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EXPLORING PRODUCE LAW • CHILDFEBRUARY SUPPORT 1999 CENTER • MIDYEAR MEETING1 KeyCite - pickup 12/98 inside front

2 GEORGIA BAR JOURNAL Editorial Board THEODORE H. DAVIS JR., Editor-in-Chief JENNIFER M. DAVIS, Managing Editor LYN ARMSTRONG D. SCOTT MURRAY GARY C. CHRISTY MARISA ANNE PAGNATTARO O. WAYNE ELLERBEE EARNEST REDWINE February 1999 • Vol. 4 No. 4 GEORGE W. FRYHOFER III AMELIA TOY RUDOLPH MICHAEL JABLONSKI WILLIAM W. SAPP ANNE R. JACOBS JOHN SPANGLER III MICHELLE W. JOHNSON PAMELA WHITE-COLBERT On the Cover: U.S. District Judge William T. Moore Jr. and Timothy M. O’Brien SARAJANE N. LOVE J. MICHAEL WIGGINS address the ethical issues surrounding a criminal defense attorney’s agreement with his or her client. (Photo by Richard T. Bryant) Officers of the State Bar of Georgia (ex officio members) QUICK DIAL WILLIAM E. CANNON JR., ALBANY President Attorney Discipline ...... (800) 334-6865 ext. 720 (404) 527-8720 Consumer Assistance Program ...... (404) 527-8759 RUDOLPH N. PATTERSON, MACON Conference Room Reservations ...... (404) 527-8712 President-elect Fee Arbitration ...... 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BRETT LOCKWOOD, 1995-1997 800 The Hurt Building • 50 Hurt Plaza • Atlanta, GA 30303-2934 STEPHANIE B. MANIS, 1993-1995 (800) 334-6865 (404) 527-8700 FAX (404) 527-8717 WILLIAM L. BOST JR., 1991-1993 Visit us on the Internet at www.gabar.org CHARLES R. ADAMS III, 1989-1991 L. DALE OWENS, 1987-1989 South Georgia Office DONNA G. B ARWICK, 1986-1987 244 E. Second St. (31794) • P.O. Box 1390 • Tifton, GA 31793-1390 JAMES C. GAULDEN JR., 1985-1986 (800) 330-0446 (912) 387-0446 JERRY B. BLACKSTOCK, 1984-1985 FAX (912) 382-7435 STEVEN M. COLLINS, 1982-1984 Manuscript Submissions WALTER M. GRANT, 1979-1982 The Georgia Bar Journal welcomes the submission of unsolicited legal manuscripts on topics of STEPHEN E. RAVILLE, 1977-1979 interest to the State Bar of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 pages, double-spaced (including endnotes) and on letter-size paper. Citations should conform to A ROBERT H. 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Court Sq. #201, Decatur, Georgia Vice-Chairperson Publisher’s Statement Staff The Georgia Bar Journal (SSN-0016-8416) is published six times per year (bi-monthly) by the State Bar of Georgia, 800 The Hurt Building, 50 Hurt Plaza, Atlanta, Georgia 30303-2934. © State Bar of Georgia JENNIFER M. DAVIS 1996. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to Director of Communications non-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia and additional offices. Opin- ions and conclusions expressed in articles herein are those of the authors and not necessarily those of the AMY E. WILLIAMS Editorial Board, Communications Committee, Officers or Board of Governors of the State Bar of Georgia. Communications Coordinator Advertising rate card will be furnished upon request. Publishing of an advertisement does not imply endorse- ment of any product or service offered. POSTMASTER: Send address changes to same address. ERIN E. MILES Internet Coordinator Disabilities DENISE PUCKETT Administrative Assistant If you have a disability which requires printed materials in alternate formats, please contact the ADA coordinator at (404) 527-8700 or (800) 334-6865. FEBRUARY 1999 3 Lexis Nexis (Reputation) - new - full

