Friday, April 13, 2018 ICLE: State Bar Series
HANDLING BIG CASES
6.5 CLE Hours, Including 1.5 Ethics Hours | 1.5 Professionalism Hours | 5 Trial Practice Hours
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SOLACE is a program of the State If you or someone in the legal Needs addressed by the SOLACE Bar of Georgia designed to assist community is in need of help, simply program can range from unique medical those in the legal community who email [email protected]. Those emails conditions requiring specialized referrals have experienced some significant, are then reviewed by the SOLACE to a fire loss requiring help with clothing, potentially life-changing event in their Committee. If the need fits within the food or housing. Some other examples lives. SOLACE is voluntary, simple and parameters of the program, an email of assistance include gift cards, food, straightforward. SOLACE does not with the pertinent information is sent meals, a rare blood type donation, solicit monetary contributions but to members of the State Bar. assistance with transportation in a accepts assistance or donations in kind. medical crisis or building a wheelchair ramp at a residence.
Contact [email protected] for help. The purpose of the SOLACE program is to allow the legal community to provide help in meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience loss of life or other catastrophic illness, sickness or injury.
TESTIMONIALS
In each of the Georgia SOLACE requests made to date, Bar members have graciously stepped up and used their resources to help find solutions for those in need.
A solo practitioner’s A Louisiana lawyer was in need A Bar member was dealing Working with the South quadriplegic wife needed of a CPAP machine, but didn’t with a serious illness and in Carolina Bar, a former rehabilitation, and members have insurance or the means the midst of brain surgery, paralegal’s son was flown of the Bar helped navigate to purchase one. Multiple her mortgage company from Cyprus to Atlanta discussions with their members offered to help. scheduled a foreclosure on (and then to South Carolina) insurance company to obtain her home. Several members for cancer treatment. the rehabilitation she required. of the Bar were able to Members of the Georgia and negotiate with the mortgage South Carolina bars worked company and avoided the together to get Gabriel and pending foreclosure. his family home from their long-term mission work.
Contact [email protected] for help. v FOREWORD
Dear ICLE Seminar Attendee,
Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and efforts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.
We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be beneficial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.
If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a different legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.
Your comments and suggestions are always welcome.
Sincerely, Your ICLE Staff
Jeffrey R. Davis Executive Director, State Bar of Georgia
Tangela S. King Director, ICLE
Rebecca A. Hall Associate Director, ICLE
vii AGENDA Presiding: Michael L. Neff, Program Co-Chair; The Law Offices of Michael L. Neff, P.C., Atlanta, GA R. Adams Malone, Program Co-Chair; Malone Law Office, Atlanta, GA
FRIDAY, APRIL 13, 2018 7:45 REGISTRATION AND CONTINENTAL BREAKFAST (All attendees must check in upon arrival. A jacket or sweater is recommended.)
8:20 WELCOME AND PROGRAM OVERVIEW Michael L. Neff, Program Co-Chair; The Law Offices of Michael L. Neff, P.C., Atlanta, GA R. Adams Malone, Program Co-Chair; Malone Law Office, Atlanta, GA
8:30 BIG WORKERS’ COMPENSATION CASES Tracee R. Benzo, Benzo Law LLC, Atlanta, GA
9:00 UNIVERSAL LESSONS FROM A 4 DAY DAUBERT HEARING Sharon J. Zinns, Levy Konigsberg, LLP, Atlanta, GA
9:30 SPOTTING AND HANDLING MEDICAL ISSUES IN YOUR DAMAGES CASE Susan M. Cremer, The Law Offices of Michael L. Neff, P.C., Atlanta, GA
10:00 BREAK
10:15 BIG VERDICT, BUSINESS AGREEMENTS AND BIG RESPONSIBILITY: LEWIS V. EMORY HEALTHCARE: $20.5 MILLION Jane M. Lamberti, The Cochran Firm, Atlanta, GA
10:45 THOUGHTS ON DEFENDING THE BIG CASE Paul E. Weathington, Weathington McGrew PC, Atlanta, GA
11:15 DISCOVERY BATTLES & THE SEARCH FOR TRUTH James E. “Jim” Butler, Jr., Butler Wooten & Peak LLP, Columbus, GA
11:45 BE PREPARED TO RESPOND IF YOU ENCOUNTER UNETHICAL CONDUCT Ben C. Brodhead, III, Brodhead Law, LLC, Atlanta, GA
12:15 BREAK Obtain boxed lunch (included in registration fee) and return to seminar room. 12:25 LUNCH PRESENTATION HELPING YOUR CLIENT PREPARE FOR THE FUTURE AND CONSIDERING YOUR OWN FINANCIAL FUTURE Cory Phillips, Forge Consulting LLC, Atlanta, GA Bethany R. “Beth” Wheeler, Advocacy Trust, Atlanta, GA
12:55 HANDLING TRIALS & A PPEALS MORE PROFESSIONALLY Moderator: Michael B. Terry, Bondurant Mixson & Elmore LLP, Atlanta, GA Panelists: Hon. Cynthia C. Adams, Judge, Douglas County Superior Court, Douglasville, GA Hon. J. P. Boulee, Judge, DeKalb Superior Court, Decatur, GA Hon. Stephen Louis A. Dillard, Georgia Court of Appeals, Atlanta, GA Hon. Jane Morrison, Judge, Fulton State Court, Atlanta, GA Hon. M. Yvette Miller, Judge, Georgia Court of Appeals, Atlanta, GA
1:55 BREAK
2:10 HANDLING BIG CASES ETHICALLY Brian R. Smith, The Smith Law Practice, Atlanta, GA
3:10 VOIR DIRE TOPICS FOR BIG CASES Alan J. Hamilton, Shiver Hamilton, LLC, Atlanta, GA
3:40 ADJOURN ix TABLE OF CONTENTS
PAGE CHAPTER
Foreword ...... v
Agenda ...... vii
Big Workers’ Compensation Cases...... 1-6 1 Tracee R. Benzo
Universal Lessons From A 4 Day Daubert Hearing...... 1-62 2 Sharon J. Zinns
Spotting And Handling Medical Issues In Your Damages Case...... 1-6 3 Susan M. Cremer
Big Verdict, Business Agreements And Big Responsibility: Lewis V. Emory Healthcare: $20.5 Million...... NO MATERIALS 4 Jane M. Lamberti
Thoughts On Defending The Big Case...... 1-6 5 Paul E. Weathington
Discovery Battles & The Search For Truth...... 1-8 6 James E. “Jim” Butler, Jr.
Be Prepared To Respond If You Encounter Unethical Conduct...... NO MATERIALS 7 Ben C. Brodhead, III
Helping Your Client Prepare For The Future And Considering Your Own Financial Future...... 1-17 8 Cory Phillips Bethany R. “Beth” Wheeler Handling Trials & A Ppeals More Professionally...... NO MATERIALS 9 Moderator: Michael B. Terry Panelists: Hon. Cynthia C. Adams Hon. J. P. Boulee Hon. Stephen Louis A. Dillard Hon. Jane Morrison Hon. M. Yvette Miller
Handling Big Cases Ethically...... 1-23 10 Brian R. Smith
Voir Dire Topics For Big Cases...... 1-13 11 Alan J. Hamilton
Appendix: ICLE Board ...... 1 Georgia Mandatory ICLE Sheet ...... 2 STATE BAR SERIES
Big Workers’ Compensation Cases
Presented By:
Tracee R. Benzo Benzo Law LLC Atlanta, GA Chapter 1 1 of 6 Chapter 1 2 of 6 Chapter 1 3 of 6 Chapter 1 4 of 6 Chapter 1 5 of 6 Chapter 1 6 of 6 STATE BAR SERIES
Universal Lessons From A 4 Day Daubert Hearing
Presented By:
Sharon J. Zinns Levy Konigsberg, LLP Atlanta, GA Chapter 2 1 of 62 Chapter 2 2 of 62 Chapter 2 3 of 62 Chapter 2 4 of 62 Chapter 2 5 of 62 Chapter 2 6 of 62 Chapter 2 7 of 62 Chapter 2 8 of 62 Chapter 2 9 of 62 Chapter 2 10 of 62 Chapter 2 11 of 62 Chapter 2 12 of 62 Chapter 2 13 of 62 Chapter 2 14 of 62 Chapter 2 15 of 62 Chapter 2 16 of 62 Chapter 2 17 of 62 Chapter 2 18 of 62 Chapter 2 19 of 62 Chapter 2 20 of 62 Chapter 2 21 of 62 Chapter 2 22 of 62 Chapter 2 23 of 62 Chapter 2 24 of 62 Chapter 2 25 of 62 Chapter 2 26 of 62 Chapter 2 27 of 62 Chapter 2 28 of 62 Chapter 2 29 of 62 Chapter 2 30 of 62 Chapter 2 31 of 62 Chapter 2 32 of 62 Chapter 2 33 of 62 Chapter 2 34 of 62 Chapter 2 35 of 62 Chapter 2 36 of 62 Chapter 2 37 of 62 Chapter 2 38 of 62 Chapter 2 39 of 62 Chapter 2 40 of 62 Chapter 2 41 of 62 Chapter 2 42 of 62 Chapter 2 43 of 62 Chapter 2 44 of 62 Chapter 2 45 of 62 Chapter 2 46 of 62 Chapter 2 47 of 62 Chapter 2 48 of 62 Chapter 2 49 of 62 Chapter 2 50 of 62 Chapter 2 51 of 62 Chapter 2 52 of 62 Chapter 2 53 of 62 Chapter 2 54 of 62 Chapter 2 55 of 62 Chapter 2 56 of 62 Chapter 2 57 of 62 Chapter 2 58 of 62 Chapter 2 59 of 62 Chapter 2 60 of 62 Chapter 2 61 of 62 Chapter 2 62 of 62 STATE BAR SERIES
Spotting And Handling Medical Issues In Your Damages Case
Presented By:
Susan M. Cremer The Law Offices of Michael L. Neff, P.C. Atlanta, GA Chapter 3 1 of 6 Chapter 3 2 of 6 Chapter 3 3 of 6 Chapter 3 4 of 6 Chapter 3 5 of 6 Chapter 3 6 of 6 STATE BAR SERIES
Big Verdict, Business Agreements And Big Responsibility: Lewis V. Emory Healthcare: $20.5 Million
Presented By:
Jane M. Lamberti The Cochran Firm Atlanta, GA STATE BAR SERIES
Thoughts On Defending The Big Case
Presented By:
Paul E. Weathington Weathington McGrew PC Atlanta, GA Chapter 5 1 of 6
Alista Hubbard WEATHINGTON MCGREW Chapter 5 2 of 6
Defense Keys to Avoiding the Big Verdict:
As a med mal defense lawyer, I am often reminded of Captain Smith’s quote to the rich owner of the Titanic after the ill-fated vessel hit the iceberg as it was speeding towards America. “Now, sir, you will get your headline!” Whether we obtain a defense verdict or get whacked with a huge award, there is likely to be a headline. I would just as soon stay out of the newspaper on either account. To quote the late Lewis Grizzard, “Lay low and ride Shetland Ponies.” The following is my best essay on how to avoid the bad press that the Titanic ultimately received.
(1) Settle, Settle, Settle
Case selection is a key element in the success of the personal injury plaintiff’s lawyer. Unfortunately, personal injury defense lawyers do not get to select their cases or their clients. Having an incredibly likeable or sympathetic plaintiff is equally as important as having good medical facts underlying a plaintiff’s medical malpractice case. Defense lawyers must put ego and the desire to try cases aside and advise their clients when cases need to be settled. Finger- pointing, chart irregularities, horrible witness performances, and just plain awful facts are simply unavoidable in some cases. In those instances, clearly the best way to avoid a large verdict is to resolve the case before trial. Defense lawyers must have the courage and gumption to be strong when recommending settlement to insurance carriers, self-insured retention (SIR) plans, and excess carriers. Along with the courage to recommend settlement when necessary, it is critical that defense lawyers also provide proper notice to these parties about the possibility of exposure in these potential large verdict cases.
