18.18 percent). In order to achieve this. Of course, it will not do for reached at [email protected] full representation of women based only single gals like me to serve as or 404-581-8653. on current Bar membership, the Bar leaders. Female lawyers who Board would need to include four are married and have children will female members who are not YLD undoubtedly be a much better Endnotes Officers and at least one additional voice than me for their specific 1. Board members are elected based female member who is a YLD needs and concerns. on the judicial circuit in which Officer. they live or work. There are two How to Fix It out-of-state member seats on the Why Women Are As mentioned earlier, the YLD Board. Underrepresented has had great success in attracting 2. While the State Bar does not women to serve in leadership posi- track whether members are prac- There are doubtless a variety of tions. This may be a function of the ticing law or not, we might reasons why women are under- large numbers of women now assume that lawyers who are not represented in State Bar leader- entering law school, providing practicing would choose inactive status for the benefit of lower ship. Certainly, the traditional women with experiences that lead dues and the elimination of the roles of women and men in socie- them to be comfortable taking the CLE requirement. There are 1,890 ty have played a part. The practice lead in Bar service. If this bears out, in-state members over age 36 of law is demanding enough. If then the issue of underrepresenta- who are inactive. Of those, 912 you add raising a family to the tion may right itself as more and (or 48.25 percent) are women. mix, that may make Bar service more women come to the point in There are 275 in-state members become one thing too many for a their career when lawyers typically 36 years old and under who are female lawyer. Further, many run for a Board seat. inactive. Of those, 176 (or 64.0 female lawyers who marry and But waiting for the issue to right percent) are women. have children opt out of practice itself is not enough. The bottom 3. The first female YLD president or scale back. Perhaps they don’t line is that more women must step was Donna Barwick, who served during the 1988-89 Bar year. Seven see the Bar as relevant to their up and run for State Bar leader- women have served since. Amy lives and choose not to participate. ship positions. The solution is sim- Howell was recently elected YLD The disparate impact of family ple in theory and difficult in prac- president-elect and will be the on a woman’s Bar service can be tice. There are societal issues ninth female YLD president when seen by looking at the women and standing in the way that we can’t she takes office in 2009. men who have served as YLD fix in a global fashion. However, 4. While only 27.67 percent of president. Of the eight women what we can do is provide encour- active, in-state members over age who have served as YLD presi- agement and support to make it 36 are female, 49.73 percent of dent, four were married when they easier for women to step up. That active, in-state members age 36 or served and only two had young is your charge: if you are a under are female. children.3 By comparison, of the woman, consider seeking a State

12 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:41 PM Page 13

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A Look at the Law

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by Hon. Jeffrey S. Bagley

he judicial system is notorious for its tendency to be highly resist-

ant to change. The courts and attendant legal procedures have T experienced little change over the last 200 years as compared to other professions such as the medical and engineering disciplines. The con-

cept of a court with rehabilitation as its primary focus has existed for only

approximately 18 years.1 In 1989, the nation’s first drug court program was

established, which ushered in the drug court revolution.2

Drug court judges are forced to Drug Courts: How Do remove themselves from the “com- They Work and Why fort zone” of traditional criminal Are They Necessary? procedure. Judges, who are accustomed to making decisions alone, Any analysis of judicial independ- become part of a collaborative deci- ence in the context of a drug court sion-making team made up of the setting requires a thorough review of district attorney, defense counsel, how a drug court functions and why coordinator, law enforcement, independence is necessary in courts treatment providers, as well as processing felony drug cases. In such many others.3 This article is intend- courts, the volume of drug cases ed to focus on the drug court processed may cause the judge to judge’s challenge to maintain judi- consider an alternative to traditional cial independence while, at the sentencing primarily due to the frus- same time, recognizing and partic- trations associated with the attempt ipating in a coordinated team to rehabilitate a drug addict. approach, which is vital to the drug Drug courts are unique in the court program’s success. criminal justice system. Before the

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justice system as a from risk of jail to threat of job recidivist.4 loss, and providing powerful Because the tradi- incentives for individuals to start tional rehabilitative and stay in treatment.8 sentence of a drug addict rarely met That author specifically found with success, drug that courts were therefore conceived to addicts need not be internally legitimize the reha- motivated at the outset of treat- bilitation function of ment in order to benefit from it. the courts. The first Indeed, addicts who are legally drug court was con- pressured into treatment may ceived in Miami, outperform voluntary patients, Fla., where the because they are likely to stay in courts were being treatment longer and are more overwhelmed with likely to graduate. Without for- the cocaine trade and mal coercive mechanisms, the the prisons were not treatment system would not equipped to handle attract many of the most dys- the rapidly-growing functional addicts and surely inmate population.5 would not retain them.9 It was there that the model of drug courts As previously noted, drug courts was tried and tested have been proven to be effective in in an attempt to halt reducing recidivism.10 As a result the cycle of addiction of this success, drug courts have due to the failure of been established on a national level traditional penal- and are continuing to increase in advent of the drug court move- related methods.6 In the typical number.11 The Georgia General ment, a defendant’s typical sen- drug court model, treatment, Assembly has recognized the tence in a simple possession case, which was always present, is importance and effectiveness of emphasizing rehabilitation, combined with judicial accounta- drug courts through the enactment included as its primary component bility and is appropriately termed of an enabling statute, which for- a substance abuse evaluation with “coerced treatment.”7 One notable malizes the creation of a drug court treatment and counseling. This author describes how drug courts division of the superior court at the approach rarely succeeded function as follows: discretion of each circuit.12 because most addicts managed to feign compliance, all the while In the context of treatment, the How Do Drug Courts fully intending to return to their term coercion—used more or Procedurally Differ old lifestyle once they became free less interchangeably with “com- of probation supervision. Because pulsory treatment,” “mandated From Traditional the court would never see a defen- treatment,” “involuntary treat- Criminal Justice dant again unless he were arrested ment,” “legal pressure into treat- System Courts? for a probation violation, there was ment,” and “criminal justice never any direct court supervision referral to treatment”—refers to In traditional criminal jurispru- and certainly no encouragement an array of strategies that shape dence, the determination of guilt from the court to a defendant to behavior by responding to spe- and imposition of sentence essen- make profound changes in his life. cific actions with external pres- tially mark the end of the criminal If the defendant could pass enough sure and predictable conse- law process. In the drug court divi- drug screens through deception, quences. Coercive drug treat- sion, the determination of addic- including adulteration of screens, ment strategies are already com- tion and referral to drug court sig- he would be free to continue his mon. Both the criminal justice nals the beginning of the process. lifestyle almost as if he had never system and the workplace, for Drug court procedures, while bear- been arrested. It is, however, example, have proven to be ing many similarities, differ from inevitable that a defendant who excellent venues for identifying jurisdiction to jurisdiction.13 continues in the same lifestyle will individuals with drug problems, Typically, drug courts are pre- continue to burden the criminal then exerting external leverage, adjudication courts where a defen-

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dant, charged with a felony drug making process and not permit the methodology. Finally, the district possession offense, enters a plea of team to exert unnecessary pressure attorney may have agreed to dis- guilty with sentencing postponed. and effectively invade the province miss felony drug charges upon the The goal is for the defendant to of the judiciary. participant’s successful completion graduate from the program, usual- Second, judicial independence of the drug court program. ly in 18 to 24 months, resulting in a may also be compromised as a In some drug courts, partici- complete dismissal of the charges result of another glaring departure pants sign a formal drug court con- by the district attorney.14 from traditional criminal jurispru- tract. The contract provides for The Drug Court Standards dence which characterizes most bilateral consideration. The prose- Committee of the U.S. Department drug courts. Participants are typi- cutor gets the benefit of not having of Justice’s Office of Justice cally not afforded the same level of to prosecute a felony drug charge, Programs established the Ten Key due process as in traditional courts. which ultimately helps reduce the Components, which form the basic The degree of diminished due prosecutor’s case management foundation of most legitimate drug process rights varies from court to strains. The defendant gets the ben- courts.15 The Ten Key Components court and from state to state; how- efits of virtually free drug treat- were designed to serve as a bench- ever, most drug courts require a ment, community support and the mark of best practices to be waiver of certain rights in dismissal of charges. Given the sig- employed within adult drug court exchange for the privilege of enter- nificant benefits for the defendant, programs.16 Key Component six ing the program. From the time the district attorney may condition emphasizes a collaborative team that a drug court participant enters consent to the program on the effort and approach. The drug a knowing and voluntary guilty elimination of due process hear- court judge cannot manage and plea, until the time that he gradu- ings in drug court. This may cause operate a drug court alone or in a ates from the program, the defen- a potential quandary for the court, vacuum. Yet, it is the collaborative dant’s right to due process of law is as the court is required to retain its team approach to the decisions usually severely diminished. The independence and ensure that a regarding responses to partici- drug court judge, being the tradi- defendant’s constitutional rights pants’ compliance, as emphasized tional guardian of truth and justice, are protected yet, at the same time, by Key Component six, which including the protection of every observe the Ten Key Components, appears to create a significant con- person’s right to due process of law one of which requires a team flict with the drug court judge’s under the U.S. Constitution and approach to the application of duty to maintain judicial inde- state constitution, must be ever sanctions. pendence. mindful of the oath to uphold and First, judicial independence is in defend these very constitutions The Independent jeopardy of being compromised in and should guard against any Judiciary a drug court because drug court attempt to undermine any of their judges who attempt to comply precepts. The judge’s duty, in this The Code of Judicial Conduct of with Key Component six may be regard, is what causes the potential Georgia, which tracks the exact pressured to make drug court deci- for conflict with the judge’s desire language of the ABA Model Code, sions based upon a majority vote of to effect positive change in the lives necessitates an independent judici- the drug court team members. If of the participants. ary.19 This requirement appears to the judge disagrees with the major- In a country that generally takes collide violently with Key ity, he is subject to criticism from great pride in ensuring that every- Component six, which provides the rest of the team for not operat- one who is before the bar of justice that “[a] coordinated strategy gov- ing within the “team approach” has due process of law, there must erns drug court responses to partic- concept as contemplated by Key be a meritorious justification for ipant’s compliance.” The refer- Component six. This is especially such a departure from centuries- enced coordinated strategy is the true where drug court team mem- old tried and tested jurisprudence. collaborative decision-making bers include social workers and There are three supporting reasons process in which members of the treatment providers who bring for this departure. Foremost, stud- drug court team, including the valuable subject-matter expertise ies have shown that swiftness of judge, district attorney and defense to the unique drug court judicial sanction is critical to the effective- attorney, convene, usually weekly process. The judge must routinely ness of such sanction in changing or biweekly, to discuss the rely on the input of these members. behavior.17 If the sanction had to progress of the various participants Decisions inconsistent with the rec- be deferred for a month or more, its in the program. ommendations of these experts effectiveness may be lost.18 Second, Often, and by design, the judge, typically create friction. lengthy hearings are not possible in prosecutor and defense attorney Nevertheless, the judge must a division of court that is not recog- are not accustomed to collaborate remain steadfast in the decision- nized in standard case counting with one another to accomplish a

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collective goal. The collaborative sanct constitutional duty to keep In any case which arises from approach requires the drug court the powers of government separate the use, addiction, dependency, team to reach a consensus concern- and independent. sale, possession, delivery, distri- ing rewards and sanctions for In the context of the criminal jus- bution, purchase, or manufac- behaviors discussed at these meet- tice system, the prosecution arm of ture or a controlled substance, ings. The team must be confident in government, the district attorney, noncontrolled substance, dan- its ability to reach a consensus and is endowed with the power of the gerous drug, or other drug or is have some expectation that it will executive branch of government as ancillary to such conduct and the be followed by the judge in order the chief law enforcement officer of defendant meets the eligibility for the program to work. The the judicial circuit and is charged criteria for the drug court divi- judge, on the other hand, cannot with the duty to ensure that the sion, the court may assign the delegate judicial responsibility by laws are faithfully executed. case to the drug court division: permitting final decisions to be The Georgia Constitution22 vests made by the team.20 exclusively the judicial power of (A) Prior to the entry of the In deciding whether to imple- this state in the various courts sentence, if the prosecuting ment a drug court, the judge can including the superior courts hav- attorney consents; conclude that a drug court is ing general jurisdiction. The drug absolutely inconsistent with judicial court judge, as a superior court (B) As part of a sentence in independence and thus continue to judge, is endowed with the power a case; or process criminal cases in the tradi- of the judiciary and the accompa- tional manner. If this is the decision, nying duty to keep such power (C) Upon consideration of a there will be no risk of compromise separate from the other branches of petition to revoke probation. to judicial independence. There will government. Separation of powers . . . . also be very little, if any, gain. Such “preclude[s] the exercise of arbi- an approach ignores the problem trary power.”23 Although absolute If the drug court division par- that initiated consideration of an separation between the three coor- ticipant successfully completes alternative to traditional sentencing. dinate branches is not realistic,24 the drug court division program Drug addicts will not get the help the powers delegated to these prior to the entry of judgment, the that they need, they will not return branches must remain functionally case against the drug court divi- to the workforce, they will not identifiable without being “‘her- sion participant may be dismissed regain their families, they may com- metically’ sealed from one anoth- by the prosecuting attorney.27 mit additional crimes and they will er.”25 The separation of powers most likely die a premature death.21 doctrine is violated when legisla- Although the Georgia statute recog- Moreover, the prison door will con- tion “either accrete[s] to a single nizes the independence of the judici- tinue to revolve because the board Branch[,] powers more appropri- ary by making assignment to the of pardons and paroles will not ately diffused among separate drug court division discretionary on require drug addicts to serve their Branches or undermine[s] the the part of the court, it may go too full prison terms for simple drug authority and independence of one far in its delegation of executive possession charges when there is or another coordinate Branch.”26 powers, namely the decision to pros- such a pressing need for long-term Fortunately, in Georgia, the ecute a felony drug charge to the imprisonment of violent offenders. General Assembly is aware of the judicial branch. On the other hand, On the other hand, the drug court many benefits of a drug court and the statute properly recognizes and judge can decide that the benefit to has therefore drafted a drug court attempts to balance the district attor- society merits creativity and thus enabling statute, which attempts ney’s executive power to prosecute a deserves significant efforts to to respect the coordinate branch felony drug case to the fullest extent ensure its continued success. powers and helps to establish of the law if the district attorney so boundaries within which the desires and chooses not to consent to Separation of Powers drug court judge can operate. the assignment of a case to the drug Central to our U.S. Constitution Like most such statutes, it seeks court division. are the checks and balances provid- to achieve a reduction in recidi- There are three possible scenar- ed by the three branches of govern- vism and substance abuse among ios in which the statute could apply ment, as well as the independence non-violent substance abusing to a pre-adjudication drug court. In of each through the separation of offenders. The enabling statute, the first scenario, both the judge powers doctrine. In addition to the O.C.G.A. § 15-1-15, provides for and the district attorney agree that challenge of compliance with the the creation and recognition of a case should be assigned to the Code of Judicial Conduct requiring drug courts throughout Georgia. drug court division. The statute, in maintenance of an independent The enabling statute provides, in that scenario, properly permits the judiciary, there is the equally sacro- relevant part: case to be assigned without run-

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ning afoul of separation of powers prosecute the cases that he deter- rules and procedures such that principles as the judge and prose- mines should be prosecuted in the when a violation occurs, and it is cutor agree, and neither side is manner that he determines the covered by a rule, the judge has attempting to invade the province cases should be prosecuted, and the already approved the appropriate of the other branch. judge may not interfere. This is the sanction, which applies uniformly. The second scenario involves a classic “separation of powers” doc- The policies and procedures disagreement wherein the judge trine dating back to the very forma- appended to the order establishing wishes to assign a case to the drug tion of our democracy. It is a neces- the drug court should be meticu- court division but the district attor- sary friction.29 lous in detail, outlining specific ney does not. In that scenario, the Given the current condition of sanctions for violations of the rules. statute properly recognizes that the the Georgia statute, in conjunction When the drug court team faces power to prosecute a felony drug with the guidelines of Key the need to address a violation, the charge rests exclusively within the Component six, does the drug court judge is able to uniformly apply the executive branch; that is, the statute judge necessarily capitulate in vio- appropriate level of sanction(s). This requires “consent of the prosecut- lating separation of powers princi- is paramount as it helps to alleviate ing attorney” for the assignment of ples merely by participating in the the appearance that the judge is a case to the drug court division coordinated strategy? No, but with unbending or unwilling to consider and, without the prosecutor’s con- careful delegation of powers within special knowledge of team members sent, it cannot be assigned.28 the drug court team context, the del- or facts that other team members Finally, in the third scenario, the icate balance of power can be prop- believe are relevant to the sanction. district attorney seeks to assign a erly maintained. At its essence, the This necessarily assists the judge in case to drug court but the judge team members, and especially the being able to maintain his independ- does not. In this situation, the judge and prosecutors, must be ever ence while at the same time provid- statute appears, under one poten- mindful of their constitutional ing the judge flexibility to consider tial interpretation, to rest final dis- duties regardless of any internal unique circumstances. If there is a cretion within the judicial branch pressures exerted by team mem- special circumstance, the staff may as the “court may assign” the case bers. It is not an exact science. Given request the judge to consider deviat- to the drug court division with the the constantly evolving nature of ing from the rules; the final decision, consent of the prosecutor. drug courts, mistakes will be made. Therefore, the statute could be Nevertheless, every effort to main- interpreted and applied in such a tain the balance must be made, manner wherein the judge has the regardless of the consequence or final and absolute discretion to popular beliefs within the team. determine whether a case will be In a classic pre-adjudication assigned to the drug court division drug court, consistent with the sep- and override the district attorney’s aration of powers doctrine, the dis- decision to not prosecute a felony trict attorney primarily decides drug charge. To interpret the which persons will be referred to statute in such a manner, however, the drug court. Once the partici- would likely result in a separation pant has been accepted, however, of powers violation. the separation of powers tends to It is clear that the Georgia become less defined, thus jeopard- Legislature has attempted to appro- izing the independence of the two priately recognize the separation of branches. Decisions regarding powers doctrine in the statute, and sanctions and incentives are made any interpretation of the statute by the team, with the final decision that does not recognize the power reserved for the judge. An order of the district attorney to withhold establishing the drug court, which consent for a referral to the pro- incorporates the policies and program is inconsistent with the sepa- cedures adopted by the drug court ration of powers doctrine. Simply steering committee, should be stated, the district attorney cannot entered by the court in the forma- make decisions that invade the tive stages of a drug court.30 By province of the judiciary. Likewise, adopting the policies and proce- the judge may not instruct the dis- dures, the judge, having consented trict attorney as to his duties in to those policies and procedures, is ensuring that the laws are faithfully able to maintain his independence executed. The district attorney may because he is satisfied with the

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however, always rests with the graduate of the Georgia Institute tive adult, juvenile, family, and tribal drug court programs). judge. Likewise, the district attorney of Technology and the Emory University School of Law. He has 4. See supra note 3. does not give up any of the execu- 5. Office of Justice Programs, NDCT- tive branch powers as he is the served on the superior court bench since 2000. In addition to TAP, Looking At A Decade of Drug “gatekeeper,” with the final decision Courts, available at his regular superior court duties, always resting with the district http://www.ncjrs.gov/html/bja/ attorney, as to whether a person he serves as the presiding judge decade98.htm. should be referred into the program. of the Forsyth County Drug Court, 6. See supra note 3. The judge should be satisfied that and also serves on the Drug Court 7. See Sally L. Satel, M.D., Drug the defendant’s rights are protected Standing Committee for the Treatment: The Case For Coercion, 3 because the defendant is apprised of Judicial Council of Georgia. He NAT’L DRUG COURT INST. REVIEW 1 his right to a trial or to plead guilty has also recently been appointed (Winter 2000). 8. Id. and receive a conventional sentence to serve on the Congress of the National Association of Drug 9. Id. if he so desires. The defendant is 10. Government Accountability Office also apprised before entry of his Court Professionals, representing the state of Georgia. (“GAO”), GAO-05-219, Adult Drug plea of guilty as to all the due Courts: Evidence Indicates Recidivism process rights that he is giving up in Reductions and Mixed Results exchange for the benefits that he Endnotes Outcomes (Feb. 2005) (where GAO 1. See Drug Courts Program Off., U.S. will receive if he graduates from the concluded that adult drug court Dep’t of Just., About the Drug program, namely a complete dis- programs substantially reduce Courts Program Office 1 (2000) crime by lowering re-arrest and missal of all charges (in a pre-adju- (explaining that first drug court conviction rates among drug court dication program). If the district program was established in 1989 in graduates well after program com- attorney desires to have a drug response to growing concerns pletion, providing overall greater court participant terminated from about drugs and drug-related cost/benefits for drug court partic- crime and effectiveness of existing the program, there must be an evi- ipants and graduates than compar- treatment and enforcement pro- dentiary hearing, during which the ison group members); see National grams) [hereinafter Drug Courts judge acts as the finder of facts, Association of Drug Court Program Off.]. makes conclusions of law, and, after Professionals, The Facts: The Facts 2. Eric Cohen, The Drug Court which, the final decision to termi- on Drug Courts; see also OJP Drug Revolution, WEEKLY STANDARD, No. nate always lies with the judge, thus Court Clearinghouse at American 15, at 20-23 (1999); see Drug Courts promoting judicial independence.31 University, Implementation Status of Program Off., supra note 1. Drug Court Programs (Sept. 2003). 3. The “others” category of this team 11. Office of Justice Programs, NDCT- Conclusion approach also must include the TAP, Looking At A Decade of Drug Drug courts can work without local public. Although the public is Courts, supra note 5. compromising judicial independ- not directly involved in the day-to- 12. O.C.G.A. § 15-1-15 (2005). day operations of a drug court, its ence or the separation of powers 13. Just as traditional state court pro- support is imperative. See, e.g., doctrine. Is it worth the effort and cedures vary from jurisdiction to Marshall v. State, 276 Ga. 854, 858, risk? Each judge and district attor- jurisdiction, so do drug courts. The 583 S.E.2d 884, 888 (2003) ney will have to decide individually. NADCP have published model (Benham, J., specially concurring) In so doing, we should keep in mind standards that promote the Ten (recognizing that public support is that as members of the legal profes- Key Components. Drug court pro- vitally necessary for both the cre- sion we have been given much, thus cedures vary from state to state, ation and continued existence of and county to county, and can be requiring much in return. In the drug courts because “[i]f citizens quite different depending upon words of the late Supreme Court of do more on the preventive side, whether the court is in a rural, Georgia Justice J. Harold Hawkins, the courts can be more effective on suburban or urban environment. “the rendering of useful service is the punishment and rehabilitation Also, not every court adheres to all side.”); see also Nat’l Drug Court the common duty of mankind, and of the Ten Key Components sug- Training & Technical Assistance that only in the purifying fire of sac- gested in the model standards. Program (“NDCTTAP”) sponsored rifice is the dross of selfishness con- Georgia’s Judicial Council has by the Bureau of Justice Assistance sumed, and the greatness of the adopted standards that each court (“BJA”), Office of Justice human soul set free.”32 is urged to incorporate and adopt Programs, U.S. Dep’t of Just., and into its individual drug court pro- the Office of Juvenile Justice & Jeffrey S. Bagley is gram. See Georgia Drug Court Delinquency Prevention website at Standards, http://www.georgia the chief superior http://dcpi.ncjrs.gov/dcpi/index. courts.org/aoc/publications/ court judge of the html (where DOJ’s NDCTTAP pro- Georgia%20Drug%20Court%20 Bell-Forsyth Judicial vides information related to a for- Standards.pdf. Circuit located in mal training initiative designed to 14. This is accomplished pre-indict- Cumming. He is a help communities develop effec-

20 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:41 PM Page 21

ment or post-indictment by the 25. INS v. Chadha, 462 U.S. 919 (1983). cient government, but, instead, to District Attorney, and with the 26. Abell, supra note 24, at 1966; see create friction which inevitably approval of the court if post-indict- Mistretta, 488 U.S. at 382. prevents an autocracy). ment, via nolle prosequi. See, e.g., 27. O.C.G.A. § 15-1-15(a)(2), (b)(2) 30. See Order Establishing Drug Court State v. Hanson, 249 Ga. 739, 744, (2005) (emphasis added). as appended to this article. 295 S.E.2d 297, 302 (1982). 28. See, e.g., State v. DiLuzio, 90 P.3d 31. See, e.g., Wilkinson v. State, 283 Ga. 15. See Ten Key Component bench- 1141 (Wash. Ct. App. 2004) (where App. 213, 641 S.E.2d 189 (2006). marks as specifically set forth in court held that district attorney’s 32. DAVID A. DOSSER, SR., LET JUSTICE the U.S. Department of Justice, referral power was proper and did BE DONE: THE LIFE AND TIMES OF Office of Justice Programs, Drug not violate separation of powers JUSTICE J. HAROLD HAWKINS 212 Court Program Office’s publication principles). (Indigo Custom Publishing, LLC entitled Defining Drug Courts: The 29. See Myers v. United States, 272 2007) (speech to the Georgia Bar Key Components (Jan. 1997). U.S. 52, 84 (1926) (Brandeis, J., dis- Association, Savannah, Ga., June 16. Id. at 3. senting) (explaining that the doc- 1952, quoting, in part, John D. 17. See Hon. William Meyer (ret.), trine of separation of powers was Rockefeller, Jr.’s radio broadcast of Developing and Delivering Incentives not adopted to promote an effi- July 8, 1941). and Sanctions, NAT’L DRUG COURT INST. (Apr. 3, 2007). SAMPLE ORDER 18. Id. at 9 (citing MOTIVATING BEHAVIOR CHANGE AMONG IN THE ______COURT OF ______COUNTY STATE OF GEORGIA ILLICIT-DRUG ABUSERS 334 (Stephen T. Higgins & ORDER ESTABLISHING DRUG COURT Kenneth Silverman eds. 1999)). Pursuant to O.C.G.A. § 15-1-15 (effective July 1, 2005), a Drug Court Division of the ______Court of 19. GA. CODE OF JUD. CONDUCT ______County is hereby established. The Drug Court shall be a post-plea, pre-adjudication court pursuant to Canon 1. O.C.G.A. § 15-1-15 (b)(2). A Steering Committee whose members are appointed by the Chief Superior Court Judge 20. See In re Briggs, 595 S.W.2d and comprised of the Chief Superior Court Judge, Drug Court Coordinator, District Attorney, a representative from 270 (Mo. 1980); see In re the ______County Criminal Defense Attorney Association, a representative from the Office of State Probation, a representative from the ______County Sheriff’s Office, a treatment provider representative, the ______Bristol, N.Y. Comm’n on Judicial Administrative District Court Administrator, the Director of the ______County Office of Indigent Judicial Conduct (1992). Defense, and a representative from the ______County Department of Pre-Trial Services, shall meet from time 21. See, e.g., J.T. Morey, Lifting to time to establish policy and procedure recommendations for the operation of said Drug Court. the Cover on Drug Courts: Evaluation Findings and A copy of the currently adopted Drug Court Policies and Procedures (hereinafter “Policies and Procedures”) is attached hereto as Exhibit “A.” The Court hereby approves of the Steering Committee recommendations which are Policy Concerns, OFFENDER contained within the Policies and Procedures outlined in Exhibit “A.” These Policies and Procedures reflect the Drug SUBSTANCE ABUSE REPORT at Court’s intent to comply with the Ten Key Component benchmarks as specifically set forth in the U.S. Department of 73-74 (Sept./Oct. 2007). Justice, Office of Justice Programs, Drug Court Program Office’s publication entitled Defining Drug Courts: The Key 22. See GA. CONST. art. VI. Components (January 1997). 23. See Myers v. United States, 272 U.S. 52, 84 (1926) The Court, being cognizant of Canon I of the Code of Judicial Conduct, which provides that “a judge should (Brandeis, J., dissenting) uphold the integrity and independence of the Judiciary,” has adopted the Policies and Procedures recommended by the Steering Committee. Therefore, any factual situation covered in the Policies and Procedures shall be dealt with as (explaining that separation provided therein. Any factual situations not expressly dealt with in the Policies and Procedures shall be discussed by of powers doctrine was not the Drug Court Team, which shall be comprised of numerous key individuals from departments who have adopted to promote an effi- representatives serving as members of the Steering Committee, consistent with the concept of “coordinated strategy” cient government but, as addressed under Key Component Number 6. See Office of Justice Programs, Drug Courts Program Office, instead, to create friction, Defining Drug Courts: The Key Components at 23-25 (January 1997). However, in keeping with Canon I of the which inevitably prevents Code of Judicial Conduct, the final decision shall always rest with the presiding Drug Court Judge. an autocracy). In the event that a factual situation presented is covered by the Policies and Procedures adopted by the Drug 24. Crossover is allowed where Court and there arise certain extreme or otherwise unusual circumstances, as determined by the Steering Committee it provides for “convenience and/or the Drug Court Team, in which a deviation from the rules may be warranted, the presiding Drug Court Judge and efficiency.” Charles S. shall first confer with the Drug Court Team, in keeping with Key Component Number 6, which provides that “[a] Abell, Ignoring the Trees for coordinated strategy governs [D]rug [C]ourt responses to participants’ compliance.” Following a discussion with the the Forests: How the Citizen Drug Court Team, the presiding Drug Court Judge shall make the final decision as to whether a deviation from the Policies and Procedures is warranted under such extreme and/or unusual circumstances. As recognized by the Office Suit Provision of the Clean of Justice Programs, Drug Courts Program Office, because “the field [of Drug Courts] is still too new to codify Water Act Violates the policies, procedures, and operations” to fit every situation that might arise during the treatment program, the Steering Constitution’s Separation of Committee and/or the Drug Court Team must be granted the discretion to determine and define the parameters and Powers Principle, 81 VA. L. contours of what shall qualify as an extreme or unusual circumstances and to fashion an appropriate remedy. Id. at 3. REV. 1957, 1965-1966 (1995) (discussing Supreme Court’s So ORDERED, this ___ day of ______, 20__. traditional view of separation of powers doctrine) (cit- ______ing Mistretta v. United Judge, ______Court of States, 488 U.S. 361, 380 ______County (1989)).