4 GEORGIA BAR JOURNAL FEBRUARY 1999 • VOL. 4 NO. 4

Table of Contents

Practice Tips Legal Articles Drafting Divorce Settlement Agreements By Doug Hill Of Clients & Fees: Ethical Issues 46 for Criminal Defense Attorneys Professionalism By The Hon. William T. Moore Jr. Forsyth County Bar Goes to School and Timothy M. O’Brien By Lisa C. McCranie 10 50 Perishable Agricultural Commodities Act: 10 Book Review A Produce Debtor’s Nightmare; A Litigation Resource Worth Its Weight A Produce Creditor’s Dream By John A. Chandler By D. Richard Jones III and Greg B. Walling 52 20 From the Attorney General Is There a National Child Support 53 Center in Your Future? By Robert Swain Who’s Where 26 54 South Georgia News 20 Tifton Bar Hosts Chamber Event Features 55 Client Relations Governor Barnes Keynotes Involving the Client in Decision-Making Midyear Meeting Departments By Jennifer M. Davis 56 30 From The President In Memoriam A Lesson From Annie Board of Governors Outlines 1999 58 By William E. Cannon Jr. Legislative Agenda 6 Lawyer Discipline By Thomas M. Boller 58 and Mark Middleton From The Director Georgia Trial Reporter 34 An Invitation to Young Lawyers to Get Involved 59 Georgia Justice Project Gets Boost with a By Cliff Brashier Bench & Bar $100,000 UPS Grant By Andy Bowen 7 60 36 From the YLD President Notices Seen Up Close, The Bar’s Work First Publication: FAO 94-R11 Clayton County Restoring Courthouse, is Very Impressive Notice of Filing: FAO 94-R6 Building Justice Complex By Ross J. Adams Proposed Changes to Disciplinary Rules 37 40 62 Fulton County’s Child Advocacy Section News CLE Calendar Center in Planning Stage 37 Record Attendance at Midyear Meeting 68 43 Ad Index President-Elect Seeks Committee Law Practice Management Participation for 1999-2000 69 Making 1999 Gossip-Free in Your Firm 38 Classifieds By Terri Olson 70 44 FEBRUARY 1999 5 quired a visit with me. I occasionally receive a nice note asking a question A LESSON FROM ANNIE and containing some small bit of news about her children. Sometimes I feel like a parent whose child has grown up and left the nest. Neither of my children have independent living. I thought it was expressed a desire to enter the just a matter of time until she moved practice of law. My daughter appears in with one of her children. headed for a career as a Methodist As a few months passed I began minister, and my son is likely to do to see a change. She learned how to the same. When I began to realize balance a checkbook and take care of that they were not interested in the household budget. She found a becoming lawyers, I was a little job with an understanding employer. disappointed. I would not have the By William E. Cannon Jr. The questions became less desperate. opportunity to dispense sage advice As Annie talked about the changes in on the practice of law to children hen Annie first came to her life I saw new confidence in her eager to follow in their father’s my office she was in footsteps. Wtears. Her husband had However, I now realize that my died unexpectedly and she was law practice has left some imprint on totally unprepared to cope with the For many of us the my children. Although they won’t years ahead of her. He had taken care become lawyers, they will take the of every detail of her life. She did most fulfilling aspect of most important element of lawyering not know where bank accounts were with them. They will possess a desire located, what bills were paid every our practice is to help people like Annie. month or what taxes were due. She ministering to the For many of us the most fulfill- had been a loving wife and mother ing aspect of our practice is minister- but was now alone. Her two children needs of our clients. ing to the needs of our clients. They were grown and had left home. She want our counsel, they want our ear, had no job and no real skills to offer They want someone to they want someone to care about a prospective employer. Behind her them. Maybe that explains why so tears her eyes had the fearful look of care about them. many ministers began their college a child separated from a parent for years interested in law and why so the first time. eyes. She was no longer the fragile many lawyers have considered Nothing had prepared me for this widow that I first met. entering the ministry. experience. Sure, I had taken trust Each visit became something The practice of law can be such and estates in law school and had that I warmly anticipated. She would fun when we spend more time listen- probated a fair number of wills. I had have some small problem or ques- ing and counseling with our clients. developed some comforting words to tion. I would answer the question or How I wish that I could discipline utter to the survivors and a smooth give some advice and then we would myself so that I would only take on as way of letting them know that talk about her children. She left much work as I enjoy doing. everything would be all right. But feeling assured that her problem was So many of us are looking for this was different. This client needed handled and I was left with the warm greater satisfaction in our practice. more than words — she needed feeling of accomplishment. Her We think that relocation, financial someone to lean on. visits brought a sense of satisfaction success or prestige can provide it. I Over the next few months we that I did not always receive from the am beginning to believe that the key met several times. At first our rest of my practice. to satisfaction is held in our own meetings began with fearful ques- The visits are not as frequent hands. We just need to spend more tions and words of encouragement. now. She has become much more time practicing the kind of law we Annie was experiencing difficulty confident and can handle most of the enjoy and less time becoming learning the basic activities of small problems that formerly re- “successful.” U