As defense lawyers, our primary obligation is to the physician and/or hospital we represent, not the insurance company. Thus, there must be clear and unequivocal communication with the actual insured (in addition to the insurance company) regarding the risk of an excess judgment. In my opinion, this communication must be more than just the perfunctory e-mail indicating, “Oh, by the way, you might consider getting personal counsel.” In addition to being an essential tool in settling appropriate cases, the excess letter written to the insured is also a means of avoiding becoming a defendant in a legal malpractice case after an excess verdict against the insured. Finally, defense attorneys must make sure the excess carrier is notified. Oftentimes, hospitals or large groups have excess insurance. In my experience, defense counsel for these entities does not always have direct communication channels with the excess carrier. Rather, this communication may occur between the manager of the SIR, the first layer captive, or the hospital itself. However, it is imperative that defense attorneys at least make sure that reports regarding the potential of a blow-out verdict reach the excess carrier. These excess carriers can also help ensure that the appropriate cases are settled by utilizing certain techniques to apply pressure on the lower layers of coverage because there are international insurance treaties requiring good faith negotiations by various layers of carrier. Making sure the excess carrier is notified and perhaps “hammering” the lower level of coverage is an important issue.
In my career, I have lost three cases which I consider large verdict cases. I will discuss these cases in more detail below, but in each case, we were either unwilling or unable to settle. In
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the first case, involving a procedure that resulted in chronic pain and loss of use of the plaintiff’s hand, there was simply not enough insurance coverage to satisfy the plaintiff’s demand. Thus, there was no choice but to try the case and hope for the best. In the second instance, frankly, everyone involved on the defense team incorrectly assessed the plaintiff’s jury appeal and the jury’s reception to the degree of plaintiff’s injuries. In this case, everyone on the defense team believed, including the defense expert, that videotape presented of the plaintiff post-injury essentially proved he did not have the injuries claimed. In this instance, our evaluation of the case simply proved wrong. Furthermore, too much emphasis was placed on a strong causation defense which, as I will discuss later, is not a winner when the medical facts are glaringly bad. The third large verdict case involved the suicide of an 80-year-old patient. In this case, I simply could not persuade the insurance carrier to step up to the plate and settle. Our disagreement over the evaluation of the case and the need to settle resulted in a mutual firing of our law firm and this insurance company, which persists today.
Lastly, in a recent big verdict trial in which I was involved but my defendant was exonerated, I frankly believe that the pressure on both the insurance carrier and excess carrier to settle the case was “too little too late.” In this case, there were incredibly large damages. However, meaningful reports and discussions to the carrier only began to occur after the trial had started, and the plaintiff was hitting homerun after homerun with her witnesses. In this situation, the savvy plaintiff’s counsel wisely rejected these last ditch efforts to settle for an amount far less than the limits of the underlying policy.
(2) Bad Medicine, Bad Witnesses and Bad Facts Overwhelm Causation Defenses
In my experience, even seemingly conservative juries, who appreciate and respect health care providers, hate bad medical care. Perhaps even more so than an uneducated, liberal jury, an educated, conservative jury is very willing to penalize defendants for deplorable medical care, poor charting, and nurses and physicians who appear incompetent on the witness stand. When the medical records show obvious charting gaps and gaffes, when there is finger-pointing, and when some witnesses appear so inept that they appear unable to even “put lipstick on the pig,” defense counsel cannot rely on a causation defense. In my opinion, most jurors look distastefully at defenses based purely on a lack of causation. This is especially true when plaintiff’s counsel tells the jury, “What else is defense counsel going to argue – they cannot defend the medical care, so all they can argue is this horrible medical care is not what caused plaintiff’s injuries or death.” Frankly, when causation is all the defense has, I believe that educated juries view it is a last gasp effort to avoid responsibility. In my own personal experience, in one of the three cases I would consider a large verdict, we had an incredible causation defense. My experts were world class hand surgeons who were unimpeachable. They testified categorically that plaintiff’s injuries could not have been caused in the manner described by the plaintiff. However, the medical care was poor. In fact, it appeared that the nurses had attempted to cover up their negligence by not reporting an obvious medical mistake in the hospital and then by making some secret notes and hiding them in a desk drawer after the care at issue occurred. In my opinion, all of these things combined to cause the jury to simply ignore what was a solid causation defense.
Chapter 5 4 of 6
This experience repeated itself in the other two large verdict cases that I lost. In the case with the 80-year-old suicide patient, I was forced to admit fault on the part of the defendant physicians and PA. This case involved a shoddily run clinic on Buford Highway with a PA who was holding himself out as a physician. His supervising physician was an 80-year-old physician from Argentina who never saw the patient until it was too late. The Department of Community Health shut down the clinic after finding that a single use vial of medication had led to 5 knee infections on the same day. It just so happened that, in this particular incident, the plaintiff required hospitalization and a major knee debridement procedure because of the infection. The treating physician actually came and testified for the plaintiff (this is very rare as you all know). Finally, the plaintiff, who also had a brain tumor, simply was in too much pain and jumped from a 10-story window to her death.
In this case, we actually had a note written by the plaintiff and statements made to police officers from witnesses who lived near the plaintiff indicating that she had a brain tumor and that she had expressed her intent to kill herself because of the pain from the brain tumor. In the end, the jury simply was unpersuaded that this strong causation evidence should allow the defendants to escape liability for their horrible care. The result was a wrongful death verdict in the amount of $1,000,000. The plaintiff had $400,000 in medical bills which were admitted, and the jury awarded another $500,000 for the wrongful death. I must add that the plaintiff asked for $10 million. Some folks would call this a victory, but the way I was raised, unless the verdict is a zero – it is a loss. The big verdict nature of this case was the fact that the jury was so appalled that they awarded punitive damages. This case was the gift that kept on giving, as the insurance carrier, who had an opportunity to settle this case for $250,000 but refused to do so, had its claims rep on an airplane headed home as the punitive damage phase of this case began.
The third instance of a large verdict in my career was a recent case in Savannah, Georgia. My nurse witness was so bad that I was faced with the dilemma of either not putting her on the witness stand for the defense part of the case and simply relying on the fact that the plaintiff had read her deposition or calling her to the stand with the knowledge that it was not going to go well. I was convinced that if I did not call the key witness involved in the major part of the medical care that I would certainly lose the case. I was also convinced that if I did call the key witness who was involved in the major issues of the medical care that I would still lose the case. I ultimately called the witness, and of course, the plaintiff won the case. However, this was another example of a case where we had a powerful causation defense. The plaintiff in this case had an anterior cervical discectomy and fusion, and the plaintiff claimed that a post-operative hematoma in the neck led to an intraluminal thrombus within the windpipe. However, the plaintiff’s pathology expert had never seen a hematoma in the neck lead to an intraluminal thrombus within the windpipe. Furthermore, there was not even microscopic evidence of a source for blood to enter the windpipe. There was strong evidence that the patient simply suffered a cardiac arrest. Furthermore, there was clear evidence that any thrombus in the trachea was a “post-mortem event.” Frankly, much of this testimony was unrebutted by plaintiff’s counsel or the medical examiner. In the end, again, the jury concluded that the medical care was so abysmal that issues of causation should not allow the defense to avoid a verdict.
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Another interesting anecdotal point about the third case is the fact that the timing of the jury verdict dispelled convention that a quick verdict always means a defense win in a medical malpractice case. The verdict came back in around 2 hours. Everyone, including the plaintiff’s counsel, assumed this meant an upset victory defense verdict in what the plaintiff had viewed as a slam dunk. When the verdict was read, I believe everyone in the courtroom was surprised that it ended up being a verdict for the plaintiff. Frankly, this should not have been surprising given the poor quality of the medical care and the likeability of the plaintiff.
3. Jury Selection is the Key
In the first large verdict I lost in Fulton State Court, involving complex regional pain syndrome to the plaintiff’s arm, I believe that the case was won for the plaintiff in voir dire. My hat is off to plaintiff’s counsel who did a masterful job in voir dire of connecting the jurors and eliminating good, conservative jurors for “hardship.” In this particular instance, the Judge was incredibly lenient in excusing any business person who expressed a hardship to their business enterprise or office by virtue of a two week jury service. The result was a jury comprised of 8 or 9 non-working women and perhaps only one male juror. Again, this is the case referenced above where video surveillance of the plaintiff led defense experts to ask which arm was the affected arm, as the plaintiff in the video was able to use both hands as if neither had an injury. Yet, at trial, the claim was that his life was essentially ruined by virtue of this injury to the affected extremity. In the end, this plaintiff’s jury shrewdly selected by an excellent plaintiff’s attorney, was crying during plaintiff’s counsel’s closing statement. This is never a good sign for the defense. Thus, I do chalk up this large plaintiff’s verdict to the fact that plaintiff’s counsel was able to obtain a very good plaintiff’s jury in Fulton County which, certainly at this time, was a very balanced county and even arguably a good defense venue.
In the DeKalb County case with the suicide patient and the Buford Highway medical clinic, I recollect that the jury was essentially 12 Caucasians, a rarity in DeKalb County. This republican looking jury, however, was able to appreciate the abysmal quality of the medical care received by the plaintiff and, in the end, voiced its disapproval of bad medicine with a sizable verdict.
4. Finger-Pointing Among Co-Defendants is a Recipe for Disaster
Although neither resulted in a verdict against my client, two case that I was involved in come to mind where large verdicts were rendered after one defendant attacked the other defendant in opening statements. In one case, a sponge case which could have been settled for $75,000 before trial by the hospital, the hospital, whose nurses had miscounted the sponges and advised the physician of a correct count at the close of a surgery, blamed the physician. The hospital argued that the physician should have taken steps to ensure that a sponge had not been retained, even though she had been told all sponges were accounted for. I can still recall my question to the plaintiff’s expert when he said that the physician had a duty to keep looking for this sponge when I asked, “How long are you supposed to keep looking for nothing when you were told there is nothing there?” Regardless, the co-defendant attacked their own surgeon who worked at their hospital. Frankly, in closing argument, I was forced to team up with plaintiff’s
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counsel and go after the hospital on their attacks against their own surgeon. The result was a verdict in excess of $600,000, as the jury was appalled at how the case was handled at trial.
In the recent large verdict case in Columbus, Georgia, the approach of the hospital was to blame the pulmonologist who came to the aid of the patient as she was crashing, suggesting that the patient was fine until this pulmonologist arrived on the scene in the ICU (despite the fact that the hospital employed physician violated hospital bylaws requiring that he see an ICU patient within 2 hours, instead arriving over 10 hours after he had been advised of the patient’s admission). This strategy was perpetuated despite the fact that the jury heard the audio recording of the hospital’s nurse requesting that the pulmonologist be paged because the patient was having “trouble breathing.” Somehow, the hospital maintained, despite this and other evidence of the patient’s extremis, that there was nothing wrong with this patient until the pulmonologist arrived. Even plaintiff’s counsel said in opening statement that the pulmonologist was “handed a box of snakes.” Because the plaintiff still attempted to get 10% of the recovery from the pulmonologist, as defense counsel for him, we were forced to strongly defend his care. As it turned out, the expert witness called by the defense, a nationally acclaimed critical care medicine physician (lead author of the leading textbook on critical care medicine), was forced to concede on cross- examination that the nursing care and the care of the hospital employed surgeon was “miserably beneath the standard of care.” Furthermore, the involved hospital employed surgeon attempted to shift the blame for the intubation to the pulmonologist, forcing defense counsel for the pulmonologist to go after him as well. All of this backfired on the hospital and resulted in a $26 million verdict.
Conclusion
The best way to avoid big verdicts as a defense counsel is to make sure the bad cases get settled. Otherwise, to quote Captain Smith from the sinking Titanic, “You will have your headlines.”