June 2008 21 06-08gbj.qxp 5/22/2008 12:41 PM Page 22

GBJ Feature

State Bar Celebrates Successful 2008 General Assembly

by Mark Middleton

fter lengthy debates about tax cuts, trans- of the Senate Special Judiciary Committee, which favorably passed a number of State Bar bills. Sen. Bill portation initiatives, and trauma care Cowsert (R-Athens) authored the Business Law pro- posal (SB 436) and carried a Real Property Section bill funding, the 2008 Georgia General through the Senate. Sen. Seth Harp (R-Midland) pro- A vided timely and critical action on a number of State Assembly will likely be remembered for what did not Bar bills as well. In the House of Representatives, Rep. Wendell pass, as it was not able to reach agreement on these Willard (R-Dunwoody) and Rep. David Ralston (R-Blue Ridge) provided the leadership as chairmen for the two issues. However, there were successes, and for the House Judiciary Committees. Chairman Willard authored HB 119 relating to judicial pay and was instru- State Bar of Georgia, this year not only brought the pas- mental in its passage. Rep. Roger Lane (R-Darien) authored HB 1018 and was one of the State Bar’s most sage of legislative items generated by the various sec- effective advocates. Rep. Steve Tumlin (R-Marietta) authored HB 972 (UPMIFA) and Rep. Ed Lindsey (R- tions of the State Bar, success was also measured by the Atlanta) helped the State Bar on many fronts. Many other legislators also supported positions of defeat of a number of bills that would have been detri- the State Bar, including Sen. David Shafer (R- Duluth), Appropriations Chairs Sen. Jack Hill (R- mental to the legal profession. Reidsville) and Rep. Ben Harbin (R-Evans), Majority Leaders Sen. Tommie Williams (R-Lyons) and Rep. As usual, attorneys serving in the legislature provid- Jerry Keen (R-Saint Simons), Minority Leaders Rep. ed the leadership and support necessary for the suc- Dubose Porter (D-Dublin) and Sen. Tim Golden (D- cessful session. In the Senate, Sen. Preston Smith (R- Valdosta). Finally, the State Bar is grateful for the Rome) authored an important State Bar bill (SB 355), leadership of Lt. Gov. Casey Cagle and Speaker served as chairman of the Senate Judiciary Committee Glenn Richardson. and chaired the Senate Appropriations subcommittee The State Bar leadership was very active in accom- that passed the judicial salary increase. Sen. Michael plishing the State Bar agenda. Section leaders, such as Meyer von Bremen (D-Albany) served as the chairman Patrise Perkins-Hooker (Real Property Law Section),

22 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:41 PM Page 23

Bruce Wanamaker and Alan Prince (Business Law Section), and Marshall Sanders (Fiduciary Law Section) devoted numerous hours presenting their section’s bills to the legislative committees. Advisory Committee on Legislation (ACL) Chair Matt Patton and Vice Chair Patti Gorham skillfully managed the ACL process and joined President Gerald Edenfield and President- Elect Jeff Bramlett in representing the State Bar at various legislative functions during the session. 2008 Board of Governors Agenda State Bar Bills that Passed ■ Commission on Judicial Service: HB 119 is the judicial salary increase that passed the House in 2007 and was passed by the Senate in 2008. The bill provides for a 5 percent raise

on July 1, 2009, for Superior Photo by Johanna M. Price Court, Court of Appeals and Supreme Court Justices. clarifies, expands, and modern- tion and funding of the Georgia ■ Real Property Section: HB izes the act, and sets forth the Public Defender Standards Council 1018 creates an affirmative standards for managing and were widespread at the beginning duty for the Superior Court investing charitable funds. of the session, but thanks to the clerk to cross-index real estate ■ Legal services for victims of leadership of Director Mack cancellations, and authorizes domestic violence receives a Crawford and others, the program an additional fee for clerks that continuation appropriation of was adequately funded. The total cross reference cancellations of $2,134,626. FY ‘09 appropriation for GPDSC security instruments filed in ■ Appellate Resource Center was $40.4 million. State Bar real property records. receives a continuation appro- President Gerald Edenfield attend- ■ Real Property Section: SB 355 is priation of $580,000. ed public defender study commit- the “good funds” bill that elimi- tee meetings last fall as well as nates the exception for certified Other legislative matters on the meeting with legislative leadership checks and treasurer’s checks State Bar agenda included HB 1493, about the funding needs of the from an FDIC bank, and all a bill that provides a basis for the GPDSC at various times. checks from non-insured banks. legislative discussion of the The hard work and diligence of ■ Business Law Section: SB 436 Evidence Study Committee’s rec- the Commission on Judicial Service allows variations from the plu- ommendations in regard to Georgia in educating General Assembly rality voting standard to be revising the state law on evidence to members on the issue of judicial established for publicly traded conform to the federal rules of evi- salaries, particularly the efforts of its corporations in a bylaw adopt- dence. The State Bar also testified on chairman, former Rep. Larry Walker, ed by the board of directors. behalf of HB 646, a previously intro- paid off with the first judicial salary Currently it can be done in the duced bill addressing the situation increase since 1999. This was a huge articles of incorporation only. with pooled trust accounts, which undertaking, and we are grateful for ■ Fiduciary Law Section: HB 972 did not pass after objections by the support of the Georgia Chamber amends the Uniform Department of Community Health. of Commerce as well as bipartisan Management of Institutional The Brian Nichols trial and other support from the House and Senate Funds Act and replaces it with issues created a very negative envi- in our efforts. (On May 14, just before a new Uniform Prudent ronment for maintaining legisla- this edition of the Bar Journal went to Management of Institutional tive support for the public defend- press, Gov. Sonny Perdue vetoed the Funds Act (UPMIFA) which er system. Threats to the organiza- legislation.)

June 2008 23 06-08gbj.qxp 5/22/2008 12:41 PM Page 24

Issues that the Tracking, which is found under the information is used only for that pur- State Bar Opposed “Bar News and Events” section. pose and is not shared with any There were a number of very other group. To join the State Bar’s important issues raised during this State Bar’s Legislative Legislative Action Network (LAN), General Assembly that would have Action Network go to www.gabar.org/member_ been detrimental to the practice of essentials; click on address change law and access to justice. For exam- The State Bar’s legislative action and enter your home address to ple, the State Bar opposed the taxa- network worked effectively in the automatically sign up for LAN. tion of legal fees for services pro- 2008 General Assembly. This provided to individuals. Ultimately, gram allows State Bar members to be Conclusion the taxation of legal services provi- notified of critical developments in The 2008 General Assembly was a sion was not part of the tax bill that the legislature that require immedi- success with the passage of several was passed by the House of ate member reaction. Through e- bills of benefit to the practice of law, Representatives. mail, members are provided with the including the funding of key initia- The State Bar opposed another appropriate message points and the tives, and the defeat of bills that measure that would have allowed means to connect directly with their would have been harmful to our pro- persons not graduating from an local senator and representative. fession. The members of the Board of ABA-accredited law school to sit for This year the system was accessed to Governors, Executive Committee, the Bar exam. The bill did not pass, create support for the State Bar posi- ACL, Sections, and all who partici- and the Supreme Court appointed a tions on judicial compensation and pated did an outstanding job on committee to study the issue. the legal services tax. In each behalf of our profession. Another bill opposed by the State instance, the State Bar position ulti- Bar was SB 271 that would have mately prevailed thanks to the grass- The State Bar legislative represen- shortened the period of time within roots efforts of our members. tatives are Tom Boller, Rusty which a tax deed would ripen by Members of the State Bar that pro- Sewell, Wanda Segars and Mark prescription. That bill did not pass. vide their home address and contact Middleton. Contact them at 404- To review the text of any of these information to the State Bar for the 872-2373 for further legislative bills, go to www.gabar.org and exclusive purpose of joining the net- information or visit the State Bar’s click on State Bar Legislative work make the system possible. The website at www.gabar.org.

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24 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:41 PM Page 25 06-08gbj.qxp 5/22/2008 12:41 PM Page 26

GBJ Feature

17th Annual Georgia Bar Media & Judiciary Conference

by Stephanie J. Wilson

n February, Georgia’s legal

and media professionals I gathered at the Westin Buckhead in Atlanta for the 17th

Annual Georgia Bar Media &

Judiciary Conference. Each year,

this ICLE event focuses on emerg-

ing First Amendment issues and

their influence on the law.

Everyone from judges and lawyers Photos by Stephanie J. Wilson Don Samuel, Garland, Samuel & Loeb, P.C.; Robert McBurney, assistant U.S. attorney, Northern District of Georgia; Stephen D. Sencer, deputy general counsel, Emory University; and Jimmy to journalists are invited for a full Williamson, police chief, University of Georgia, during “Campus Privacy v. Campus Security in an Electronic World.” day of panel discussions and small ongoing trial of accused courthouse shooter Brian group sessions dealing with the latest topics impacting Nichols, the majority of the discussion focused on the meaning of “on the record.” McGarity and the other the First Amendment. panelists agreed that the most important action journalists can take when covering a trial is to establish The day began with the first session, “J-School for relationships, well before their deadline, with judges or Judges & Lawyers,” led by moderator Jon Shirek, other court personnel to encourage open dialogue. WXIA-TV. Panelists included Hon. Arch W. McGarity, After a short break, the second session, “Campus judge, Superior Court, Flint Judicial Circuit; Robin Privacy v. Campus Security in an Electronic World,” was McDonald, The Fulton County Daily Report; Bill Rankin, underway. Interlocutor Richard Griffiths, editorial direc- Atlanta Journal-Constitution; and Veronica Waters, WSB tor, CNN, led the audience and panelists through the sce- Radio. In light of the recent recusal of DeKalb County nario of a campus shooting at Lizard Lick State Superior Court Judge Hilton M. Fuller Jr. from the University. Panelists included Hon. David R. Sweat,

26 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:41 PM Page 27

judge, Superior Court, Western Fulton County Superior Judicial Circuit; Andrea Jones, Court, with panelists Hon. Atlanta Journal-Constitution; Frank Anne Elizabeth Barnes, LoMonte, Student Press Law Center; chief judge, Georgia Court John D. Marshall Jr., Georgia State of Appeals; Hon. Cynthia J. University College of Law; Robert Becker, judge, Superior McBurney, assistant U.S. attorney, Court, Stone Mountain Northern District of Georgia; Chris Judicial Circuit; and Hon. Megerian, editor-in-chief, Emory T. Jackson Bedford Jr., Wheel, Emory University; Don judge, Superior Court, Samuel, Garland, Samuel & Loeb, Atlanta Judicial Circuit. P.C.; Stephen D. Sencer, deputy gen- Attendees second choice eral counsel, Emory University; was “Citizen Journalists: A Amy Storey, editor-in-chief emeri- New Call for Journalistic tus, The Sentinel, Kennesaw State Standards?” moderated by University; and Jimmy Williamson, Bill Nigut, southeast police chief, University of Georgia. regional director, Anti- For the luncheon program, Defamation League, with “Trying the High Profile Case: A panelists David Hazinski, View from the Bar,” Billy Martin, associate professor, Sutherland, Asbill & Brennan, LLP, University of Georgia Cynthia Counts, Counts & Associates, presents information Washington, D.C., was interviewed Grady College of during “Eyewitness Identification.” by Richard Belcher, WSB-TV. Martin Journalism; and Leonard discussed working with such Witt, professor, Robert D. notable clients as former Atlanta Fowler Distinguished mayor Bill Campbell and former Chair in Communication, Atlanta Falcons’ quarterback Kennesaw State University. Michael Vick. The audience was also The third group session given a chance to ask Martin ques- was “Where the Sun Don’t tions regarding his practice. Shine: Hot Topics in Open Following lunch was a session Government” led by mod- titled “Eyewitness Identification,” erator, Hollie G. moderated by Ronald L. Carlson, Manheimer, executive Fuller E. Callaway Chair of Law director, Georgia First Emeritus, University of Georgia. Amendment Foundation, Western Judicial Circuit Superior Court Judge David R. Hon. Craig L. Schwall, judge, with panelists Stefan Ritter, Sweat enjoys a humorous moment during “Campus Privacy Superior Court, Atlanta Judicial deputy attorney general, v. Campus Security in an Electronic World.” Circuit; Hon. Stephanie Stuckey State Law Department; and Benfield (D-Atlanta), Georgia House Michael Smith, chief staff attorney, of the banquet is the presentation of of Representatives, District 85; Clayton County. the Weltner Award, honoring the Gwendolyn Keyes Fleming, district The final session of the day was memory of former Supreme Court of attorney, Stone Mountain Judicial “Georgia & Judicial Independence.” Georgia Chief Justice Charles L. Circuit; and Aimee Maxwell, Ed Bean, editor-in-chief, Fulton County Weltner, a champion of freedom of Georgia Innocence Project, served as Daily Report, served as moderator. The information and ethics in state gov- panelists. After a wandering opera panel included Hon. Harold Melton, ernment. This year’s Weltner Award singer interrupted the session with a justice, Supreme Court of Georgia; honorees were open government lovely rendition of “Un aura Hon. Gary McCorvey, chief judge, pioneers Jim Houston of the amorosa” from Mozart’s Cosí fan Superior Court, Tifton Judicial Circuit; Columbus Ledger-Enquirer and former tutte, the audience was asked ques- Tom Boller, Capitol Partners Public Georgia Attorney General Michael tions to see if they could correctly Affairs Group; and Gino Brogdon, Bowers. identify him. This exciting interac- Brogdon, Davis & Adams. Discussion tive session showed how unreliable involved the relationship, public and Stephanie J. Wilson eyewitness identification can be. private, between judges and other is the administrative Next, attendees could select from public officials. Also at issue were assistant in the Bar’s three small group sessions offered on threats to judicial independence. communications a variety of subjects. The first group The seventh annual Weltner department and a session was “How to Talk to a Freedom of Information Banquet fol- contributing writer Judge,” moderated by Don Plummer, lowed the conference. One highlight for the Georgia Bar Journal.

June 2008 27 06-08gbj.qxp 5/22/2008 12:41 PM Page 28

GBJ Feature

Vladivostok Memories by Nicholas A. Lotito

liver Wendell Holmes is credited with say- something last fall which is worth sharing with fellow

ing, “Old age is fifteen years older than I youthful, albeit chronologically impaired lawyers. I taught O am.” This is a philosophy I have harbored a course in criminal law and procedure at Vladivostok for quite sometime; however, I was not aware that some- State University Law School in Vladivostok, Russia, an

one so notable had previously articulated it. Despite this exotic city on the southeast coast of Russia, a mere 6,600

optimistic, and at some point inaccurate assessment, I did miles and a 16-hour time difference from Atlanta.

While practicing criminal law for the past 30 plus years, mostly in private practice, I was somewhat envious of various federal prosecutors who traveled to the Czech Republic, Bulgaria, Hungary, Latvia and other places for months at a time, purportedly to assist with the creation of legal systems or teach in those countries. I lamented that those assignments were not available while I was a government prosecutor. Also, as my son, Alex, now 16, got older, I considered several opportunities to combine legal experience and travel. I thought about one of the numerous People to People invitations I received to be a delegate with a group going to Nicholas Lotito posing with some of his very enthusiastic second-year students. China, Russia or elsewhere;

28 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:42 PM Page 29

The Schloss Leopoldstrom Palace, where lawyer-teachers “roughed it” during orientation week in Salzburg, Austria.

applying to prosecute or defend war learning that September and Russia. Kent Harbison, the lawyer criminals at the Hague, or even October are two of the best months who exiled himself to Mongolia, becoming involved in the efforts to in Vladivostok, I selected the fall of also shared his experiences with the obtain justice out of the morass in 2007. Teaching assignments are for group. There were about 35 lawyers Rwanda. In each case, I determined a minimum of two weeks and can at my session, and it was informa- that the time was not right, the com- be as long as the institution will tive and a pleasure to spend time in mitment too long or that there was have you. One Minnesota lawyer Salzburg. Another Atlanta lawyer, some other reason not to embark on taught in Mongolia for six months. Allen Greenberg, who practices one of those ventures. A two- to three- week assignment is copyright law, was in the group and A couple of years ago I saw an ad fairly typical, and I taught for the is teaching this spring in from the Center for International last half of October. Teaching is pro Kaliningrad, Russia. Augusta attor- Legal Studies, offering lawyers with bono, although the host institution ney Stanley Jackson attended and 25 years experience the opportunity provides lodging. then taught at the University of to teach in their Senior Lawyers A fringe benefit of a Center for Maribor in Slovenia. Program. Somewhat impulsively, I International Legal Studies (CILS) The trip from Salzburg to applied. Several months later I was teaching assignment is a week-long Vladivostok is a journey unto notified to attend an interview in orientation in Salzburg, Austria, itself. A train to Vienna, a flight to Chicago, and I did so. Eventually, I where CILS is based. It operates out Moscow and another nine-hour was selected for the program and of the Schloss Leopoldstrom, a flight covering over 4,000 miles requested assignments in Latvia, palace that was once owned by Max from Moscow to Vladivostok got Lithuania, the Czech Republic or Reinhardt and used in filming the me there in a fairly bleary-eyed Croatia. I was assigned to Russia, Sound of Music. The week in condition on a Sunday morning. and only after committing to teach Salzburg was very enjoyable. There Happily, I was met by a Russian was I notified that I would travel to were presentations each day from student who drove me to the uni- Vladivostok. It was a venue I had professors at various host universi- versity and helped me get settled not anticipated. I had a choice of a ties, and from attorneys who work in my dorm quarters for my stay spring or fall assignment, and after with the European Union and in in Vladivostok.

June 2008 29 06-08gbj.qxp 5/22/2008 12:42 PM Page 30

Vladivostok has a reported pop- extremely interested in U.S. law somewhat lacking in creature com- ulation of about 700,000, with a and asked good questions. They forts taken for granted here. For mixture of many Russians and a are generally used to being lec- example, four or five of the days I growing number of Asians. The tured to, but I tried to get them to did not have hot water and had to topography is somewhat reminis- participate as much as possible, heat water in order to bathe. cent of San Francisco with steep and they seemed to enjoy that. Perhaps as a vestige of commu- hills and a waterfront area. There When at the law school, I enjoyed nism, Vladivostok has central heat- are islands visible from the coast minor celebrity status. Students gen- ing. When I heard this I thought and an active downtown with erally stood out of respect prior to a nothing of it since central heating is restaurants, hotels and various lecture and often applauded at the common elsewhere. However, in businesses. Ornate Russian ortho- end of a lecture. This may simply Vladivostok, that means everyone dox churches are ubiquitous. While have been a showing of approval that is on the same heating system, and in Salzburg, a lawyer from the class had come to a conclusion. that system was not turned on for Colorado had put me in touch with Four or five times students wanted to the first half of my stay. While a business colleague familiar with have pictures taken with me, and I October was supposed to be a mild Vladivostok. He in turn sent me an have a number of photos that were e- month, it snowed at the end of my e-mail describing Vladivostok as mailed to me. Of course, I was used first week. This made for some “one of the world’s most exotic to this type of reaction from various pretty scenery, but it was much cities.” This preview greatly jurors I have addressed. (I wish.) colder than I had anticipated. improved my assessment of my assignment and proved to be extremely accurate. There were many World War II monuments, including a lengthy wall with engraved names, causing me to wonder if it had inspired our Vietnam Memorial. There is also much new construction as Vladivostok is expanding rapidly. It is hosting an Asia Pacific summit conference in 2012, and the city is being transformed to accommo- date it, with Putin pledging $4 bil- lion for growth in the region. In advance of my trip, I prepared about 150 pages of written presentations on six of the 10 or 11 topics Vladivostok after an unexpected October snow. I was asked to cover. I had notes and research materials for the other topics and produced outlines for In smaller groups, I had some Without heat, I suggested the expe- these other lectures while I was in interesting conversations with stu- rience may have amounted to cool Vladivostok. I taught about 12 dents, sharing some personal expe- and unusual punishment. Oddly, I classes ranging from one and a half riences. I told them of growing up had an 11 p.m. curfew. I was to three hours on our Constitution in south Florida, close to Cuba, and informed that if I returned after 11 and Bill of Rights, an overview of sitting around a television with my p.m., I would not be allowed in, our criminal justice system, a sur- family as Russian ships approached and if I had someone in my room vey of federal crimes, the sentenc- Cuba. For me, it was a frightening after 11 p.m., they would not be ing process, juvenile proceedings, experience at age 13. I explained allowed out. the death penalty, terrorism, that it meant a great deal for me to The businessman who e-mailed organized crime and corruption, be teaching in Russia after having me also put me in touch with the use of precedents, and assassi- experienced the earlier tension Eugenia Klokova, an English teacher nations (an unusual topic I was between our countries. A number from Vladivostok who was a won- asked to cover). Class size ranged of students said they looked for- derful hostess. She frequently had from 20 to 100 students, and I ward to traveling to the United friends of hers pick me up and show taught at least two classes to each States. I thought the students were me around the city. Eugenia also of the five years of law school stu- much like students here. introduced me to members of the dents and to a class in international The overall experience in regional bar association and a local relations. The students were Vladivostok and in the dorm was rotary group. There were a couple of

30 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:42 PM Page 31

Americans living in my dorm who were teaching in Vladivostok for varying periods of time, and I also enjoyed meeting them and compar- ing notes over dinner. As my time in Vladivostok drew to a close, I left with some sadness. I really enjoyed getting to know some of the students and also found that I took to the process of teaching more than I had expected. It is a lot of work to prepare to teach something for the first time, but I thoroughly immersed myself into the experience. A really good thing about CILS is that once you have been Business Valuations selected to teach in their Senior Lawyers Program, you can reen- Divorces ! Estate/Gifts ! ESOPs ! Disputes ! Fairness Opinions list at some future time. While I Family Limited Partnerships ! Intangible Assets think I will wait a couple of years before seeking another assign- Mitchell Kaye, CFA, ASA ment, I look forward to doing this (770) 998-4642 again, perhaps in another location. e-mail: [email protected] Because I was in a part of the world I was unsure I would revisit, American Society of Appraisers ! Past President, Atlanta Chapter Chartered Financial Analyst I decided to go to see another country before returning. I chose serving appraisal clients since 1981 Thailand because a friend of my Court Testimony / IRS Experience brother’s had been living there for about six months, and he had offered to show me around. That EXPERT WITNESS: Forensic Accounting Financial Fraud was another good experience and involved a week of R&R after teach- M. Martin Mercer, JD, CPA, FCPA, CFE ing in Vladivostok. I commend this 7768 S. Steele St., Centennial, CO 80122 Phone: (303) 621-5825 opportunity to anyone interested in a challenge, a new adventure and Website: www.MMartinMercer.com E-mail: [email protected] an opportunity to share our values Specialization: Mr. Mercer leads the B2B CFO® Litigation Services Practice which with others who are receptive to offers the over 2,000 years of combined experience in virtually every area of finance, hearing about them. accounting and business to litigating attorneys in the areas of litigation support, financial fraud investigations, forensic accounting and expert witness services. Mr. Nicholas A. Lotito is a Mercer is an attorney and a CPA as well as a Certified Fraud Examiner (CFE) and partner at Davis, Forensic CPA with over 25 years of experience in business management, financial Zipperman, planning, information technology & software development. Kirschenbaum and Lotito. He is a past president of the Announcing the Formation of Georgia Association of Criminal Defense Lawyers and former fed- KAZMAREK GEIGER & LASETER LLP eral prosecutor with the Antitrust One Securities Center Division of the Justice 3490 Piedmont Road NE, Suite 201 Department. He practices criminal Atlanta, GA 30305 defense law, representing clients 404-812-0839 in federal and state matters. He www.kglattorneys.com has been repeatedly named a “Super Lawyer” in the area of Devoted Exclusively to the Practice of Environmental Law white collar criminal defense.

June 2008 31 06-08gbj.qxp 5/22/2008 12:42 PM Page 32

GBJ Feature

The Monroe County Courthouse at Forsyth The Grand Old Courthouses of Georgia

by Wilber W. Caldwell

ypical of many prosperous Piedmont counties Finally on June 25, 1895, The Forsyth Advertiser published the following notice: that were the beneficiaries of early rails, We the Commissioners of Monroe County ... realizing Monroe County would resist the jubilant sym- that her Courthouse ... has twice been condemned as T unsafe by competent architects, and numerous grand bols of the myth of the New South, holding close to tra- juries, realizing that it was inadequate for the needs of the county, and that the progress of the court was ditional architectural forms and keeping her 1825 court- often checked because jurors and witnesses could not be made comfortable in the building we now have house for over 70 years. The old two-story brick struc- recommended the building of a new Courthouse.

ture, built in the vernacular style, featured a gabled roof, And so in 1896, the county built a new courthouse, not out of any euphoric hopes for the future, but simply a broad cornice and four arched entrance doorways. because one was needed. The architecture of the 1896 Monroe County Although the design was simplicity itself, the elegant Courthouse speaks for the period in several uniquely instructive voices. Despite the power of the American proportion and considerable scale were particularly Neoclassical Revival that had been ignited three years earlier by the buildings of The Columbian Exposition at impressive, especially for such an early building. the 1893 Chicago World’s Fair, the silhouette here, despite its symmetry, still reflects the old Picturesque Styles. There was wealth here, the wealth of cotton. Like There was a distinct lag in the South when it came to Eatonton and Madison and other prosperous Piedmont adopting the new Classicism of the budding “American towns, Forsyth would develop a society around well- Renaissance.” To be sure, this lag had been apparent all to-do planters and their social urge to congregate in along. Italianate buildings were still popular in the South towns. But Forsyth’s population would remain static long after the style lost its appeal in the North. The streets through the closing decades of the 19th century (1,105 of Washington and New York had been lined with in 1880, 1,171 in 1900). Second Empire architecture long before the first court-

32 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:42 PM Page 33

Exposition than just a return to symmetry. County commissioners all across Georgia may not have been ready for the classical excess- es of The World’s Fair, but some of the architects were. Monroe County demanded and got a Romanesque building in the mold of Elbert and Emanuel counties, but they got a little more in the bar- gain. This was still the age of eclecticism, and despite its fundamen- tally Romanesque silhouette, this building drips with neoclassical detail. Here we see the influence of the Queen Anne Style, not as a reflection of the earlier more historical Shavian Manorial mode, but as a new force of eclecticism in which Classical elements abound in a sort Photo by Wilber W. Caldwell Photo by Wilber W. of “free composition with Classical Built in 1896, Bruce and Morgan, architects. detail.” Classical pediments and houses of that style graced the streets flowed from the buildings of both elegant balustrades flank the cen- of even the most progressive of the 1893 Chicago and the 1895 tral tower, which is decorated with southern railroad cities. Despite the Atlanta Expositions, and form the Corinthian pilasters. The cornice is progressive verbiage of a generation Chateau-like pavilions following richly inscribed with a flowery of young Henry Grady’s, architec- the French Renaissance Style exem- Renaissance motif, and beneath the tural lags were something of a south- plified by H. H. Richardson’s New eaves we find bold dentals in the ern tradition for 50 years after the York State Capitol Building (1879) classical tradition. Talbot Hamlin Civil War. The depth of the South’s and Richard Morris Hunt’s monu- characterizes southern architecture wounds and the superficial nature of mental work including the Biltmore in his discussion of the earlier southern “progress” can not be House at Asheville, N.C., complet- development of the Greek Revival underestimated in this context, as in ed in 1895, the year this courthouse in the region, “in general work was so many others. was begun. Just before his death in extremely conservative” and new In 1896, Georgia courthouses 1886, Richardson had designed his forms “crept in only gradually.” In may have been slow to don the new Allegheny County Courthouse in 1896 here in Monroe County the neoclassical garments, but the Pittsburgh, a building that almost grandeur of the Renaissance was return to symmetry was apparently single-handedly defined the style of creeping into Central Georgia. a welcome trend. For years the American Romanesque courthous- asymmetry of Picturesque styles es of the era. Here pavilions with Excerpted by Wilber W. Caldwell, had dominated Georgia town pyramidal roofs defined the corners author of The Courthouse and the squares, but by the time The and, like many of Richardson’s later Depot, The Architecture of Hope Monroe County Commissioners designs, the building followed sym- in an Age of Despair, A Narrative began to consider a plan for the new metrical forms. By 1890, a decided Guide to Railroad Expansion and courthouse at Forsyth, the return to national trend toward symmetry its Impact on Public Architecture symmetry was in full swing. In the was under way even among in Georgia, 1833-1910, (Macon: space of only two years, six perfect- Richardson’s most ardent followers. ly balanced Georgia courthouses The shift to symmetry was particu- Mercer University Press, 2001). had been completed. All sang the larly radical for Bruce and Morgan. Hardback, 624 pages, 300 photos, songs of geometric balance. Several Although they had begun with 33 maps, 3 appendices, complete of these, including Reuben Hunt’s symmetrical buildings influenced index. This book is available for stunning 1894 Elbert County by the Second Empire Style, by 1895 $50 from book sellers or for $40 Courthouse at Elberton, were much of the firm’s reputation rested from the Mercer University Press quoined with low square pavilions on highly Picturesque designs in the at www.mupress.org or call the topped with pyramidal roofs. Here Romanesque Style. Mercer Press at 800-342-0841 was the model for the formal But it appears that Bruce and inside Georgia or 800-637-2378 arrangement found at Forsyth. This Morgan borrowed more from the outside Georgia. studied symmetry undoubtedly buildings of the 1893 Columbian

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GBJ Feature

2007 Annual Review of Case Law Developments Georgia Corporate and Business Organization Law by Thomas S. Richey

he purpose of this article is to track case law

developments in Georgia’s state and federal T courts dealing with corporate and business organization law issues. Some of the cases reviewed

address important, previously unresolved questions.

These include the Court of Appeals of Georgia’s con-

flicting decisions on the standard of care for directors

and officers of Georgia corporations. Other decisions

involve elusive issues, such as the validity of an elec-

tion of directors of a Georgia membership nonprofit

corporation that lacks the officers or the bylaws to

authorize a meeting of members. We have included

still other decisions, such as those concerning piercing

the corporate veil, because they illustrate and confirm

settled points of law.