6 GEORGIA BAR JOURNAL during the “latch-key” hours of the AN INVITATION TO YOUNG day, a time when many children are left unsupervised and often get into trouble. Committee members help LAWYERS TO GET INVOLVED students understand the importance of a good education. They provide tutoring, play out conflict-resolution later served as President of the scenarios, and in general act as American Bar Association from mentors and positive role models. 1993-94. Five YLD committees sponsor Many YLD Presidents have annual mock trial and moot court continued their leadership roles by competitions for high school and law later serving as State Bar of Georgia school students. The committees rely Presidents (e.g. Robert Brinson, on hundreds of volunteer attorneys to James Elliott, Charles Lester Jr., help implement the competitions, By Cliff Brashier Kirk McAlpin, Frank Jones and John giving many students their first taste Sammon). of a trial procedure and an overview ne of the best programs the of the judicial system. The commit- State Bar of Georgia offers tees are: High School Mock Trial, Oto lawyers and the public is Intrastate Moot Court Competition, its Young Lawyers Division. It The YLD offers lead- National Moot Court Competition, would take more than every page in William W. Daniel National Invita- this issue of the Georgia Bar Jour- ership opportunities, tional Mock Trial Competition, and nal to list the many accomplish- Youth Judicial Program Committee. ments and good deeds of the YLD professional since its creation on May 31, 1947 at Service to New Lawyers the State Bar’s Annual Meeting. relationships, as well While my space is limited, I do want as a fun, friendly For newly-admitted lawyers, the to provide the following brief YLD twice a year sponsors a mass summary for your information. Also, environment in which swearing-in ceremony to the Court I cannot think of a better way for of Appeals, Supreme Court and the new lawyers to serve our profession, to get to know others U.S. District Court of the Northern to help the public, and to enhance District of Georgia. the quality of their own legal ca- with common interests. A newly-formed committee reers. We welcome the participation called the MCLE/Trial Credit of all young lawyers, and I hope you Assistance Committee assists new will accept this invitation to become Public Service bar admittees with finding courts involved. The YLD has long been consid- where which they can obtain their ered the “working arm of the Bar.” required trial experiences. A Long Tradition Through its committees, YLD The YLD has 15 additional members participate in various committees that focus on substantive Throughout the years, many community service and pro bono areas of law, while helping new YLD leaders have gone on to serve projects. attorneys gain practical knowledge their profession and the public in Sponsored by the YLD, the and develop professional relation- other leadership roles. For example, “Great Day of Service” is a state- ships with fellow colleagues. Griffin Bell served as YLD President wide effort by Bar members to give Each committee takes on various from 1949-50, and later became the back to their communities by com- projects. Some produce public Attorney General of the United pleting much-needed public service service brochures and guidebooks. States during Jimmy Carter’s projects in communities across the For example, the Corporate and administration. state. Banking Committee publishes a William Ide of Atlanta served as The Aspiring Youth Committee YLD President from 1974-75, and works with middle school students Continued on Page 8

FEBRUARY 1999 7 Continued from Page 7 Care Home.” Other committees Getting Involved Can Be sponsor annual events and seminars, brochure entitled “Which Legal like the Legislative Affairs Fun for Young Members Entity is Right for Your Business;” Committee’s Annual Legislative Getting involved with the Young and the Elder Law Committee has Breakfast where lawyer-legislators Lawyers Division is a great way for published a Senior Citizens Hand- are invited to hear esteemed mem- young attorneys to participate in book and written two brochures: bers of the executive, judiciary and their State Bar organization and their “Legal Rights of Nursing Home legislative branches discuss hot- new profession. The YLD offers Residents” and “Selecting a Personal button topics. leadership opportunities and profes- sional relationships, as well as a fun, friendly environment in which to get to know others with common inter- ests. The YLD holds five meetings a year at various resorts and locations ASI - pickup in the southeast. All young lawyers are invited to attend. Attending one 12/98 p.42 meeting is a great first step toward getting involved. For more information on how to get involved with YLD committees, or for future meeting information, call the YLD office at the State Bar of Georgia at (404) 527-8778 or (800) 334-6865. U