STATE BAR SERIES
Discovery Battles & The Search For Truth
Presented By:
James E. “Jim” Butler, Jr. Butler Wooten & Peak LLP Columbus, GA Chapter 6 1 of 8
What I Wish I’d Known Then James E. Butler, Jr.
James E. Butler Jr. (“Jim”) is a founding partner of Butler Wooten & Peak LLP, which has offices in Atlanta and Columbus. Jim began his legal career in Columbus in 1977 and opened an Atlanta office in 1982. BW&P has handled cases in 31 states and in most of Georgia’s 159 counties. Jim has been lead counsel in 6 cases where the verdict was more than $100 million, 13 where the verdict was over $10 million, 21 where the verdict was over $1 million, and 49 where the verdict was over $100,000. Jim set the record for largest Georgia verdict four times – in four different kinds of cases. He has handled a wide variety of civil cases involving just about everything – from wrecks to class actions, “whistleblower” (False Claims Act) cases, cases for breach of trust and for accounting fraud, and of course, products liability cases. Jim has been active in bar activities and with environmental groups for decades. He is a former newspaper reporter and homebuilder and has been involved in politics. He is a graduate of the University of Georgia School of Journalism and the University of Georgia School of Law.
Things Learned
On Life in General:
“I'm glad I've been wrong enough to keep in practice,” Augustus said. “Why would you want to keep in practice being wrong?” Call asked. “I’d think it would be something you’d try to avoid.” “You can’t avoid it, you’ve got to learn to handle it,” Augustus said. “If you only come face to face with your own mistakes once or twice in your life it’s bound to be extra painful. I face mine every day—that way they ain’t usually much worse than a dry shave.”
- Lonesome Dove Larry McMurtry
Clay lies still, but blood’s a rover; Breath’s a ware that will not keep. Up, lad: when the journey’s over There’ll be time enough to sleep.
- Reveille A. E. Houseman Chapter 6 2 of 8
Every morning in Africa, a gazelle wakes up. It knows it must run faster than the fastest lion or it will be killed. Every morning a lion wakes up. It knows it must run faster than the slowest gazelle or it will starve to death. It doesn't matter whether you are a lion or a gazelle. When the sun comes up, you better start running.
- Ancient African Proverb
“Most folks are about as happy as they make up their minds to be.”
- Abraham Lincoln
“It isn't what we don't know that gives us trouble, it's what we know that ain't so.”
- Paraphrasing Josh Billings
“Not everyone who smiles on your face is your friend. Be careful who you trust, the devil was once an angel.”
- Ankit Mishra
On a warm summer's eve On a train bound for nowhere I met up with the gambler We were both too tired to sleep So we took turns a-starin' Out the window at the darkness The boredom overtook us, And he began to speak
He said, "Son, I've made a life Out of readin' people's faces Knowin' what the cards were By the way they held their eyes So if you don't mind me sayin' I can see you're out of aces For a taste of your whiskey I'll give you some advice" Chapter 6 3 of 8
So I handed him my bottle And he drank down my last swallow Then he bummed a cigarette And asked me for a light And the night got deathly quiet And his faced lost all expression He said, "If you're gonna play the game, boy You gotta learn to play it right
You've got to know when to hold 'em Know when to fold 'em Know when to walk away And know when to run You never count your money When you're sittin' at the table There'll be time enough for countin' When the dealin's done
Every gambler knows That the secret to survivin' Is knowin' what to throw away And knowin' what to keep 'Cause every hand's a winner And every hand's a loser And the best that you can hope for is to die in your sleep
And when he finished speakin' He turned back toward the window Crushed out his cigarette And faded off to sleep And somewhere in the darkness The gambler he broke even But in his final words I found an ace that I could keep
You've got to know when to hold 'em Know when to fold 'em Know when to walk away Chapter 6 4 of 8
And know when to run You never count your money When you're sittin' at the table There'll be time enough for countin' When the dealin's done
- The Gambler Kenny Rogers
"Do not be daunted by the enormity of the world's grief. Do justly, now. Love mercy, now. Walk humbly, now. You are not obligated to complete the work, but neither are you free to abandon it."
- The Talmud
Good name in man and woman, dear my lord, Is the immediate jewel of their souls; Who steals my purse steals trash; 'tis something, nothing; 'Twas mine, 'tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.
- Othello William Shakespeare
"If a man has any greatness in him, it comes to light, not in one flamboyant hour, but in the ledger of his daily work."
- Beryl Markham
"No man resolved to make the most of himself can spare time for personal contention."
- Abraham Lincoln to Captain James Cutts
“Meetings are indispensable when you don’t want to do anything.”
- John Kenneth Galbraith
Chapter 6 5 of 8
"The world is run by the people who show up."
- Sam Brewton, Thomaston Ga.
For trial lawyers:
“I wasn’t the prettiest; I wasn’t the most talented. I simply wanted it more than anyone else.”
- Marilyn Monroe
"The man with the ball is responsible for what happens to the ball."
- Branch Rickey
“The difference between the right word and the almost right word is the difference between lightning and the lightning bug.”
- Mark Twain
“Never interrupt your enemy when he's making a mistake."
- Napoleon Bonaparte
“If you find yourself in a fair fight, you didn’t plan your mission properly”
- David Hackworth
“It is well that war is so terrible, otherwise we would grow too fond of it.
- Robert E. Lee (Mayre’s Heights, Fredericksburg, Va., 12/13/1862)
"Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing has happened.”
- Winston Churchill
“Success is not final; failure is not fatal; it is the courage to continue that counts.
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– Winston Churchill
"No matter how cynical you get, it is impossible to keep up."
- Lily Tomlin
"No man is ever entirely worthless; he can always serve as a bad example."
- William S. Stone
"Tofasta meruba, lo tofasta." (As you grab for too much, you will grab nothing).
- Talmud, 17a Chagigah, p. 17.
"Opinion is that exercise of the human will which helps us to make a decision without information."
- John Erskine
“Fiat justitia ruat caelum” (Let justice be done though the heavens fall.)
- Supreme Court of Georgia
"Sometimes you have to settle for less than you're entitled to, in law and in life, and then trust you get more than you deserve."
- W. H. Meldrum
On politics:
Never doubt that a small, group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.
- Margaret Mead
"Being powerful is like being a lady. If you have to tell people you are, you aren't."
Chapter 6 7 of 8
- Margaret Thatcher
“One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors.”
- Plato
More from Larry McMurtry, Lonesome Dove:
“The hardest thing on earth is choosing what matters”
“He knew what he could certainly do, and what he might do if he was lucky, and what he couldn’t do barring a miracle.”
“Well, I got to admit I still like a fight,” Augustus said. “They sharpen the wits. The only other thing that does that is talking to women, which is usually more dangerous.”
“If you want one thing too much it’s likely to be a disappointment. The healthy way is to learn to like the everyday things, like soft beds and buttermilk—and feisty gentlemen.”
“Yesterday's gone on down the river and you can't get it back.”
“It doesn’t do to sacrifice for people unless they want you to,” Clara said. “It’s just a waste.”
“It's a fine world, though rich in hardships at times.”
“He had known several men who blew their heads off, and he had pondered it much. It seemed to him it was probably because they could not take enough happiness just from the sky and the moon to carry them over the low feelings that came to all men.”
“Life ain’t for sissies, as Augustus might have said.”
“I miss Gus...I get to expecting to hear him talk and he ain't here. My ears sort of get empty.”
“I never met a soul in this world as normal as me.” Chapter 6 8 of 8
Conclusion
“Every day is a gift from God. At this stage of life I just try to do three things. Do something good for other people. Don't do anything stupid myself. Enjoy the day I have been blessed to live.”
- W. H. Meldrum
STATE BAR SERIES
Be Prepared To Respond If You Encounter Unethical Conduct
Presented By:
Ben C. Brodhead, III Brodhead Law, LLC Atlanta, GA STATE BAR SERIES
Helping Your Client Prepare For The Future And Considering Your Own Financial Future
Presented By:
Cory Phillips Forge Consulting LLC Atlanta, GA
Bethany R. “Beth” Wheeler Advocacy Trust Atlanta, GA Chapter 8 1 of 17
*/3.1,;274(/.*1634*3&4*+246-*+7674*&1)(215.)*4.1,;274 291+.1&1(.&/+7674*
*6-%-**/*4&1)24; -.//.35
" !""
Analyze Your Assets
Analyze Your Family Situation
Discuss Your Goals
Consider Any Tax Planning Needs Chapter 8 2 of 17
# "! !""
Wills
Trusts
Powers of Attorney
Guardianship as Alternative
Living Will/Health Care Surrogate
HIPAA (Health Care Privacy) Release
" " !" !
Beneficiary Designations
Life Insurance Retirement Accounts
Transfers on Death
Title on Assets
Special Planning
Special Needs Trusts ABLE Accounts Chapter 8 3 of 17
28*410*16*1*+.65
16.6/*0*16 (unaffected by settlements):
SSDI
Medicare
**)5&5*)(affected by settlements):
SSI Medicaid TANF/Food Stamps Section 8 Housing
*).(&.)&1) **)5&5*)28*410*16 *1*+.65
Medicaid
Is a joint federal and state medical benefit beginning in 1965 to assist states in furnishing medical assistance to those in need.
Each state:
Establishes its own Eligibility Standards (i.e. 1634(a), SSI-Criteria, or 209(b)) Determines the type, amount, duration, and scope of services Sets the rate of payment for services Administers its own program
Kentucky Medicaid is based upon §1634 of the Social Security Act Chapter 8 4 of 17
*).(&.)&1) **)5&5*)28*410*16 *1*+.65
Georgia Medicaid
Georgia’s Medicaid is based upon §1634 of the Social Security Act
These states have a contract with the Social Security Administration to determine eligibility for Medicaid at the same time that a determination is made for receipt of SSI benefit.
*).(&.)&1) 6-*4 **)5&5*) 28*410*16*1*+.65
!733/*0*16&/!*(74.6;1(20*=!!>
SSI is a Federal program administered by the Social Security Administration (SSA), and is sometimes called Title XVI benefits
Provides cash assistance to individuals who have limited income and resources and are either age 65 or older, blind, or disabled, including children
The SSI benefit in 2017 is $735
The amount of cash benefit an individual receives is based on the Federal Benefit Rate (FBR) and the amount of income the individual receives. To calculate the cash benefit, an individual must subtract their countable income from the Federal Benefit Rate
Your non-excluded resources must not exceed $2,000 (or $3,000 for a couple)
Your countable income must be less than the FBR amount (they do not count the first $20) Chapter 8 5 of 17
%-&6.5&1((2716
An ABLE account is a new 529 savings account, 529A to be more precise, for disabled individuals.
The disability, however, must have occurred prior to the individual’s 26th birthday in order for said person to establish such an account.
This type of account came to be due to the Achieving a Better Life Experience (ABLE) Act that was signed into law by President Obama on December 19, 2014.
((27165 216.17*)
There are three main benefits to ABLE accounts:
Money held in an ABLE account cannot be counted for purposes of determining an individual’s eligibility for Supplemental Security Income (“SSI”) or Medicaid.
An ABLE account can be used for qualified disability expenses which include the following: education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for oversight and monitoring, and funeral and burial expenses.
Earnings on and distributions from an ABLE account for disability expenses cannot be considered the taxable income of the contributor to the account or the beneficiary of it. Chapter 8 6 of 17
((27165 216.17*)
Where Can I establish an ABLE Account?
Tennessee, Florida and Ohio all accept out of state residents
Check this website for additional information:
http://www.ablenrc.org/
%-;215.)*4&!3*(.&/ **)5"4756
Unplanned Inheritance Personal Injury Settlements Matrimonial Action Failure to do so may cause loved one to lose
SSI Medicaid Other Government Assistance or Grants Chapter 8 7 of 17
!3*(.&/ **)5"47565
A Special Needs Trust (“SNT”) is a form of discretionary, spendthrift trust designed to preserve government benefits for a disabled or aged beneficiary. Distributions from the trust are intended to supplement public benefits, not supplant them.