In general, the article is organized by type of entity limitations for breach of fiduciary duty, the Business —corporations, partnerships and limited liability com- Records Act, director and officer liability insurance and panies, with decisions organized by subject matter other special issues—the decisions should be applica- within those categories. In several areas—statutes of ble to all forms of business organizations, and we have

34 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:42 PM Page 35

categorized those decisions by particular corporate personnel had issue. Following is a brief summary fiduciary duties, focusing on of these developments. whether an officer or employee had authority to bind the corporation. Business and Several decisions concerned the Nonprofit capacity, authority, rights and liabilities of corporate officers, direc- Corporations tors and shareholders in other con- In Flexible Products Co. v. Ervast, texts. The Court of Appeals of 284 Ga. App. 178, 643 S.E.2d 560 Georgia’s decision in Keane v. (2007) and Rosenfeld v. Rosenfeld, Annice Heygood Trevitt Support 286 Ga. App. 61, 648 S.E.2d 399 Trust, 285 Ga. App. 155, 645 S.E.2d (2007), different divisions of the 641 (2007) dealt with the capacity Court of Appeals of Georgia in which a guarantee of a corporate addressed whether corporate offi- indebtedness was executed, reject- cers and directors are subject to an ing arguments that the defendant Georgia in Barton v. Barton, 281 Ga. ordinary negligence standard of could not be personally liable 565, 639 S.E.2d 481 (2007) held as a care, reaching opposite results. The because he executed the guarantee matter of first impression that, for Flexible Products Co. case, holding in his capacity as a shareholder or purposes of dividing marital prop- that ordinary negligence is not as a director. In Clay v. Oxendine, erty, a wife in divorce proceedings actionable, was decided unani- 285 Ga. App. 50, 645 S.E.2d 553 is not bound by the valuation of her mously and, under the Court of (2007), the Court of Appeals held husband’s corporate stock in a Appeals’ Rule 33, is binding prece- that corporate officers could not shareholder buy-sell agreement. In dent, whereas the Rosenfeld deci- escape personal liability under Suzie Schutt Irrevocable Family Trust sion, holding the standard to care Georgia’s anti-payday lending v. NAC Holding, Inc., 283 Ga. App. is ordinary negligence, was not statute and the Georgia Industrial 834, 642 S.E.2d 872 (2007), the Court unanimously decided and is only Loan Act by arguing that their acts of Appeals of Georgia held that the physical precedent. were those of the corporation. The sole remedy available to a share- The 11th Circuit Court of case of Hinely v. Alliance Metals, Inc. holder of a Delaware corporation Appeals in TSG Water Resources, of Atlanta, 285 Ga. App. 230, 645 under the Delaware short-form Inc. v. D’Alba & Donovan, Certified S.E.2d 584 (2007) involves claims merger statute is an appraisal hear- Pub. Accountants, P.C., 260 Fed. by a corporate executive that his ing before the Delaware Court of Appx. 191 (not published in the employer breached his employ- Chancery. In Fansler Foundation v. Federal Reporter) addressed the ment contract by, among other American Realty Investors, Inc., 2007 business judgment rule as to claims things, engaging in allegedly ille- WL 2695630 (E.D. Cal., Sept. 11, against a Georgia corporate officer, gal activity. In McKenna v. Capital 2007), a case involving a preferred along with the test for corporate Resource Partners, IV, L.P., 286 Ga. shareholder’s allegations of fraud citizenship for diversity jurisdic- App. 828, 650 S.E.2d 580 (2007), the and breach of fiduciary duty tion and issues of reasonable Court of Appeals found a triable regarding promises to list a Georgia reliance and scienter for common issue of fact as to the authority of a corporation’s shares on a stock law fraud and fraud under the controlling shareholder to reach an exchange allegedly made to enlist Georgia securities laws. agreement with minority share- shareholder support for a reorgani- In three instructive decisions, holders that could be binding on zation, a California federal district Impreglon, Inc. v. Newco Enterprises, the corporation without action by court rejected the defendants’ Inc., and W. Curt Jarrell, 508 F. Supp. its board of directors. The Court of efforts to characterize the claims as 2d 1222 (N.D. Ga. 2007), Lou Appeals in Huffman v. Armenia, 284 claims for fair value governed by Robustelli Mktg. Servs., Inc. v. Ga. App. 822, 645 S.E.2d 23 (2007) the Georgia dissenters’ statute Robustelli, 286 Ga. App. 816, 650 held that a corporate president The Court of Appeals of Georgia S.E.2d 326 (2007), and Hilb, Rogal & lacked the capacity to file a bank- in Nyugen v. Tran, 287 Ga. App. Hamilton Co. of Atlanta, Inc. v. Holley, ruptcy petition pro se on behalf of 888, 652 S.E.2d 881 (2007), for pur- 284 Ga. App. 591, 644 S.E.2d 862 the corporation and the filing was poses of an interlocutory injunc- (2007), the courts ruled on claims for also beyond his authority because tion, upheld the actions of a major- breach of fiduciary duty by depart- it was not approved by the board ity of members of a Georgia non- ing personnel, among other things, of directors prior to filing. profit corporation with no officers, examining in Impreglon whether Three decisions addressed issues directors or bylaws, in calling a advance planning is a breach of of corporate stock valuation and meeting of members and electing a fiduciary duty and in Hilb, Rogal and dissenting shareholders’ appraisal board of directors, despite the lack Lou Robustelli Marketing whether proceedings. The Supreme Court of of specific statutory authority for

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members to call a meeting under Newlin, 370 B.R. 870 (Bankr. M.D. ited liability company because a those circumstances. Ga., June 29, 2007) held that a bank- development agreement among The courts handed down two deci- ruptcy trustee who fails to assume the members precluded fiduciary sions involving administrative disso- the executory provisions of a part- duties from arising. A Tennessee lution of Georgia corporations—Foster nership’s buy-sell agreement can- bankruptcy court decision, In re v. Clayton County Judicial Circuit of the not enforce the agreement. In Wheland Foundry, LLC, 2007 WL State of Georgia, et al., 2007 WL 569851 Hendry v. Wells, 286 Ga. App. 774, 2934869 (Bkrtcy. E.D. Tenn., Oct. 5, (N.D. Ga., Feb. 20, 2007), in which it 650 S.E.2d 338, (2007), the Court of 2007), addressed whether two LLC was held that an administratively dis- Appeals of Georgia used a “special members’ claims against a third solved corporation cannot undertake injury” rule analysis to decide that were direct or derivative, applying new corporate obligations, and certain claims by limited partners Georgia’s special injury rule and Williams v. Martin Lakes Condominium of a limited partnership still gov- finding Georgia’s direct action Association, Inc., 284 Ga. App. 569, 644 erned by the now-superseded exception for closely held entities S.E.2d 424 (2007), in which it was held Uniform Limited Partnership Act to be inapplicable. that reinstatement of an administra- were derivative in character and tively dissolved nonprofit corporation subject to dismissal. Ellison v. Hill, Statute of Limitations can take place at any time and enable 288 Ga. App. 415, 654 S.E.2d 158 for Breach of Fiduciary the corporation to pursue litigation (2007) ruled that it is not necessary filed during the period of its dissolu- to offer expert evidence of prof- Duty tion. itability in accordance with gener- In four cases handed down in In B&B Quick Lube, Inc. v. G&K ally accepted accounting principles July 2007, Hamburger v. PFM Capital Services Company, 283 Ga. App. 299, in order to establish a claim for a Mgmt., Inc., 286 Ga. App. 382, 649 641 S.E.2d 198 (2007), the Court of share of partnership profits. The S.E.2d 779 (2007); Cochran Mill Appeals of Georgia applied 11th Circuit Court of Appeals in Assocs. v. Stephens, 286 Ga. App. O.C.G.A. § 14-2-504, an alternative Optimum Techs., Inc. v. Henkel 241, 648 S.E.2d 764, (2007); Hendry method for serving process on a Consumer Adhesives, Inc., 469 F.3d v. Wells, 286 Ga. App. 774, 650 Georgia corporation with require- 1231 (11th Cir. 2007) held that the S.E.2d 328 (2007); In re Pac One, Inc., ments that differ from those of the relationship between a manufac- 2007 WL 2083817 (N.D. Ga., July Georgia Civil Practice Act. The turer and distributor did not con- 17, 2007), the courts addressed Court of Appeals in Wright v. stitute a partnership or joint ven- statutes of limitations for breaches AFLAC, Inc., 283 Ga. App. 890, 643 ture and did not give rise to fiduci- of fiduciary duty in corporate and S.E.2d 233 (2007) discussed a cor- ary duties or duties of disclosure. partnership contexts, reaching con- porate issuer’s recordkeeping In Leevers v. Bilberry, 2007 WL flicting results as to the applicable responsibilities and its burden of 315344 (M.D. Ga., Jan. 31, 2007), the limitations period for partnership proof with respect to claims to court held that a property manager fiduciary breaches. ownership of its stock. was not an agent of the partnership that owned the property and was Business Records Partnerships not bound by the arbitration provi- In four cases the Court of In Bloomfield v. Bloomfield, 282 sions of the partnership agreement. Appeals of Georgia has addressed Ga. 108, 646 S.E.2d 207 (2007), the The Court of Appeals in Dalton the admissibility of documents Supreme Court of Georgia held Point, L.P. v. Regions Bank, Inc., 287 under the Georgia Business that where the general partner had Ga. App. 468, 651 S.E.2d 549, Records Act. In Ishak v. First Flag improperly transferred the sole (2007), rejected an effort by a limit- Bank, 283 Ga. App. 517, 642 S.E.2d asset of a family limited partner- ed partnership to hold a depository 143 (2007), permitting a loan sum- ship, the limited partners were bank liable for the embezzlement mary to be introduced through an entitled to recover their pro rata of funds by the partnership’s book- officer who did not prepare it, in share of the value of the property keeper, when the “corporate” reso- Walter R. Thomas Assocs., Inc. v. lost, not an award of an undivided lution expressly authorized the use Media Dynamite, Inc., 284 Ga. App. interest in the property itself. of partnership funds for personal 413, 643 S.E.2d 883 (2007), allowing French v. Sellers, 2007 WL 891306 obligations. invoices from a third party vendor (M.D. Ga., March 21, 2007) to be treated as the recipient’s busi- addressed claims that a general Limited Liability ness records, and in Boyd v. Calvary partner of an LLLP breached his Companies Portfolio Services, Inc., 285 Ga. App. fiduciary duties in arranging for 390, 646 S.E.2d 496 (2007) and the purchase of a limited partner’s Megel v. Donaldson, 288 Ga. App. Jenkins v. Sallie Mae, Inc., 286 Ga. interest by failing to disclose nego- 510, 654 S.E.2d 656 (2007) rejected App. 502, 649 S.E.2d 802 (2007), tiations and offers received for the claims of breach of fiduciary duty permitting introduction of loan purchase of the partnership. In re against a majority member of a lim- records from predecessor lenders.

36 Georgia Bar Journal 06-08gbj.qxp 5/27/2008 3:32 PM Page 37

Corporate Veil former employee whose promised http://www.pogolaw.com/articles/ Decisions stock options were not included in 2498.pdf. the acquisition. In Automated Print This article is not intended as legal The decisions of Powell Co. v. Inc. v. Edgar, 288 Ga. App. 326, 654 advice for any specific person or cir- McGarey Group, LLC, 508 F. Supp. S.E.2d 413 (2007), stock purchase cumstance, but rather a general treat- 2d 1202 (N.D. Ga. 2007), BMC-The price adjustment provisions in a ment of the topics discussed. The views Benchmark Mgmt. Co. v. Ceebraid- promissory note were held not to and opinions expressed in this article Signal Corp., 2007 WL 2126272 be a matter of setoff or recoupment are those of the author only and not (N.D. Ga., July 23, 2007) and and evidence should have been Powell Goldstein LLP. Adams v. Unum Life Ins. Co. of allowed of events requiring the The author would like to acknowl- America, 508 F. Supp. 2d 1302 price to be adjusted. edge and thank Vjollca Prroni, Ann (N.D. Ga. 2007) rejected efforts to Ferebee and Lindsay Brewer for their pierce the corporate veil for lack of Other Issues valuable assistance with this article. evidence. The BMC-The Benchmark The Court of Appeals in Slater v. Mgmt. Co. decision also declined Cox, 287 Ga. App. 738, 653 S.E.2d Thomas S. Richey con- to recognize the theory of aiding 58 (2007) decided the applicable centrates his practice in and abetting fraud as viable under deadline for filing an appeal to securities, banking and Georgia law. The Adams case superior court from an administra- corporate litigation. He rejected a joint venture basis for tive ruling by the Georgia is a member of Powell liability. Horton Homes, Inc. v. Securities Commissioner is the 20- Goldstein’s Securities, Bandy, 2007 WL 4571251 (M.D. day period specified in O.C.G.A. § Corporate and Fiduciary Litigation Ala., Dec. 26, 2007) addressed veil- 10-5-17, not the 30-day period Practice. Richey is the founder of piercing in the context of arbitra- allowed under Georgia’s Georgia ICLE’s Annual Business tion agreements and Lollis v. Administrative Procedure Act. Organization Litigation Seminar, Turner, 288 Ga. App. 419, 654 In Scouten v. Amerisave Mortgage now in its 12th year and serves S.E.2d 229 (2007) refused to permit Corp., 284 Ga. App. 242, 643 S.E.2d on the State Bar of Georgia’s “outsider reverse veil-piercing.” 759 (2007), reversed on other grounds, Corporate Code Revision 283 Ga. 72, 656 S.E.2d 820 (2008), the Committee. Insurance Issues Court of Appeals denied standing In Executive Risk Indemnity, Inc. under Georgia’s RICO statute to a v. AFC Enterprises, Inc., 510 F. Supp. whistle-blower who was not directly 2d 1308 (N.D. Ga. 2007) , the court injured by the alleged predicate acts. rejected a director and officer lia- In Marcum v. Gardner, 283 Ga. bility insurer’s efforts to rescind its App. 453, 641 S.E.2d 678 (2007), a policy. The Court of Appeals in dispute regarding whether a trans- Fireman’s Fund Ins. Co. v. University action was intended as an invest- of Georgia Athletic Assn., Inc., 288 ment or a loan, the Court of Appeals Ga. 355, 654 S.E.2d 207 (2007), held of Georgia held that a check denot- that exclusions in a nonprofit cor- ed as a “one-third investment” did poration D&O insurance policy for not decide the character of the trans- failure to effect or maintain insur- action, given testimony that it was ance and for bodily injury did not intended to be a loan. bar coverage for the organization’s Finally, in First Support Services, failure to obtain disability insur- Inc. v. Trevino, 288 Ga. App. 850, ance for a student athlete. 655 S.E.2d 627 (2007), the Court of A-A-A Appeals of Georgia held that the ATTORNEY REFERRAL SERVICE Transactional Cases purchaser of a manufacturer was Attention Attorneys! The decision in Paul v. Smith, not strictly liable as a “successor Recession Proof? Probate/Criminal/ Gambrell & Russell, 283 Ga. App. corporation” for purposes of SSD/Immigration/Bankruptcy. 584, 642 S.E.2d 217 (2007), concerns O.C.G.A. § 51-1-11(b)(1) because In a Slump? a duty-to read-defense in a legal there was no evidence of a merger, Marital/Corporate/Civil. malpractice action involving the assumption of liabilities, common- Let us Help – The Best Bang for unanimity needed for a sharehold- ality of ownership or attempt to the Buck Around! ers consent to a merger. Duvall v. commit fraud. (800) 733-5342 Galt Med. Corp., 2007 WL 4207792 24-hour paging: (N.D. Cal., Nov. 27, 2007) rejected For an extended discussion of each (888) 669-4345 third party beneficiary claims of these cases, please download the doc- [email protected] against an acquiring company by a ument at the following link:

June 2008 37 06-08gbj.qxp 5/22/2008 12:42 PM Page 38

GBJ Feature

What’s in Your Client’s Employee Handbook? A Guide to Ensuring Compliance with Georgia Law

by Gina M. Cook

f you have ever reviewed an employee handbook

for a client, you are probably aware of the prob- I lems that arise when companies choose to obtain legal materials from less than reliable sources.

Unfortunately, the most popular source for obtaining

an employee handbook today is the Internet. To your

client, that seems like a good idea—online employee

handbooks are easily accessible, appear to cover all

important areas of the employer/employee relation-

ship, and best of all, they are free. However, eventually

someone within the company (usually in the legal

department, or perhaps not at all if there is no legal

department) will have second thoughts as to the hand-

book’s accuracy. Worse yet, the error could raise its

ugly head for the first time in a case before a court or a

government agency.

38 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:42 PM Page 39

Hopefully the client calls a written handbooks can eliminate lawyer before the disaster occurs. If certain concerns, such as the inad- SOUTH so, the presentation of the hand- vertent creation of an implied con- book is usually accompanied by the tract between an employer and its GEORGIA ADR hopeful question “Do you think employees. There are many other this looks okay?” Inevitably, your important reasons for having a hand- SERVICE, LLC answer will be “No!” book than are listed here. If you are going to undertake From a Georgia perspective, a MEDIATION and writing or reviewing a handbook handbook is less crucial than in ARBITRATION of personal for a Georgia company, you will highly regulated states like New injury, wrongful death, want to make sure that the lan- Jersey, California and Minnesota. guage and policies you include Georgia has few specific state commercial, real estate and comply with state and federal law. employment laws that affect daily other complex litigation There are a number of specific pro- interactions between employers cases. Visit our website for visions and important drafting con- and employees. However, Georgia fee schedules and cerns that need to be taken into con- law regarding at-will employment biographies of our panel, sideration when creating an (discussed below), pay and bene- comprised of experienced employee handbook. If you are fits should be evaluated when con- ever faced with the above- sidering a handbook. Also, if your Middle and South Georgia described circumstances, you need client wants to use its Georgia trial lawyers. to know what principal areas of the handbook in other states, watch employee handbook to focus on to out! Employment laws vary so CHARLES R. ADAMS, III – Fort Valley ensure that your client will not face much from state-to-state that a sin- THOMAS C. ALEXANDER – Macon litigation. When drafting or review- gle handbook approach is essen- MANLEY F. BROWN – Macon ing an employee handbook under tially impossible. JERRY A. BUCHANAN – Columbus Georgia law, always consider the JOHN D. CAREY – Macon following general guidelines. If Your Client is Going WADE H. COLEMAN – Valdosta to Have a Handbook, It JOHN A. DRAUGHON, SR. – Macon First, an Employer is JAMES L. ELLIOTT – Valdosta Must Comply with Not Required to Have BENJAMIN M. GARLAND – Macon Federal Law ROBERT R. GUNN, II – Macon an Employee Your client’s handbook should JANE M. JORDAN – Macon Handbook (But It comply with federal law. Work JEROME L. KAPLAN – Macon Should) with your client to determine what STANLEY M. KARSMAN – Savannah federal laws cover the employer’s BERT KING – Gray Your client may be shocked to workforce. Does the company have HUBERT C. LOVEIN, JR. – Macon hear this, but Georgia law does not enough employees to be a covered MICHAEL S. MEYER VON BREMEN – Albany require employers to have an employer under the Family and S. E. (TREY) MOODY, III – Perry employee handbook. However, for Medical Leave Act (FMLA) or the PHILIP R. TAYLOR – St. Simons Island a wide variety of reasons, ranging Americans with Disabilities Act RONALD C. THOMASON – Macon from federal law compliance in the (ADA)? If so, include policies CRAIG A. WEBSTER – Tifton area of harassment to employee regarding these laws in the HON. TOMMY DAY WILCOX, JR. – Macon understanding of employer expec- employee handbook. If you are F. BRADFORD WILSON, JR. – Macon tations, companies should be using reviewing a handbook and deter- a handbook. Employee handbooks mine it already contains policies ROBERT R. GUNN, II, serve as introductory guides to referencing applicable federal MANAGING PARTNER new employees and reference laws, make sure those policies are guides for incumbent workers. An up to date. For example, the FMLA Rachel D. McDaniel, employee handbook can provide a was recently expanded and now Scheduling Coordinator crucial defense to a discrimination requires employers to grant unpaid 240 THIRD STREET or harassment case, if the hand- leave to immediate family mem- MACON, GEORGIA 31201 book properly sets forth how such bers of reservists and National (800) 863-9873 or matters should be handled. The Guardsmen called to active duty, handbook also increases the and to employees providing care to (478) 746-4524 chances of consistent and proper family members wounded while FAX (478) 745-2026 handling of issues by both human serving in the military. www.southgeorgiaADR.com resource professionals and opera- Also, beware the National Labor tions managers. Additionally, well- Relations Act (NLRA), which many

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employers naively believe applies ing the meaning of “at-will” drafting sections of the handbook only to unionized workforces. The employment. This is a concept that related to compensation plans or NLRA governs many handbook top- is often difficult for employees to benefits programs, as these sec- ics ranging from solicitation to confi- understand. Under Georgia law, tions may be contractually enforce- dentiality among employees, to the both the employer and the able and will be the most suscepti- definition of insubordination (versus employee are free to end the ble to litigated claims. Also, avoid something called NLRA-protected, employment relationship at any making guarantees in the hand- concerted activity). If you’re not time, for any reason, as long as that book—“if ABC happens, you will versed in these areas, talk to some- reason is not unlawful (i.e., dis- get a verbal warning before further one who is. Many handbooks, which crimination or retaliation). discipline occurs.” The latter type are otherwise well-written, contain Employers are not required to give of guarantee (almost always provisions that violate the somewhat an employee any amount of notice accompanied by the unfortunate unusual and occasionally arcane leading up to the separation of words “will” and “must”) can cre- provisions of the NLRA. their employment. However, this ate serious legal issues. goes both ways—the employee is Make Sure the not required to give the employer Finally, Know Your Employee Handbook any amount of notice before he or Own Limitations she decides to leave his or her posi- Clearly Explains the tion. An explanation on the front Even if you are very familiar with Concept of At-Will end of the employment relation- Georgia law, do not undertake the Employment ship will help to ensure employees review or drafting of an employee are not under the impression they handbook without the advice or In drafting an employee hand- have a contract of employment for assistance of a seasoned employ- book, include a paragraph explain- a certain period, or that they are ment lawyer. Ask yourself—“Can I entitled to their position unless draft a dress code policy that will they are terminated “for cause.” not cause my client to violate the religion provisions of Title VII of the The Lawyer Under Georgia Law, Civil Rights Act of 1964? Do I know Handbooks Are Not how to advise my client on making Assistance withholdings from an employee’s Legally Binding paycheck without violating federal Program of the Contracts, Except minimum wage laws? Can I help When... my client implement a substance State Bar of abuse policy that will comply with Georgia generally does not con- the intricate requirements of the sider employee handbooks to con- Georgia Drug-Free Workplace Georgia stitute legally binding contracts. Program Act?” These are only a few Stress? However, there are some impor- of the employment law issues that Chemical dependency? tant exceptions to this rule. arise when drafting an employee Family Problems? Georgia courts have held certain handbook. Seeking the assistance of Mental or Emotional language in employee handbooks a lawyer with well-rounded knowl- Impairment? to be contractually enforceable edge of employment laws will where the language is related to ensure your client is getting the type The Lawyer Assistance additional compensation plans of handbook that is needed and one Program is a free program and benefits programs. See Fulton- which will be legally compliant providing confidential DeKalb Hosp. Auth. v. Metzger, 417 under federal and Georgia state assistance to Bar S.E.2d 163 (Ga. Ct. App. 1992) law. members whose personal (holding disability policy in hand- problems may be book extending benefits in event of Gina Cook is an asso- interfering with their ability injury was part of contract of ciate in the Atlanta to practice law. employment); Shannon v. Huntley’s office of Littler Jiffy Stores, 329 S.E.2d 208 (Ga. Ct. Mendelson, the App. 1985) (where employee hand- For more information, nation’s largest book stated terminated employees please call the confidential employment and labor hotline number at would not be eligible for vacation law firm representing manage- 800-327-9631. pay, former employee was not entitled to pay for unused vacation ment exclusively. She can be days). Consequently, use care in reached at [email protected].

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GBJ Feature

Law Day Rules in Glynn County!

by Linda T. Muir

he Law-Related Education Subcommittee of

the Foundations of Freedom Commission of T the State Bar of Georgia collaborated with the Brunswick-Glynn County Bar Association to bring

Law Day 2008 to the people of Glynn County on May The Brunswick News

2. This year’s theme focused on The Rule of Law:

Foundation for Communities of Opportunity and

Equity. With the additional collaboration of the public Photo by Bobby Haven/ Glynn County Superior Court Judge Amanda Williams engages fourth graders from Goodyear Elementary School in questions and answers schools, the courts, a significant federal governmental at the Open Courthouse Project Law Day celebration.

agency, and the business community, this was a Law is encouraging, more needs to be done to bring civics education to young people to better prepare them to be Day that will not soon be forgotten. active and informed citizens who vote, serve on juries and appreciate the values of the American form of gov- At the founding of this country, Thomas Jefferson ernment rooted in the Constitution and the law. noted, “If a nation expects to be ignorant and free, it Sustaining our Democracy for future generations expects what never was and never will be.” As our depends upon our heeding Jefferson’s words to the State Bar presidents, particularly Jay Cook, have told wise. us, we have seen in recent years a general decline in Taking this reality to heart with an interest in being civic education and engagement. People are not as a catalyst for improving civics education in Georgia, informed as they once were about their government, the Bar’s Law-Related Education Subcommittee and how it is structured and how it functions in their daily the bar association decided to work together to devel- lives. The average American does not appreciate the op a pilot program that would at once export and pivotal role of the independent judiciary in our society. adapt the mission and messages of the Bar’s Although the increased involvement of new and for- Foundations of Freedom and LRE programs for use in mer voters in this year’s presidential primary elections the local community. Since all Georgia school children

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cannot come to Atlanta to see the programs available for them at the Bar Center, the idea emerged and crystallized to take the programs to the children. The courthouses in their county could be opened to children and become an extension of their classrooms. After over a year of planning, the collaborators launched the Open Courthouse Pilot Project in the fall of 2007 to bring students and their teachers into the federal and county courthouses in Glynn County. One by one, key institu- tions and organizations became involved and momentum for the

project began to build. The 2008 Brunswick, Ga. Center, Courtesy of the Federal Law Enforcement Training chair of the Brunswick-Glynn (Left to right) Connie L. Patrick, director of the Federal Law Enforcement Training Center; Linda County Bar Association, Leslie J. T. Muir, chair of the LRE Subcommittee of the Foundations of Freedom Committee of the State Thompson of Hall, Booth, Smith & Bar of Georgia and the chair-elect of the Brunswick-Glynn County Bar Association; Leslie J. Thompson, chair of the Brunswick-Glynn County Bar Association; M.H. “Woody” Woodside, Slover, and her predecessors, president Brunswick-Golden Isles Chamber of Commerce; Hon. Lisa Godbey Wood, U.S. District Laura Shiver of the Georgia Legal Court Judge for the Southern District of Georgia; and Alex Atwood, secretary-treasurer Services Program, and Susan Brunswick-Glynn County Bar Association and former Chief of the FLECTC Legal Division. Thornton, of the Federal Law Enforcement Training Center’s the Brunswick High School Mock which are the grades in Georgia Counsel’s Office, embraced the Trial teams at the federal court- schools in which students learn idea of the project. Glynn County house. Others sat in the county about U.S. History, Georgia Public Schools, the U.S. District courthouse jury assembly room History and Government. The local Court for the Southern District of and heard about how juries are branch of BB&T Bank was the Georgia and the Glynn County selected and why they are impor- sponsor of the Law Day Essay State and Superior Courts tant. Students in a superior court- Contest. The city executive, Lance embraced it as well, and worked to room heard the word “plaintiff” Turpin, presented monetary make it a success. Dr. Michael Bull, for the first time. All considered awards in the form of savings superintendent of the Glynn why it is critical in our society for accounts for the first, second and County School System, encouraged the people to know about their third place winners in each catego- the county’s principals to incorpo- government and to be involved in ry. The winning essays, which are rate the project into their schools’ the judicial system. reprinted with permission at the schedules, and they did. Judges Throughout the day, lawyers end of this article, demonstrate and their staffs set aside an entire and judges introduced the students how seriously the students at every day on the courts’ dockets to be to the procedures of the court room level considered this question and able to host the students. and to the significance of an inde- how attuned they are to the need As Spring 2008 approached, pendent judiciary within the for laws in a civil society and in teachers from across the county American system of government. their daily lives. orchestrated field trips, and stu- They engaged them in question The closing ceremony was held dents learned special lessons on and answer sessions so that the stu- on May 5, when the Brunswick- The Rule of Law in preparation for dents could see first-hand what Glynn County Bar Association and their visits. On May 2, the court- goes on in the courthouse. the Federal Law Enforcement houses were open all day only for In conjunction with the Open Training Center (FLETC), which is the students, and the courthouses’ Courthouse Project, the bar associ- based in Brunswick and trains over staffs enthusiastically and efficient- ation also conducted an essay con- 55,000 law enforcement personnel ly welcomed them. Ultimately, test and asked the students to write from across the country each year, more than 1,000 students from the a 500-word essay on the theme: co-hosted a Law Day luncheon in county’s fourth and eighth grades “How My Life Would Be Different the FLETC dining hall to celebrate visited a courthouse to meet the Without the Rule of Law.” the 50th anniversary of Law Day. judges and to find out about The Hundreds of students participated The bar association presented the Rule of Law. Some students wit- in three categories—fourth grade, Law Day Liberty Bell Award to nessed a mock trial presented by eighth grade and high school— Woody Woodside, long-time presi-

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dent of the Brunswick-Golden Isles send a positive message about educated, involved citizenry for Chamber of Commerce. FLETC their profession and to improve years to come. Director Connie L. Patrick intro- their visibility and image in the Linda T. Muir, a duced the Hon. Lisa Godbey community. Glynn County stu- Wood, U.S. District Court judge for dents, teachers, educators, judges, partner with The the Southern District of Georgia. lawyers, FLETC officials, business Saylor Law Firm LLP Judge Wood spoke eloquently to leaders and ordinary citizens in Atlanta and Saint the gathering of lawyers, law enthusiastically endorse making Simons Island, focuses enforcement personnel, FLETC the Open Courthouse Law Day her practice in the employees and honored guests Celebration an annual event. areas of estate and business plan- about the significant role they play Having proven its feasibility and ning, wills, trusts and estates. She every day in our society and of the value in Glynn County, this pilot is the chair of the Law-Related value of their contributions. project can be replicated in other Education Subcommittee of the This Law Day experience communities throughout the Foundations of Freedom demonstrates the singular differ- state. Local bar associations are Commission of the State Bar of ence that the State Bar of Georgia encouraged to contact the State Georgia and is the chair-elect of and a local bar association work- Bar for assistance in making plans ing together can make in a com- for their 2009 Law Day celebra- the Brunswick-Glynn County Bar munity. Moreover, rallying a tions. In Georgia, it is possible and Association. She can be reached cross-section of leaders from the imperative for lawyers to lead the by e-mail or phone at community around Law Day is a way to bring more civics educa- [email protected], 404-201- key opportunity for lawyers to tion to our children to ensure an 2183 or 912-434-4442.

How My Life Would be Different Without the Rule of Law Fourth Grade Winning Essay | by Erin McQuade, C.B. Greer Elementary School

My life would be completely different if there were no rule dying or being injured from car accidents. If it weren’t for these of law. I think my life would be horrible, dangerous and laws I might not be here. Laws also prevent children from unhealthy. There are two different types of laws. There are going to work too early, while they are in a low level of educa- government laws and social laws. The government laws are tion. This allows children to get their education first before they made by to maintain order in society. They also help are made think about working. to benefit society as whole. Social laws are morals and values. Laws help to keep us all healthy. Laws require that children These are kind of common sense laws. get their shots to prevent them from getting terrible diseases. Traffic lights and stop signs are examples of how govern- This is best for society because diseases might spread and kill ment laws keep us safe. People would not know who had the many people. Laws also protect our environment, which also right of way on the streets! Government laws protect our homes protects our health in the long run. If there weren’t laws to and lives from danger. Robbers aren’t allowed to break into our protect the environment factories might pollute the water and homes, businesses, cars or property. Without laws robbers air. They might not dispose of their waste properly which could would still fear that the owner of the property might harm damage the soil, air or water. This might make it so that chil- them, but because of laws they also fear that they will go to jail. dren might have deformities or diseases. If we did not have laws there wouldn’t be any law Without the rule of law, National Parks would be gone and enforcement officers, postal workers, or public schools. Law historical sites lost. It would be a mystery of how we got here enforcement officers keep us safe from harm at home, and the and we might miss out on the ways of the past. Also it would borders of our country. Military officers go to war to prevent halt curiosity of nature. When I go to National parks and his- any attackers from coming to the United States. They also work torical sites I learn a lot. If there were no National Parks, I to create peace in the world. Without Postal Workers our world might not have seen Redwood trees, or the Washington would be stopped. We wouldn’t be able to send our mail to Museums. each other. If we didn’t have public schools there might be Our wildlife and pets need somebody to protect them. more uneducated people because not all parents would teach Even with the current laws people continue to mistreat animals. their children. This makes me very sad. It angers me that some people use Laws protect our food. Farmers, restaurants, grocery animals for profit by having “puppy mills”. I feel that animals stores, and schools have to handle food safely. They have to should have safe and happy homes just like people do. So the wear gloves and hair nets, and they have to wash their hands law has to protect them. regularly. They also have to keep track of expiration dates so Without all of these laws our world wouldn’t be as beauti- that the food is fresh. Without these laws people might get sick ful. We need laws to maintain order and to keep peace in our from rotten food. homes, and the world. Although social laws make sense, they Laws protect children by making sure they are safe from do not always work to maintain order. This is why we need any danger. For example, car seat laws protect children from government laws so that we all work together in society.

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RULE OF LAW Foundation for Communities of Opportunity and Equity Eighth Grade Winning Essay | by Josiah Wright, Needwood Middle School Five months have taken place since the downfall of the govern- other over a deck of cards. A person could be out walking minding ment, and surprisingly I am still alive. The havoc that erupted from his own business and be shot for no reason. the disintegration of law enforcement is beyond my comprehension. In addition to watching our backs, we must also watch our mir- Killings, ranging from drive-bys to bombs, have victimized countless rors while driving. People greatly exceed safe speeds on the roads people. Thankfully, my family has not yet experienced any incidents, resulting in innumerable casualties. Moreover, the interstate is practi- but I fear something unfortunate will have to happen soon. cally useless from all the wrecks and traffic. Hit-and-runs are very Furthermore, money is becoming an issue. My father foresaw the common; our vehicle received a dent from a small collision. I doubt impending chaos (when there was still order in the nation) and with- next time we will be so lucky. drew all our savings from the bank. However, the few thousands of The economy has suffered tremendously also. Some effects of dollars we have will not sustain us much longer considering the rising today’s uncivilized culture include the facts that the dollar is losing its cost of food. In all, everyday seems like a struggle for survival. value on a daily basis, all schools are shut down, and only the most Once again, the news reported the formation of another “super” primitive jobs are left. Attempts to rebuild law and order by recon- gang in New York City. Every city has its hooligans roaming the structing a new government and establishing criminal punishment streets. The hospital is overrun with them, whereas the library is filled have been made, but all are to no avail. For example, the most with drug dealers between the shelves and mobsters at the comput- recent effort resulted in five presidential candidates shot; therefore, ers. Consequently, my mother and I are confined to the house so as to nobody dares to campaign against today’s conditions. Meanwhile, at avoid encountering thugs. They try to pilfer anything you have which home, my life is becoming more and more despondent being that is why only three in every four trips to the store are successful. Thus civilization is almost non-existent. my mother and I dread the moment my father departs to buy food. My family has had various discussions on how to bear the cir- Beyond the destruction the hoodlums cause, national terrorism is cumstances and everybody realizes the sensible option: to steal from affecting my life as well. In the U.S., arsonists have caused twelve others so we can live. Most assuredly, this is a lose-lose situation forest fires that burn thousands of acres each day. In our area alone, whether we resort to the same methods that caused all the strife or a nearby fire has depleted twenty percent of our state’s woodlands. refrain from doing so—and at the same time—suffering in the However, nature is not suffering alone: houses are boarded up, loot- process. Indeed, the instinct to survive is conflicted by my conscious ed, or burned to the ground. Proliferation of “former” illegal which shall not let me be without guilt. So the question remains to weapons has increased allowing for more bomb detonations and live with reproach or be afflicted with dignity? Personally…I will hope shoot-outs on the streets; for nowadays, people are quick to draw for a better tomorrow continuing to endure the pain. That’s just how their guns. Just the other day, two men across the road shot each it is without the rule of law.