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FEBRUARY 1999 9 LEGAL ARTICLES

OF CLIENTS AND FEES: Ethical Issues for Criminal Defense Attorneys

By The Hon. William T. Moore Jr. and Timothy M. O’Brien

Introduction responsibility for representing a client in a criminal investigation or prosecution. ust as in any other area of law, the criminal Issues concerning fee arrangements will be discussed. defense practice contains an infinite number of First, we will discuss one common sense practice ignored ethical issues which can emerge without warning. by an alarming number of criminal defense attorneys: Like angry little bumble bees, these issues can reducing the fee arrangement to writing. Secondly, we sting you on the posterior when you think you’re will focus upon ethical considerations to be taken into Jdoing nothing wrong by simply bending over to smell a account when establishing a fee for a case. patch of daisies. For this reason, we have decided against giving you all a general survey on ethical issues. Were we Reducing the Fee Agreement to Writing to do so, we would be doing little else but reciting a never-ending laundry list of items and would have little Through his experiences as United States Attorney, time to go into any substantive discussion of any of those criminal defense attorney, and District Judge, one of the issues. So, instead of doing that, we will concentrate our things that has never ceased to amaze the senior author of attention on a finite set of ethical issues which can appear this article is how many defense attorneys fail to put on when a criminal defense attorney first assumes the paper the fee agreement reached with their clients. The

10 GEORGIA BAR JOURNAL State Bar of Georgia has adopted Canons of Ethics and standing but will also work for good relations be- Ethical Considerations (which state the principles that tween the lawyer and the client. It is usually benefi- attorneys are to follow), Directory Rules (which follow cial to reduce to writing the understanding of the par- the Canons with imperatives to attorney), and has also ties regarding the fee, particularly when it is contin- adopted the more simplified Standards of Conduct. gent. A lawyer should be mindful that many persons Nowhere in these three sets of rules is it stated that a who desire to employ him may have had little or no criminal defense attorney must reduce his fee arrange- experience with fee charges of lawyers, and for this ment to writing. However, let us review at length Ethical reason he should explain fully to such persons the Consideration 2-19. Bear with us, as this is the only time reasons for the particular fee arrangement he pro- we will quote any rule or canon for longer than a few poses. phrases. Ethical Consideration 2-19 states: As we will briefly discuss later, the phrase pertaining As soon as feasible after a lawyer has been employed, to contingent fees does not apply here as attorneys are it is desirable that he reach a clear agreement with precluded from using them in criminal cases. The Ameri- his client as to the basis of the fee charges to be made. can Bar Association’s Model Rule of Professional Con- Such a course will not only prevent later misunder- duct 1.5(b), meanwhile, refers to the need for documenta-