The benefits at issue are typically needs-based benefits—those that have limitations on the amount of resources and income the recipient may own and/or receive.
22/*)&1) 4.8&6* !3*(.&/ **)5"47565
#! ) "47565 #! ) "47565
Separate Trusts Master Trust State Specific Nationwide Must be under 65 Any Age No additional funds after 65 Funds can be added anytime Only parent, grandparent, Individual may establish guardian or a court can establish Medicaid payback may be Mandatory Medicaid Payback avoided Need knowledgeable Need knowledgeable administrator to protect administrator to protect government benefits government benefits Cost varies and time consuming Low cost and quick setup Need government agency Need government agency approval approval Chapter 8 8 of 17
%-;4*&6*&) "4756
Reimbursement is only for Medicaid, not all public benefits Reimbursement is based on actual Medicaid expenditures, not prevailing market costs No interest Some services not readily available in the private market
!3*(.&/ **)5"4756 56&'/.5-0*16
Who can establish a irrevocable first party special needs trust?
Traditionally Speaking:
Parent Grandparent Guardian The Court
On December 13, 2016, President Barack Obama signed into law the 56*1674;74*5(6. This contains the !3*(.&/ **)5"4756&.41*55(6– a sentence long provision to correct a 23-year-old error by adding two simple words, "the individual“ to 42 USC 1396p(d)(4)(a) Chapter 8 9 of 17
!3*(.&/ **)5"4756215.)*4&6.215
The primary goal is to preserve your client’s needs-based government benefits
All disbursement decisions are based on what is in the best interest of the beneficiary
Upon termination of the SNT or death of the beneficiary:
Medicaid payback required to the State Remainder passes to heirs
:&03/*#5*52+! "71)5
out-of pocket medical and dental expenses home improvements medical equipment not provided by Medicaid computers, etc. eyeglasses cable TV exercise equipment telephones, TVs, radios annual independent checkups cameras transportation trips and vacations motor vehicles visits to friends vehicle maintenance entertainment vehicle insurance premiums newspaper & magazines life insurance premiums athletic training & comp. physical rehab. services personal care attendants essential dietary needs voc. rehab. or hab. materials for hobbies professional services tickets for rec. & cultural events tuition & related expenses musical instruments cosmetics costs related to attending meetings conferences & seminars memberships in book, health, etc. clubs Chapter 8 10 of 17
56&6* /&11.1, 36.215 4) &46;! "5 Disinherit
Gift to child with disabilities
Distribute to sibling
Supplemental Needs Trust
"-.4) &46;!3*(.&/ **)5"4756
Protects resources without sacrificing government benefits
Wholly discretionary trust
Individual with disabilities must be sole beneficiary of trust during his lifetime Chapter 8 11 of 17
"-.4) &46;!3*(.&/ **)5"4756
No payback requirement
Can direct corpus at death of beneficiary
No age limit
"-.4) &46;!3*(.&/ **)5"4756
The purpose of a third party special needs trust is to preserve public benefits for an individual or family member with physical or mental disabilities.
Money is provided to a disabled individual via gift or inheritance to provide for their supplemental needs.
Individuals with disabilities often experience difficulty with managing their own financial affairs, so by establishing a third party special needs trust the funds are administered and managed by a qualified trustee.
The trust must be a discretionary spendthrift trust that limits the discretion of the trustee such that he or she is prohibited to distribute principal or income to the beneficiary if such a distribution would reduce or eliminate the beneficiary’s eligibility for public benefits.
These can be testamentary or intervivos trusts and can be revocable or irrevocable.
Medicaid is not the primary beneficiary upon termination of the trust. Chapter 8 12 of 17
"-.4) &46;"4756"4756**?5.5(4*6.21
Sole, absolute and unfettered discretion Income and principal No support standard Beneficiary – no right to compel Express intent Emergency clause
71).1,"-.4) &46;! "
Life Care Plan
Life Insurance
ILIT Crummey Powers Beneficiary Designations Chapter 8 13 of 17
!*66/*0*162157/6&16)8.524
Why Use a Settlement Consultant/Advisor
%-;215.)*4#5.1, !*66/*0*162157/6&16)8.524
Failure to do so may cause your client to lose
SSI Medicaid Other Government Assistance or Grants
Must consider how a financial product will impact a client’s benefits Chapter 8 14 of 17
!*66/*0*162157/6&16)8.524
8*48.*9
Verify the government benefits at issue
Partner with financial planners and trust companies to ensure that the overall settlement plan, including the selection of investment products, does not infringe upon plaintiff’s eligibility for benefits
A settlement plan that both protects government benefits and maximizes a financial return helps ensure that a plaintiff is well protected!
&461*4.1,9.6-&!*66/*0*162157/6&16
Evaluate Government benefits
Evaluate Lump sum settlement vs. Structured Settlement
Evaluate how Structured Settlement will impact government benefits
Evaluate how other insurance and investment products will ensure the plaintiff’s long-term needs are satisfied Chapter 8 15 of 17
2/*2+)8.52462 /&.16.++?52715*//.*16
Evaluate current government benefits
Evaluate additional or different benefits client may be entitled to receive
Additional benefits could help satisfy the client’s long-term healthcare needs
Help identify and evaluate future needs of client
Help break-down defendant’s life care plan
*/3.)*16.+;&1)8&/7&6*$*-.(/*562-2/) !*66/*0*16 42(**)5
Types of Trusts
Risks of failure to use trust(s)
Help resolve existing liens
Help evaluate need to protect government funding sources
Medicaid pay-back needs
Protecting Medicare’s interests Chapter 8 16 of 17
*&/%24/):&03/*
&(65Three year old is involved in an automobile accident and settles the case for $1,000,000. A majority of the money is invested in a structured settlement, but the payee is the minor.
42'/*0Unless all of the annuities are modified to pay into a special needs trust, the minor will never become eligible for benefits as a result of too much income. Also there are potential Supplemental Security Income overpayment issues that must be addressed from payments already made to the minor.
!2/76.21: After almost $20,000 in legal fees and multiple court hearings, the annuities are redirected into a special needs trust for the benefit of the minor. Case with Social Security is still on-going.
%*&1*/3
24; -.//.35 *6*4%&;1*" Principal Business Development Officer Forge Consulting LLC Advocacy Trust, LLC 678-916-4166 - Phone 502-595-8600 – Direct 706-244-0762 - Direct 502-715-2823 – Cell 706-856-2537 - Fax 866-631-0607 – Fax [email protected] [email protected] http://www.forgeconsulting.com Chapter 8 17 of 17
.5(/2574*< )7(&6.21 &6*4.&/5 1/;
The information contained herein is believed to be correct, but no express or implied warranty is made as to its completeness or accuracy.
Forge Consulting is a national insurance agency. We analyze but do not provide investment, legal or tax advice. Advocacy Wealth, a Registered Investment Adviser, offers financial planning. Advocacy Trust offers fiduciary services. Forge is the parent company of both Advocacy subsidiaries.
Securities and Insurance Products are NOT insured by the FDIC, nor by any other Federal or State Government Agency, are NOT a Deposit of and are NOT Guaranteed by a Bank or any Bank Affiliate, and MAY lose value.
The sword and shield are registered trademarks of Forge Consulting LLC.
© 2016, Advocacy Wealth Management, 3350 Riverwood Parkway, Suite GL-28, Atlanta, GA 30339, 678-203-0306
STATE BAR SERIES
Handling Trials & A Ppeals More Professionally
Presented By:
Moderator: Michael B. Terry Bondurant Mixson & Elmore LLP Atlanta, GA
Panelists: Hon. Cynthia C. Adams Judge, Douglas County Superior Court Douglasville, GA
Hon. J. P. Boulee Judge, DeKalb Superior Court Decatur, GA
Hon. Stephen Louis A. Dillard Georgia Court of Appeals Atlanta, GA
Hon. Jane Morrison Judge, Fulton State Court Atlanta, GA
Hon. M. Yvette Miller Judge, Georgia Court of Appeals Atlanta, GA STATE BAR SERIES
Handling Big Cases Ethically
Presented By:
Brian R. Smith The Smith Law Practice Atlanta, GA Chapter 10 1 of 23
HANDLING ETHICAL ISSUES THAT MAY ARISE IN LITIGATION
Brian R. Smith The Smith Law Practice Atlanta, Georgia
(404) 402-7767 [email protected]
Contents page
Part One - How to Approach Ethical Issues Generally 2
I. Know the Georgia Rules of Professional Conduct 2 II. Recent Changes to the GRPC and Official Comments 3 III. Case Law and Other Sources of Guidance 7 IV. Advice From Other Lawyers 8
Part Two - Specific Ethical Issues 9
I. Poaching of Cases 9 II. Clients Leaving a Firm With a Lawyer Leaving the Firm 9 III. Fee Disputes with Clients and Other Lawyers 10 IV. Conflicts of Interest Attach Against Referring Lawyer 13 V. Duties and Responsibilities of Local Counsel 14 VI. Jointly Represented Clients and Sharing Information 14 VII. Client’s Absolute Right to the File 16
Part Three - What You Should Do If You Receive a Bar Complaint 16
I. The Grievance 16 II. Responding to the Office of General Counsel 17 III. Proceedings Before the Investigative Panel 19 IV. Confidential Discipline and Petitions for Voluntary Discipline 21 V. Should You Get Help? 21 VI. Know Your Coverage 22 Chapter 10 2 of 23
The topic of legal ethics often brings to mind the worst lawyers in our profession and the punishment that can be meted out to them, such as suspension or disbarment. Avoiding such a fate generally involves refraining from doing things that we all know are prohibited – thou shalt not steal from your client, lie to the court, etc. But there are subtler ethical issues that can arise that can cause considerable stress for a conscientious lawyer who wishes to avoid doing anything that might violate the ethical rules in a way that would call his or her character or professionalism into question. This paper is designed to help lawyers who care about maintaining high ethical standards follow the best practices and avoid some of the trickier ethical problems that may arise in a litigation practice.
Part One — How Approach Ethical Issues Generally
Close questions regarding legal ethics cannot always be resolved based on a lawyer’s intuition alone. They involve the application of the relevant law to the facts, just like anything else. When tricky ethical questions arise, an ethical lawyer must be able to spot the issue and then apply the relevant rules with care in order to chart the proper course.
I. Know the Georgia Rules of Professional Conduct
First, as lawyers we should all make an effort to be just as familiar with the Georgia
Rules of Professional Conduct (GRPC) 1 as we are with the statutes and case law that are most pertinent to the substantive areas of the law in which we specialize. Having a good working
1 The GRPC can be found on the State Bar’s Website; click on “Bar Rules” “Ethics and Professionalism”, then scroll down to the section labeled “Ethics and Disciplinary Rules” and click on “Georgia Rules of Professional Conduct.” The Bar’s website also contains Formal Advisory Opinions that are instructive in interpreting the GRPC, as well as the rules regarding the Disciplinary Proceedings applicable to bar grievances, as outlined in Rule 4-201, et seq. of the State Bar Rules and Regulations. The GRPC and procedural rules are also accessible through Westlaw and most other legal research subscription databases.
Chapter 10 3 of 23
knowledge of these rules and the information contained in the official comments to them will help you spot subtle ethical issues that a less informed lawyer might overlook.
When an ethical issue arises and you are assessing how to proceed, the first thing you should do is review the relevant GRPC and all the instructive Comments in detail, despite already being familiar with them generally. The Rules contain important nuances that are not always intuitive, and you will notice details when you read them with a specific question in mind that you might not if you were reviewing them generally. The State Bar also amends various portions of the GRPC from time to time, and amends the Comments with some regularity. Make sure you have parsed all relevant portions of the GRPC very carefully before deciding on a course of action in navigating a difficult situation.