Life Without Rules or Laws High School Winning Essay | by Eric Kobylanski, Southside Performance Learning Center

It is clear that without law human existence would not be guar- In normal, everyday life I assume that there would be some anteed. Today’s post-apocalyptic movies show struggles within tiny envious people. Again with laws, I am protected by some invisible communities as those with varying degrees of power decree what is force field that prevents a person from acting upon their emotions, law and what is free-reign. Now imagine that the environment is just but without law I would be afraid to step out of the house for fear of an ordinary small town in Georgia instead of a desolate plain in the my wellbeing. That is an understatement though, as with no law, a middle of nowhere. This town would not even exist if there were no person could form a crude nuclear bomb and detonate it right on my laws as debtors would be free to stay in England. For this example door step. Of course a person with that objective, the assailant though, if laws were suddenly null and void, my life would change, would not handle it with the care uranium demands. They in fact die, and most certainly not for the better. albeit slowly and very painfully, but what law protects that against Leading a somewhat dual personality, I’ve made many enemies the arduous process of a diagnosis? What law would protect them through my public schooling in this town. Some individuals I have from being assassinated? What law would protect them from being known since I moved here, and others I have met just recently. berated by people trespassing? Through word of mouth people assume I exude the aura of a geek or A world without law has more of an effect on the entire world an elitist, but I try my hardest not to conform to what people per- than just on me. Rules and laws permeate each and every action that ceive. Still, there are some who I suspect are out to get me. a person takes. A minor action that is altered would ripple through- Hesitation and dire consequences are what keep me safe from a mer- out these connections and chaos would shortly follow. With this ciless beating, but if laws were to disappear and forever banned, I anarchy, the human race would quickly descend into madness and would have a hard time living and an even harder time justifying life would be as precious as mud. This would directly affect me as, existence. Of course an option would be to move, but many people like all other successful humans, I like to live. To fathom a world would have already come up with the same idea. There is also the without laws is something that is usually trifled and looked at in a fact that laws would not stop a person from harassing me while mov- joking manner, but once a person starts to think of the rippling effect ing or at the location I move to. Then there is the fact that I do not of a slight change, a person’s mind can be blown away. Looking at even know if laws would still apply in the place I moved to. Fighting the spectrum of people just in this tiny suburban town, I try not to fire with fire would seem an impossible task, as numbers would envision if the immoral criminals gathered their resources together always triumph over any advantage in intelligence. and tried to make a name for themselves.

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GBJ Feature

The Dark Part of the Road 17th Annual Fiction Writing Competition Winner

by Lisa Siegal

17th Annual Fiction he baggie of crystal meth was Willie’s pay- Writing Competition ment for crouching in the dark along the The Editorial Board of the Georgia Bar Journal is T propertied shoreline of Lake Burton with proud to present “The Dark Part of the Road,” by nothing but field mice for company. A thermos of coffee Lisa Siegel of Atlanta, as the winner of the 17th Annual Writing Competition. kept his brain cells firing, so that when dawn broke, he

The purposes of the competition are to could report back to Breeze Diego that the summer enhance interest in the Journal, to encourage excellence in writing by members of the Bar cabin of Clyde McDade was as still as a church on a and to provide an innovative vehicle for the Saturday night. Being on the low end of the Diego’s illustration of the life and work of lawyers. As in years past, this year’s entries reflected a food chain meant spending his evenings here (and at wide range of topics and literary styles. In other well-catalogued vacation properties), squatting accordance with the competition’s rules, the Editorial Board selected the winning story down amongst the boggy spruces and sumac trees, and through a process of reading each story without knowledge of the author’s identity eyeballing property all night with binoculars. Once he’d and then ranking each entry. The story with documented an unoccupied cabin, Diego’s boys would the highest cumulative ranking was selected as the winner. The Editorial Board congratulates come in for the night haul, taking out the Bose stereos, Siegel and all of the other entrants for their laptops, and flat-screens stocked-piled like firewood in participation and excellent writing. these weekend cabins.

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Willie rested against a sumac three cigarettes, a thermos of coffee, The sound of crackling pea stone tree that crested the bank of the and the promise of a morning high. and the upward beam of lights McDade property. Behind him a He was a solitary man and he was startled Willie. He fumbled for his black forest of wooded pine disap- comforted in his own odd way by knapsack and scrambled up the peared into the expanse of night the scurry of the red squirrels in the side of the hill with his knees still sky and twitching stars. He opened sloping pine needle bluff, more so bent and aching. His racing heart his thermos for a swig with his than if he had been home watching pumped adrenaline to his working shaking, liver-spotted hand, and his black-and-white in his bare extremities, but his mind was then stretched the tendons of his apartment with the gray-washed addled as he tried to assess his sit- legs in front of him trying to wiggle walls. Nights like that left him uation. He felt neither the cold of his toes inside his Army boots. The thinking of Sheila and his boys and the air, nor the dampness of his diabetes had stiffened his joints how he’d let it all go to pot with the clothes, but saw only too quickly and ulcerated his big toe, making drinking. Better to be out here with that he was too close to the house. walking hard and self-medicating some hawking Peregrine and the The occupants of the car were get- with meth all the more appealing. cold, damp, soggy earth than alone ting out and the headlights splayed He patted the baggie with his free in the rental thinking of her. down into the woods directly onto hand and vowed to wait until the spot where he had been. He morning before he opened it. wasn’t much for anticipating disas- The weakness in his legs Just as Willie was about to lower ters, but even he could see that any destroyed any likelihood of advanc- his binoculars, a Lexus pulled into movement on his part would call ing as a career criminal as Breeze the gravel drive, crunching the attention to his unexplainable situ- (being a quick study) was apt to pebbles and shining its headlights ation. He hunched down low point out to him; but at least here in onto the back lawn of the house. against the back of the sumac. the chill of night he had his barn Seconds later, a yellow Damn! Breeze had not prepared coat, wool socks, a full stomach, Volkswagen pulled in behind it. him for this!

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A man and a woman exited the his stomach and rolled towards the There was silence. Willie swal- car. Willie recognized Clyde boat dock, clutching his knapsack lowed his breath in the soggy McDade from the marina. McDade and cursing his bad knees. He under-bottom of the dock. was over six feet with a mop of scrambled under the dock just on A flock of unsettled, nesting wavy, reddish blond hair that the dry side of the shore. snow geese spread wing with irri- seemed boyish for a man in his A woman’s voice broke in the air tation, honked, and lifted up above fifties. At the marina, McDade had above him. “It’s cold out here. I the shore. Willie watched wide- a habit of fingering the other crafts want to go back inside.” eyed as the unmoored canoe with his muscular, stubby hands, “Just listen to me.” pushed out past him and into the and whistling when he did so as if Then he heard footsteps approach cold black of night on a lake now lit he was counting money in a bank the wooden ramp way to the dock. by the white orb of the moon and a vault. He carried himself with an Willie quickly body-rolled down hundred overhead pinpoint stars. air of importance that bordered on the slope, past a flat bottom alu- Their voices continued in an theatrical. When Willie heard he minum canoe pulled shoreward, unsteady rhythm of accusation, was a lawyer, it had all made sense. and then plunged into the waters whispered placating, more accusa- Willie heard them talking, first that lapped against the lake’s edge. tion, and then frustrated pleas for softly and then growing a bit loud- He felt the cold of the water satu- “reasonableness.” Hanging onto er. Rather than entering the lake rate his dry clothes. With his pack the underside of the dock, Willie house, they started toward the buoyed against his belly, he floated tingled with cold and shuddered woods, taking the gravel path to outward toward the middle of the off the wet drench of the lake water the boat dock. Overhead an owl’s underside dock. As he did so he seeping into his pores. The fear of cry startled Willie, and he pitched heard their footsteps thumping being caught seemed to leave him forward on a random spread of down the plank ramp. momentarily like the exhaust of pinecones and needles. McDade “This isn’t what I wanted,” she nicotine through a single nostril. turned and looked out towards the said, “I thought you were going to He thought again of Sheila. God, shoreline where Willie lay spread- leave her.” Willie heard the unclip- she had been beautiful. She was not eagled in the dirt. Willie dared not ping of the lock that moored the flat the sort of woman who demanded look up, fearing the worst. bottom canoe to the dock’s railing. accommodations for herself, or Willie told himself that it would “You’re being overly dramatic who would put her foot down in be just a matter of time before here, Diana,” McDade said. frustration or threaten to leave. She McDade located a shotgun and “Come. Let’s go out on the lake.” had loved him, tolerated him, and began blowing buckshot into his “We can talk inside.” then one day when he awoke from retreating backside. He scrambled “There’s something I want to a sloppy drunk, he found a twenty- into a thicket of pine trees and give you.” dollar bill on the counter, a cup- determined his quickest get-a-way The ground beside Willie was board packed with dry goods and a was to follow the shoreline to the quiet, suggesting the two were note that read, “Take care of your- other side of the cabin until he studying one another. He saw the self, Willie.” could eye a beeline and access woman’s feet planted squarely, fac- He let go of the underside of the Charlie Mountain Road. One of ing McDade, and then shift, balleri- dock and inched back up onto the Diego’s boys was scheduled to na style, one behind the other. sodden shoreline. He reasoned he fetch him at O’Grady’s Bar at Finally, she said, “Alright.” could crawl like a snake on his dawn. He figured he could get A crest of water rushed towards belly through the moss lichen until back quicker on the main road than him, splashing up against his he could see clear enough to steal risk his bad legs on a nature hike whiskered chin, as McDade pushed away. From what he could make up through the Chattahoochee the boat out into the water and the out of McDade and the woman, National Forest on the other side. woman jumped in, unsettling its whom he surmised was probably Just as Willie was about to high- equilibrium. McDade hopped in not his wife, the two were continu- tail it across the property, McDade quickly behind her. He took the ing a heated conversation that was took the woman by the elbow and bow seat and pushed off with his unwise to have while adrift on a steered her down the path to the thick hands, squeezing the tee grip dark lake. boat dock. If they kept in this direc- and the paddle’s wood shaft down He had been a private in the tion, Willie had no chance of escap- into the cool black water. Marine Corps on Paris Island, ing via the shoreline. And now it The woman, unsure of what to do, crawling through the peat moss was too late to flee to the other side took the stern seat and sat bent-kneed when a heat rash and undiagnosed of the cabin. and twisted toward the moonlight. diabetes had caused him to lose The two stopped in the gravel “You’re not getting out of this so consciousness and be shipped back path. Their arguing voices filled easily, Clyde” she said. home to Rabun County with a med- the quiet air. Willie fell down on “I know that,” he said. ical discharge and an unmet dream

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of being part of the “the few and the proud.” Twenty years later he was back on his belly, crawling through the stench of soggy-bottomed earth and whiffing lichen dust, only now he was nothing but a two-bit criminal with a drug habit instead of serving his country. “Clyde! No!” the woman called out in a voice Congratulations! wrenched with panic. In the instant it took Willie to lift his head up and turn toward the moonlit lake, he saw Jonesboro High School the back of McDade hunched over the woman, the earned Georgia’s fourth boat’s paddle raised behind his right shoulder, the shaft national mock trial title and gripped with his thick hands. The paddle blade came their first back-to-back win forward off his shoulder and towards her cheek. As soon as he struck her, she fell backwards off the edge of at the National High School the stern seat, splashing into the unbroken water like Mock Trial Championship in crystal falling on a glass floor. Wilmington, Delaware. As she fell, the gunwale edge of the boat dipped low into the water on the right side, and McDade steadied Team Members the boat by rising and shifting his body to the left. The Brian Bady, Miguelande Charlestin, woman cried out for help. She went under and then Dominique Delgado, Lindsay Hargis, Bridget came back up. Clyde, with the paddle still in his hand, Harris, Jayda Hazell, Avion Jackson, Jurod sat down on the thwart at the center of the boat, dipped James, Tabias Kelly, Adrienne Marshall, the blade gently into the water and pushed back. Braeden Orr, Laura Parkhouse, Joe Strickland “Clyde,” she called out again, but the voice was fainter. and Ralph Wilson. Overhead the squawk of a nighthawk pierced the Teacher coaches: Anna Cox and Andrew Cox; blue-black sky. Attorney coaches: Hon. John Carbo, Hon. Willie watched, his open mouth drawing in cold air Deborah Benefield and Tasha Mosley; Student that seemed not to penetrate his lungs, his eyes intent coach: Katie Powers, Mercer Law School on the hunched back of Clyde McDade as he swiftly paddled backwards towards the dock. The woman con- A special thanks to all those tinued to struggle in the dark waters as the canoe edged financial donors for the further and further away. The woman was no longer clutching at the air. The underwater waves made by her 2008 season, including the: thrashing legs dissipated and then stilled. Slowly, her Georgia Bar Foundation head sank under the water, leaving a ripple that spread across the lake. Council of State Court Judges Shivering, Willie now hid in a thicket of birch on the Georgia Civil Justice Foundation other side of the dock. He no longer saw the figure of Lawyers Foundation of Georgia the woman in the water. McDade pulled the canoe General Practice and Trial Law Section ashore, re-hooked it and then hurried up the gravel path, crossing in front of Willie’s hidden figure in the A full list of donors will be published trees. Willie heard McDade’s Lexus backing out of the online this fall in our 2008 Annual Report. driveway, the back tires spitting pea gravel as it made Visit our Website at its turn, the headlights burning through the black sky and a fog misting out around the hood of the car as it www.georgiamocktrial.org or contact rose out towards the asphalt road and made its escape. the mock trial office for more information Three flights of stairs separated the office the Public 404/527-8779 or toll free Defender of the Mountain Judicial from the District 800/334-6865 ext. 779 Attorney’s Office, both of which were located in the or email: [email protected] Habersham County Courthouse. The Mountain Judicial District covered three counties, Rabun, Habersham and Stephens, in the northeast rim of Georgia. Owing to limited tax dollars, a thinly spread population, and a fairly law-abiding citizenry, the district offices were small and not particularly overworked. Morgan Lee, the newly appointed public defender, raced up the wide, marble staircase in Nike running shoes,

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a blue-stripe seersucker suit, and an arrested him on. Turns out he is bony face. When he smiled, which Eddie Bauer backpack that served as also involved in a string of lakeside he rarely did, he looked pained. both her purse and briefcase. burglaries. The sheriff’s office was “Yes, thank you. Everyone’s At the top of the stairs, a dirtied, doing a shakedown itself. Caught been very accommodating,” oval window let in the faint hint of him last night. Limping up Charlie answered Morgan. morning sun and a glimpse of the Mountain Road, soaking wet, and Sheriff Dickerson was tall man mountainside burnished in carrying binoculars, a bag of meth, with a protruding gut that bulged autumn color. Down the dark cor- and a knapsack full of burglary at the buttons of his uniform. He ridor of the third floor, Morgan tools. He’s looking at 10 to 20.” also wore non-regulation snake- approached the glass-front office “What else?” skin cowboy boots that clicked at door with chipped paint and her “That’s all I know on Willie. the linoleum when he entered the name stenciled in black on the Better hope there’s a dead body in room. He took the chair across the frosted glass. She had hired a sea- that lake. Although they’ll proba- table from Willie. soned secretary from the District bly claim he did it. Then he’ll fry.” “Deputy says you want to make Attorney’s office. Aileen, a grand- “Aileen! Please.” a deal?” mother with black, wingtip-polish Morgan came from a large pub- “My client has evidence of a hair, teased into a smooth helmet lic defender’s office in Atlanta. murder,” interjected Morgan. appropriate for inserting sharp- When the criminal section of the “He’d like reduced charges in ened pencils and capped pens, sat State Bar approached her about exchange for his cooperation.” at the metal desk and clicked the accepting the governor’s appoint- “I bet he would,” said the sheriff. computer keys. Aileen looked over ment for this newly created office, Walpole scratched notes on his the top of her glasses as the door she’d had second thoughts. But legal pad as he took the seat next to opened. burnout and a desire to escape the Dickerson. “Sheriff’s waiting on you. D.A. life she’d built in the city had won “And what are the charges, Walpole, too. Got a client in the out. She was, admittedly, out of her Sheriff?” lock-up on a meth possession. element up here in the backwoods “Possession of an illegal sub- Wants to make a plea.” of Georgia. It seemed the secre- stance. Trespassing. Burglary. And Morgan stopped to check the taries and janitors understood the murder.” morning’s mail that had accumu- system better than she did. “Murder!” Willie and Morgan lated in the “In” box. “Oh, and one more thing,” said in unison. “It can’t wait until I pour a cup Aileen added, “The Grand Jury Morgan put her hand on Willie’s of coffee?” true-billed everything Walpole knee. “What evidence do you have “The perp … I mean… your hand-fed them last week, and that Willie committed a murder?” client,” said Aileen, “says he saw a they’re all in the lock-up too.” A close-lipped grin spread across murder. Wants his attorney before “Thanks,” said Morgan as she the sheriff’s face. “Body surfaced they question him.” grabbed a legal pad and slipped early this morning. Seems Willie Morgan entered her closet-sized out the door. knew it would. Somebody in the office and switched her running lock-up must have warned him that shoes for the blue pumps she kept decomposing bodies have a way of in desk drawer. Aileen leaned over Willie and Morgan sat side by floating back to the surface. Explains the desk, watching her. side in the sterile conference room why he was so anxious to tell this “Leave the sneakers out. It’ll of the District Attorney’s office. A cock-and-bull story. Now, very con- solve our rodent problem,” she blast of steamy, hot air shot veniently, Willie has remembered he called out. through the ventilator by the base- witnessed a murder.” Morgan came back into the boards every few minutes. “But I did!” Willie insisted. lobby area. Overhead, a ceiling fan spun. “Did she surprise you when you “We have a rodent problem?” Willie, in an orange jumpsuit, had were in McDade’s lake house?” “Among other things.” the strained look of a rabid animal, “No,” said Willie. “So who is he?” emaciated and dehydrated, but still “Sheriff,” said Morgan, but he “Willie McPherson. He was sit- hoping to escape his confinement. continued. ting stake-out on Clyde McDade’s Sheriff Dickerson and D.A. “She surprised you, and then property. Says he saw Clyde off a Walpole entered from a side office you killed her. Whacked her on the woman in the lake; then drive door, and Morgan rose and shook head?” away.” their hands. “McDade killed her. I told you “Off a woman? Sitting stakeout? “Getting acquainted with your … “ I thought you said this was a meth new office?” Walpole asked. He “Killed his own paralegal? Now possession.” was a thin man with pale, translu- why would he?” “Oh, yeah. That’s what they cent skin, spread tight across a “His paralegal?” asked Morgan.

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The sheriff turned to look at her He keeps a boat there. I worked chair, a straight-back from some- for the first time. “Yes, ma’am. there a few months.” one’s dining room set that needed Diana Sloan. Been with him for ten “Can we prove that?” a new cushion. years. He’s broken up about it.” “Yes ma’am.” “Tell me what you know about Then turning back to Willie he “What kind of car does McDade Clyde McDade,” she asked Aileen. said, “McDade’s got an airtight have?” Aileen looked up and stopped alibi. But you, Willie, admit you “Lexus.” typing. “He’s from an old family. were on his property. Burglarizing “You saw it at the lake house?” Father was a judge. He’s not the his lake house. And the only one “Yes ma’am.” man his father was. Although he’s who knew she was in the lake.” “What else?” head of the most successful law firm “I didn’t do it.” “They went out in a canoe. They in town. They do mostly defense Walpole stopped writing and was arguing. He picked up the work. Insurance companies. leaned over the table toward paddle. Struck her. She fell over, Businesses. That sort of thing.” Morgan. “If you want a plea deal, yelling for him to help. He just “What about his family?” he’ll need to confess.” rowed back to the shore and got in “Wife plays tennis every day. “He says he didn’t do it. He has his car.” Volunteers at the school. Has two nothing to confess.” “Where were you?” kids. A boy and a girl. He probably “Then we’re going for the death “Under the pier.” has a pure-bred dog for a pet, but I penalty.” “In the water?” can’t be certain.” “You’re what?” “Yes ma’am” Morgan smiled. “You don’t like “I didn’t do it!” Willie shouted. “Why?” him?” The sheriff and Walpole rose at “Didn’t want to get caught.” “He’s a pompous you-know- the same time and pushed their “I see.” what. But I wouldn’t believe some metal chairs against the conference “Then what did you do?” two-bit criminal’s story that he table. “Waited for him to leave. Then I killed his paralegal. And neither “When he’s ready to talk, let us headed out to the road. The sheriff will a jury. Not in this town. Better know,” Walpole said. They exited picked me up. I didn’t say nothin’ take a plea. Best thing you can do.” the room through the same door. A about it then, but they was going “You’re serious?” said Morgan, deputy entered and started to take through my stuff. And they had me sitting up. Willie by the elbow. on the meth and all. The next “As a heart attack.” “Deputy, if we may have a morning I told them about it when “But I don’t believe Willie moment.” The young deputy nod- they was questioning me. Thought McPherson killed the paralegal.” ded and stepped back toward the maybe if I told them, I could get a “Well, that’s too bad for Willie wall. deal on the possession charge.” then. ‘Cause the jury will convict “Alone.” “Good Lord!” him for it.” Surprised, the deputy left the “They promised you a deal if Morgan sighed, and then stood room and shut the door. you’d talk?” up. “Miss Lee, I’ve said I was there. I “Yes ma’am.” “Who do we use for an investi- saw McDade kill her.” “Did you confess to anything?” gator?” “I know Willie. Let’s just start “No, Miss Lee. I didn’t kill that “We don’t. Can’t afford one.” from the beginning.” Morgan woman.” Morgan sighed again with exas- pulled out her legal pad and began Morgan stood up and put her peration. “Well if we could, who to scribble quickly. hand on Willie’s shoulder. He had would we call?” “You never went in the house?” to be telling the truth, she thought. “Sam Slotin. But he’s probably “No ma’am.” Innocence always brought out the dead.” “Why were there in the first worst decisions in people. place?” “I believe you, Willie.” “Casing the joint.” She looked up. Tears welled up in his blood- Buried in the back of a file cabi- “Some guy paid me to. I never shot eyes. “I’ve got two boys, you net, Morgan found a file on Slotin. did the burglaries.” know. And an ex-wife. She won’t Sam Slotin was a former career GBI “Who paid you?” be able to take this.” agent when he and his wife, Fiona, “Can’t say as I remember.” She “I’ll do what I can, Willie.” She retired to the North Georgia moun- rolled her eyes. knocked on the door, and the tains to a log cabin that they’d built “Well then, I just can’t say.” deputy returned for her client. by hand on the weekends after their “Okay.” three children left for college. Three “And you’re sure it was months into his retirement, Fiona McDade?” Morgan returned to her office was diagnosed with liver cancer “I know him from the marina. and slumped down in the lobby and died within a year. Sam started

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doing private investigative work for tend to convict career criminals habit. He admitted to working for the local attorneys appointed to pretty easily. And they don’t tend Breeze Diego (who’d given state’s defend the indigent. Since the recent to convict the local lawyers. Even evidence and pled to a lesser change to a public defender, he’d the guilty ones.” charge). Breeze fingered Willie as a been out of the picture; although his She nodded. “That’s why I called petty thief gone bad when he’d face surfaced a few times in the local you. That part I did gather.” tried to do the burglary himself. paper with prize bass catches and “You want me to find some Forensics claimed the door was jim- other fishing awards. damning evidence.” mied by a tool in Willie’s knapsack, “Have a seat,” she said when he “Something like that.” an overturned flower vase indicat- came into the office. He stood “Wrestle a confession out of ed a scuffle, and marks on the car- while they both eyed each other. McDade? A man with more jury pet showed signs of dragging a He took a seat when she sat down trials under his belt than you and I body. The coroner listed blunt force across from him at her desk. He put together.” trauma to the head, although the was over six feet tall with a granite Morgan tensed under his stare. cause of death was drowning. base of shoulders and a lean barrel “Do you still do PI work for a liv- According to Walpole, Willie chest under which he kept his ing or have you given all that up McPherson bungled the burglary shoulder holster and a clip. His for amateur fishing?” when Diana Sloan, McDade’s para- hair was peppered gray and his Then it was Slotin’s turn to legal, entered the lake house for a weathered face and hooded eyes smile. He shook his head. “No, work-earned vacation weekend. gave away that his best years were Miss Lee, I still do detective work. Willie whacked her on the head with behind him. For a price.” a claw hammer. Forensics verified it “I’ve looked over the file,” he “We pay a paltry one, I under- was the murder weapon. Then he said. “It’s gonna to be a tough case. stand.” tried to hide the body by dragging You know the McDade family is He nodded. “I expected as her into the canoe and tipping it prominent here.” much.” over. Sheriff’s deputies swore they “I understand that, Mr. Slotin.” found him soaking wet and limping “Call me Sam.” down Charlie Mountain Road. His “Sam then,” she nodded. Walpole declared the state ready cellmate said Willie told him about “You’re not from here, of for trial within a month. Judge Cole the murder that night. His statement course.” denied Willie’s request for a third indicated it was “practically a con- “No, I’m not.” extension. Judge Cole also denied fession.” The cellmate also said he “And you’ve got the tight lip that Morgan’s subpoena duces tecum warned Willie that the body would single women who move here from on McDade’s hard drive as a “fish- surface in a day or two. The next Atlanta to escape their boyfriend ing expedition.” The hard drive on morning Willie fingered McDade. problems always seem to have.” Diana Sloan’s computer had myste- Willie’s death penalty case was set Morgan started to take offense, riously disappeared before investi- for trial on Monday. and then she smiled. He was a gators could recover it. The autopsy good detective after all. of Sloan did not reveal a pregnancy “Is it that obvious?” as Morgan had predicted it would. “That’s about all I got,” Sam “I’m afraid so. I mean no offense If McDade had driven to the lake said. He shut the manila folder and to you. I’m sure you’ve got a per- house, no one could remember see- settled back against the vinyl booth sonal story like everyone else. ing the car. According to McDade, cushion in Gus’s Diner. Morgan None of my business. But you’re he’d been asleep at his house with shook her head. gonna have a hard time with a jury his wife (albeit in separate bed- “It’s not enough. We don’t have is all I mean to say.” rooms the investigative notes McDade at the scene. We don’t have She leaned back in her chair and revealed). If he left home after ten a motive for McDade to kill her. If I tapped the eraser end of a pencil on o’clock that night, he never used his put Willie on the stand, he’ll crucify the desk. cell phone, stopped for gas or got himself. And without his own testi- “How so?” money at an ATM. And to further mony he might as well plead.” “Well, I imagine you’ve planned complicate the mystery, Diana “I’m sorry I couldn’t help you on going with that reliable reason- Sloan’s closest companion more.” able doubt defense.” appeared to be her beloved cat, Mr. Morgan looked down at her cof- “You seem to know a lot about Whiskers, whom she’d left at the fee, which was growing cold. She me from an initial meeting.” vet the day before she died. put her hands to her head and “No. I gathered that because The case against Willie, on the rubbed her forehead in frustration. you said as much on the phone. other hand, seemed to be wrapped “I just didn’t think it was going ‘No evidence this.’ ‘No evidence up airtight. He had a ten-year rap to go like this.” that.’ Anyway, juries around here sheet of petty thefts and a drug “What do you mean?”

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“Everything. The incompetence boyfriend trouble drove you out of down in a cove on Lake Burton of the police. The way Judge Cole your big city job, and you thought, chasing bass.” throws every ruling to the prosecu- ‘Hey, I bet that hick mountain town To Morgan’s surprise, Sam left tion. The way McDade has put a will be a nice gig. And I won’t have out a laugh. A passing waitress roadblock up against any decent to work too hard, and maybe I’ll stopped in her tracks, and he investigation of his files or office. have time to get in a morning run, waved her away. The way the whole courthouse acts breathe some fresh air, and every- “I was just checking you, as if my job is to bate-stamp the one up there will appreciate how Morgan. You seemed about to give pleas that come through the office, smart I am. Maybe every year or up.” and be a front for the constitution- two some poor schmuck might “No you weren’t. But it’s okay. al right to an attorney in case the actually be innocent and I’ll get him It’s true enough. I couldn’t handle defendant has the audacity to off. Take a plaque from the county the pressure of a large office. Maybe appeal. And on top of trying a bar that year or something. Now it’s I wasn’t good enough. Or maybe I death penalty case, I have to do it not working out like you planned just told myself I wasn’t good with an eighty-file caseload, an and you’re peeved about it.” enough. The boyfriend thing didn’t investigator I have to pay for out- Morgan crossed her arms. work out so well either. After I of-pocket, and a secretary who’s “Fine. That’s pretty much it. introduced him to my family, he sorry she left the D.A.’s office.” You’ve got me pegged. Now it’s suddenly had a change of heart.” Sam took out a pocketknife and my turn. You’ve been hiding out in “You’re from a small town, I bet.” began to clean his nail beds. your cabin pretending you’re dead. “Afraid so.” “Well, cry me a river, Miss Lee. You haven’t done a decent bit a “Congratulations. And you Maybe you should go back to detective work other than try to never thought you’d end up back Atlanta where the grass was green- analyze me. You numb your own where you started.” er after all.” pain by mindlessly going through “I thought I’d do this for a few She cocked her head to one side. the motions of a job, and you hide years until I figured out my next “Excuse me?” from your daughters and your old move.” “Yeah. It’s the same sad story we work pals by spending every “So this is just a shortcut, a always get. Let me guess. Some Saturday and Sunday hunkered detour then, off the main road?”

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“Something like that.” ecution’s case, she gathered, would “Who is he, Willie?” “That’s why you don’t mind tak- take two days. Walpole was too “Part of Diego’s group. He was ing three flights upstairs to an smart to put McDade on the stand supposed to pick me up that night. office that used to be where they for her cross-examination. If she I never heard from him.” stored the mop buckets.” wanted to question him, she’d have The voice of Walpole interrupt- She smiled. “Maybe so.” to call him in her case in chief. Even ed. “Your witness,” he said. But Sam’s face remained rigid. if Judge Cole let her call him as a Morgan stared at Willie, then at “Well maybe you ought to care.” hostile witness for purposes of Judge Cole who was impatiently “I’ve cared plenty, believe me. It cross-examination, she still didn’t waiting on her to cross-examine the just never seems to count for much.” have anything concrete to nail on coroner, and then she turned to “Well too bad for Willie him. And he was too good to slip up. look at McDade. McDade was McPherson then. He could use She turned around behind her to watching Vernon Scruggs slip out somebody with more gumption check out the visitors in the court- the door. A small bead of sweat than you.” room. Poor Sheila McPherson, traveled down his forehead and Morgan shook her head. “It’s not Willie’s dedicated, albeit, ex-wife formed a puddle at his left ear. gumption I’m hurting for, it’s a gave her a solemn wave. She saw a “Your honor,” Morgan began, detective. I was counting on you to few men in the back row that she “I’d like to recess for an early find the smoking gun.” didn’t recognize. Judge Cole was lunch.” “You think the calvary will come probably going to take a few pleas for you.” in between their breaks. “Maybe so. It sure has been slow Slotin was right about her, of Calling Sam from her cell phone, though.” course. Rather than face up to her she raced down the courthouse He leaned back against the seat problems, she’d sidestepped them steps after Vernon Scruggs. booth. “I’m looking at the calvary by taking this job. Then life had McDade’s quick footsteps came right now. And it’s you.” pole-vaulted Willie McPherson at from behind. Her called her by She smiled. “I’ve been afraid of her feet. What she couldn’t get Slotin name, but she ignored him. that.” or Willie to accept was that she, She ran across the front lawn of Sam stood up and threw a ten- Morgan Lee—Irwin County High the Rabun County courthouse, and dollar bill on the table. School valedictorian and UGA law chased down Scruggs who was “You’ll do fine,” he said. school grad—had done just about as reaching for the car door of his truck. “Detour or not. This is where you well as someone from a mill work- “Please, Mr. Scruggs, I need to find yourself. I tell myself the same er’s family could be expected to do. talk to you.” thing every morning.” Despite her near-perfect academic Scruggs turned and looked at record, she’d been woefully unpre- her. McDade was approaching pared for big city office politics, had from the left. Willie sat next to Morgan in an regularly missed important social “I can’t get involved,” he said. ill-fitting dark blue suit his ex-wife clues, and had miss-stepped and He had a sun-burnished face that had brought him. He grinned at stumbled through several disastrous was lined with years of drinking, her, showing his bad teeth. personal relationships. Good shoes and a voice that crackled when he “The time in jail has done me and a whitewashed accent had only spoke. some good, I want you to know. I’ve taken her so far. If she was the cal- “I just need a few minutes of had time to think. Sheila’s come and vary, she had better surrender. your time.” she brought my boys a time or two. Willie turned to her look behind He looked over his shoulder When this is all I over, I’m going to him as well. where McDade was now standing. spend more time with my sons. “Wonder what that rascal Vernon McDade called him by name. “Willie …” Morgan began. Scruggs is doing here?” he said. Morgan kept her eyes on Scruggs. “No. Let me finish. I just want you “Who’s that?” Morgan was try- “Don’t listen to him,” she said. to know, when you get me off, I’m ing to listen to the coroner’s testi- “Get in,” said Scruggs, motion- going straight. You won’t be sorry.” mony at the same time. ing to his truck. She ran around to Morgan didn’t speak. As D.A. “Vernon. He’s been out of town the passenger’s side and climbed Walpole approached the lecturn for since this happened. That investi- in. As they backed out, she saw his opening argument to the jury, gator tried to find him for me.” McDade pull a cell phone from his she felt her palms grow sweaty and Morgan stopped writing and coat jacket and begin to make a call. her voice begin to tighten. From the turned to look over her shoulder “Why are you here?” she asked. corner of her eye, she could just see again. The man Willie named as “I said I didn’t want to get the profile of Clyde McDade. He “Vernon” caught her stare. Then he involved.” was moistening his lips and crack- stood up and slipped out the court- “If that was true, then you would- ing his knuckles in his lap. The pros- room door. n’t have been in the courtroom.”

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“Okay, Willie’s a friend of mine. “I won’t forget what you done I’m hoping things will turn out for me,” he said as they shook okay for him.” Walpole objected to the intro- hands in the courthouse. “Then why does McDade look duction of a last minute witness, Morgan tried not to tear up. “I so nervous?” not identified by the defense. Judge was scared the whole time for Scruggs shot her a look. Then he Cole said he was inclined to disal- you,” she admitted. pulled into a downtown parking low it, but would give Walpole “Yeah. I know. I seen your hands spot and shut off his engine. He time to question the witness before shaking. But I figured you was as looked down at his hands, still Morgan put him on the stand. By good as I was gonna get. Guess the gripping the steering wheel. the time they had all gathered in Good Lord took care of the rest.” Morgan sighed heavily. “Willie the airless conference room of the She smiled. “Take care of your- only has about thirty minutes here. So D.A.’s office, Sam appeared self, Willie.” if there is something you need to tell bustling down the hallway, out of me, you better make it quick. I don’t breath, but smiling. have all day. And neither does he.” Walpole gave Morgan a harsh Then she slowly took the three “Okay. I told McDade Willie look when they entered the room. flights of stairs up to her office. would be at his house.” “This is no way to conduct a Even though Sam was upstairs Morgan sucked in her breath. “He death penalty trial, young lady,” waiting on her and, no doubt, knew he would be there. Why?” he said. Aileen had twenty newly opened “He asked me about the burgla- “My name isn’t young lady,” she files to review, she decided ries. I told him.” responded. against running. She’d been run- “Why would you do that?” “You pulled a last minute wit- ning most of her life, either “I was selling meth to McDade. ness on me.” toward something or away from Let’s just say we go back a ways.” “New information has just it. When she reached the landing Morgan studied him for a few revealed that Vernon Scruggs told on the third floor, she stared out moments. “McDade knew you McDade that Willie would be at his the oval window at the rim of were involved somehow with house that night. McDade and mountains, speckled now with Diego? That there’d been a string Scruggs share a bit of a meth habit, autumn color, and lit by the of burglaries on the lake cabins?” it seems. And Scruggs will testify expanse of blue sky. “Yeah. He paid me a couple of that McDade asked him to kill his Ahead, the view seemed end- gees to tell him when his cabin was girlfriend. Oh, and I forgot to add less. Sometimes there are dark on the hit list.” that bank transfers will show he parts on the road when you pass “And you told him that Willie paid him to leave town.” through a thick forest of pine. But was going to be there that night?” Sam, who was standing behind then the road opens up, and you Scruggs sighed and nodded. “I her, slipped her a manila envelope find you can see again. What she figured Willie was just a joint caser. when she mentioned the bank thought was the detour, turned out No harm in handing out that kind of transfers. She already knew Sam to be the road after all. Slotin had info. Then he asked me if I knew had slipped her an empty file fold- been right. This is where she found anyone that could kill his girlfriend.” er, but the effect worked. herself. And maybe that was true “And you said…?” “Why don’t we ask the judge for in more ways than one. “No.” a continuance?” Walpole said. Morgan nodded, thinking. “But “Not in the middle of a trial,” Lisa Siegel is of McDade figures if he does it the same she said. counsel with the law night as the burglary, then he can Walpole stared her down. “You firm of Katz, Stepp claim someone like Willie did it?” won’t get an acquittal.” and Miller. Her short “I guess that’s right.” “Drop the murder charge, and fiction has appeared “Did he pay you to leave town he’ll plea to the rest.” in the GSU Review, the too?” Morgan asked. She crossed her arms against her Pacific Review, Carve Magazine Scruggs nodded. chest so that Walpole would not and the Emrys Journal. She was Her body began to shake. She see her shaking. the 2007 winner of the Georgia could feel her teeth chattering. Walpole looked at Sheriff Bar Journal fiction contest. She “Will you testify to that, Mr. Dickerson, and then turned back to was also the 2008 February win- Scruggs?” her, nodding. ner of the Georgia Writer’s “I reckon you’re gonna make “Okay,” he said. Association fiction contest. She me,” he said. lives in Atlanta where she prac- “I reckon you kind of want to,” tices law part-time and writes she said. Her small-town accent Willie pled to the lesser charges part-time. She can be reached seemed to be returning. of drug possession and trespassing. at [email protected].

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Kudos Conservancy. The Chastain Park Conservancy was > Thompson, Rollins & Schwartz LLC announced formed in 2003 to restore, enhance, maintain and that senior partner Debra Schwartz was inducted preserve the 286-acre park. as a fellow to the College of Labor and Employment Lawyers. Also, partners Julie > Carlton Fields was recently named in Northup and Shanon Stevenson were named as MultiCultural Law’s 2008 Top 100 Law Rising Stars. In addition, Stevenson was appointed Firms for Diversity list. The ranking was by the Supreme Court of Georgia as a mentor to the based on a diversity survey of minority Bar’s Transition Into Law Practice Program. and women shareholders and associates as a percent of the total number of attor- > Kilpatrick Stockton an- neys, providing diversity totals for the firm. nounced that partner Atlanta shareholder, Alison Danaceau, was Rupert Barkoff was elected recently appointed to the Atlanta Ballet Board of vice-chair of the newly Directors. Danaceau is a member of the firm’s busi- formed Franchise Section ness litigation & trade regulation and real property of the State Bar of Georgia. litigation practice groups. Barkoff Awotwi Barkoff has been practicing franchise, distribution and corporate law for 35 > McGuireWoods LLP sponsored five law student years. His franchise practice emphasizes solutions scholarships for minority women through the to registration and structuring issues and develop- Leadership Institute for Women of Color Attorneys ing individual and collective solutions to fran- in Law and Business, Inc.’s, annual conference held chisor-franchisee relationship problems. in March. The Leadership Institute helps women of Adwoa Awotwi, an attorney in the firm’s corpo- color attorneys develop their careers and manage rate department, was selected to serve on the diversity issues in the workplace. The firm also Truancy Intervention Project Georgia, Inc.’s, sponsors a two-year internship for minority women Board of Directors. Established in 1991, the interested in pursuing a legal career in its Atlanta Truancy Intervention Project provides advocacy office with Spelman College, a historically black col- and other resources to Georgia’s children and their lege for women in Atlanta. families to prevent school failure. Partner Scott Dayan was elected vice president- > Marshall & Lueder, LLC, announced that partner secretary of the U.S. branch of the International Ray S. Smith III was selected by Gov. Sonny Fiscal Association. Dayan will also serve as a mem- Perdue to the Georgia Judicial Nominating ber of the organization’s executive committee. Commission. Smith focuses his practice in commer- Partner Randy Hafer was formally admitted as a cial real estate and probate litigation. fellow into the prestigious American College of Construction Lawyers (ACCL) in a ceremony held > Morris, Manning & Martin, LLP, sen- in San Antonio. ACCL membership is comprised of ior partner John F. “Sandy” Smith was the top 1 percent of the construction bar in the named founding chairman of the exter- United States and also includes lawyers and judges nal advisory board of the Institute for from Canada, Britain and France. Research in the Social Sciences at Stanford University. > Managing Intellectual Property Magazine ranked Kilpatrick Stockton > Fish & Richardson was named one of the leading IP the top patent prosecution firm in the law firms in the U.S. by Managing Intellectual South and among the top nine patent Property Magazine with top rankings in every cate- prosecution firms in the country. The gory, including national and regional patent prose- firm was ranked among the top 20 firms cution and patent litigation, national Bio Life sci- in the nation for BioLife Sciences. ences, and national International Trade Commission. The firm also announced that it was named the top trademark firm in the South. Kilpatrick was > Frank K. Martin of The Martin Firm, LLP, in named the “Tier 1” firm in the entire South, achiev- Columbus, announced the publication of his first ing that “Tier 1” ranking for both trademark prose- novel, Sowega: A Tale of Southern Justice. It is the cution and trademark litigation. story of how two disparate young men come Partner Neal Sweeney was appointed to serve on together in a common cause and the judicial pro- the Advisory Board of the Chastain Park ceedings that ultimately produced celebrity for one

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Bench & Bar

and southern justice for the other. Sowega is pub- > Locke Lord Bissell & Liddell LLP announced the lished by Authorhouse. addition of a well-known real estate practice team in its Atlanta office. Aasia Mustakeem joined > Mercer University recently honored Locke Lord as a partner, leaving her role as prac- John B. Miller, a longtime partner in tice group leader for the Atlanta real estate finance the law firm of HunterMaclean, at the and development practice group of Powell university’s 2008 Law Day Weekend in Goldstein. Mustakeem practices in the area of com- Macon. Miller, one of 11 remaining mercial real estate. Also having joined the Atlanta members of the Walter F. George office are Crystal W. Cook as senior counsel, and School of Law’s Class of 1948, was recognized on Janice Y. Island and Toni L. Ross as associates. the 60th anniversary of his graduating class. Miller Cook practices primarily in the areas of financial presently serves as a senior director of the Board of products and real estate law. Island concentrates Directors at SunTrust. her practice in real estate finance and development. Ross focuses her practice on litigation, with an > The 12th Annual Webby Awards has nominated emphasis on insurance bad faith, insurance cover- LawHelp.org—a national network of state portals, age and reinsurance matters. The firm’s Atlanta including Georgia’s LegalAid-GA.org—for the best office is located at 1170 Peachtree St. NE, Suite law site of 2008. LawHelp.org offers state-based 1900, Atlanta, GA 30309; 404-870-4600; Fax 404-872- legal referrals, know-your-rights information and a 5547; www.lockelord.com. variety of self-help tools. LawHelp won the 2007 Webby Award for best law website and is the only > Fish & Richardson P.C. announced that Miles E. repeat nominee in the category. Hall has joined the firm’s Atlanta office as an associate in its patent prosecution group, where he will > Locke Lord Bissell & Liddell LLP partner Nigel continue to focus his practice on all aspects of Wright was named to The International Who’s Who patent prosecution and strategy pertaining to the of Aviation Lawyers 2008. Wright began his law life sciences, particularly in medical technologies. career in the United Kingdom and has experience in Prior to joining Fish & Richardson, he was an asso- international dispute resolution in more than 50 ciate at Needle & Rosenberg, P.C. The firm’s jurisdictions. His focus on arbitration, international Atlanta office is located at 1180 Peachtree St. NE, law, aviation and product liability have put him at 21st Floor, Atlanta, GA 30309; 404-892-5005; Fax the forefront of several major cases, with a special 404-892-5002; www.fr.com. emphasis on aviation liability claims on behalf of insurers in Latin America and the Caribbean. > Littler Mendelson, P.C., announced that David C. Whitlock joined the firm as a shareholder and On the Move Aimee Todd joined as an associate. Prior to joining the firm, Whitlock and Todd were both with In Atlanta Fisher & Phillips LLP. Whitlock’s practice focuses > Thompson, Rollins & Schwartz LLC announced on U.S. business immigration including extensive the addition of Brock McCormack as an associate. visa work. Todd’s practice concentrates on busi- He practices in the areas of business immigration ness immigration, including temporary working and employment law. The firm is located at 160 status and permanent residence for professionals, Clairemont Ave., Decatur, GA 30030; 404-377-7717; international transfers, investors, researchers, Fax 404-377-5119; www.trsbattorneys.com. artists and athletes. The firm’s Atlanta office is located at 3348 Peachtree Road NE, Suite 1100, > Carlock, Copeland, Semler & Stair, LLP, Atlanta, GA 30326; 404-233-0330; Fax 404-233- announced the addition of Matthew C. Dalrymple 2361; www.littler.com. and Chadwick H. Greer as associates. Dalrymple’s practice areas include employment litigation and > Powell Goldstein LLP announced that Roy E. workers’ compensation. Greer’s practice areas Hadley Jr. joined the Atlanta office as counsel in the include general liability, health care litigation, mal- business and finance practice. He focuses on com- practice defense, premises liability and product lia- plex corporate transactions involving intellectual bility. The firm’s Atlanta office is located at 2600 property and technology matters. The firm’s Atlanta Marquis Two Tower, 285 Peachtree Center Ave., office is located at One Atlantic Center, 14th Floor, Atlanta, GA 30303; 404-522-8220; Fax 404-222-9482; 1201 West Peachtree St. NW, Atlanta, GA 30309; 404- www.carlockcopeland.com. 572-6600; Fax 404-572-6999; www.pogolaw.com.

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> Fisher & Phillips LLP In Macon announced that veteran > Sell & Melton, LLP, announced that immigration attorney Sarah Blake Edwin Lisenby and Aimee J. Hawk joined the firm’s Jackson Hall were named partners in the global immigration practice firm. Lisenby represents clients in a vari- as a partner. Hawk comes ety of areas, but focuses on real property, Hawk Hiudt from Alston & Bird LLP, environmental law and the representation where for eight years she has practiced exclusively Hall of non-profit organizations and govern- in the area of business immigration law. mental and quasi-governmental agencies. Hall’s prac- Also, labor and employment attorney Tiffani tice includes workers’ compensation, social security Hiudt joined the firm’s Atlanta office as an associ- disability and personal injury law. The firm is located ate. Hiudt was previously at Nelson, Mullins, Riley at 577 Mulberry St., 14th Floor, Macon, GA 31202; 478- & Scarborough LLP, where she advised clients in 746-8521; Fax 478-745-6426; www.sell-melton.com. traditional labor and employment law at the state and federal level. The firm’s Atlanta office is locat- > James, Bates, Pope & Spivey LLP ed at 1500 Resurgens Plaza, 945 E. Paces Ferry announced that Thomas W. Huyck was Road, Atlanta, GA 30326; 404-231-1400; Fax 404-240- elected to partnership. Huyck is a mem- 4249; www.laborlawyers.com. ber of the firm’s litigation department and his practice focuses on business and > Morris, Manning & Martin, LLP, announced that commercial litigation, eminent domain, M. Allison Gould joined the firm as of counsel. She public and affordable housing, and construction is an attorney in the firm’s lending group. Gould law. The firm is located at 231 Riverside Drive, has focused her legal career on Fannie Mae work Macon, GA 31201; 478-742-4280; Fax 478-742-8720; and served as internal counsel with Fannie Mae for www.jbpslaw.com. over 21 years. The firm’s Atlanta office is located at 1600 Atlanta Financial Center, 3343 Peachtree Road > Constangy, Brooks & Smith, LLC, wel- NE, Atlanta, GA 30326; 404-233-7000; Fax 404-365- comed associate Jason C. Logan to its 9532; www.mmmlaw.com. Macon office. Logan has vast experience in all aspects of workers’ compensation In Albany law, including subsequent injury trust > Paul G. Phillips recently joined the law firm of fund, subrogation and the appeals Flynn and Peeler as a partner. The firm will now be process. The firm’s Macon office is located at 577 known as Flynn, Peeler & Phillips, LLC. His areas Mulberry St., Suite 710, Macon, GA 31201; 478-750- of practice include medical malpractice litigation, 8600; Fax 478-750-8686; www.constangy.com. personal injury, vehicular and trucking litigation, premises liability, product liability and commercial In Marietta litigation. The firm is located at 517 W. Broad Ave., > David P. Hartin, formerly with Sams, Larkin & Huff, Albany, GA 31701; 229-446-4886; Fax 229-446-4884; LLP, opened The Law Office of David P. Hartin. www.fpplaw.com. Hartin specializes in family law, estate planning and probate, general civil litigation and domestic and In Brunswick civil mediation. Hartin’s office is located at 732 > Gilbert, Harrell, Sumerford & Martin, P.C., Kennesaw Ave., Suite 140, Marietta, GA 30060; 770- announced that Robert M. Cunningham joined the 424-4848; Fax 678-302-7069; www.hartinlaw.com. firm as a partner and W. Heath Garrett and J. Samuel Choate Jr. joined as of counsel. In Roswell Cunningham’s practice consists of real estate, fore- > Morris Hardwick Schneider announced closure, creditor bankruptcy, estate planning, busi- the promotion of senior managing attor- ness formations and Social Security disability. ney Cheryl Conner King to partner. Garrett’s practice focuses on public affairs matters. Prior to being named partner, King Choate’s practice consists of business and litigation served as the head of the Senior representing clients in state and federal courts and Managing Attorneys Council and also in arbitration proceedings. The firm is located at 777 served on the Advisory Council of the LandCastle Gloucester St., Suite 200, Brunswick, GA 31520; 912- Foundation. The firm’s Roswell office is located at 265-6700; Fax 912-264-0244; www.gilbertharrell 1585 Holcomb Bridge Road, Roswell, GA 30076; 770- law.com. 238-0107; Fax 770-238-0109; www.closingsource.net.

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Bench & Bar

2008 Georgia Super Lawyers Georgia Super Lawyers is published in Atlanta Magazine. Super Lawyers names Georgia’s top lawyers as chosen by their peers and through the independent research of Law & Politics. 2008 Georgia Super Lawyers is based on the survey of more than 23,000 attorneys across the state.*

Carlock, Copeland, Semler & Stair LLP Kilpatrick Stockton LLP (cont.) Thomas S. Carlock Wayne D. McGrew III James Steinberg Virginia S. Taylor Wade K. Copeland David F. Root David A. Stockton William J. Vesely Jr. James R. Doyle II Douglas W. Smith Phillip H. Street David M. Zacks Johannes S. Kingman Kent T. Stair Neal J. Sweeney D. Gary Lovell Jr. Frederick M. Valz III McGuire Woods LLP Fisher & Phillips LLP Gordon R. Alphonso Timothy H. Kratz John C. Beane William B. Marianes D. Albert Brannen Jr. Ann Margaret Pointer F. Kytle Frye III Thomas P. Rebel Paul, Hastings, Janofsky & Walker LLP Christine E. Howard John E. Thompson Richard M. Asbill J. Allen Maines Hunter Maclean Exley & Dunn, P.C. Jesse H. Austin III Deborah A. Marlowe Daryl R. Buffenstein Philip J. Marzetti LeeAnn W. Aldridge Christopher W. Phillips Leslie A. Dent Chris D. Molen Andrew H. Ernst Janet A. Shirley John L. Douglas Jr. John G. Parker T. Mills Fleming W. Brooks Stillwell III Weyman T. Johnson Jr. Reinaldo Pascual Robert S. Glenn Jr. John M. Tatum Walter E. Jospin Kyle D. Sherman Wade W. Herring II Harold B. Yellin Mark S. Lange C. Geoffrey Weirich Frank S. Macgill H. Franklin Layson III John F. Wymer III

Kilpatrick Stockton LLP Richard C. Litwin, LLC Miles J. Alexander Candace Fowler Richard C. Litwin W. Benjamin Barkley Lynn E. Fowler Rupert M. Barkoff Peter B. Glass Stites & Harbison, PLLC Joseph M. Beck Jamie L. Greene R. Daniel Douglass T. Matthew Mashburn W. Stanley Blackburn Randall F. Hafer J.D. Humphries III Richard W. Stephens William H. Boice Joseph P. Henner James F. Bogan III Richard A. Horder Thompson, Rollins & Schwartz LLC Richard R. Boisseau Hilary P. Jordan William H. Brewster M. Andrew Kauss James E. Rollins Jr. Kim K. Thompson Susan A. Cahoon Alfred S. Lurey Debra E. Schwartz Richard R. Cheatham Dennis S. Meir Richard Cicchillo Jr. Todd C. Meyers A. Stephens Clay George L. Murphy Jr. *This is not a complete list of all State Bar of James H. Coil III Matthew H. Patton Georgia members included in the publication. Brian G. Corgan Mindy S. Planer The information was complied from Bench & Theodore H. Davis Jr. William R. Poplin Jr. Bar submissions from the law firms above for Scott M. Dayan John S. Pratt the June Georgia Bar Journal. William E. Dorris Diane L. Prucino W. Randy Eaddy Susan H. Richardson James L. Ewing IV George Anthony Smith

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In Savannah civil practice. The office is located at 2935 N. Ashley > Inglesby, Falligant, St., Suite 107, Valdosta, GA 31602; 229-242-1434; Fax Horne, Courington 229-242-1435; www.fulplaw.com. & Chisholm, P.C., announced that In Edwardsville, Ill. Stephen E. Jackson > Hepler Broom MacDonald Hebrank

Jackson Painter Landrum Jr. was promoted to True & Noce, LLC, added Kipp C. partner and Paul Knight as an associate in its toxic torts W. Painter III and Catherine Clamon Landrum joined practice area. The firm’s Edwardsville the firm as associates. Jackson’s practice concentrates office is located at Two Mark Twain primarily in commercial and residential real estate and Plaza, 103 W. Vandalia St., Suite 300, general corporate matters. Painter focuses his practice Edwardsville, IL 62025; 618-656-0184; Fax 618-656- on business, construction, and personal injury litiga- 1364; www.ptrlaw.com. tion. Landrum focuses her law practice in the areas of commercial and residential real estate and general cor- In Franklin, Tenn. porate matters. The firm is located at 17 W. > Morris Hardwick Schneider McDonough St., Savannah, GA 31401; 912-232-7000; announced the promotion of senior Fax 912-232-7300; www.ifhlaw.com. managing attorney Jennifer Marler Frank to partner. Frank’s office handles > HunterMaclean announced that conventional and REO closings for Deanne E. Clarke joined the commer- Tennessee, Mississippi and Arkansas. cial real estate practice group as of She joined the firm in 2001 as a real estate attorney counsel at the firm’s Savannah office. in the Atlanta office. The firm’s Franklin office is Before joining HunterMaclean, Clarke located at 810 Crescent Centre Drive, Suite 280, served as a partner with the law firm of Franklin, TN 37067; 615-503-9901; Fax 615-503-9948; Frost Brown Todd LLC in Cincinnati, Ohio. The www.closingsource.net. firm’s Savannah office is located at 200 E. Saint Julian St., Savannah, GA 31401; 912-236-0261; Fax In New Orleans, La. 912-236-4936; www.huntermaclean.com. > McGlinchey Stafford PLLC announced that Suzan N. Richardson has joined > Health care attorney Joseph R. “Rusty” Ross of the firm as of counsel in the health care Savannah joined Atlanta-based law firm Morris, section. Richardson brings to the firm Manning & Martin, LLP, as a partner. In addition more than 15 years of experience han- to focusing his practice on health care matters, Ross dling general litigation and insurance also practices with the firm’s real estate group. He defense litigation. The firm’s office is located at 643 will remain based in Savannah. The firm’s Atlanta Magazine St., New Orleans, LA 70130; 504-586- office is located at 1600 Atlanta Financial Center, 1200; Fax 504-596-2800; www.mcglinchey.com. 3343 Peachtree Road NE, Atlanta, GA 30326; 404- 233-7000; Fax 404-365-9532; www.mmmlaw.com. In Tallahassee, Fla. > Jason S. Lichtstein, a shareholder at the > Wisenbaker Law Offices announced the addition Akerman Senterfitt law firm, recently of Matthew A. Bryan to the firm as an associate. moved to the firm’s Tallahassee office Bryan will be in charge of the firm’s litigation prac- from Miami. Lichtstein practices envi- tice. Wisebaker Law Offices specializes in real estate ronmental law and handles a wide and creditor’s rights. The office is located at 327 range of environmental transactional, Eisenhower Drive, Suite 200, Savannah, GA 31406; due diligence, regulatory compliance, Florida leg- 912-927-7779; Fax 912-352-7811; www.wisenbaker islative and agency advocacy, and litigation mat- law.com. ters. The firm’s Tallahassee office is located at Highpoint Center, 12th Floor, 106 E. College Ave., In Valdosta Tallahassee, FL 32301; 850-224-9634; Fax 850-222- > Carl Fulp announced the formation of 0103; www.akerman.com. his new firm, Carl G. Fulp III, P.C. The firm specializes in plaintiff’s personal If you have a submission for Bench & Bar, injury litigation, medical malpractice, please e-mail [email protected]. workers’ compensation, and general

60 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:43 PM Page 61

“And Justice for All” 20082 State Bar Campaign for the Georgia Legal Services Program, Inc.

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Give by credit card at www.glsp.org -or- www.gabar.org Thank You - Every Gift Counts! Benefactor’s Circle $2,500 or more Executive’s Circle $750-$1,499 Sustainer’s Circle $250-$499 President’s Circle $1,500 - $2,499 Leadership Circle $500-$749 Donor’s Circle $200-$249 06-08gbj.qxp 5/22/2008 12:43 PM Page 62

Office of the General Counsel

Client Seeks REAL Lawyer Responding to Requests for Representation

by Paula Frederick

“ ey Joe—look at this!” your partner Dottie from a lawyer? The rule only prohibits demands as you walk into her office. “I contact with “a non-lawyer who has spotted this posting on the listserv of the not sought advice H regarding employ- Real Estate Attorneys League—“landlord seeks REAL ment of a lawyer.” Since Mark has lawyer for representation in eviction cases and various busi- sought advice, calling him does not ness matters. Call Mark Doe at 229-555-1212.” violate Rule 7.3. If Joe decides to “You’ve been wanting to expand your real estate prac- make the call, he tice, and this might be a good opportunity. I think you should begin by should call,” Dottie says, handing you the telephone. clearly explaining “Not so fast,” you warn as she begins to dial the who he is. He number. “I can’t just call this guy and ask him to hire should tell Mark me! Isn’t that soliciting? You’re going to get me into that he is calling in trouble with the Bar!” response to a post- Dottie aborts the call with the push of a button. ing that he saw “Hmmm…” she says. “I guess it is direct contact with a online, confirm prospective client. But surely this is different from calling that Mark is in an accident victim and begging to be hired! This guy sent need of a lawyer, and confirm that Mark has not an e-mail asking for help. Doesn’t that change things?” already hired someone else. Does it? Sometimes it’s hard to figure out how the ethics rules Bar Rule 7.3(d) prohibits private practitioners from apply to new technologies and to different methods of soliciting clients either by in-person contact or by live communication. The older portions of the Rules of telephone contact. The comments to the rule explain its Professional Conduct certainly weren’t written in antic- purpose: to prevent lawyers, who are trained in the art ipation of a lawyer soliciting business by responding to of persuasion, from exercising undue influence or intim- postings on a listserv. When in doubt, contact the Office idating potential clients in order to gain their business. of the General Counsel on the ethics helpline 404-527- Comments 1 and 2 describe the dangers inherent in 8741 or 800-682-9706. We can discuss with you the back- these situations. The lawyer’s personal interest in being ground and purpose of the soliciting rules, which often hired may conflict with his duty to provide independ- helps determine the propriety of proposed conduct. ent legal advice to the potential client. The prospective client might be particularly vulnerable as a result of her Paula Frederick is the deputy general underlying legal problem. Because of the potential for counsel for the State Bar of Georgia and abuse, the rules pose an absolute prohibition on in-per- can be reached at [email protected]. son solicitation of prospective clients. But what about situations like the one facing Joe and Dottie, where the potential client has requested contact

62 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:43 PM Page 63

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Lawyer Discipline

Discipline Summaries (Feb. 21, 2008 – April 11, 2008)

by Connie P. Henry

Disbarments of Peter Scott Manown (State Bar No. 469725). On Jan. Imrani Muhammad Ali 7, 2008, Manown pled guilty in Cobb County to three (formerly known as Sybol Patricia Williams) counts of theft by taking. Concord, N.H. Admitted to Bar in 1994 R. Joseph Costanzo On Feb. 25, 2008, the Supreme Court of Georgia dis- Atlanta, Ga. barred Attorney Imrana Muhammad Ali (State Bar No. Admitted to Bar in 1969 764280). This matter was before the Court on a Notice On March 31, 2008, the Supreme Court of Georgia of Discipline for disbarment. The following allegations accepted the petition for voluntary surrender of license are admitted by default. of R. Joseph Costanzo (State Bar No. 189200). On Feb. 1, A client hired Ali to represent him in federal district 2008, Costanzo pled guilty to one count of Conspiracy court in a civil action that he had filed pro se. Ali entered to Commit Bank Fraud, Mail Fraud and Wire Fraud, an appearance but was not admitted to practice before the and one count of Bank Fraud. court and did not apply for admission pro hac vice. The court ordered Ali to show cause why her name should Suspensions not be stricken as counsel for record, but she failed to Paul Owen Farr respond. The court struck Ali’s name and the documents Americus, Ga. she had filed on behalf of her client, including responses Admitted to Bar in 1993 to the defendants’ motions for summary judgment. Ali On March 10, 2008, the Supreme Court of Georgia failed to inform her client and the court granted summa- accepted the petition for voluntary discipline of Paul ry judgment against the client. Afterwards, Ali failed to Owen Farr (State Bar No. 255432) and imposed an communicate with the client or return the file. Although indefinite suspension with conditions for reinstate- Ali signed an acknowledgment of service of the Notice of ment. Farr admitted that he is suffering from a mental Investigation, she failed to submit a response. disorder that impairs his ability to practice law. He is Ali was previously suspended for six months for currently receiving treatment and ceased practicing abandoning a legal matter and after reinstatement, she law on or about Dec. 8, 2006. never became a member in good standing because she failed to pay her bar dues and meet the continuing Alice Caldwell Stewart legal education requirements. Atlanta, Ga. Admitted to Bar in 1981 Peter S. Manown On March 10, 2008, the Supreme Court of Georgia Dunwoody, Ga. imposed an indefinite suspension on Alice Caldwell Admitted to Bar in 1978 Stewart (State Bar No. 525679) to run concurrently On March 31, 2008, the Supreme Court of Georgia with previously imposed suspensions. Stewart accepted the petition for voluntary surrender of license accepted payment to represent a client in the appeal