II. Recent Changes to the GRPC and Official Comments Thereto
As stated above, the Rules and Comments are amended periodically. Subtle changes to the language of a Rule or Comment, or the addition of a new Comment, can speak volumes about how the State Bar, the Georgia Supreme Court, or any Georgia court will view the ethical propriety a particular course of action regarding which the application of a Rule might have previously been up for debate. In other words, these small changes have real world consequences, and something that might have previously been arguably proper under the Rules might now be an unambiguous violation of an ethical rule. If you have not reviewed the GRPC in detail recently, you might not be aware of the changes. Here are a few of the more pertinent changes that have been made to the Rules and Comments in the last several years.
Rule 1.4 regarding Communication has added specific bullet points that provide greater clarity in outlining specific matters regarding which the lawyer must communicate with the
Chapter 10 4 of 23
client. The Rule has also added new comments that elaborate on these bullet points, as well as providing greater clarity about the topic, generally.
Several new comments were added to Rule 1.5 regarding Fees. New comment 6 now clarifies that although a lawyer may not charge a contingent fee in a domestic relations matter
“[t]his provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders.” Perhaps more pertinently, Comment 7 regarding fee divisions among lawyers in different firms now deletes the explicit analogy to Rule 5.1 (regarding a supervisory lawyer’s responsibility over a subordinate lawyer) when describing the responsibilities of co-counsel.
New Comment 8 now states that the portion of the rule regarding fee divisions among lawyers in different firms “does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.”
Rule 1.6 regarding Confidentiality of Information has added a new Comment 4A, which specifically provides that “[i]nformation gained in the professional relationship includes information gained from a person (prospective client) who discusses the possibility of forming a client-lawyer relationship with respect to a matter. Even when no client-lawyer relationship ensues, the restrictions and exceptions of these Rules as to use or revelation of the information apply, e.g. Rules 1.9 and 1.10.” This new comment language may be seen as something of a substitute for the ABA’s Model Rule 1.18, dealing with prospective clients, which Georgia has chosen not to adopt. Previously, Georgia’s failure to adopt ABA Model Rule 1.18 had left
Georgia lawyers with little guidance regarding their duties to former prospective clients when no active attorney-client relationship was ever created.
Chapter 10 5 of 23
Rule 1.7 regarding Conflicts of Interest: General Rule has added new language in the comments. Given the importance of this Rule, all comments to it should be carefully studied and parsed. Among the recent changes, new Comment 18 provides specific instructions regarding how a lawyer representing multiple clients in the same matter must handle confidential information that one client might like to withhold from another client. “As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation.”
Rule 1.9 regarding Conflict of Interest: Former Client had previously stated that a lawyer could not take a position adverse to a former client in a matter substantially related to the previous representation unless the former client consented after consultation, but now also explicitly requires that the consent be “confirmed in writing.” GRPC 1.9(b)(2). New Comment 3 also provides additional guidance regarding what constitutes a matter being “substantially related,” and should be consulted whenever this point is at issue.
Rule 1.15(I) regarding Safekeeping of Property was amended to state that a “lawyer may disregard a third person’s claimed interest [in the case of a lien, judgment, or agreement] if the lawyer reasonably concludes that there is a valid defense to such lien, judgment, or agreement.”
GRPC 1.15(I)(b). Among other things, this clearly helps a personal injury lawyer protect his client’s interest without fear of committing an ethical violation (if the position is taken in good faith) in a case where a medical provider or other third party claims to have a right to reimbursement or a claimed lien which is alleged to attach to the funds of settlement.
Rule 3.4 regarding Fairness to Opposing Party and Counsel has deleted subsection (f)(3), which had previously permitted a lawyer to “request a person other than a client to refrain from
Chapter 10 6 of 23
voluntarily giving relevant information to another party” when “the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information and the request is not otherwise prohibited by law.”
Rule 4.2 regarding Communication With A Person Represented By Counsel now contains new comment language (in comment 4A) regarding exactly what agents or employees of an organization represented by counsel may not be contacted. New Comment 6A also provides for a new procedure for a lawyer to seek a Court Order when he or she is uncertain whether or not a given contact is permitted.
Rule 4.3 regarding Dealing With An Unrepresented Person has now deleted former subsection (c), which previously stated that a lawyer was prohibited from “initiat[ing] any contact with a potentially adverse party in a matter concerning personal injury or wrongful death or otherwise related to an accident or disaster involving the person to whom the contact is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the contact.” The new language of Comment 2 now also clarifies that “This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person,” so long as the lawyer does not mislead the unrepresented person. GRPC
4.3.
Rule 9.2 regarding Restrictions on Filing Disciplinary Complaints now unambiguously states that “a lawyer shall not enter into an agreement containing a condition that prohibits or restricts a person from filing a disciplinary complaint, or that requires the person to request dismissal of a pending disciplinary complaint.” Previously, there had been some ambiguity regarding whether a lawyer could enter into an agreement to “settle” a potential bar grievance so
Chapter 10 7 of 23
long as the conduct at issue did not arise from an alleged “misuse of funds held in a fiduciary capacity.”
III. Case Law and Other Sources of Guidance
Every year, dozens of Georgia lawyers are disbarred, suspended, or publicly reprimanded. Reading these cases as they come out is one way to stay informed regarding the manner in which the State Bar and Supreme Court approach violations sufficient to warrant public discipline. However, many of these cases involve unambiguous violations of rules that we all know should not be violated, and many others involve bad lawyers (often with serious personal, mental, or substance abuse problems) who have abandoned one client after another.
Unfortunately, because close cases often result in confidential discipline or no discipline at all, there is not as much case law as there might be concerning issues about which reasonable minds might disagree. The result is that there is some case law declaring what a lawyer may not do, but very little that confirms what a lawyer may do in an ethically tricky situation without violating the Rules.
Lawyers should be aware that there are other sources of persuasive authority and commentary that address close questions. The State Bar and the Georgia Supreme Court have issued a number of Formal Advisory Opinions that explain how the Rules should be applied to certain specific situations. Like the GRPC, these can be found on the State Bar’s website. The
American Bar Association also issues several Formal Opinions every year regarding the application of the Model Rules of Professional Conduct to certain situations. These are also helpful so long as you check the Model Rule being discussed to make sure that there are not substantive differences between it and the corresponding Georgia Rule. Similarly, ethics
Chapter 10 8 of 23
opinions from other states and commentary from around the country can be considered for their persuasive effect so long as the rule being applied is substantively the same as the Georgia Rule.
IV. Advice From Other Lawyers
The State Bar also has an Ethics Helpline that can be reached at (404) 527-8741, or (800)
682-9806. You can call the Helpline about an ethical issue and a lawyer with the Office of
General Counsel will discuss the issue with you. Questions may also be sent by email through a link on the State Bar’s website. The Office of General Counsel (as described in Part Three, below) is the arm of the State Bar tasked with the initial screening of Bar Grievances. Therefore, by calling the Helpline you will be getting advice from the same people who will eventually evaluate any possible bar complaint that could potentially be filed against you in the event that anyone were to allege that you had committed an ethical violation.
As it should be, the advice provided by the Office of General Counsel over the Helpline tends to be quite conservative. If your question shows that you are being overly concerned with something that is not a problem, they will tell you so. But if your question involves a complicated ethical question that turns on specific facts, the Office of General Counsel is not going to take the risk of telling you that it is okay to do something that might not be okay if the facts turn out to be slightly different than what you have represented to them over the telephone.
Finally, it is generally true that lawyers who talk with other lawyers about difficult ethical issues they face tend to make better decisions. Your colleagues within your firm and your friends in the profession are often some of the best resources you have, and you are doing yourself a disservice if you do not ask for their opinions because you fear how they may judge you. If the matter is serious enough, you might consider hiring counsel of your own, either to advise you regarding your choices or to provide an opinion regarding a given course of action.
Chapter 10 9 of 23
Part Two — Specific Ethical Issues
In no particular order, the following is a brief analysis of the state of Georgia law regarding a few issues that arise with some frequency.
I. “Poaching” of Cases
Although a lawyer representing someone in a matter cannot contact a non-client represented by other counsel in the matter, there is no general prohibition on a client seeking a second opinion from another lawyer who is not involved in the matter. Rule 4.2 says only that “a lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter…” (emphasis added). Therefore, if your client happens to approach another lawyer she knows to talk about your case, and based on those talks the client decides to change counsel, there may not necessarily be anything improper about this. On the other hand, if it is the lawyer who approaches the client instead of the other way around, the lawyer’s pursuit of the client is likely a violation of Rule 7.3(d), which states “[a] lawyer shall not solicit professional employment…through direct personal contact or through live telephone contact, with a nonlawyer who has not sought advice regarding the employment of a lawyer.” Moreover, the lawyer is prohibited from making dishonest or misleading statements in an effort to entice the client. See GRPC 8.4(a)(4).
II. Clients Leaving a Firm With an Individual Lawyer Going to Another Firm
Other issues arise when a client terminates a law firm’s representation of the client in order to be represented by an individual lawyer who is leaving the firm for another firm, or to start a new firm. The client has an absolute right to the lawyer of his or her choice in this situation. Formal Advisory Opinion 97-3 speaks to this and states: “No Standard prohibits a
Chapter 10 10 of 23
departing attorney from contacting those clients with whom the attorney personally worked while at the law firm. A client is not the property of a certain attorney.”
However, prior to informing the firm that the lawyer is leaving, the lawyer formerly employed by the firm should not solicit business for the new firm. Doing so without the still- current firm’s knowledge may be a breach of the lawyer’s fiduciary duty to the firm. See Tolson
Firm, LLC v. Sistrunk, 338 Ga. App. 25, 789 S.E.2d 265 (2016); see also Formal Advisory
Opinion 97-3:
The departing attorney may also owe certain duties to the firm which may require that the departing attorney should advise the firm of the attorney's intention to leave the firm and the attorney's intention to notify clients of his or her impending departure, prior to informing the clients of the situation. Specifically, the departing attorney should not engage in professional conduct which involves “dishonesty, fraud, deceit, or willful misrepresentation” with respect to the attorney’s dealings with the firm as set forth in Standard 4.” [Standard 4 has been replaced by GRPC 8.4(a)(4)]
Formal Advisory Opinion 97-3 also outlines the best practices that should be followed when a lawyer leaves a firm. The departing attorney should give notice to the firm before giving notice to the clients. Prior to the departure, the firm and the departing lawyer should work together to jointly inform clients who had significant contact with the departing lawyer that the lawyer is leaving and that the clients who worked with the departing lawyer have a choice as to whether they would like to continue the representation with the firm or with the departing lawyer.
III. Fee Disputes with Clients and Other Lawyers
Attorneys who have worked for a client and have not been paid for their services generally have a lien under O.C.G.A. § 15-19-14. In cases where a contingency fee lawyer is terminated by the client prior to the completion of the matter, and the client eventually obtains a recovery while represented by a subsequent attorney, the first attorney’s right to a fee depends on what is in the fee agreement with the client. If the fee agreement contains language regarding the
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fee owed if the client terminates the lawyer’s representation (e.g. an hourly rate for work performed or the applicable contingency fee percentage of the highest offer made by the defendants) such terms are generally enforceable against the client. Morrow v. Stewart, 197 Ga.
App. 689, 399 S.E.2d 280 (1990). If there is no such provision in the fee agreement, then the contingency contemplated by the agreement has failed to come to fruition and the lawyer must prove a reasonable fee based on quantum meruit. See e.g. Greer, Klosik and Daugherty v.
Yetman, 269 Ga. 271, 496 S.E.2d 693 (1998).