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of a criminal conviction. She entered an appearance in that case and undertook some actions on the client’s behalf, but ceased working on the case before the appeal was heard. Stewart abandoned the client and failed to keep him informed of the status of his case. She never requested that she be allowed to withdraw; she never returned case materials or any unearned fee to the client; and she failed to timely answer the property-served Notice of Investigation. Further, Stewart failed to file a Notice of Rejection despite being properly served by publication with the Notice of Discipline. The Court found in aggravation of discipline that Stewart has been twice suspended and that she accepted a letter of admonition in 1983 and a Review Panel Reprimand in 2000. The Court noted that the incidents in issue occurred during the same period of time as the incidents which gave rise to Stewart’s prior indefinite suspension and that during this time Stewart may have been laboring under a medical impairment. Prior to reinstatement, Stewart must promptly undergo evaluation The and treatment at a medical facility approved by the State Bar and the winning edge NLRG Lawyer Assistance Program; National Legal Research Group return all client files; provide an for Georgia CHARLOTTESVILLE, VIRGINIA explanation of her inability to Put us to work helping you win today. return the materials; return all attorneys 1-800-727-6574 or [email protected] unearned fees; and prove to the Fast, Affordable, Specialized Review Panel that her medical Research, Writing and Analysis providers have certified that she is since not impaired and that she has met For more information, and to see what your peers are saying about us: www.nlrg.com the above requirements. 1969 Justices Hunstein and Carley dis- sented. N D L Dennis P. Cronin Norwitch Document Laboratory Canton, Ga. Forgeries - Handwriting - Alterations - Typewriting Admitted to Bar in 2005 Ink Exams - Medical Record Examinations - “Xerox” Forgeries On March 31, 2008, the Supreme Court of Georgia suspended Dennis F. Harley Norwitch - Government Examiner, Retired P. Cronin (State Bar No. 435189) for Court Qualified Scientist - 27 years. Expert testimony given in eleven months and four days, with excess of three hundred times including Federal and Off-shore the suspension being retroactive to the period of March 9, 2007, through 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 Feb. 13, 2008. The Florida Supreme www.questioneddocuments.com Court issued an order suspending Telephone: (561) 333-7804 Facsimile: (561) 795-3692 Cronin for 91 days after he admitted

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preparing and recording two fraud- over four months. The Court found Earn up to 6 CLE credits for ulent deeds. While this matter was in mitigation of discipline that authoring legal articles and pending in the Supreme Court of Babson repaid the $44,700 to this having them published. Georgia, the Florida Supreme Court client; that he had extreme turmoil reinstated Cronin and he provided in his life for which he sought pro- Submit articles to: satisfactory proof of his reinstate- fessional help; that he made full Donald P. Boyle Jr. ment to the State Bar of Georgia. disclosure and cooperated with Georgia Bar Journal disciplinary authorities; that he has 104 Marietta St. NW, Suite 100 Kirk Robert Owens offered to refund the $15,300 in Atlanta, GA 30303 Pensacola, Fla. attorney’s fees, with interest, as Admitted to Bar in 1999 well as interest on the $44,700 from Contact [email protected] for On March 31, 2008, the Supreme March 28, 2006; and that he has more information or visit the Bar’s Court of Georgia suspended Kirk expressed remorse for his conduct. website, www.gabar.org. Robert Owens (State Bar No. 557480) As conditions for reinstatement indefinitely from the practice of law Babson must provide to the Office in Georgia. The Florida Supreme of the General Counsel proof that You may be eligible for a special Special member Court suspended Owens nunc pro he has paid his client $15,300 plus discount on car insurance. discount tunc to March 13, 2006, and until interest at the rate of 7 percent from To find out how much you could save, visit such time as he certified compliance March 28, 2006, to the date of pay- geico.com or with conditions set forth in a “report ment, plus interest at the same rate call 1-800-368-2734 today. of minor misconduct.” The miscon- on the amount of $44,700 from duct involved Owens’ failure to time- March 28, 2006, to Aug. 11, 2006. Visit geico.com for your FREE, no-obligation rate quote. New customers save an average of $500 ly file a petition for certiorari and his when they switch. repeated failure to communicate Review Panel GEICO offers you 24/7 service, fast, fair with his client regarding the petition. Reprimand claim handling and money-saving discounts! Although Owens was personally served with the Notice of Reciprocal Shirley White Edwards

Average savings amount based on national GEICO New Policyholder Survey data through February 2008. Discount amount varies in Discipline, he did not respond to it. Clarkston, Ga. some states. Discount is not available in all states or in all GEICO companies. One group discount applicable per policy. In New York a premium reduction is available. Government Employees Insurance Co. • GEICO General Insurance Co. • GEICO Indemnity Co. • GEICO Casualty Co. These companies are subsidiaries of Berkshire Hathaway Inc. GEICO auto insurance is not Admitted to Bar in 1997 available in Mass. GEICO, Washington, DC 20076 © 2008. R. James Babson Jr. On Feb. 25, 2008, the Supreme Atlanta, Ga. Court of Georgia accepted the Admitted to Bar in 2001 Petition for Voluntary Discipline On March 31, 2008, the Supreme of Shirley White Edwards (State Court of Georgia accepted the Bar No. 755743) and ordered that Petition for Voluntary Discipline of she be administered a Review R. James Babson Jr. (State Bar No. Panel reprimand. Edwards admit- 030295) and ordered that he be sus- ted that she represented a client in Dispute Resolution pended for one year with condi- a real estate closing; that she did tions for reinstatement. Babson rep- not have a separate contract to represented a client in a workers’ com- resent the lender at closing; that We’re looking for fair-minded pensation case. Babson converted she did not have a clear under- individuals to serve as the $44,700 in settlement proceeds standing as to which parties she arbitrators in our forum, for his own use. The client did not was representing; that she made including attorneys, business learn of the settlement or conver- numerous errors in preparing the professionals and others. sion until the client made inquiry closing documents; and that she with the insurance company. Six failed to properly disburse the Call (212) 858-4106 to learn weeks before Babson converted the property tax payment indicated in more. Or visit . www.finra.org funds, he had a mental breakdown. the closing documents; and that We’re FINRA, the Financial Industry During that time he was dealing her errors cost her client money, Regulatory Authority, the largest non- with his sister’s terminal illness and time, and anguish. governmental regulator for all securities the end of a relationship. The Court accepted the facts firms doing business in the U.S. In aggravation of discipline the admitted by Edwards and found in Court found that Babson commit- mitigation of discipline that she cor- ted grave professional offenses, rected her errors and reimbursed and his conduct was not accidental her client for the costs associated or merely negligent. Moreover, his with her errors and for the original client was harmed by the depriva- legal fee paid by the client; that her tion of the settlement funds for errors were caused by negligence

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rather than malice or self-interest; he would refund $4,000, and that he Interim Suspensions that she had no prior discipline; that was remorseful. Under State Bar Disciplinary she was cooperative during the Rule 4-204.3(d), a lawyer who investigation; and that she has since R. James Babson Jr. receives a Notice of Investigation educated herself on the written dis- Atlanta, Ga. and fails to file an adequate closures necessary to clarify repre- Admitted to Bar in 2001 response with the Investigative sentation in real estate closings. On March 31, 2008, the Supreme Panel may be suspended from the Court of Georgia accepted the practice of law until an adequate Derrick L. Wallace Petition for Voluntary discipline of response is filed. Since Feb. 20, Atlanta, Ga. R. James Babson Jr. (State Bar No. 2008, four lawyers have been sus- Admitted to Bar in 1992 030295) and ordered that he receive pended for violating this Rule, and On March 10, 2008, the Supreme a Review Panel reprimand. Babson four have been reinstated. Court of Georgia ordered that represented a client in a workers’ Derrick L. Wallace (State Bar No. compensation case and failed to Connie P. Henry is the 733760) be administered a Review respond to his client’s telephone clerk of the State Panel reprimand. Wallace entered calls. After the client discharged Disciplinary Board and into a business transaction with an Babson, he refused to surrender the can be reached at individual at the same time he pro- client’s files until the client paid for [email protected]. vided legal services to him and while copying and mailing. Babson later the individual expected him to exer- agreed to return the files without cise professional judgment for the payment of these costs but did not For the most up-to-date individual’s protection. When the deliver the files to the client’s new information on lawyer relationship between Wallace and attorney until after the grievance the individual terminated, he told was filed. In mitigation of disci- discipline, visit the Bar’s the individual that he would refund pline, the Court found that Babson website at $4,000 of the fee paid, but he failed to cooperated with the State Bar in www.gabar.org/ do so. Wallace offered in mitigation resolving the matter and he admit- ethics/recent_discipline/. that he had no prior discipline, that ted his wrongdoing. ProfessionalProfessional Receptionist Services

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Law Practice Management

Five Ways to Stay Cool in Your Practice!

by Natalie R. Kelly

t is not often that you find people who think of

the practice of law as being synonymous with I being cool. But if you talk to some of the more technologically advanced or “techie” lawyers, you may

realize that this has actually been changing over the

past 10 to 20 years. World changes attributable to tech-

nology are present daily, and even the practice of law

has not escaped this wave of change. But technology

has impacted not only the legal arena, but has changed

the ways people socialize and how they expect to live

in today’s world.

So, amidst all of these modernizations, how can you be a cool lawyer? Try out one of these five ways. Hire a Coach Coaches are available for many aspects of life, and the practice of law is no exception. There are coaches development coach of Raising the Bar, recently let me for practice development, financial management and in on a little secret. One of her 7 Habits of an Effective even departing from the practice of law. Covering Rainmaker is to “get a coach.” You can check out more every aspect of life as a lawyer, having a coach is not of Hensley’s advice at www.raisingthebar.com. only cool—it’s smart. You can get great advice and cre- Coaching is an important undertaking because by ate life-long relationships. Robin Hensley, the business design it locks you in on the implementation of the goals

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you set. Coaching helps you not technology (hardware and soft- ple phone call policy and try to set only analyze what you want, or per- ware) upgrades. up blocks of time in which you haps should want, but also ensures Be cool and make sure your tech- return calls. that you carry out the steps to nology plan and budget are up to reaching those goals. date. Remember, we always preach Seek Balance in about the absolute need for prac- Work and Life Audit Your Practice tice management software in law Stand back and really look at the firms, and how important it is for How many “lovable” hours do way you are practicing law. What you to use some type of software you live a week? Don’t just focus makes this so cool is that you are other than Word or WordPerfect to on the billable hours that may be a becoming proactive in practice generate bills! requirement for you in your prac- management, and as you move to tice. Take advantage of your down make changes (for the better) in the Re-Connect With Your or slow time by catching up with way you practice and/or run your Clients yourself and your loved ones. At business, you will begin to feel bet- work, use tips for working smarter ter personally as well. Imagine Take a fresh approach to client and not harder; and at home, work how impressed others will be with communications. Understanding to be your coolest as a parent, your new lease on doing business. that troublesome clients and dog spouse, friend or neighbor! Members can contact our files can wear out the best of prac- The Law Practice Management department for a low-cost, confi- titioners, attempt to refocus your Resource Library contains several dential on-site consultation. The energy so that you look at negative volumes that have a work-life bal- general management consultations work situations in a more positive ance focus. This includes the latest allow us to come in and see how light. Devoting a little time to re- edition of the Lawyer’s Guide to you operate, giving us a chance to connecting can help you feel more Balancing Life and Work. You can help you improve your system and refreshed in what you are doing. check out JD Bliss’ Attorney Work procedures. Simply contact us to We advocate meeting more Life Balance Calculator at set up a consultation. with some of your troublesome http://www.envoyglobal.net/ clients. Often just spending addi- jdbliss/test/calculator2.htm. Update and Stay on tional time with them can help After putting a few of these sug- Top of Technology them understand you better, and gestions to work, you may find you can forge a stronger attorney- yourself thinking, “Hey, I am pret- We hope you can get excited client relationship. This will hope- ty cool!” about the latest, coolest gadgets. fully impact their future interac- Who doesn’t love the iPhone? tions with you and your firm in a Natalie R. Kelly is the From social networking, to blogs, more positive way. Also, don’t director of the State to search engine optimization web- forget that you can calendar Bar of Georgia’s Law sites, law firms cannot run effec- reminders to contact clients on a Practice Management tively without being on top of tech- set schedule just to make sure you Program and can be nology. Today, most firms operate are staying in touch. And for those reached at on a two to three year cycle for chronic callers, make use of a sam- [email protected].

Memorial Gifts The Lawyers Foundation of Georgia furnishes the Georgia Bar Journal with memorials to honor deceased members of the State Bar of Georgia. A meaningful way to honor a loved one or to commemorate a special occasion is through a tribute and memorial gift to the Lawyers Foundation of Georgia. An expres- sion of sympathy or a celebration of a family event that takes the form of a gift to the Lawyers Foundation of Georgia provides a lasting remembrance. Once a gift is Lawyers Foundation received, a written acknowledgement is sent to the contributor, the surviving spouse or of Georgia Inc. other family member, and the Georgia Bar Journal. 104 Marietta St. NW Suite 630 Information Atlanta, GA 30303 For information regarding the placement of a memorial, please contact the Lawyers Foundation of Georgia at 404-659-6867 or 104 Marietta St. NW, Suite 630, Atlanta, P: (404) 659-6867 GA 30303. F: (404) 225-5041

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South Georgia Office

Lawyer, Scholar, Diplomat and Very Much a Gentleman by Bonne Cella

lthough he lives and works for Delta in history (diplomatic) from Emory University. He went on to receive his J.D. from Emory School of Law. He received Atlanta, Tifton proudly lays claim to native his second master’s degree in International Relations from Boston University in 1985, followed by his LL.M. in son, John Embry Parkerson. “Growing up International and Comparative Law from The George A Washington University in 1990—all with highest honors. in Tifton and attending Abraham Baldwin Agriculture His classmates in Tifton knew early on that whatever career path Parkerson chose, he would do extremely College for a period after high school graduation was well. Following his father’s1 example of service to country and armed with integrity, intelligence, courtesy and truly special,” said Parkerson. “As a kid, I literally rode wit, he soon found himself serving the Pentagon as chief of the international law branch on the Army staff; my bicycle all over town. I especially remember riding legal liaison at the U.S. Embassy in Bonn, Germany and international legal advisor at the U.S. Army’s head- it every Saturday during the summer to the public quarters in Heidelberg. As an associate professor of law at West Point, he designed and taught courses in inter- swimming pool. Tifton also afforded me other liber- national law and constitutional law. Speaking of his Army career (1978-1993), Major ties—some that I cannot mention—of which I took more (Ret.) John Embry Parkerson Jr. says, “Those were some of the best days of my life. Hardly a day goes by than full advantage of as a teenager. I might thank a when I don’t think about some of my Army adventures in Bolivia, Guatemala and Germany. The chance to live fairly tolerant community, understanding police, and a overseas and to practice international law, then to teach at West Point, then to work in a place as hallowed good family for keeping me alive and out of jail. Those as the Pentagon—how could you beat that?” Parkerson’s position with Delta is just as exciting and memories are most pleasant.” demanding as his career in the Army. “What I enjoy most about working for Delta is the international practice—the After graduating from Tift County High School in 1970, opportunity to work in different countries with incredibly Parkerson received his bachelor’s and master’s degrees in interesting and competent professionals, with an overlay

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(Top) Consul General of Hungary, Imre Helyes, swears in Parkerson as Honorary Consul of Hungary on the rooftop of the Atlanta Chamber of Commerce. (Bottom) Parkerson in Budapest, (Above, left to right) Andras Simonyi, former ambassador for Hungary to the Hungary on the bank of the Danube with The Hungarian United States; Atlanta Mayor Shirley Franklin; and John Parkerson. Parliament Building as background.

of unique cultures and legal systems report on terrorism to the U.S. region. Mr. Ambassador, you could that are different from ours.” As one Congress as well as citations in the not have chosen a nicer guy! of three attorneys who form the Harvard Human Rights Journal. International Team within the Law Parkerson is married to Jo- Bonne Cella is the Department at Delta, Parkerson Ann—”a real New York Italian- office administrator recently completed the legal prereq- American” and they have two at the State Bar of uisites for new service to countries in sons, Christopher, a senior at Georgia’s South Africa and the Middle East. He Woodward Academy, and Justin, a Georgia Office in serves as primary legal counsel to senior at Clayton State University. Tifton and can be the Latin American region and is the On May 29, dignitaries from all reached at [email protected]. chief architect of an evolving indus- over the country, local public fig- try legal strategy in response to ures and a large contingent of Endnote developing areas of international air Parkerson’s friends and family 1. John Parkerson Sr. landed at Utah transport liability, particularly with gathered on the rooftop of the Beach in the Normandy invasion. regard to war/terrorism risk and Atlanta Chamber of Commerce as He was company commander of a passenger/crew health matters. Ambassador Andras Simonyi of rifle company in the 4th Infantry A frequent speaker at legal sem- Hungary swore him in as Honorary Division. He was wounded twice and received two purple hearts. inars and universities on interna- Consul of Hungary for the states of The first was a minor leg wound tional aviation liability and inter- Georgia, Tennessee, North Carolina suffered in France but the other national business practices, and South Carolina. Always, gra- was a serious neck wound that he Parkerson is credited with numer- cious and humble, Parkerson later received just inside the German ous publications and serves on var- commented, “I always wanted to border near Prum in the closing ious boards in the United States be a diplomat, and the Hungarians, days of the Battle of the Bulge. He and abroad. He is a trustee and bless them, gave me an opportunity received a Silver Star for bravery past chair of the Clayton State of a lifetime!” Ambassador Simonyi during that event because, while University Foundation Board of was so impressed with Parkerson wounded, he pulled his 1st Trustees. A quick “google” search after meeting him at a Delta func- Sergeant who had been by his side brings up numerous links of tion that he chose him to represent and seriously hit at the same time, back from the line to safety. Parkerson’s work included in a Hungary to America’s southeast

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Pro Bono Honor Roll

The Pro Bono Project of the State Bar of Georgia salutes the following attorneys, who demonstrated their commitment to equal access to justice by volunteering their time to represent the indigent in civil pro bono programs during 2007. *denotes attorneys with 3 or more cases

GEORGIA LEGAL Bainbridge Jeffrey D. Bunch James M. Feagle Gainesville/Hall SERVICES PROGRAM Josh Bell * Robert D. Ortman N. Wallace Kelleman Susan Brown Stephanie R. Lindsey Mike Proctor Abbeville Bartow Colquitt Alycya O. Link Kimberly Saunders David G. Morgan * Tracy L. Rhodes Danny C. Griffin Allison M. McDonald Leslie V. Simmons Coweta Gordon Albany Joshua D. Earwood Delia T. Crouch Douglas John C. Leggett Valerie Brown-Williams * Walter S. Haugen Scott K. Camp Gregory Clark * Blairsville/Union Doris C. Orleck Robert A. Chambers Gwinnett Cawthon Custer * Robbie Colwell Weaver Karmel S. Davis Andrea J. David-Vega Gail Drake * Cumming/Forsyth Amy B. MacEwen Stefan C. Turkheimer B. Samuel Engram Jr. Brunswick Thomas P. Knox Shirleen F. Matlock * William Erwin Flay R. Cabiness Andrea R. Moldovan Hartwell/Hart James Finkelstein * Jason R. Clark Dalton Ernest D. Napier III Daniel Parker * Gregory Fullerton Robert M. Cunningham Vincent Lyle Anderson * Donald E. Pollard Jr. William H. Gregory II Martha F. Dekle Joyce Thomas Baker * Heard Kevin Hall Frances W. Dyal Barry R. Benton * Elberton/Elbert Dock H. Davis Walter Kelley Carlton Gibson Fred Steven Bolding * Patricia Bryant Rudolph Patterson Joseph R. Hammill Valerie K. Brantley * Henry Randolph Phillips Maria Lugue II Robert A. Cowan * Evans LeAnne P. Cooper Susan B. Thornton Charles Lee Daniel III * L. Daniel Butler Joseph W. Hodges Jr. Alma Holle Weiss-Friedman Archibald A. Farrar * Richard T. Pacheco E. Suzanne Whitaker Judge William J. Edgar Martha W. Williams Vickie L. Ford * Nathan T. Williams Robert D. Jenkins Sr. * Fayette Jesup Alpharetta Amy E. Jones * Lisa K. Inagawa W. Jefferson Hires Daniel Mitnick Buford/Gwinnett Michael Goode * Anne S. Myers Marion Ellington Jr. Terry L. Miller * Sharon I. Pierce Kingsland Ashburn John T. Minor, V * Shelia L. Rambeck Garnett Harrison Stephen L. Ivie * Camden John T. Minor IV * Lisa H. Richardson Garnett Harrison Kenneth Leroy Mishoe IV * Ceasar D. Richbow Macon Athens/Clarke Todd Mitchell Johnson * Leslie W. Wade Danny Akin Arthur Archibald Carroll Robert G. McCurry * Nancy Atkinson * Jason Braswell William E. Brewer Jane McElreath * Floyd Thomas Bass Jeff DeLoach T. Michael Flinn Mary Faye McCord * Timothy J. Crouch Josephine Bryant-Jones Kent Silver * Terry L. Miller * James R. McKay Claire Chapman * Clarkesville/Habersham Albert C. Palmour Jr. * Rodney Davis Augusta Douglas L. Henry Horace K. Sawyer III * Fulton Brown Edwards Debra Bryan William P. Slack * Emory L Clark * Susan Flory J. Patrick Claiborne Clayton Maurice Sponcler Jr. * Karen D. Fultz Larry Fouche Jennie M. Hyatt Janet A. Sossomon * Lawrence Alan Stagg * Andrew L. Gurvey Marcy Glover Leon Larke Gloria F. Atkins Stanley D. Tilley * Marsha K. Klevickis Emmett Goodman Jr. Lauminnia F. Nivens Sylvia E. Hoard Robert L. Stultz * Allan Levin Kathleen I. Hall Alice W. Padgett Tina G. Stanford Christopher A. Townley * John Lewis Jr. Peggy Hindsman-Freeney Evita A. Paschall James E. Wilbanks * Yolvondra Martin Danielle Hynes * Cleveland/White John O. Wiggins * Stacy A. McMullen Ricky E. Jones Bacon Raymond L. Crowell Charles Wright Jr.* Anthony B. Sandberg Jane Jordan Judge William J. Walker Lauren D. Sturisky Julius King Cobb DeKalb Derick C. Villanueva A.G. Knowles * Thomas J. Browning Mary E. Cobbs William Woods White Timothy L. Lam * 06-08gbj.qxp 5/22/2008 12:43 PM Page 73

Walter E. Leggett Jr. Savannah ATLANTA VOLUNTEER Vickie Carlton Brenda Godfrey G. Leonard Liggin * Kathleen Aderhold LAWYERS FOUNDATION Raymond Carpenter Gwendolyn J. Godfrey Robert Matson Solomon Adeoye Stacey Carroll Gregory Golden John E. Morrison Karen Dove Barr Alpharetta Michelle Carter Heather Gorman Ann Parman Thomas Raymond Bateski Elyse Aussenberg Douglas A. S. Chalmers James Gorsline James Patterson Charles W. Bell Rebecca Cottingham Henry Chalmers Jennifer Gowens Bradley G. Pyles John Paul Berlon David McMichael Susan Chiapetta Larry Gramlich John D. Reeves Birney O. Bull Frank Mulcahy Julie Childs Christa Gray Carmel Sanders Christine Cheng * Janet Newburg James Chin Scott Griffin Jenny Stansfield Dolly Chisholm Kathryn Cox Reeder Sean Christy Amy Grynol Sarah M. Tipton-Downie Michael J. Classens Brett Schroyer Lindsey Churchill Roger G. Gustafson Joy Webster Tom Cooper * Amy Kathryn Waggoner Emory Clark Robert K. Haderlein Randy E. Wynn Brian Lawrence Daly Shawna M. Woods Jennifer Coalson Julia Haesemeyer Jennifer Joy Dickinson Peter Coffman Elizabeth Hall Morgan John Raymond Dickey Atlanta Mark Cohen Walter Hamberg Lynne D. Perkins-Brown Joseph M. Gannam Amy Sullivan John Collar Ann Hammenecker Brenda H. Trammell Charles Claude Grile Anisa Abdullahi Katrenia Collins John Hamrick Stephen H. Harris Michael Abramson Jonathan Cook Monica Hanrahan Moultrie Stanley Earl Harris Nigamnarayan Acharya Cristina Correia Ryan Harden Dorothy Kirbo McCraine * William Thomas Hudson Alisa H. Aczel Kimberly Council Brian Carl Harms Daniel Christian Jenkins Kimberly Ader Lashonda Council Allen Harris Muscogee Charles V. Loncon Helen Adrian Troy Covington Katherine Harris Tom Affleck Kelly E. Miller Rolonda Albert Patrick Coyle Catherine Hart Ed L. Albright Mary Parks * John W. Alden Suzanne Craig Jacquelyn Hartley James Archie Janice Powell Mauricia Allen Donald Crawford Jonathan Hawkins William Arey * R. Krannert Riddle Nicole Allen Matt Crawford Kimberly Haynes Jacob Beil David R. Smith Matthew Almand Daniel Crook Mary E. Hebert Melvin Cooper Daniel Brent Snipes Jessie Robertson Altman Robert Cullen Jonathan Hedgepeth Richard Childs C. Grant Washington Noelle Alvarez Terrell Davis Jeff Hester Marc D’Antonio * Gwendolyn S. Fortson Brandon Ansley Tracy Dawson Ralph Hiers Pete Daughtery Waring Estella Antwi Becky DeCarlo Andrew Hiller Darrell Dowdell Miriam Arnold-Johnson Wright Dempsey Margo Hines Michael Eddings Spalding Robert Arrington Anuj Desai Tracy Hitt Larry Gordon John M. Cogburn Jr. Adrienne Ashby Audra Dial William James Holley Cecelia Howard Hailes Richard L. Collier Enjolique Aytch Janis Dickman Jessica Hovanec Morton Harris Lisa D. Loftin Dana Azar Kathleen Dodd Eric Hurst Rachelle Hunter Bryan Baer Sheri Donaldson John Hyman Paul Kilpatrick Sugar Hill/Gwinnett Brooke Baires-Irvin Amy Doorley Jennifer Ide Larae Moore John V. Hogan * Drew Baiter William Dorris Shukura Ingram Nancy Miller Elizabeth Ballard Shannon Drake Sarah E.Gohl Isabel Pedro Quezada * Tifton Robert Barnaby Katherine Drolett John F. Isbell Ben Richardson Render M. Heard * Keith Barnett Michael Dunn Stefanie Jackman William Rumer Melinda Phillips * Eric Barton Jason W. Eakes Jerry Jackson Joseph A. Sillitto Brooke Barlick Sterling P. Eaves Phillip Jackson Shevon S. Thomas Toccoa/Stephens Leslie Bassett Deborah Ebel Mary B. James Raymond E. Tillery Jr. * Gwynne B. Goodlett Adam Bassing John Edwards Alan R. Jenkins Alfonza Whittaker Willie J. Woodruff Jr. Nancy Baughan Regina Edwards Allie Jett Alonza Whitaker Courtney Beasley Michael Elkon Julye Johns Dorothy Williams * Troup Jeffrey Bekiares Rachel A. Elovitz Elizabeth Finn Johnson Joseph Wiley Thurman E. Duncan Jeff Belkin Stacey Evans Janelle Jones Robert Wilson W. Luther Jones Eric Berardi Ayotunde Ezekiel Stephanie Michelle Jones William Wright * Colin Bernardino Joe Farrell Michelle Jordan Tucker/DeKalb Christopher Berney Casey Fernung Michael Kaeding Newton Donald Dotson Christy Bigelow Daniel Fishbein Alan Kan John B. Degonia Jr. Tom Bingham Edward M. Fitts Aamir Kazi Reed Edmondson Jr. Upson Jennifer A. Blackburn Andrew B. Flake Alyson Keating Mario S. Ninfo Donald Snow * Jeffrey Blake Abbey Flaum Jack Kennedy Alison Boyer Johathon A. Fligg J. Hayden Kepner Paulding Valdosta Andrew Brandon Anissa D. Floyd Troy Kiber Dean C. Bucci William A. Turner Jr. * Mike Breslin Ashley Fournet Kimani King Donald R. Donovan Michael Brooks Christian Fox Ed Kirkland Wayne D. Keaton Warrenton Barbara Brown Diedre Francis James A. Kitces Martin E. Valbuena Arleen Evans Robert L. Brown Judith Fuller Andrea Knight Karen Brown-Williams Karen D. Fultz Catherine Knight Pearson Walton Sherri Buda Kimberly C. Gaddis Maritza Knight Brenda M. Carter Stanford Cox III David Burch John P. Gallagher Thad Kodish Carin Burgess Charles Benjamin Garren Keith Kodosky Polk Waycross Charles Burnett Bruce H. Gaynes Jana Korhonen Brad J. McFall Scott C. Crowley Robert Burnette George M. Geeslin Melissa Kotun Jeffrey D. Garmon Kaye W. Burwell Carol Geiger Megan Kreitner Rockdale Huey W. Spearman Nora Kalb Bushfield David Geiger Jill Kuhn William G. Hammonds Shawn F. Wildess Annie Caiola Karen H. Geiger Noelle Lagueux-Alvarez John A. Nix Clark Russell Calhoun Nancy Gibson Teresa Lazzaroni John L. Strauss * Woodstock/Cherokee LaShay Calloway Maile Gilmore Dawn Levine Steven Campbell * Erin Cannon James A. Gober Ryan Lewis-Harden Steven F. Carley Alan Godfrey Alice Limehouse 06-08gbj.qxp 5/22/2008 12:43 PM Page 74