In contingency fee cases, certain factual circumstances will present an inevitable ethical dilemma because the first lawyer’s right to a fee is against the client, not against the subsequent attorney. See King v. Lessinger, 276 Ga. App. 145, 622 S.E.2d 381 (2005). In practice, the interplay between the first lawyer’s fee agreement and the second’s may render the total fee patently unreasonable. For example, suppose a client hires Lawyer 1 under a 40% contingency fee agreement that says that Lawyer 1’s fee in the event the client terminates the relationship is the applicable contingency percentage of the highest offer made by the defendants. After a significant offer is made, the client then discharges Lawyer 1 and hires Lawyer 2 under another
40% contingency fee agreement. After significant additional litigation work has been done by
Lawyer 2, the client eventually receives a recovery of only slightly more than the offer made by the defendants before the client discharged Lawyer 1. In that event, the client contractually owes
Lawyer 2 40% of the recovery and owes Lawyer 1 40% of the highest offer before Lawyer 1 was discharged. Obviously, a total contingency fee of nearly 80% of the eventual recovery is bound to raise some ethical questions.
Under GRPC 1.5, a lawyer may not arrange for or collect an unreasonable fee. In the situation above, circumstances have played out in such a manner as to render the two lawyers’
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facially reasonable fee agreements unreasonable in practice. The Georgia case law on this is not as developed as it might be, but King, supra, contains dicta that explains although the first lawyer’s right to recovery is against the client rather than the second lawyer, the successor lawyer has an ethical duty to ensure that the total fee is not unreasonable:
Appellants suggest that the result we have reached will encourage attorneys to lure or “poach” other attorneys’ clients late in the litigation in order to recover a full contingency fee after performing only a minimal amount of work on the matter. Several factors militate against such a consequence. First, we note that the successor attorney must bear the risk in such a case that professional and ethical guidelines may render his fee unreasonable and thus may “require reconsideration of the contingency fee arrangement.” Greer, Klosik & Daugherty, 269 Ga. at 275, 496 S.E.2d 693 (Fletcher, P.J., concurring). See also Georgia Rules of Professional Conduct, Bar Rule 4-102 (d), Rule 1.5. Because that risk exists, the successor attorney has an incentive to inform the client that the client may have to pay reasonable attorney fees to the discharged attorney for services already rendered, a fact which will help ensure that the client does not agree to a fee arrangement that over-compensates the successor attorney. See Georgia Rule of Professional Conduct 1.4. Second, the successor attorney must bear the risk that the discharged attorney will timely file an attorney's lien in the underlying litigation prior to disbursement of the judgment proceeds, delaying complete resolution of the case and potentially causing satellite litigation over fees. See OCGA § 15-19-14. Third, we are optimistic that considerations of professionalism will defer attorneys from engaging in such a course of action.
Similar “considerations of professionalism” may bear on the first lawyer’s fee when it is calculated based on something like “highest offer before discharge” rather than quantum meruit, although it could also be argued in that event that the contractual rate is reasonable (and that the client’s decision not to settle before firing the first lawyer and hiring someone else who failed to procure a significantly more favorable result was unreasonable). As referenced in King, Justice
Fletcher’s special concurrence in Greer, supra, provides some general guidance regarding how attorneys’ ethical duties affect this otherwise contractual question:
And, lastly, in order to deserve the public's confidence, the lawyer must be willing to do what is fair and equitable, even if not required by the letter of the law. As the ethical considerations state, “A lawyer should be zealous in his efforts to
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avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject.” (citing former E.C. 2-23).
In practice, although Lawyer 1’s right to a recovery of his fees attaches to the client and not to Lawyer 2, the proper way to handle the scenario described above would likely involve
Lawyer 1 and Lawyer 2 negotiating with each other to determine how to split the total attorneys’ fees among them without charging the client an unreasonable amount in total fees.
IV. Conflicts of Interest Attach Against Referring lawyer
Does a lawyer expecting a referral fee have the same duties regarding conflicts of interest as any other co-counsel for a client? According to the ABA, it appears the answer is yes.
Under GRPC 1.5(e)2, a referring lawyer may collect a referral fee that is out of proportion to the services performed by the referring lawyer only if the referring lawyer “assumes joint responsibility for the representation,” the client consents in writing, and the total fee is reasonable. ABA Formal Opinion 474 (published in 2016) notes that “[i]mplicit in the terms of the fee division allowed by Rule 1.5(e) is the concept that the referring lawyer who divides a legal fee has undertaken representation of the client.” Therefore, the rules governing conflicts of interest apply to the referring lawyer regardless of the level of his involvement with the case, and a lawyer cannot accept a referral fee if the lawyer could not have actively represented the client because of a conflict of interest. If the referring lawyer has a conflict of interest that the client is capable of waiving, the referring lawyer must comply with the procedure required by Rule 1.7(b) and obtain informed written consent from the client, just as if he were actively representing the client, if he is to receive a fee.
Finally, the ABA’s Opinion notes that Rule 1.5(e)’s requirement that the client shall be advised of “the share that each lawyer is to receive” is deliberately stated in the future tense.
2 GRPC 1.5(e) substantially similar to ABA Model Rule 1.5(e) for the purpose of this discussion.
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“The use of the future tense envisions that the fee division agreement will precede the division of fees. Such an agreement should not be entered into toward the end of such a relationship.
Instead, the division of fees must be agreed to either before or within a reasonable time after commencing the representation.”
V. Duties and Responsibilities of Local Counsel
Similarly, for ethical and professional liability purposes, “local counsel” is co-counsel, even if out-of-state counsel does the lion’s share of the work and local counsel appears in the case only to fulfill procedural requirements or ingratiate out-of-state counsel with the judge and jury. Georgia Formal Advisory Opinion 05-10 answered in the affirmative the question of whether local counsel could be disciplined for discovery abuse committed by out-of-state counsel. It is not a sufficient defense that local counsel did not have actual knowledge of the facts regarding the discovery abuse if local counsel was “willfully blind” to out-of-state counsel’s behavior and nonetheless ratified it in some way.
There is nothing in the role of local counsel that changes this basic ethical responsibility. Local counsel, if he or she signs the pleadings, must be familiar with them and investigate them to the extent required by this good faith requirement.
The same analysis would appear to apply not just to discovery abuse, but also to other types of ethical impropriety committed by out-of-state counsel, and most likely to questions of liability for professional negligence as well.
VI. Jointly Represented Clients And Sharing of Information
Georgia Formal Advisory Opinion 16-1 clarified that the obligation of confidentiality described in GRPC 1.6, Confidentiality of Information, applies as between jointly represented clients in ways that can sometimes render the joint representation impossible. If a client requests that certain information be kept confidential from another jointly represented client, the attorney
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must honor the client’s request. However, honoring the client’s request will, in almost all circumstances, require the attorney to withdraw from the joint representation.
This Opinion should be read in conjunction with the recently-added Comment 18 to
Georgia Rule of Professional Conduct 1.7 regarding Conflicts of Interest, which Comment states:
Special Considerations in Common Representation
[18] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.
Application of this rule may often put the practitioner in an awkward, if not impossible, position.
In the Opinion, the Board notes that one example of such a situation would involve an estate- planning attorney representing both a husband and wife, who receives a request from one of the spouses to keep relevant information confidential from the other. The Board notes that in situations such as this, a withdrawal by the attorney would have the effect of “not only ending trusted lawyer-client relationships but also essentially notifying the other client that an issue of confidentiality has arisen.”
This can be a thorny issue, and there is no single clear answer that would apply to every possible situation where jointly-represented clients are parties to information that they do not
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want to share with one another. Practitioners are well-advised to proceed with caution and consult the Rules with care.
VII. Client’s Absolute Right to the File
If a former client asks a lawyer for his or her file, the lawyer is required to turn it over.
The lawyer can ask the former client to pay the expense of copying the file, but the lawyer essentially has no recourse if the client refuses to do so – the lawyer still must turn over the file.
It has long been the established under Georgia law that documents created by an attorney belong to the client who retained him. Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571,
581 S.E.2d 37 (2003). The Georgia Supreme Court has now indicated that the failure to abide by this rule, or failure to do so in a timely fashion, can have ethical consequences. See In Re Rouse,
297 Ga. 500, 775 S.E.2d 152 (2015)(Review Panel reprimand based partially on attorney’s failure to return the former client’s file until two months after former client requested it.)
Part Three — What You Should Do If You Receive a Bar Complaint
No matter how conscientiously you approach the ethical issues that arise in your practice, there is always the possibility that you will one day receive a bar grievance, most likely from a disappointed client or belligerent opponent. Although a discussion of the issues that can arise in matters where the lawyer has committed a serious ethical violation that is likely to lead to suspension or disbarment is beyond the scope of this paper, the following is a guide regarding the manner in which the disciplinary process typically unfolds in cases where the allegations of ethical misconduct are unwarranted, questionable, or minor.
I. The Grievance
It could happen to any of us. One day, you’re going through your mail and you find a thick envelope from the State Bar of Georgia’s Office of the General Counsel (OGC). You open
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it up to find a cover page alleging that you may have violated various Rules of Professional
Conduct, followed by a narrative compiled by a former client, adversary, or other person that construes facts out of context in order to make it appear that you did something improper. What should you do?
Even if the grievance lacks merit, the process can be intimidating. Most lawyers, and especially lawyers who are careful not to violate the ethical rules, have not had reason to become familiar with manner in which attorney discipline proceedings are conducted. Furthermore, the case law concerning attorney discipline consists almost entirely of cases in which the attorney committed an ethical violation and was publically punished for it. Grievances that are dismissed by OGC or the State Bar’s Investigative Panel remain confidential, and therefore do not become part of any publically available body of precedent.
Nonetheless, the process is designed to screen out meritless grievances. If you receive a grievance that is not warranted, you may be able to end the inquiry at an early stage with an appropriate and thoughtfully composed response.
II. Responding to the Office of General Counsel
If the allegations in the grievance are without merit, your goal should be to persuade the
OGC to dismiss the grievance before it goes any further. Rule 4-202(b) states:
Upon receipt of a grievance in proper form, the Office of the General Counsel shall screen it to determine whether the grievance is unjustified, frivolous, patently unfounded or fails to state facts sufficient to invoke the disciplinary jurisdiction of the State Bar of Georgia. The Office of the General Counsel shall be empowered to collect evidence and information concerning any grievance and to add the findings and results of its investigation to the file containing such grievance. The screening process may include forwarding a copy of the grievance to the respondent in order that the respondent may respond to the grievance.
Subsection (c) of the same Rule states that the OGC “shall be empowered to dismiss” grievances that do not warrant further investigation.
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As quoted above, Rule 4-202 provides that the grievance may be (and, in practice, generally will be) forwarded to the accused lawyer for a response. There are several things you should keep in mind when responding.
First, the OGC has discretion to request additional replies or supplemental documentation from either the grievant or the respondent, or both. In many cases, the OGC will ask one party or the other to provide additional documents based on questions raised by the positions taken by each side. The cover page that the OGC sends to the responding lawyer calls for the response to be limited to a submission of 25 pages or less. If it is difficult to limit the response and exhibits to less than this amount, you may offer to provide the OGC with additional documents or information upon request.
In almost every case, the grievant will be given the opportunity to reply to your response and to provide any additional information that may call into question your version of events.
Therefore, you should be careful not to make any statements of fact that the grievant may discredit by providing additional evidence. In some instances, the OGC will invite the grievant and respondent to go back and forth several times in responding to one another before it makes a decision on whether or not to forward the grievance to the Investigative Panel. On the other hand, many unwarranted grievances are dismissed in cases where the responding lawyer provides a thoughtful response, and the grievant has nothing to say in reply.
Finally, as with any persuasive legal argument, it is important to balance a thorough recitation of the pertinent facts with a concise focus on what is really important. This can be especially difficult, however, when you are responding to an unreasonable former client or belligerent adversary who has frustrated you for months or years, and who is now twisting the facts regarding your representation in an effort to impair your ability to continue practicing law.
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Be mindful to take a step back and assess the situation as objectively as you can, and then focus your response on the facts pertinent to the applicability of the particular Rules of Professional
Conduct that the grievance alleges may have been violated. Remember, the Bar does not care if your client is crazy, if you think the overall result you achieved for the client was better than most lawyers could have done, or if a belligerent opposing counsel provoked your actions.
OGC’s job is to help protect the public from unethical attorney conduct by separating grievances that merit further attention from those that do not. Do not make this job more difficult by bringing up extraneous matters that do not bear upon the ethical analysis. Be as concise as you can be, but no more so. Attach and cite to supporting documents whenever appropriate.
III. Proceedings before the Investigative Panel
If the OGC determines that the grievance against you appears to state facts that may support a finding that an ethical violation has occurred, it will forward the grievance to the
Investigative Panel of the State Disciplinary Board of the State Bar of Georgia, and a Notice of
Investigation will be issued to you. See Rules 4-204 and 4-204.1. The Investigative Panel consists of both attorneys and lay people, all of whom volunteer their time. Under Rule 4-204, the panel will “appoint one of its members to be responsible for the investigation,” and this
Investigating Member will be an attorney rather than a lay person. The OGC will simultaneously appoint a staff investigator to assist in the investigation.
At this stage, you are required to file with the Investigating Member a written response to the Notice of Investigation within 30 days, and you must verify your response under oath. Rule
4-204.3. Unlike during the screening stage before the OGC, immediate negative repercussions
(e.g interim suspension) may follow if you do not timely and adequately respond.
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It is important to remember that many matters referred to the Investigative Panel are eventually dismissed before proceeding further, and many others result in relatively minor forms of discipline. Just because you have received a Notice of Investigation does not mean that you will necessarily be disbarred or suspended. You still have ample opportunity to convince the
Panel to consider evidence or understand an argument that failed to carry the day during the initial screening process.
In seeking to persuade the Panel, you may communicate only with the Investigating
Member, who will be communicating separately with the grievant. You may provide the
Investigating Member with any evidence or argument that you believe the OGC overlooked during the initial screening, and often the Investigating Member will see things differently than the OGC’s attorney who handled the initial screening. The Investigating Member is also
“authorized to issue oaths and affirmations and to issue subpoenas for the appearance of persons and for the production of things and records,” and you can suggest to the Investigating Member ways in which these powers could be used to uncover evidence that might exonerate you. See
Rule 4-203(a)(10).
After the conclusion of the investigation, the Investigating Member will then issue a report on the matter at a meeting of the Panel. “If the Member’s investigation has been completed, the Investigating Member shall give an accounting of the form and substance of the investigation after which the member may recommend and the Panel shall determine either that probable cause does or does not exist.” See Rule 8 of the Internal Rules of the Investigative
Panel. If the Investigating Member finds that no probable cause exists and a majority of the
Panel agrees, the matter may be dismissed.
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IV. Confidential Discipline and Petitions for Voluntary Discipline
Even if the matter is not dismissed, the Investigative Panel is authorized to impose confidential discipline in certain cases rather than proceeding with the process of imposing publicly reported sanctions such as disbarment, suspension, or a public reprimand. Under Rule 4-
204.5, if the Investigative Panel finds that the respondent lawyer has engaged in conduct that, while not ideal, either did not violate the GRPC or constituted only a minor technical violation, it may issue “letters of instruction” advising the attorney that the conduct was improper and should be avoided in the future. Letters of instruction do not constitute a disciplinary infraction. A step above that, the Panel may issue “letters of formal admonition” or an Investigative Panel
Reprimand for relatively minor violations of the GRPC. See Rule 4-205. Letters of formal admonition and Investigative Panel Reprimands, while confidential, are considered disciplinary infractions. Confidentiality is waived if the lawyer is brought up before subsequent disciplinary proceedings, and a subsequent infraction will automatically make the attorney subject to harsher punishment. See Rules 4-208 and 4-103. On the other hand, if there is no subsequent violation, the public never hears about it and the lawyer’s right to practice is not impaired.
In the event you are brought before the Investigative Panel on charges that turn out to be merited to some degree, you may want to consider filing a Petition for Voluntary Discipline requesting that the Panel administer confidential discipline. See Rule 4-203(a)(9) and Rule 9 of the Panel’s Internal Rules. The Investigating Member will then report on whether or not the
Petition should be accepted, following which the Panel will vote on the Petition.
V. Should you get help?
Lawyers facing disciplinary proceedings are entitled, but not required, to have lawyers of their own. Hiring counsel is not guaranteed to change the eventual result, but it can often help.
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Among the advantages of hiring counsel are, (1) the ability to hire an attorney who specializes in handling ethical complaints and is familiar with the process, (2) having an objective advocate who can see things as the fact finders will, uncolored by the emotions that inevitably arise when dealing with unreasonable former clients and belligerent adversaries, (3) the ability to offload some of the stress of having to frame a response so that you can focus on working for your existing clients, and (4) having access to unbiased advice regarding whether or not filing a
Petition for Voluntary Discipline may be the best option.
VI. Know your coverage! You may be entitled to reimbursement for the cost of hiring a bar complaint defense attorney under your errors and omissions policy.
Many lawyers have coverage for bar complaint defense counsel included in their errors and omissions policies and do not even know it. E&O policies often have a provision allowing for a specific amount (smaller than the policy limit) to be paid to an attorney hired to handle disciplinary proceedings. The following clause is highly typical:
Disciplinary Proceedings The Company will reimburse the Named Insured up to $20,000 for each Insured and all Insureds in the aggregate, for attorney fees and other reasonable costs, expenses or fees (the “Disciplinary Fees”) paid to third parties (other than an Insured) resulting from any one Disciplinary Proceeding…arising out of an act or omission in the rendering of legal services by such Insured.
Policies sometimes contain additional coverage if there is no ultimate finding of wrongdoing by the lawyer. The following is also typical:
In the event of a determination of No Liability of the Insured against whom the Disciplinary Proceeding has been brought, the Company shall reimburse such Insured for Disciplinary Fees, including those in excess of the $20,000 cap set forth above, up to $100,000.
Insurance carriers often do not oversee the reimbursement of disciplinary fees in the same manner as fees incurred by defense attorneys in civil matters in which the carrier might be responsible for paying the eventual judgment. This means that you can often get the errors and
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omissions carrier to reimburse you for fees paid to the ethics counsel of your choice, whether this is an insurance defense attorney or not.
In conclusion, if you ever have the misfortune of having to respond to a grievance filed with the State Bar, it is not necessarily the end of your legal career. Although the process may be unfamiliar and intimidating, there are many options at your disposal. If you have not committed a serious ethical violation, you may be able to emerge from the process without any discipline, or with no public discipline, being imposed.
STATE BAR SERIES
Voir Dire Topics For Big Cases
Presented By:
Alan J. Hamilton Shiver Hamilton, LLC Atlanta, GA Chapter 11 1 of 13
Voir Dire Topics in Big Cases
ICLE Handling Big Cases
April 13, 2018
Alan J. Hamilton Shiver Hamilton, LLC www.shiverhamilton.com Atlanta, GA
Chapter 11 2 of 13
Alan J. Hamilton – SHIVER HAMILTON, LLC
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Voir Dire Topics in Big Cases By: Alan J. Hamilton
Voir Dire and jury selection are incredibly important. No one disputes that. Anyone who has tried cases knows with “stinkers”1 on the jury, even our very finest oratory and most persuasive arguments will fall on deaf ears.
Voir dire and jury selection can also be intimidating. Perhaps no other part of the trial gives the lawyer less “control” over what goes on. Yes, you get to ask many of the questions, but from there you must sincerely and honestly listen and watch. You never know exactly what the jurors are going to say, and you must make what may be win-or-lose decisions about who to strike and who to keep based on imperfect information. Not only that, but you have to listen and watch and respond to dialogue, while these poor souls who have been summoned to jury service are watching the minutes and hours roll by as the lawyers drone on and on about one seemingly unrelated topic after another.
That said, if the voir dire is done with sincerity and honesty, and openness to listen to the jurors without judging or manipulating what they have to say, we can all improve our chances of getting what the law promises: a fair jury.
A few practical considerations, and some critical legal authority, will follow. First, you have got to know how your particular trial judge handles voir dire. In Georgia state courts, lawyers get to ask the bulk of the questions. But in federal court, that is not always the case.
Know your judge. Go watch a trial in front of him/her. Ask about voir dire at the pretrial conference. Talk to others who have tried cases in front of your judge.
For example, you need to figure out if the judge will allow specific follow-ups with individuals in front of the panel during the general questioning. Or, alternatively, whether the
1 A term of art I first heard used by Tommy Malone at a seminar years ago. Chapter 11 6 of 13
judge only allows recording of affirmative responses in the general voir dire, to be followed up individually or in smaller groups later. A wide-open general questions voir dire combining with follow-ups can be very effective for promoting conversation and agreement among the jurors. It can also speed things along. It also comes with heightened risk of so-called ‘poisoning’ the panel. Regardless, you need to be prepared in advance for how your judge will handle this issue.
You also need to how many jurors the judge will call, and their seating array. That allows the lawyer to prepare a simple seating chart for note-taking and recording the names and basic information on each juror that you can use to jog your memory when it comes time to exercise strikes and raise challenges for cause.
The title jury selection is a misnomer. It is really the opposite. It is the parties’ opportunity to de-select the jurors they most dis-like. Put another way, ‘it ain’t picking, it’s striking.’ Our first goal ought to be to establish our own credibility, by being transparent and real with the jury. And the other goal of good voir dire is to sincerely and without pre-judgment learn about the people who will take on the awesome responsibility of reaching a just verdict.
Lawyers often debate whether to try and ask questions designed to ‘condition’ the jury to their view of the facts and arguments, versus talk about troublesome issues. While it feels good to start selling our case from the outset, it’s also a mistake in my view. Because I don’t think it’s realistic to expect to change a person’s core values and belief systems over the course of a few day (or even longer) jury trial. Instead, you’d better try and get them to open up and be real about what those values are. It is risky for sure, but if there is an issue you are worried about them thinking and talking about back in the jury room, wouldn’t you rather identify those people, and join in the discussion.
Ultimately, of course, the object of voir dire is to gather meaningful information upon Chapter 11 7 of 13
which to base for cause and peremptory challenges. Since I have yet to see a panel where there were not at least 6 folks I would like to strike, knowing the law and facts it takes to mount a successful for-cause challenge is critical. What follows is important law to keep in mind as you question jurors who may be ripe for a cause challenge.
I. STRIKES FOR CAUSE.
Several basic principles govern the decision of a motion to strike a prospective juror for cause:
(1) Neither party has any right to any juror;
(2) Jurors must be free from even a suspicion of prejudgment as to any issue, bias, partiality or outside inferences;
(3) The Court decides whether there is any basis to suspect possible prejudice; and,
(4) Trial courts are instructed to err on the side of caution and to strike a prospective juror if any doubt exists.
The legal authority for these basic principles is set forth below.
II. LEGAL AUTHORITY: COMMON LAW GROUNDS FOR STRIKING JURORS.
The common law set out two principal conditions under which prospective jurors were to be stricken. Jurors were to be stricken (1) for “principal cause,” i.e., when they had an interest in the case or were related to a party to the case, and (2) for “favor,” i.e., when “circumstances rais[ed] a suspicion of the existence of actual bias in the mind of the juror for or against the party, as for undue influence, or prejudice.” Mitchell v. State, 69 Ga. App. 771, 26 S.E.2d 663, 668 (1943).
The Georgia Court of Appeals offered this explanation of the difference between a strike for principal cause, and one for favor:
[A]n opinion finally and fully made up and expressed, which the juror admits could not be changed by evidence, and nothing Chapter 11 8 of 13
appearing to the contrary, would subject the juror to a challenge for principal cause; for the juror could be conclusively presumed from partiality to be incapacitated to serve as a matter of law. But an imperfect or hypothetical opinion, or one based only on rumor or report, which might or might not yield to the evidence in the case, under the rules of law given in the charge by the court, would not be a cause for a principal challenge, for there would not be a conclusive presumption of law that the juror was disqualified; but the juror would be subject to a challenge for favor on account of partiality, and such challenge would raise the question of fact as to the competency of the juror which would be determined by the judge sitting as a trior.