Denise Lobodinski Jessica Reece Kristi Uhrinek Fulton Cassandra Galette Crawford Long David Reed Mark S. VanderBroek Brian Watt Richard Genirberg Deborah Lubin James K. Reed Denise Danielle VanLanduyt Ethenia King Grant Matthew M. Lubozynski Karen Reschly Lindsay Carol Verity Greenville Leslie Gresham Robert Luskin Jane Ricci Derick Villanueva Kevin Elwell Loletha D. Hale Suparna Malempati William M. Rich Shunta L. Vincent Yvonne Hawks S. Wade Malone Megan Richards Candy Voticky Lawrenceville Scott Holt Tyler Mann Eric Allen Richardson Aubrey Waddell Jamie Taire Rolf Jones Olivia Marbutt Melody Z. Richardson Kathryn Harrison Wade Marietta Randall Keen Meghan Marino Susan Richter Melissa Walker Damon Bivek Susan M. Kirby Kate Marks David Rieveschi Kristi Wallace C. Damon Gunnels Arlenne LeBrew-Sanders Lindsay Marks Richard Rimer Camille Ward Blake Halberg Christopher Leopold Edward Marshall Jessica Rissmiller Jane Warring Suzanne Henrickson Terrance Madden Ashley Loren Massengale Erinn K. Robinson Charles Waters Jacqueline L. Payne Robert G. Oliver LaTasha McAlpine Mark Rogers John Weeks Vincent C. Otuonye Amy Pressley McCarthy Brian Roof Mark Weintraub Norcross Jerry L. Patrick Jr. Corin McCarthy Devona Roseberry Robert Wellon Julie Ernst-Fortin Darrell B. Reynolds Danyelle McDonald Jonathan Rotenberg David Wender Denise Holmes Shana M. Rooks Joseph McGhee Eileen Rumfelt Robert G. Wender Avery T. Salter Jr. Clare McGuire Caroline Sage Karen Brown Williams Peachtree City Julian Sanders James R. McGuone Rachael Saloom Price S. Williams Dara Berger Frances E. Smith Cecily McLeod Stacy Allison Sax Elizabeth Williamson Annette Strong Steven Snyder Chesley McLeod Jacquelyn H. Saylor Amanda Wilson David J. Studdard Maureen McLeod Kelly K. Schiffer Debbie Wilson Riverdale James W. Studdard Stacy McMullen Genevieve Schmidt Matthew V.Wilson Gerashonte Walton David J. Walker Laurin M. McSwain Brian Schneiderman Tom Wilson Harold B. Watts Charles Medlin Robert Scholz Carolyn C. Wood Roswell Jan Watts Laura Mendelson Thomas J. Schramkowski Justin Wood Ray Colleran Andrew Williams Hallie Meushaw R. Michael Schreiner Leslie Wood Keith C. Wood Ethan Millar Susan Schub Tamera Woodard Smyrna Murble A. Wright Megan Miller Haley Schwartz R. Douglas Wright Kimberly Jackson Fred Allen Zimmerman Deena Miller Margaret W. Scott Edward Wyatt Nathania Stewart Charles Vrono Richard C. Mitchell Andrea Seeney Key A. Wynn Jeremy Moeser Job Seese Erika Young Stone Mountain Locust Grove Kathleen Mones Debra A. Segal Sandra Zagier Zayac Karen Inniss William Turner Jr. Tameika Montgomery Shelley Senterfitt Rachael Zichella Deena Charisse Miller Se Moon Erin Shear Jodi Zysek Marietta Jodi Mount Jeffrey Shiver Union City Tonya Boga Robert Muething Matthew Simmons Austell Angie Walton Daniel Murdock Maya Simmons Lynita Mitchel Blackwell McDonough Betsy Cooke Neal Daniel Phillip Sinaiko CLAYTON COUNTY PRO Emmett J. Arnold IV * Karen Neely Richard L. Sizemore Canton BONO PROJECT Clay Davis Anne Nees Frank Slover Mollie Neal Roslyn Grant Joel Martin Neuman Camille Small-Simon Atlanta Pandora E. Palmer Jenifer Niedenthal Brian Smith Conyers Allan E. Alberga * Jeffrey J. Nix Ian Edward Smith Courtney Beasley Sam O. Laguda Morrow Jason Nochimson James L. Smith Gia Brown Compton Shonterria Martin Mary Ann B. Oakley Rebecca Smith College Park Judith A. O’Brien Robert B. Smith Covington Valrie Y. Abrahams * Rex Todd Adam Orston Shuman Sohrn Royce Bluitt Stephanie Jones Marianne Ortiz Kathryn Solley Decatur Kenneth Ozment Lisa Sowers Decatur Betty Williams-Kirby * Riverdale Ashley Palmer Vanessa Spencer Collen Beard Ikemesit Eyo Seam Park Nick Stanisio Tesha Clemmons East Point Sherri Jefferson Cynthia Parks Sarah Statz Margaret Courtright Glen Ashman Andrea Pawlak Joshua Stein Frank Derrickson Kaaren Robinson Stockbridge Ruth Pawlak Jill Steinberger Siobhan Gilchrist Joseph Chad Brannen Cynthia Pearson Bruce R. Steinfeld M. Debra Gold Fayetteville Robert Mack Patrise M. Perkins-Hooker Stacy Stewart Ulusra Harris Muriel B. Montia * William W. West John Gregory Perry Robert Strang Laurel E. Henderson Jeff Phillips Charla Strawser Michael Leeper Forest Park COBB JUSTICE Timothy Phillips Charles Strickland Tiffany Rowe Emily George * FOUNDATION Linda Pitts Vernon Strickland Katrina V. Shoemaker Tina Stanford * Mindy Planer Jacqueline Stubbs John Wesley Spears Bradley Adler Evan Pontz James Stull Leslie Elizabeth Stewart Jonesboro James Ausenbaugh * Jonathan Poole Amy Sullivan Herman Tunsil George Brown Nicholas Bakatsas Brennan Posner Terri Sutton Jennifer Watts Johnny F. (J’uan) Castaneda G. Phillip Beggs * Bryan Powell Daniel Swaja Johnny R. Casteneda Lesley White Berggren Spencer Preis Ryan Szczepanik Dunwoody Hugh G. Cooper * Damon Bivek Carmen Rojas Rafter Brian Teras Kevin Farmer Constance Manigo Daise * Peter Blackford J. Marbury Rainer Eileen Thomas Charles D. Gabriel James J. Dalton II Michael Brewster * Michelle Rapoport Elizabeth Thomas Nikki Marr Willie G. Davis * Chandler Bridges Ian Rapaport Kristin Timm Charles Driebe Thomas Browning Stacy Raphael Stewart Jackie Toney Ellenwood Bobby E. Farmer Lawrence Burke Kaveh Rashidi-Yazd Melissa Tracy Sophia Clark Monroe Ferguson David Canale * Hadley Recor Renata Deann Turner Steve M. Frey Charles Chesbro 06-08gbj.qxp 5/22/2008 12:43 PM Page 75

Kenneth Clark Stephen J. Sasine Robert Solomon Michael Raeber Darcy Jones Vicki Cuthbert Randie Siegel * Adam Stein Leigh Rhoads Sutherland Asbill & Brandy Daswani Glenda L. Sullivan Jammie Taire * Joy Riddick-Seals Brennan, LLP Michael J. Davis Bret Thrasher Joshua Swiger Joan P. Davis Avondale Estates Nelson H. Turner John Rogers Bo King Jeffery Daxe Joe Weeks * Steven Reilly Doug Rosenbloom Buckley & Klein, LLP Robert I. Donovan Clinton Rhodes Richard Rufolo Charles Durrance * Decatur Dorothy Rosenberger Timothy Santelli Megan Kreitner Ian Falcon L. Katherine Adams-Carter John E. Tomlinson Adwoa Seymour * Paul Hastings Janofsky & Kathleen Flynn* Herman D. Baker Clarke & Washington Heather Thorpe Walker LLP James W. Friedewald Griffin Bell III Lysander Woods Cheryl Treadwell Ray Gary Jr. Mark G. Burnette Anthony Zezima John Tyler Charlie Lester * Heidi Geiger Susan B. Ellis Sho Watson Sutherland, Asbill & Sims Gordon Kathleen Flynn TRUANCY Nikki Williams Brennan, LLP David P. Hartin Stephen Gibbs INTERVENTION PROJECT Rene Hawkins Williams Suzanne Henrickson Ross Goddard Jr. Lauren Zeldin * Kerry McGrath Samuel D. Hicks * William Hall Jr. Alpharetta Jodi Zysek Law Office of Kerry E. Douglas A. Hill Alan Harvey Neera Bahl * McGrath Allen Hirons William Hudson Jr. College Park James D. Hogan Mary Brock Kerr Atlanta Tamika Hrobowski * Judy O’Brien Leo Hughes Alycya Link Kim Anderson Sutherland, Asbill & Payal Kapoor Fredrick C. McLam Suzanne Arpin * Decatur Brennan, LLP Rebecca Keaton John Wesley Spears Jr. Brooke Baires-Irvin * Denise de La Rue Reid Kennedy Robert Turner Shelia Baran * Dawn King DeKlerk Nora Polk Darryl Kidd Brian Wertheim Eric Barnum Tiffany Rowe Ashby & Polk, LLC Scott Kimbrough Harvey Whiteman Stephen Belan * Revi Williams Andrew Lewis William Witcher Jr. Chip Benton * David Pollan John Lyle Nowell Berreth Forest Park Elizabeth Reid Michael Manley Lilburn Andrea Bowman Fred Bryant * Kilpatrick Stockton, LLP Roderick Martin David L. Holbrook Stephen Bracy Shirleen Matlock Mario Breedlove Jonesboro Dawn Smith T. Shane Mayes Lithonia Will Brumbach Robert Mack * Atlanta Volunteer Lawyers Jody Miller Mereda Johnson Hilliard Castilla Foundation Richard L. Moore * Lisa Patrick Mariángela Corales * Lithonia Michael McLaughlin John Crenshaw * Stacey Pinckney * Sarah Whalen J. Kevin Moore Snellville Sisera Dowdy Nelson Mullins Riley & Dennis O’Brien William Clinton Rhodes Regina Edwards Marietta Scarborough Cindy Patton * Glen Fagan * Tressa de Andrade G. Cleveland Payne Stone Mountain Martha Fineman-Sowers Benjamin Young Debbie Pelerose Donald A. Hillsman Ron Fontenot * Norcross Troutman Sanders, LLP Brian Pierce N. Wallace Kelleman * David Forbes Bill Fletcher Dorine Preis Chris Fox Lisa Golan John Zimring Ryan Prescott Tucker Elizabeth Fox Zimring & Smith, LLC Suzanne Prescott William H. Arroyo Rachel Fuerst * ATLANTA LEGAL AID Morgan Robertson Steven Ashby Avni Gandhi HEALTH LAW Ed Kirkland Allyson Russell-Blair Teresa Garcia Sharline Green PARTNERSHIP Law Office of J. E. Kirkland Jr. Al Separk William L. Skinner Kristin Goran Brian Smith John J. Tarleton Salena Gordon * Jennifer Coleman Mary Stearns-Montgomery Becky Hall Nelson Mullins Riley & Lynn Stevens * GWINNETT COUNTY PRO M. Derek Harris * Scarborough Darrell Sutton BONO PROJECT Martha Henley Michael Syrop Stacey Hillock Sue Colussy Melinda Taylor * Atlanta John Hocutt Catholic Charities Amy Weber Denise Arnold Kylie Holladay Immigration Legal Services Joseph Weinberg Steven Ashby Colin Kelly * Danna Wolfe Christopher Ballar Kara Kennedy Anna Curry Kelli Wolk L Thomas Cain * Marissa Key Troutman Sanders, LLP Diane Woods L Thomas Cain, Jr Skip Lockard Emory Lee Clarke * Kelli Lott Hon-Vinh Duong DEKALB VOLUNTEER Sandra Clarke Alissa Malone Troutman Sanders, LLP LAWYERS FOUNDATION Jerry Daniels Meg Marino Regina Edwards Catherine McClellan James Feagle * Atlanta Nelle Funderbunk Akila McConnell James Feagle, Esq Jessie Altman John Hogan Jennifer Meyerowitz* Jeffrey A. Bashuk Denise Holmes Paul Moore Kathleen Flynn Beverly Bates Robert Hughes Serena Mosley-Day Law Office of Kathleen Flynn Stanley Baum Wallace N. Kelleman * Heather Munday * R. Peter Catlin Suzanne Laird Dan Murphy Nekia Hackworth Melvin Drukman David Lipscomb Barry Noeltner Nelson Mullins Riley & Richard Farnsworth Linda Mckinley Ceclia Oh Scarborough, LLP Jeff Flynn Joseph Mclaughlin Erik Olson * Lawrence Ross Gordon Lisa O’Brien Ashley Palmer Kristin Haynes Walter Hamberg III Wynn Pelham Erin Payne Tisinger Vance PC Charles F. Hicks Mary Prebula Mindy Pillow H. Martin Huddleston Debbie Seigle Geoff Pope J. Edward Kirkland Jr. Macklyn Smith Rachel Powell 06-08gbj.qxp 5/27/2008 3:32 PM Page 76

Section News

Sections Share Knowledge Through Events and Newsletters by Derrick W. Stanley

arch and April saw three successful

section events that yielded CLE cred- M it for the attendees. The Intellectual Property Section, chaired by Todd McClelland, hosted two meetings. On March 25, Angela Payne James, Scott Brient and Jennifer Liotta, all from Alston & Bird, presented “Patent Obviousness: Post-KSR Developments in Patent Litigation and Prosecution.” This well-attended event discussed points from “obviousness” and “non-obviousness” district court cases to the impact that KSR has had on patent litigation. The litigation committee, chaired by Brad Groff, saw a near capacity crowd at this luncheon that provided one hour of CLE credit.

The licensing committee, chaired by Andria Beeler- Stanley Photo by Derrick W. Norrhold, and the in-house committee, chaired by Kevin Glidewell, hosted the program entitled: “If Only “More Than Fun & Games: The Law and Business of You’d Asked: The Litigator’s Perspective on Drafting Video Game Development” was presented by the Intellectual Property Agreements.” This panel discus- Entertainment and Sports Law section on April 23. Lisa sion took place at the Alston & Bird offices on April 22. Moore, chair, hosted speakers Clinton Lowe, Marcus Panelists Martin J. Elgison, John P. Hutchins, Edward Matthews and Cliff Lovette whose presentation includ- B. Krugman and Lawrence K. Nodine provided their ed an overview of the industry, revenue models and the insights on clauses and phrases commonly used in IP legal aspects of the game development industry. This agreements. They also discussed courts, interpretations one-hour CLE luncheon was held at Thrive. of these agreements and practical effects of particular In addition to the lunch presentations, many sections clauses and phrases in the event of a dispute. This one- also held social functions at various locations. The net- hour CLE program was open to section members and working functions allow members to extend their pro- law students. fessional networks while sharing expertise.

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Sections & Dues Amounts Administrative Law ...... $15 Entertainment and Sports Law...$25 Labor and Employment Law .....$20 Agriculture Law...... $20 Environmental Law...... $25 Legal Economics Law ...... $10 Antitrust Law...... $20 Equine Law...... $20 Local Government Law ...... $10 Appellate Practice ...... $15 Family Law ...... $35 Military/Veterans Law ...... $15 Aviation Law ...... $15 Fiduciary Law ...... $30 Product Liability Law ...... $25 Bankruptcy Law...... $35 Franchise and Distribution Law...$20 Real Property Law...... $25 Business Law ...... $20 General Practice and Trial Law...$35 School and College Law ...... $15 Consumer Law ...... $25 Government Attorneys...... $10 Senior Lawyers...... $10 Corporate Counsel Law...... $25 Health Law ...... $20 Taxation Law ...... $20 Creditors’ Rights...... $15 Immigration Law...... $15 Technology Law ...... $25 Criminal Law...... $20 Individual Rights Law ...... $15 Tort and Insurance Practice ...... $15 Dispute Resolution ...... $15 Intellectual Property Law...... $35 Workers’ Compensation Law.....$25 Elder Law ...... $20 International Law...... $25 Eminent Domain Law ...... $35 Judicial Section ...... $10

Several sections also published newsletters over the past two Earn up to 6 CLE credits for authoring legal months. The newsletters can be articles and having them published. found by visiting the section web pages and downloading them in Submit articles to: PDF format. Donald P. Boyle Jr. There are 40 sections to choose Georgia Bar Journal from. Your membership can 104 Marietta St. NW include newsletters, section direc- Suite 100 tories, CLE resources, course mate- Atlanta, GA 30303 rials, sample forms, legislative Contact [email protected] influence and an opportunity to for more information meet fellow practitioners in your or visit the Bar’s website, area of interest. www.gabar.org. Above is a list of sections and their dues. To join, download the membership form at www.gabar. org/sections/how_to_join_a_ A Smart Read for Smart Readers section/. Send in your completed form along with your check made Th e metro Atlanta legal community relies on the Daily Report payable to the State Bar of Georgia. for award-winning coverage of the business You can also join a section by indi- of law, courts and legal aff airs. cating your preference on your Th e Daily Report serves its highly educated and affl uent annual dues invoice. lawyer-readers with content relevant to their lives both inside and outside the offi ce. Derrick W. Stanley is the section liaison For advertising information please contact: for the State Bar of Mischelle Grant • (404) 419.2820 • [email protected] Georgia and can To subscribe call 1.877.ALM.CIRC be reached at check us out [email protected]. www.dailyreportonline.com

June 2008 77 06-08gbj.qxp 5/22/2008 12:43 PM Page 78

Casemaker Improve Legal Research With Casemaker 2.0 by Jodi McKenzie

asemaker has just released Casemaker 2.0, Search feature (see fig. 5). The Multi-State Search feature will allow you to do searches in either caselaw or ethics which is guaranteed to improve your legal opinions across multiple states or all states at once. The top portion of the Multi-State Search screen will research. Over the past year, the people at list all states, as well as the District of Columbia, from C which you can choose by clicking on the check boxes. Casemaker have been diligently working on increasing You may select to search all states at once by clicking the “Select All” button (see fig. 6). the benefits of Casemaker. The bottom part of the screen gives you the same search fields as you have already seen on the They have delivered with a product that has access Advanced Search screen for an individual state. to 3 million more documents, more user-friendly fea- Casemaker 2.0 has added over 3 million new docu- tures and a stronger and faster search engine. It has ments to the Federal Library. If you open the Currency been an ambitious undertaking but worth the effort for page for the Federal Library, you will see that the U.S. our members. Casemaker 2.0 is now even more com- Supreme Court dataset now begins in 1754, the U.S. petitive with other online legal research vendors but is Circuit dataset begins in 1930, and the U.S. District still free of charge to State Bar of Georgia members. Court dataset begins in 1950 (see fig. 7). The significant- Let’s take a look at some of the new features. ly expanded content in the Federal Library is just one of You will now notice that when you open Casemaker the ways Casemaker 2.0 increases its benefit to you. you are taken directly to Georgia’s library. The func- Casemaker has also added a “Help” button that tionality of the state library has not changed. The only appears on every screen. When you click on the “Help” difference you will notice on this page is that the button, Casemaker will produce a Help dialog box that “Currency” button, which tells you how current each pertains to the screen that you have open (see fig. 8). If of the datasets are, is located at the top of the page you are on the Advanced Search screen, the Help box rather than the bottom (see fig. 1). will be about the Advanced Search screen. If you are on Performing a search in the Georgia Caselaw library the Basic Search screen, the Help box will apply to the has not changed either. The only difference you will Basic Search screen. experience is that when you begin your search you will You will also notice that the Casemaker 2.0 search be taken to the Advanced Search screen rather than the engine will run considerably faster. Casemaker 2.0’s Basic Search screen. You can still access the Basic Search faster search engine, expanded content and more flexi- screen by clicking on the “Basic Search” tab (see fig. 2). ble search options will greatly improve your online One of the new features of the Advanced Search legal research capabilities. In order to get the most out screen is that you can now use the “New Search” but- of Casemaker 2.0, sign up for a training class at the Bar ton to clear all your Advanced Search fields to begin a Center. Training sessions are offered four times a new search. month. Upcoming dates can be found on the Bar’s The “cheat sheet” from the Basic Search screen can homepage in the News and Events section. Local bar now be found at the bottom of the Advanced Search associations and law libraries can also request that screen (see fig. 3). This “cheat sheet” tells you how to training be made available in their area. Please contact do “and” searches, “or” searches, “exclusionary” us for more information, or if you have questions searches and “exact phrase” searches. regarding Casemaker. You still have the ability to search the full Casemaker library including every state in the country Jodi McKenzie is the member benefits and federal content by clicking on “Full Library Menu” coordinator for the State Bar of Georgia or the Casemaker logo (see fig. 4). and can be reached at [email protected]. You will see that the Full Library Menu allows you the same access to the Federal Library and individual state libraries plus the addition of a new Multi-State

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1 5

2 6

3 7

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Writing Matters

Avoiding Doe Snot While on Trails in Search of Statues by Karen J. Sneddon and David Hricik

ypographical errors can be funny, as this

issue’s title hopes to emphasize. Yet, we’ve T all experienced that sinking feeling in the pit of our stomach when we realize that we sent a docu-

ment to a client or submitted a document to a court

with a typographical error on page 2. This installment

of Writing Matters strives to raise your awareness of the

importance of proofreading and to provide some tips indicating incompetence, they can also cause direct monetary harm. Courts have slashed fee awards in half to increase your proofreading skills. because of substantial grammatical and typographical errors in briefs.3 In addition to being an embarrassment, typographi- While to err is human, you can act to reduce typos. cal errors erode the writer’s credibility.1 Typographical Proofreading is an important step in the writing errors can also harm the client. In a recent case, a fed- process. It requires a different kind of attention than eral district court observed: necessary to prepare documents, since the focus instead must be on individual words, not the ideas conveyed. [P]laintiff’s response… [is] so riddled with typo- Spell-checkers built into many software programs graphical mistakes, grammatical errors, and faulty provide some respite to the hard work of proofreading. punctuation that the court had difficulty following The federal district court referenced above “strongly plaintiff’s arguments. For example… the court has recommend[ed] (and that’s one “c” and two “m”s) that never seen such creative spellings of the words in the future, plaintiff’s counsel proofread and spell- technologist (spelled, alternately, “tecnologist” check all documents submitted to this and any other and “technolgoist”) and occasionally (spelled court.”4 In fact, the spell-check and auto-correct fea- “occassinaly”), and has never heard of the words tures built into Word and other programs do catch “accomopdation,” “tranprot,” “studnet,” and many common mistakes. “internshp.”2 While technology provides great assistance, it can also create problems. Texas federal district judge Sam Sparks Not only do courts view typographical errors as published an “ode to the spell-checker” that emphasizes unprofessional, and clients and opposing counsel as the humor that reliance on technology can create:

80 Georgia Bar Journal 06-08gbj.qxp 5/22/2008 12:44 PM Page 81

Eye have a spelling chequer, It clusion, then the second argument, Typo or Correction came with my pea sea. It plainly and so on. Mistake marques four my revue Miss Steaks eye kin knot sea. Eye Create White Space (c) – unless you strike a key and type a word Sometimes words just blur. To © mean the copy- and weight four it two say fight this, use two pieces of blank right symbol Weather Eye am wrong oar white paper to hide all the text write It shows me strait a weigh. except for one or two lines. casual causal As soon as a mist ache is maid, Read it Aloud It nose bee fore two long, and doe snot does not6 Eye can put the error rite — Its Sometimes our eyes deceive us. rare lea ever wrong. Eye have We don’t catch the missing word, or forebear forbear run this poem threw it I am we miss the double word. Reading shore your pleased two no, Its the work aloud can help you focus fore for letter perfect awl the weigh. My on what is on the page and, just as spell chequer tolled me sew.5 importantly, what is not on the page. form from

So, don’t rely solely on spell- Watch for the heresy hearsay check. While it is always helpful to Common Typos have another person proofread libel liable your work, proofreading often falls The chart to the right identifies to the writer. For example, soft- common typographical errors loose lose ware cannot distinguish between (including those spell-check and homonyms, which can lead to autocorrect miss). no know some of the most common errors. Human labor is still necessary. Karen J. Sneddon is off of Below are some strategies to maxi- an assistant professor mize your proofreading prowess: at Mercer Law School parole parol and teaches in the Give Yourself a Break Legal Writing Program. rational rationale It is difficult to move from the rise risk creation process to the proofread- David Hricik is an ing process. Ideally, you should associate professor at statue statute put any work away for two days Mercer Law School before proofreading it. However, who has written sever- tot he to the7 even if you can only set the work al books and more aside for 30 minutes, you will be a than a dozen articles. tortuous tortious more effective proofreader. Mercer’s Legal Writing Program is currently ranked as the number one trail trial Read it Backwards legal writing program in the coun- No, we don’t mean like spinning try by U.S. News & World Report. Untied States United States a Beatles’ album to find secret messages! Instead, read the last sen- Endnotes write writ tence first, the penultimate sen- 1. For an analysis of experiments that tence next, and so on to allow you assess the impact of spelling errors on “does not reflect well on the prac- to focus on each sentence without the reader’s perception of the author’s titioner’s professionalism”). getting distracted by substance. writing ability, see Michael J. Costello 3. See Devore v. City of Philadelphia, et al., Effects of Spelling Errors on the 2004 WL 414085, at *3 (E.D. Pa. Read it Out of Order Perception of Writers, Journal of Feb. 20, 2004). This is another way to avoid get- General Psychology (2002), available 4. Chen, 1999 WL 104723 at *1. ting caught up in the substance and at http://www.encyclopedia 5. Reprinted in Jerry Buchmeyer, Ode is especially helpful on a large doc- .com/doc/1G1-86431655.html. to the Spell Checker, 64 Tex. B.J. 69 ument. Instead of starting at page 2. Chen v. Galen Hosp. Ill., Inc., 1999 (June 2001). one and proofreading to page 50, WL 104723, at *1 (N.D. Ill. Feb. 23, 6. Thankfully, Word 2007 will not catch start near the end, then work to the 1999). See also Thompson v. this particular typographical error. front. Or, when proofreading an Nicholson, 2007 WL 956928, at *3 7. Thankfully, Word 2007 will not appellate brief, start with the state- (Vet. App. Mar. 13, 2007) (empha- catch this particular typographical ment of facts, then proof the con- sizing that poor grammar also error, too.

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Professionalism

Respect: Two Views on Professionalism– Here and There by Avarita L. Hanson

share his sincere and meaningful remarks from that

occasion. Kilpatrick’s career is not only admirable; his

views on professionalism are insightful because they

show the wisdom gained in his experiences. (See Paul

Kilpatrick Jr.’s remarks on page 83.)

Other views on professionalism come from recent experiences outside of Georgia. In late March, I represented the Chief Justice’s Commission on Professionalism (the Commission) at a colloquium in Ottawa, Canada by invitation of the Chief Justice of The Supreme Court of Canada Ontario’s Advisory Committee on Professionalism. At the same time, our mentoring program was featured at a conference in Columbia, S.C. Respect abounds as ecently, I had the opportunity to speak at Georgia’s bench and bar, through the Commission, continues to provide the template of a professionalism length with Paul Kilpatrick Jr., past State movement that has made, and continues to make, a difference in our profession. Bar president. I asked him, as a seasoned R Canada and South Carolina: practitioner and Bar leader, to share his views on pro- Georgia’s Bench and Bar

fessionalism. Last year, Kilpatrick was the worthy Exemplify Professionalism The members of the State Bar of Georgia and the recipient of the State Bar’s Tradition of Excellence Commission, now approaching its 20th year, do make a difference. The group that shaped and founded the Award. Still humbled by that recognition, he offered to Commission recognized that the Bar could and would

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earn the respect our profession deserves. In 1988, Chief Justice A View on Professionalism Thomas O. Marshall invited a by Paul Kilpatrick Jr. small gathering of bench and bar Those of us who have been engaged in the prac- leaders to hear Emory University tice of law for many years recognize, with some President James T. Laney speak degree of sadness, that there has been a general about “A Moral Authority in the deterioration in the public’s opinion as it relates to Professions.” They were largely respect for lawyers. While I agree with a comment concerned with the perceived lack that I heard Judge Griffin Bell make one time—that of respect for lawyers by the public he never thought lawyers were supposed to be popu- and increasing incivility in the lar—there is a difference between popularity and practice of law. As a result, the respect. As the number of practicing lawyers has Supreme Court of Georgia created grown larger, especially here in Georgia, I think we have to under- the Chief Justice’s Commission on stand, but not accept, the fact that a significant deterioration in Professionalism in 1989. The mis- respect for our profession has taken place. We also have to under- sion of the program is to foster pro- stand that it may well be our own fault. As the cartoon character, fessionalism through continuing Pogo, once said, “We have met the enemy and they is us.” However, legal education, bench and bar pro- we do not need to sit back and accept this decline. We can do some- grams and activities. The thing about it. Commission has worked to engage the entire Bar and has met the In my years of service to the Bar, I have been privy to numerous needs and concerns of all attor- surveys in regard to the public’s impression of lawyers. Almost neys, through the development of without exception, they currently show that people don’t like bar and court programs. The mean- lawyers, while at the same time showing that people like, respect, ing of professionalism remains and in some cases, love their own lawyer. I believe that tells us that dynamic and is ever evolving with the pressures which many lawyers feel to become successful have competence, civility, engagement driven them away from public service and the concept that it is in pro bono and community serv- important to serve. ice at its core. It would be naive to say that we all do not want to make a We are not, however, the only good and decent living. Most do and some are very successful lawyers in the world seeking financially. At the same time, we have to recognize a need for and respect. Due to the Commission’s a duty to serve. I have always believed that being in some profes- reputation as the first such entity in sion carries with it an additional responsibility, both to that profes- the nation, I was invited to share the sion and the general public, in that we have a duty to serve. Georgia experience with our col- We have an obligation to lead and to give back, whether it is to leagues from the practicing bar, our community, our church, a deserving charity or in many other judiciary and legal academies of similar ways. We need to encourage ourselves, and especially our Ontario, Canada, at the 10th young lawyers, to become involved in the community, to give their Colloquium on the Legal Profession time and talents and to utilize their legal training for the benefit of of the Chief Justice of Ontario’s others, even if it means that their billable hours will not reach a Advisory Committee on level that they might desire, or that they may have to take one or Professionalism. While taking time two fewer cases. to visit the Supreme Court and While there is no perfect answer or solution, and no one solu- Parliament, my main objective was tion fits every situation, lawyers should still take time, step back and to convey hope to our colleagues look for opportunities to serve. Take at least one small step in that that while their challenges are great, direction. I believe in doing so, most lawyers will find that leader- there are some solutions. I ship and service pay great dividends, which will leave them with a addressed why and how the genuine feeling of accomplishment. While a very important aspect Commission was started, the areas is our own self-satisfaction, I believe that if enough of us get we focused on as the Commission involved we all will be very pleasantly surprised with the results. developed, how all parts of the profession were included, lessons we There may be a lot of unfair assessments, cruel jokes and nega- have learned (and are still learning) tive comments about lawyers. Some politicians may feel that it is and the role of judges in our profes- helpful to their campaigns to be “anti-lawyer.” Most of that reflects sionalism effort. This topic was of the old adage, “If you say something often enough, it becomes great interest to the attendees true.” We cannot change negative images or actions in a day. But, to because as Co-Chair Professor Errol earn our respect, if we all make an effort, we can make a difference. P. Mendes, faculty of law,

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model, utilized by Madam Justice Rosalie Silberman Abella at a 1999 Law Society of Upper Canada Bencher’s retreat. The model focused on the economic and com- petitive pressures faced by the profession and the injustice of process preoccupation that is not serving the public interest in the civil and criminal trial process. “Financial concerns are the guiding force of law firms, but this often excludes other values, when there should be more balance with pro bono work, mentoring and involvement with professional organizations,” Ross stated. “New lawyers need options and choices about hours and remu- neration because they are not motivated by old success indicators.” However, she maintains that “law cannot be a 100 percent flextime job; it can’t be nine to five; there is a fiduciary relationship with clients. Lawyers should employ (Left to right) Avarita L. Hanson, director of the Chief Justice’s Commission on Professionalism; reflection, analysis, confidence in Hon. Justice Paul M. Perell, Superior Court of Justice; and Prof. Errol P. Mendes, faculty of law, their own ability, and stand by University of Ottawa. their decisions.” During the second session, atten- University of Ottawa stated, “We stressed that the challenge of pro- dees were treated to three separate don’t have anything like it here.” viding access to justice is complex panels focusing on different The topic for the Colloquium, and difficult, but it must be tack- aspects of possible solutions to the held at the University of Ottawa, led. She went on to say that it challenges to professionalism in was “Professionalism: Ideals, stems from a commitment to the the legal profession. During the Challenges, Myths and Realities.” profession and the fundamental first panel, “The Ethical Challenges The agenda for the day showed role of lawyers. Justice McLachlin of Entrepreneurial Lawyers, the that Canadian lawyers are tackling noted that the business model of Significance of the Strother the same issues American lawyers the profession now raises issues of Decision and Preventing Process face: crowded court calendars, work-life balance. “This is most from Undermining Justice,” Chief indigent defense issues, the com- keenly felt by women who are Justice Warren K. Winkler, Court of mercialization of the profession dropping out of the legal profes- Appeal for Ontario, indicated that and the need to fairly include the sion.” To encourage women to he found access to justice the most increasing numbers of women and remain in the legal profession, she challenging and important issue of visible ethnic minorities in the pro- called upon the bar to attack the the day. The Hon. Justice Michael J. fession. With the dialogue of the problem, to be more open and flex- Moldaver, Court of Appeal for day moving easily in English and ible and not make assumptions. Ontario, advocated for balance and French, it is evident that Canada is Justice McLachlin then called for proportionality in the justice sys- positively addressing its past and the profession to take action to tem and asked the question, its future as a multicultural, multi- address the issues of access to jus- “Where do we draw the line on lingual, multiracial and multieth- tice, pro bono, work-life balance freeing people whom we know to nic society. and attrition of women. be guilty?” Prof. Michael Code, fac- The Right Hon. Justice Beverley The first session addressed the ulty of law, University of Toronto, McLachlin, Supreme Court of issue of challenges to the standards pointed out three problems he saw Canada, opened the program stat- of professionalism in the legal pro- in the practice: unprofessional con- ing that a profession is both to hold fession. Keynote speaker, Margaret duct, bad judgment and the think- out oneself as capable and dedicat- A. Ross, partner, Gowling Lafleur ing that the duty to clients always ed to serving the public, as well as Henderson LLP, highlighted trumps the duty to the court. He to one’s vocation or calling. She aspects of a “problematique,” or called for the bar to promote the