Mitchell, 26 S.E.2d at 668 (emphasis added).
III. MODERN RULES REGARDING STRIKING JURORS FOR CAUSE.
Today most of the common law principles governing jury strikes have been codified. The
Georgia code guarantees every party the right to “demand a full panel of 24 competent and impartial jurors from which to select a jury.” O.C.G.A. § 15-12-122(b) (emphasis added) (applies to Superior
Courts); see also O.C.G.A. § 15-12-123 (b) (applies to State Courts) (allowing panel of 12 jurors).
Other code provisions essentially codify the common law rules requiring jurors to be stricken for
“cause” or for “favor.”
A. Courts Continue to Strike Jurors with a Relationship to One of the Parties.
O.C.G.A. § 15-12-135 continues to provide parties with the right to strike jurors for reasons once referred to as “principal cause”: jurors “shall be disqualified to act or serve in any case or matter when such jurors are related by consanguinity or affinity to any party interested in the result of the case or matter within the sixth degree as computed according to the civil law.” Id.
For example, “a juror who is related to a stockholder is incompetent to serve as a juror on the trial of an action against the company . . . though this relationship be unknown to the juror.”
Pickering v. Wagnon, 91 Ga. App. 610, 611-12, 86 S.E.2d 621, 624 (1955) (plaintiff used peremptory strike to remove juror; after trial it was discovered that prospective juror was married to Chapter 11 9 of 13
State Farm policyholder, State Farm being insurer in case; court of appeals held that denial of right to 24 impartial jurors was “harmful error”).
Likewise, “[p]erhaps the one fact that can be assumed is that relatives or employees will be biased one way or the other,” so “it is essential to rule that regardless of any presumption employees should be held incompetent to serve as a juror in a case in which the employer is a party.” Seaboard
Coast Line R.R. Co. v. Smith, 131 Ga. App. 288, 290-91, 205 S.E.2d 888, 890-91 (1974). In fact, courts should strike prospective jurors when one of the parties is the person “on whom the prospective juror’s continued employment” depends. Carr v. Carr, 240 Ga. 161, 162, 240 S.E.2d
50, 51 (1977) (error not to disqualify prospective juror where sole stockholder of company for which juror worked was party to case).
B. Courts Continue to Strike Jurors Who are Inclined to One Point of View.
O.C.G.A. § 15-12-134 provides parties with the right to challenge jurors for reasons once called “favor”: “In all civil cases it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which shall succeed.”
Id. If either party challenges the juror “upon either of these grounds,” then “it shall be the duty of the court to hear the competent evidence respecting the challenge as shall be submitted by either party, the juror being a competent witness. The court shall determine the challenge according to the opinion it entertains of the evidence adduced thereon.” Id.
In so doing, however, as the Court of Appeals said, the court should err on the side of dismissing rather than attempting to rehabilitate jurors:
A trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors because, in reality, the judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury. While the parties to litigation operate under the guise of selecting an impartial jury, the truth is that having a jury which is truly fair and Chapter 11 10 of 13
impartial is not their primary desire. Instead, their goal is to select a jury which, because of background or experience or whatever other reason, is inclined to favor their particular side of the case. The trial judge, in seeking to balance the parties' competing interests, must be guided not only by the need for an impartial jury, but also by the principle that no party to any case has a right to have any particular person on their jury.
Walls v. Kim, 250 Ga. App. 259, 260, 549 S.E.2d 797, 799 (2001), affirmed by Kim v. Walls, 275
Ga. 177, 563 S.E.2d 847 (2002). In affirming the decision of the Court of Appeals, the Supreme
Court stated:
Running through the entire fabric of our Georgia decisions is a thread which plainly indicates that the broad general principle intended to be applied in every case is that each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial . . . . [I]f error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors.
Kim v. Walls, 275 Ga. at 178, 563 S.E.2d at 849 (quoting Cambron v. State, 164 Ga. 111, 113-14,
137 S.E. 780, 781 (1927)). When circumstances suggest bias, the court should take judicial notice that in all probability bias does exist:
[U]pon the discovery of facts which . . . evince good reason for interest or bias in the case, the court will take judicial knowledge of the fact that in all human probability the influence disclosed would operate upon the juror and move him to act in accord therewith. . . . When, according to universal human experience, the inherent probabilities of the circumstances by which the juror is environed and to the influence of which he is to be subjected compel the conclusion, in accord with the court's judicial knowledge, that the juror will naturally be affected by his interest, it cannot be held, as a matter of law, that the juror . . . is qualified to sit in, an impartial trial as guaranteed by the constitution . . . .
Cambron, 164 Ga. at 111, 137 S.E. at 781 (1927) (citing Temples v. Central of Ga. Ry., 15 Ga. App.
115, 119, 82 S.E. 777, 779 (1914)); see also Kim, 275 Ga. at 178, 563 S.E.2d at 849 (“[T]rial court must do more than “rehabilitate” the juror through the use of any talismanic question.”); White v.
State, 230 Ga. 327, 336, 196 S.E.2d 849, 856 (1973) (counsel should be given broadest of latitude in Chapter 11 11 of 13
questioning prospective jurors as to any matter or circumstance indicating bias or interest).
IV. COURTS STRICTLY ENFORCE THE RULES REGARDING STRIKING JURORS FOR CAUSE.
The impartiality of jurors is considered the “corner-stone of the fairness of trial by jury.”
Jones v. Cloud, 119 Ga. App. 697, 706, 168 S.E.2d 598, 605 (1969) (quoting Melson v. Dickson, 63
Ga. 682, 686 (1879)). “A jury trial is a travesty unless the jurors are impartial.” Id. at 707, 168
S.E.2d at 605 (quoting Atlantic Coast Line R. Co. v. Bunn, 2 Ga. App. 305, 306, 58 S.E. 538, 539
(1907)). Because courts place such importance on the selection of an impartial jury, courts rigorously apply the rules regarding striking jurors for cause.
A. Because the Impartiality of the Jury Is So Important, Courts Rigorously Apply the Rules Regarding Striking Jurors for Cause.
Because of the importance of an impartial jury, the appellate courts zealously police the application of the principles governing the selection of an impartial jury:
Running through the entire fabric of our Georgia decisions is a thread which plainly indicates that the broad general principle intended to be applied in every case is that each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial. . . . In the interest of fair trial, if error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors, rather than in a too technical observance of the letter of cases previously adjudicated and an attempt to bring the facts of other cases within some particular ruling.
Temples, 15 Ga. App. at 119, 82 S.E. at 778, 779 (emphasis added).
In keeping with the importance placed on providing the parties with a fair jury, courts find that a party should not have to use his peremptory strikes to eliminate a juror who should have been stricken for interest or for favor:
Parties should not be required to use their strikes in an effort to remove disqualified jurors. Let there be no thumb on the scale when the jury weighs the evidence!
Chapter 11 12 of 13
Jones, 119 Ga. App. at 708, 168 S.E.2d at 605-06 (internal citations omitted); see also Parisie v.
State, 178 Ga. App. 857, 858, 344 S.E.2d 727, 729 (1986) (“[w]here a defendant uses all of his peremptory challenges before a jury is struck and is forced to use a peremptory challenge on a juror who should have been stricken for cause, the error is harmful and requires reversal”).
B. The Trial Judge Decides Issues Related to “For Cause” Disqualification of a Juror.
Whether the juror is sufficiently impartial to escape a strike for cause is up to the trial judge, sitting as trier of fact and credibility. “The trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial.”
Morris v. Bonner, 183 Ga. App. 499, 499, 359 S.E.2d 244, 245 (1987) (citations omitted) (emphasis added).
If the court has even a suspicion that a particular prospective juror would not be impartial, the juror should be stricken. In such cases, the party opposing the motion to strike for cause has no ground for complaint, because: “‘A party to a lawsuit has no vested interest in having any particular juror to serve; he is entitled only to a legal and impartial jury.’” Morris, 183 Ga. App. at 500, 359
S.E.2d at 245 (citations and internal quotations omitted) (emphasis added).
V. VOIR DIRE PROCEDURES.
Although the judge determines whether a particular juror should be stricken for cause, the counsel for the parties play a role in the decision process through voir dire:
[C]ounsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the juror. Chapter 11 13 of 13
O.C.G.A. §' 15-12-133 (emphasis added). Counsel are entitled to have the jurors placed “in the jury box in panels of 12 at a time, so as to facilitate their examination by counsel.” O.C.G.A. § 15-12-
131.
VI. PARTIES’ RIGHT TO TRUTHFUL ANSWERS.
Like the Court and counsel for the parties, the jurors themselves have a role in the process of striking jurors for cause. Jurors are expected to give truthful answers to voir dire questions, and when they fail to do so with respect to a matter which bears upon their interest, bias, or partiality, a motion for new trial on the ground of such untruthfulness should be granted. As the Court of
Appeals has noted:
Whether he would have used such peremptory strike or would have permitted such juror to serve rather than some other person who he felt would not give him a fair trial presents no issue here, for under the Act of 1951, the defendant had the right to the information and the right to make a choice with it.
Glover v. Maddox, 100 Ga. App. 262, 266, 111 S.E.2d 164, 167-68 (1959) (reversing for failure to grant new trial). “The primary way to arrive at the selection of a fair and impartial jury is through voir dire questioning. Therefore, when a litigant asks a potential member of his trial jury a question he has a right to get a truthful answer.” Pierce v. Altman, 147 Ga. App. 22, 23, 248 S.E.2d 34, 35
(1978).
VII. EFFECT OF PREJUDICIAL JUROR COMMENTS.
On occasion the voir dire process itself will prompt a juror to make a statement that is prejudicial to a party. In such a case, the entire jury panel may be poisoned, and the court should procure a new panel. See Lingerfelt v. State, 147 Ga. App. 371,373-74, 249 S.E.2d 100, 103 (1978)
(in rape trial, entire panel poisoned when juror said that defendant was reputed to be “peeping tom”).
APPENDIX
Appendix Appendix 1 of 2
ICLE BOARD
Name Position Term Expires
Carol V. Clark Member 2019
Harold T. Daniel, Jr. Member 2019
Laverne Lewis Gaskins Member 2018
Allegra J. Lawrence Member 2019
C. James McCallar, Jr. Member 2018
Jennifer Campbell Mock Member 2020
Patrick T. O’Connor Member 2018
Kenneth L. Shigley Member 2020
A. James Elliott Emory University 2019
Buddy M. Mears John Marshall 2019
Dean Daisy Hurst Floyd Mercer University 2019
Cassady Vaughn Brewer Georgia State University 2019
Carol Ellis Morgan University of Georgia 2019
Hon. Harold David Melton Liaison 2018
Jeffrey Reese Davis Staff Liaison 2018
Tangela Sarita King Staff Liaison 2018 Appendix 2 of 2
GEORGIA MANDATORY CLE FACT SHEET
Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction annually, with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for such year a minimum of three hours of continuing legal education activity in the area of trial practice. These trial practice hours are included in, and not in addition to, the 12 hour requirement. ICLE is an “accredited” provider of “approved” CLE instruction.
Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the next succeeding CY. Excess ethics and professionalism credits may be carried over for two years. Excess trial practice hours may be carried over for one year.
A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which indicates the program name, date, amount paid, CLE hours (including ethics, professionalism and trial practice, if any) and should be retained for your personal CLE and tax records. DO NOT SEND THIS CARD TO THE COMMISSION!
ICLE will electronically transmit computerized CLE attendance records directly into the Official State Bar Membership computer records for recording on the attendee’s Bar record. Attendees at ICLE programs need do nothing more as their attendance will be recorded in their Bar record.
Should you need CLE credit in a state other than Georgia, please inquire as to the procedure at the registration desk. ICLE does not guarantee credit in any state other than Georgia.
If you have any questions concerning attendance credit at ICLE seminars, please call: 678-529-6688