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teaching of ethics and professional- In his remarks summarizing the pilot mentoring projects based ism in all law schools, the Law day’s colloquia, the Hon. Paul M. upon Georgia’s model—Ohio and Society to enforce ethical stan- Perrell, Superior Court of Justice, South Carolina—as well as repre- dards, a revival of mentoring, and acknowledged that the challenges sentatives from Kentucky, the next that the judiciary enforce standards faced by the legal profession and state that will conduct a similar and duties of lawyers as officers of courts of Canada and more specif- pilot project. Ashworth noted that the court. ically, Ontario, are great and can- the result of the National The second panel, “Refashioning not be solved immediately. “I was Conference was a consensus that a the Economic Model to Prevent inspired and recharged by the multi-jurisdictional panel be Marginalization of Women and optimism in Ms. Hanson’s formed for the purpose of devel- Minorities,” was moderated by remarks where she outlined the oping best practices protocol for Prof. Joanne St. Lewis, faculty of courses of actions the Georgia Bar state bar mentoring programs. law, University of Ottawa, the first and courts have taken, stemming Georgia lawyers may not and only black woman to be elect- from the professionalism move- always get respect, but many of ed as a Bencher of the Law Society ment, to address indigent defense, us do much to earn it—every day of Upper Canada, the governing access to civil legal services, diver- and in many ways. We, individu- body for more than 38,000 lawyers sity and inclusion.” Both Justice ally and collectively, and through in the province of Ontario in its Perrell and I agreed that there are the work of the Commission and 211-year history. She posed the many issues and challenges the the State Bar, are an example of question, “Is it realistic that the two countries have in common, professionalism. We show, not economic model will be retooled?” while the history and approaches only to the nation, but to the Fellow panelist Ronald F. Caza, may differ. “Ms. Hanson’s world that we can make a differ- Heenan Blaikie LLP, advocated remarks give our Canadian col- ence. for the dignity of choice for leagues lots of ideas and much French-speaking Canadians, an optimism.” In closing, he stated Avarita L. Hanson is invisible minority who need that “while what judges can do in the executive director French-speaking lawyers and applying substantive legal tools to of the Chief Justice’s bilingual judges to have meaning- curb incivility and manage most Professionalism and ful access to justice in Ontario other aspects of professionalism is can be reached at courts. M. Virginia MacLean, Q.C., severely limited because of the [email protected]. president of the Women’s Law adversary system, their involve- Association of Ontario and munic- ment in the Chief Justice of ipal law practitioner, presented Ontario’s Advisory Committee on the bar’s gender report, noting Professionalism is a way to that the bar’s membership is now address professionalism.” almost half female. Closer to home, Georgia’s During the third session, “The Transition Into Law Practice Leadership Role of the Academy, Program (TILPP) was highlighted the Bar and the Bench in Finding during the inaugural National Solutions; What Can We Learn Conference on Mentoring in the From Other Jurisdictions?” David Legal Profession held in March at W. Scott, Q.C., Borden Ladner the University of South Carolina Gervais LLP, addressed the fact Law School in Columbia. The that two-thirds of the population, event was hosted by the South ordinary citizens, cannot afford a Carolina Chief Justice’s lawyer, resulting in self-represen- Commission on Professionalism tation. He also spoke to the issue and co-sponsored by the ABA of access to justice and how law Standing Committee on firms are not addressing it. Scott Professionalism. Doug Ashworth, pointed out that many Canadian director of TILPP, presented an lawyers do engage in pro bono update to the 75 attendees who work, but that Americans do represented 22 different state bars. much more in the way of public Sally Lockwood, director of Bar and community service. Bernard Admissions, was on hand to pres- Amyot, president of the Canadian ent a history of how TILPP was Bar Association, shared a broader developed. Conference attendees perspective on Canadian lawyers’ included representatives from the pro bono activities. two states that have conducted

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In Memoriam

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

Faye Foster Abbott John L. Creson Lou Litchfield Roswell, Ga. Augusta, Ga. Medina, Ohio Woodrow Wilson College of Law University of Georgia School of University of Georgia School of (1979) Law (1973) Law (1978) Admitted 1984 Admitted 1973 Admitted 1978 Died January 2008 Died April 2008 Died April 2008

James E. Baker Carey P. DeDeyn Silvio L. Mascotti St. Simons Island, Ga. Atlanta, Ga. Roswell, Ga. Emory University School of Law Emory University School of Law Atlanta Law School (1948) (1963) (1969) Admitted 1947 Admitted 1963 Admitted 1969 Died March 2008 Died March 2008 Died April 2008 Mary Jo Massey Fred L. Belcher Christopher Hamilton Atlanta, Ga. Nashville, Ga. Atlanta, Ga. Woodrow Wilson College of Law University of Georgia School of University of Georgia School of (1980) Law (1947) Law (1974) Admitted 1980 Admitted 1947 Admitted 1974 Died February 2008 Died March 2008 Died April 2008 James B. McGregor Jesse Lehmon Brantley Homer A. Houchins Jr. Daphne, Ala. Greenville, S.C. Cumming, Ga. Woodrow Wilson College of Law Vanderbilt University Law School Emory University School of Law (1952) (1937) (1961) Admitted 1953 Admitted 1939 Admitted 1960 Died February 2008 Died February 2008 Died March 2008 Archibald L. Morris Carl James Byrd Noah N. Langdale Jr. Savannah, Ga. Atlanta, Ga. Atlanta, Ga. University of Georgia School of John Marshall Law School (1977) Harvard Law School (1948) Law (1949) Admitted 1979 Admitted 1951 Admitted 1949 Died March 2008 Died February 2008 Died January 2008

Frank S. Cheatham Jr. James King Lange John E. Owens Savannah, Ga. Watkinsville, Ga. Sugar Land, Texas University of Georgia School of Mercer University Walter F. University of Georgia School of Law (1948) George School of Law (1976) Law (1951) Admitted 1948 Admitted 1976 Admitted (1950) Died March 2008 Died February 2008 Died December 2007

J. Al Cochran Jean W. Levy Clarence Peeler Jr. Marietta, Ga. Atlanta, Ga. Decatur, Ga. Woodrow Wilson College of Law Woodrow Wilson College of Law Emory University School of Law (1950) (1958) (1950) Admitted 1951 Admitted 1959 Admitted 1945 Died April 2008 Died December 2007 Died February 2008

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Howard J. Perdue the president of the freshman and After practicing law for 24 years Atlanta, Ga. sophomore classes at Armstrong in associations and partnerships John Marshall Law School (1949) and the senior class of 1946, at the with Luhr Beckmann, Mallie Exley, Admitted 1949 University of Georgia. He was a Joseph Bergen, Charles Sparkman Died May 2008 member of the varsity debate team and Douglas, McWhorter & and various leadership societies and Adams, he was appointed in John G. Puglise clubs at Georgia as well as Sigma March 1972, by recently elected Grayson, Ga. Alpha Epsilon social fraternity. Gov. Jimmy Carter, to fill a vacan- Woodrow Wilson College of Law A lawyer by profession, he cy on the Chatham County (1977) became involved in several areas of Superior Court, although he had Admitted 1977 public service that have provided supported the governor’s oppo- Died April 2008 major benefits to the community nent, Carl Sanders, a law school and the state. He was elected to the classmate. After serving 21 years, Howell Cobb Ravan state legislature in 1953, as a candi- he retired as chief judge to senior Marietta, Ga. date of the Citizens Committee, a status in August 1993. He resigned Mercer University Walter F. reform political party, and had a from senior status in May 2006. George School of Law (1951) leading role in the passing of a char- In 1971, he was selected by the Admitted 1950 ter converting Savannah to the more state Jaycees as The Most Died March 2008 efficient council-manager form of Outstanding Young Man In Georgia. government. Within two years the He was past president of the Kiwanis Robert C. Sacks city went from near bankruptcy to Club, The German Heritage Society, Molino, Fla. the well-run solvent government of The Savannah Bar Association, The John Marshall School of Law (1976) today. While in the legislature, he Council of Superior Court Judges of Admitted 1976 chaired a study committee that Georgia, and an honorary member of Died January 2008 resulted in the Board of Regents the Rotary Club of Savannah. The reversing its policy against junior Savannah Bar Association in 2005 Joseph B. Testa colleges, which resulted immediate- named the Professionalism Award, Pflugerville, Texas ly in Armstrong, Augusta and its most prestigious award, after him. Atlanta Law School (1980) Columbus Junior Colleges being Admitted 1987 admitted to the University System. Jean William Levy of Atlanta died Died March 2008 Today there are 14 community jun- in December 2007. Levy was born ior colleges in Georgia plus six for- in Evans, Ga., in February 1924. He Kiliaen V. R. Townsend mer junior colleges that have been served in the U.S. Army in World Atlanta, Ga. elevated to four-year universities, War II and was wounded in action University of Virginia School of including Armstrong. in France in December 1944. Never Law (1942) While in the legislature he led a fully recovering from his wounds, Admitted 1946 successful effort to remove $50 mil- Levy became a disabled veteran Died March 2008 lion from the appropriations bill and a resident of the Veteran’s which the governor had planned to Hospital in Atlanta for many W. McMillan Walker use for political purposes. He was months. He was also an outpatient Eastman, Ga. also chairman of the Appropriations for many years. Mercer University Walter F. Committee during his last two years Levy received a Bachelor of Arts George School of Law (1977) in the legislature. in Industrial Engineering from The Admitted 1977 After his legislative career, he Georgia Institute of Technology in Died January 2008 became heavily involved in the June 1948. He earned his LL.B. from Savannah YMCA. He was president the Woodrow Wilson College of Hon. Frank S. in the 1960s, when the South was Law in 1958 and was admitted to the Cheatham Jr. died in changing from a segregated to an State Bar of Georgia in June 1959. March 2008. He was integrated society. He led the board Levy practiced law in midtown born in Savannah in of directors in taking a major step Atlanta from 1959 until his death. January 1924. He gradu- forward when they closed an all He maintained a very active generated from Savannah male YMCA in an antiquated 1912 al civil law practice for 48 years. High School in June 1942, building and constructed an inte- Levy handled the estates of dis- Armstrong Junior College in June grated family YMCA in a new state abled veterans, as guardian of their 1944, and the University of Georgia of the art building on Habersham property and person, and related in June 1948, where he obtained an Street, which was the forerunner of matters for some 45 years. For most undergraduate A.B. degree and a the YMCAs presently operating in of those years, he was a sole practi- graduate LL.B. law degree. He was Chatham and surrounding counties. tioner.

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CLE Calendar

June-August JUN 5 ICLE JUN 6 NBI, Inc. Legal Assistance for America’s Heroes Estate Administration Procedure— Amelia Island, Fla. Why Each Step is Important See www.iclega.org for locations Atlanta, Ga. 3 CLE Hours 6.7 CLE Hours

JUN 5 ICLE JUN 6 ICLE Lobbying Law E-Lawyering Practice Management Amelia Island, Fla. in 2008 See www.iclega.org for locations Amelia Island, Fla. 3 CLE Hours See www.iclega.org for locations 3 CLE Hours JUN 5 ICLE War Stories IX Plus Proposed Georgia JUN 7-13 Prosecuting Attorneys’ Council Evidence Rules of Georgia Amelia Island, Fla. 2008 Basic Litigation Course 3 CLE Hours Forsyth, Ga. 26.3 CLE Hours JUN 5 ICLE Georgia Committee On Civil Justice JUN 9 Lexis-Nexis Amelia Island, Fla. Billing Matters Boot Camp See www.iclega.org for locations Atlanta, Ga. 3 CLE Hours 6.6 CLE Hours

JUN 5 Lorman Education Services JUN 11 Lorman Education Services The 8 Greatest Estate Planning Commercial and Real Estate Loan Techniques Documents—More Than Just Papers Atlanta, Ga. Atlanta, Ga. 6.7 CLE Hours 6 CLE Hours

JUN 5 ICLE JUN 12-13 Law Seminars International So You Want to be Corporate Counsel: Energy in the Southeast A Young Lawyer’s Guide to Going Atlanta, Ga. In-House 11.8 CLE Hours Amelia Island, Fla. See www.iclega.org for locations JUN12 Lorman Education Services 3 CLE Hours Construction Lien Law Savannah, Ga. JUN 6 ICLE 6.7 CLE Hours Prompting Professionalism & Civility in Adversarial Proceeding JUN 12-15 Georgia Defense Lawyers Association Amelia Island, Fla. 2008 Annual Meeting See www.iclega.org for locations Amelia Island, Fla. 1 CLE Hours 6 CLE Hours

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

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CLE Calendar

JUN 17 Lorman Education Services JUN 27 Lorman Education Services Document Retention and Destruction What To Do When Construction Projects Atlanta, Ga. Go Bad 6.7 CLE Hours Atlanta, Ga. 6.7 CLE Hours JUN 18 NBI, Inc. Practical Guide to Zoning JUN 27 Lorman Education Services and Land Use Law Real Estate Development From Atlanta, Ga. Beginning to End 6 CLE Hours Savannah, Ga. 6 CLE Hours JUN 19-22 ICLE Georgia Trial Skills Clinic JUL 8 Lorman Education Services Athens, Ga. Medical Records Law UGA Law School Albany, Ga. 6 CLE Hours 6 CLE Hours

JUN 19-22 ICLE JUL 17 Lorman Education Services Georgia Trial Skills Clinic Taxation of Real Estate Entities— Athens, Ga. Basic to Advanced See www.iclega.org for locations Atlanta, Ga. 24 CLE Hours 7 CLE Hours

JUN 20 Lorman Education Services JUL 17-19 ICLE Your 401k Plan—What You Can’t See 2008 Fiduciary Law Institute is Costing You Plenty St. Simons Island, Ga. Atlanta, Ga. See www.iclega.org for location 6.7 CLE Hours 12 CLE Hours

JUN 20-21 ICLE JUL 22 Lorman Education Services Southeastern Admiralty Law Institute Affordable Housing Atlanta, Ga. Atlanta, Ga. See www.iclega.org for locations 6 CLE Hours 10 CLE Hours JUL 23 Lorman Education Services JUN 23 NBI, Inc. Managing Construction Projects Limited Liability Compliance Athens, Ga. Atlanta, Ga. 6 CLE Hours 6.7 CLE Hours JUL 24 Lorman Education Services JUN 27-28 ICLE Weathering the Storm 2008—Issues Southeastern Admiralty Law Institute Facing Contractors in the Current (SEALI) Economic and Regulatory Environment Atlanta, Ga. Macon, Ga. See www.iclega.org for location 6.7 CLE Hours 9 CLE Hours

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CLE Calendar

June-August JUL 24 Lorman Education Services AUG 22 ICLE What You Need to Know About Public Contract Litigation Records and Open Meetings Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location 6 CLE Hours 6 CLE Hours

JUL 29 Lorman Education Services AUG 22 ICLE Construction Lien Law Nuts & Bolts of Family Law Atlanta, Ga. Savannah, Ga. 6.7 CLE Hours See www.iclega.org for location 6 CLE Hours AUG 1-2 ICLE AUG 22 Environmental Law Summer Seminar ICLE Eminent Domain Hilton Head, S.C. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 8 CLE Hours 3 CLE Hours AUG 4 NBI, Inc. AUG 22-26 Commission on Continuing Drafting Commercial Real Estate Leases Lawyer Competency Atlanta, Ga. Homeland Security Federal Law— 6 CLE Hours Police Legal Advisor Training Program Atlanta, Ga. AUG 7-8 ICLE 23 CLE Hours Real Property Law Institute Video Replay Atlanta, Ga. AUG 26 NBI, Inc. See www.iclega.org for location Rules and Procedures for Federal Court 12 CLE Hours Success Atlanta, Ga. AUG 7-14 NBI, Inc. 6 CLE Hours Resolving Problems and Disputes on Construction Projects AUG 29 ICLE Savannah, Ga. Selected Video Replays (Tentative) 6 CLE Hours Atlanta, Ga. See www.iclega.org for location AUG 14 NBI, Inc. 6 CLE Hours Top 10 Estate Planning Techniques Atlanta, Ga. AUG 29 ICLE 6 CLE Hours Common Carrier Liability Atlanta, Ga. AUG 19 NBI, Inc. See www.iclega.org for location The Legalities of Doing Business 6 CLE Hours in China AUG 29-30 ICLE Atlanta, Ga. Urgent Legal Matters 6 CLE Hours St. Simons Island, Ga. See www.iclega.org for location 12 CLE Hours

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

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State Bar of Georgia Chief Justice’s Commission Committee on Professionalism on Professionalism

SIGN UP NOW FOR THE 2008 LAW SCHOOL ORIENTATIONS ON PROFESSIONALISM Two (2.0) hours of CLE credit, including 1.0 hour of Ethics and 1.0 hour of Professionalism

Demonstrating that professionalism is the hallmark of the practice of law, the Law School Orientations have become a central feature of the orientation process for entering students at each of the state’s law schools over the past 16 years. The Professionalism Committee is now seeking lawyers and judges to volunteer to return to your alma maters or to any of the schools to help give back part of what the profession has given you by dedicating a half day of your time this August. You will be paired with a co-leader and will lead students in a discussion of hypothetical professionalism and ethics issues. Minimal preparation is necessary for the leaders. Review the provided hypos, which include annotations and suggested questions, and arrive at the school 15 minutes prior to the program. Pair up with a friend or classmate to co-lead a group (Please note, if you are both recent graduates we will pair you with a more experienced co-leader).

Please consider participation in this project and encourage your colleagues to volunteer. You may respond by completing the form below or calling the Chief Justice's Commission on Professionalism at (404) 225-5040; fax: (404) 225-5041. Thank you.

ATTORNEY VOLUNTEER FORM 2008 LAW SCHOOL ORIENTATIONS ON PROFESSIONALISM Full Name (Mr./Ms./Judge)______Nickname (for name badge)______Address: (where we will send your group leader materials via USPS): ______Telephone:______Fax:______Email Address:______Area(s) of Practice:______Year Admitted to the Georgia Bar:______Bar#:______Please pair me with:______(Please check appropriate box)

LAW SCHOOL DATE TIME RECEPTION/LUNCH SPEAKER Emory* Fri., August 22 *Emory does not need anymore volunteers* TBD 9 Georgia State Tues., August 12 3:30-5:30 p.m. 5:30-6:30 p.m. TBD 9 John Marshall Sat., August 16 9:00-11:30 a.m. 11:30 - 12:30 TBD 9 Mercer Fri., August 15 1:30-3:30 p.m. 3:30-4:30 p.m. TBD 9 UGA Fri., August 15 2:30-4:30 p.m. 4:30-5:30 p.m. Hon. Richard W. Story Please return to: State Bar Committee on Professionalism; Attn: Nneka Harris-Daniel• Suite 620 104 Marietta Street, N.W. • Atlanta, Georgia 30303 • ph: (404) 225-5040 fax (404) 225-5041 • email: [email protected]. Thank You! 06-08gbj.qxp 5/22/2008 12:44 PM Page 92

Notices

Notice of Modification of Formal Advisory Opinion No. 05-8 Supreme Court Approves Modification of Formal Advisory Opinion No. 05-8 State Bar of Georgia on April 4, 2006. In its last sen- Pursuant to Supreme Court Order Issued April 11, 2008 tence, however, this opinion erroneously indicates that Case No. S06U0800 a violation of Bar Rule 1.8(h) could result in disbarment. In fact, the maximum penalty for a violation of Members of the State Bar of Georgia are NOTIFIED Bar Rule 1.8(h) is a public reprimand. To correct this that Formal Advisory Opinion No. 05-8 has been mod- error, the State Bar asked this Court of approve a modified to correct an error, pursuant to a Supreme Court ified version of Formal Advisory Opinion No. 05-8 in Order issued on April 11, 2008, which states verbatim: which this error has been corrected. We grant State Bar’s request and with this order hereby approve the “Pursuant to Bar Rule 4-403, this Court approved modified version of Formal Advisory Opinion No. 05-8.” Formal Advisory Opinion No. 05-8 as presented by the Publication of Modified Formal Advisory Opinion No. 05-8

STATE BAR OF GEORGIA OPINION: FORMAL ADVISORY OPINION NO. 05-8 A member of the Investigative Panel of the State Approved And Issued On April 4, 2006 Pursuant Disciplinary Board has brought to the attention of the To Bar Rule 4-403 Formal Advisory Opinion Board a practice by lawyers By Order Of The Supreme Court Of Georgia of adding the following language (by rubber stamp) to Thereby Replacing FAO No. 96-2 correspondence with clients: Supreme Court Docket No. S06U0800 (Modified to Correct Error Pursuant to Supreme Important Message Court Order on April 11, 2008) If you disagree with anything set forth in this communication or the way I have represented QUESTION PRESENTED: you to date, please notify me by certified mail at The question presented is whether an attorney may the address set forth herein immediately. If I do stamp client correspondence with a notice stating that not hear from you, it shall be an acknowledgment the client has a particular period of time to notify the by you per our agreement that you are satisfied lawyer if he/she is dissatisfied with the lawyer and with my representation of you to date and you that if the client did not notify the lawyer of his/her agree with my statements in this communication. dissatisfaction within that period of time, the client would waive any claim for malpractice. The intended effect of this “message” is to create a short period of time within which the client must SUMMARY ANSWER: decide whether he or she is satisfied with the representation, and if not satisfied, the client must notify the A lawyer shall not make an agreement prospective- lawyer “immediately.” If such notification is not pro- ly limiting the lawyer’s liability to a client for malprac- vided “immediately,” the client will have acknowl- tice unless permitted by law and the client is inde- edged an “agreement” that the client is satisfied with pendently represented in making the agreement. the representation. Therefore, in the absence of independent representation of the client, the lawyer should not condition the It is apparent from reviewing this “message” that the representation of a client upon the waiver of any claim lawyer is attempting to exonerate himself or herself for malpractice and should not attempt to cause the from any claim of malpractice or to cause a waiver of waiver of any claim for malpractice by the inclusion of any claim for malpractice by the client against the language amounting to such a waiver in correspon- lawyer. By attempting to limit his or her liability for dence with a client. malpractice or to cause a waiver of any claim for mal-

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practice, the lawyer is putting himself or herself into an agreement prospectively limiting the lawyer’s liability adversarial relationship with the client. While provid- to a client for malpractice unless permitted by law and ing advice to the client on the one hand, the lawyer is the client is independently represented in making the attempting to limit or excuse his or her liability for agreement.” claims of malpractice resulting from the provision of such advice on the other hand. Such conduct places the In summary, the use of a message or notice, such as lawyer’s personal interests ahead of the interests of the described herein, is a violation of Rule 1.8(h), and sub- client. This conduct is expressly forbidden by Rule jects an attorney to discipline, for which the maximum 1.8(h), which provides that “A lawyer shall not make an penalty is a public reprimand. Unlock your Potential Sign up for the Women & Minorities in the Profession Committee’s Speaker Clearinghouse

About the Clearinghouse The Women and Minorities in the Profession Committee is committed to promoting equal participation of minorities and women in the legal profession. The Speaker Clearinghouse is designed specifically for, and contains detailed information about, minority and women lawyers who would like to be considered as faculty members in continuing legal education programs and provided with other speaking opportunities. For more information and to sign up, visit www.gabar.org. To search the Speaker Clearinghouse, which provides contact information and information on the legal experience of minority and women lawyers participating in the program, visit www.gabar.org.

June 2008 93 06-08gbj.qxp 5/22/2008 12:44 PM Page 94

Let CAP Lend a Helping Hand!

What is the Consumer Assistance Program? What doesn’t CAP do? The State Bar s Consumer Assistance Program (CAP) helps peo- CAP deals with problems that can be solved without resorting ple with questions or problems with Georgia lawyers. When to the disciplinary procedures of the State Bar, that is, filing a someone contacts the State Bar with a problem or complaint, a grievance. CAP does not get involved when someone alleges member of the Consumer Assistance Program staff responds to serious unethical conduct. CAP cannot give legal advice, but the inquiry and attempts to identify the problem. Most problems can provide referrals that meet the consumer s need utilizing can be resolved by providing information or referrals, calling the its extensive lists of government agencies, referral services lawyer, or suggesting various ways of dealing with the dispute. and nonprofit organizations. A grievance form is sent out when serious unethical conduct may be involved. Are CAP calls confidential? Does CAP assist attorneys as well as consumers? Everything CAP deals with is confidential, except: 1. Where the information clearly shows that the lawyer has Yes. CAP helps lawyers by providing courtesy calls, faxes or misappropriated funds, engaged in criminal conduct, or letters when dissatisfied clients contact the program. intends to engage in criminal conduct in the future; Most problems with clients can be prevented by returning calls 2. Where the caller files a grievance and the lawyer promptly, keeping clients informed about the status of their involved wants CAP to share some information with the cases, explaining billing practices, meeting deadlines, and Office of the General Counsel; or managing a caseload efficiently. 3. A court compels the production of the information. The purpose of the confidentiality rule is to encourage open communication and resolve conflicts informally. Call the State Bar’s Consumer Assistance Program at 404-527-8759 or 800-334-6865 or visit www.gabar.org/cap. 06-08gbj.qxp 5/22/2008 12:45 PM Page 95

Classified Resources

Property/Rentals/Office Space Hardwoods, Fireplace, 2 great conf. rooms, sm. offices I-85 at N. Druid Hills Road/Buford Highway. Practice at $500… lg. offices avail. w/ sec. bays… on-line legal with experienced attorneys, free parking, modern research, GA Code, T-1, file storage + signage… 404- space, referrals. Call 404-321-7733. 932-3099. [email protected].

Gwinnett’s Home Town-Lawrenceville, GA has beau- Practice Assistance tiful office spaces available. Ranging from 200 square Appeals, Briefs – Motions, Appellate & Trial Courts, feet to a large private 1500 square foot office with pri- State, Civil & Criminal Cases, Post Sentence Remedies. vate parking. Call Lawrenceville Properties at 770-409- Georgia brief writer & researcher. Reasonable rates. 30 + 8700 to get your new office now. years experience. Curtis R. Richardson, attorney; 404- 377-7760 or 404-825-1614; fax 404-377-7220; e-mail: Cashiers-Highlands, NC: Just a short drive from [email protected]. References upon request. Atlanta lays the natural wonders of the Blue Ridge Mountains. Waterfalls, Mountain Views, and the finest Mining Engineering Experts Extensive expert witness golf, tennis and fitness resort communities. It’s the per- experience in all areas of mining — surface and under- fect time to invest in a cozy cabin, townhouse or a spa- ground mines, quarries etc. Accident investigation, cious, rustic-style home that’s perfect for entertaining. injuries, wrongful death, mine construction, For more information, contact Frank at Marty Jones haulage/trucking/rail, agreement disputes, product Realty at 828-342-9972 or [email protected]. liability, mineral property management, asset and mineral appraisals for estate and tax purposes. Joyce Atty. Bldg. Great loc. - less than 5 miles from 400, 85 Associates 540-989-5727. and 285. Receptionist 9 to 5 w/ VM, Beautiful Bldg. – Consumer Pamphlet Series

The State Bar of Georgia’s Consumer Pamphlet How to be a Legal Lawyers and Juror’s Good Witness Careers Legal Fees Manual Series is available at cost to Bar members, non- Bar members and organizations. Pamphlets are Auto Patents, Selecting a Buying Trademarks & Nursing Home priced at cost plus tax and shipping. Accidents a Home Copyrights Questions? Call 404-527-8792. BankruptcyState Bar How to Choose of Georgia A Lawyer The following pamphlets are available: Legal Rights of State Bar Selecting a State Bar Auto Accidents Bankruptcy Buying a Home Nursing Home ofDivorce Georgia Personal Willsof Georgia Residents Care Home Divorce How to Be a Good Witness How to Choose a Lawyer Juror’s Manual Lawyers and Legal Fees Legal Careers Legal Rights of Nursing Home Residents Living Wills Patents, Trademarks

State Bar State Bar State Bar State Bar of Georgia of Georgia of Georgia of Georgia Consumer and Copyrights Selecting a Nursing Home Consumer Consumer Consumer Pamphlet Pamphlet Pamphlet Pamphlet Series Series Series Series Selecting a Personal Care Home Wills

Visit www.gabar.org for an order form and more information or e-mail [email protected].

June 2008 95 06-08gbj.qxp 5/22/2008 12:45 PM Page 96

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Handwriting Expert/Forensic Document Examiner EXPERT WITNESS/FORENSIC ACCOUNTING: M. Certified by the American Board of Forensic Martin Mercer is an Attorney, CPA, Certified Fraud Document Examiners. Former Chief, Questioned Examiner (CFE), and Forensic CPA (FCPA). Mr. Documents, U.S. Army Crime Laboratory. Member, Mercer leads the B2B CFO® Litigation Services Practice American Society of Questioned Document Examiners which offers over 80 partners with, on average, over 25 and American Academy of Forensic Sciences. Farrell years of experience in virtually every area of finance, Shiver, Shiver & Nelson Document Investigation accounting and business to litigating attorneys in the Laboratory, 1903 Lilac Ridge Drive, Woodstock, GA areas of forensic accounting, financial fraud investiga- 30189, 770-517-6008. tions, litigation support and expert witness services. Contact: M. Martin Mercer: (303) 621-5825; Email: MEDICAL MALPRACTICE. We’ll send you to a [email protected]; www.mmartinmercer.com. physician expert you’re happy with, or we’ll send your money back. We have thousands of testimony experi- Positions enced doctors, board certified and in active practice. Thriving Atlanta plaintiff’s firm seeks established Fast, easy, flat-rate referrals. Also, case reviews by vet- Worker’s Compensation or Social Security disability attor- eran MD specialists for a low flat fee. Med-mal ney to join and complement existing practice. Quality sup- EXPERTS. www.medmalExperts.com 888-521-3601 port, congenial atmosphere, good location. Successful applicant will be established, experienced and results ori- Insurance Expert Witness. Former Insurance ented. Great opportunity to grow and concentrate fully Commissioner and Property Casualty CEO. Expertise on your law practice. Fax resume to 866-849-0719. includes malpractice, agent liability, applications, bad faith, custom and practice, coverage, claims, duty of Advertisers Index care, damages, liability, CGL, WC, auto, HO, disability, AAA Attorney Referral Service...... 37 health, life, annuities, liquidations, regulation, reinsur- ABA Retirement Funds ...... 53 ance, surplus lines, vanishing premiums. Bill Hager, Arthur T. Anthony...... 31 Insurance Metrics Corp, 561-995-7429. Visit Barnes Law Group ...... 13 www.expertinsurancewitness.com. B2B CFO...... 31 Bull Darity Hopson & Worley Court Reporters ...... 19 Serving small firms and solo practitioners through- Daily Report ...... 77 out Georgia. Attorney with 24 years experience is Decosimo ...... 53 available on a contract basis to assist you in state and FINRA...... 66 federal court cases. Special expertise in motion and Gallery 63...... 85 appellate practice. Writing samples available. Call 404- GEICO ...... 66 788-2660 or email [email protected]. Georgia Domestic Solutions ...... 19 Gilsbar, Inc...... 24 ECONOMICS EXPERT WITNESS. Ariadair Guaranteed Subpoena ...... 41 Economics Group specializes in Antitrust (Section 1 Imbordino Polygraph Examinations...... 65 defense and Section 2), Financial Misconduct, IP, White Insurance Specialists, Inc...... IFC Collar Defense, Tort Damages/Economic Loss, and Intelligent Office...... 67 Kazmarek Geiger & Laseter LLP ...... 31 Complex Litigation. Strong academic credentials; exten- Keenan’s Kids Foundation...... 25 sive business experience. Expert testimony/litigation Mitchell Kaye Valuation ...... 31 support. Multi-state practice. Contact Thomas Fish, National Legal Research Group, Inc...... 65 Ph.D. at 816-630-0628 or [email protected]. Norwitch Document Laboratory ...... 65 Peachtree Pre-Settlement Funding...... 37 Robert L. Kushner, Jr. MD, Board Certified in PS Finance...... IBC Radiology and Bariatrics. Licensed in NC, GA, FL, AL, SoftPro Corporation ...... 63 TN and CO. Available for medical-legal consultation. South Georgia ADR ...... 39 Has been in the practice of Medicine for 40 years, with Warren R. Hinds ...... 65 a past history of medical-legal consultation. Contact West, A Thomson Business...... 63, BC [email protected].

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