FEBRUARY 1999 11 tion as follows: “When the lawyer has not regularly discuss frankly with the client the basis of and terms for represented the client, the basis or rate of the fee shall be the fee. After you have discussed the following items with communicated to the client, preferably in writing, before the client and are satisfied that the client understands and or within a reasonable time after commencing the repre- consents to the terms, you should incorporate the terms sentation.” into the letter. The understanding should include: You may be asking yourself: “Why, if there is no 1. Identification of the client. explicit command to memorialize the fee arrangement, is 2. Identification of the attorney. Judge Moore talking about the need to do so in the 3. Description of the matter of representation. context of a discussion of ethics?” Well, we’ll tell you. Give a simple description as to the criminal case against There’s an old saying which goes: “Physician, heal him. If there has been an indictment or case number thyself.” That saying already assigned, put that in applies to all those over- there. If the fee for your weight, two-pack-a-day, representation covers the scotch-guzzling doctors How many times have you, in your grand jury investigation but who, because of their does not include any trial, abilities to conquer others’ private civil practice or even in a specifically put that in physical problems, believe law school contracts class, there. Also, if your fee does themselves to be invincible not include an appeal, put to medical afflictions. we scratched your head and said: “Why that in there. It is important propose a new saying which to err on the side of speci- all lawyers should follow: didn’t this fool put the agreement in ficity. “Attorney, counsel thyself.” 4. Fee charged. Be Judges, as well as juries and writing?” Our simple advice to you is: specific as to whether the ethical panels, consider it fee covers non-attorney fee strange that attorneys don’t be one of those fools. matters such as investiga- routinely counsel their tion, travel, etc. If the fee clients to document agreements with other parties and does not cover these types of incidental costs, indicate then fail to take their own advice and do the same. that the client will be responsible for those costs in Remember, what you are doing with a client is creating a addition to the attorney fee. contract. How many times have you, in your private civil 5. Billing and payment arrangement. It is, of practice or even in a law school contracts class, scratched course, preferable to have the entire retainer paid up front. your head and said: “Why didn’t this fool put the agree- You should indicate that your duties of representation do ment in writing?” Our simple advice to you is: don’t be not commence until the fee has been paid. If you are in one of those fools. the unfortunate position of having a client with whom you The purpose of this discussion is to give you some have agreed to institute an installment plan, spell out the tips on how to avoid problems with the Bar or the many terms of the plan. Also, spell out the terms for payment of trial and appellate judges throughout this state. There is incidental costs. To cover these costs, you may want to perhaps nothing more simple and easy to do than put on require that a separate general retainer be put in trust from paper the fee agreement, have both parties (the attorney which you can withdraw as expenses accrue. and client) sign the agreement, give a copy to the client, 6. Provisions on withdrawal from representation. place a copy in the file, and secure the original. In this regard, refer to Standards of Conduct 22 and 23 There is no need to draw up some 20-page retainer and Directory Rule 2-110 pertaining to illegal/unethical contract that most criminal defendants would be inca- courses of conduct desired by client. You may wish to pable of understanding. We submit that such an agreement include those terms in the letter in order to put the client is not much better than no agreement at all. Rather, a on notice what events would require you to withdraw. plain-English engagement letter should be written, signed This serves the purpose of eliminating surprises as well as by the attorney, and then agreed to by the client (as giving your client a primer on what not to expect from his indicated by his signature). This letter should be drafted attorney. only after the terms are discussed between attorney and 7. Refundable/nonrefundable nature of retainer. client. State understanding as to whether retainer is refundable or Keep in mind that attorneys and clients are adults, is not. If it is a nonrefundable retainer, state the reasons with the abilities to consult and consent. You should why it is so—namely, that representation may prevent

12 GEORGIA BAR JOURNAL you from taking on other clients in the case or related events—are not contingent fees for the purposes of the cases. prohibition. In the commentary section of the ABA The engagement letter is a simple thing to draft and Standards for Criminal Justice, Defense Function Stan- execute and will not only help prevent problems with the dard 4-3.3, the drafters illustrate the difference between client (and potentially the Bar), it also might help should that type of contingent fee which is prohibited and that a panel from the Eleventh Circuit see fit to impose the which is not: “An agreement for payment of an additional Tjoflat Rule1 upon you. fee contingent on acquittal is prohibited. However, an agreement for payment of one amount if the case is Fee Considerations disposed of without trial and a larger amount if it pro- ceeds to trial is not a contingent fee but merely an attempt In deciding what fee you will charge your client, to relate the fee to the time and service involved.” there are several considerations which must be taken into Looking now to the rules adopted and promulgated account. Among these are the bans on contingency fee by the Georgia Bar, Ethical Consideration 2-20 states that arrangements and media rights acquisition as well as the contingent fees are prohibited largely on the public policy general requirement that the fee charged be “reasonable.” grounds that there is no res (or body of money, as in a civil personal injury suit) from which the fee can be Contingent fee ban deducted. Reading that provision literally, one would It should be known by all who practice criminal law assume that the contingent fee prohibition is written for that attorneys are precluded from charging a criminal the lawyer’s protection but, clearly, the underlying defense client a contingent fee. Throughout the United concerns are geared toward the protection of the public as States, the varying ethics rules uniformly prohibit the well as the client. Directory Rule 2-106(C), meanwhile, charging of a contingent fee in a criminal case.2 The follows that statement with a flat prohibition against public policy reasons behind this ban include the idea that criminal contingent fees. a defense attorney who lives under the fear of not getting Despite the simplicity of this prohibition, some trial paid is more likely to commit acts against the interests of attorneys could be confused. Indeed, if one were to read the administration of justice—for example, suborning The American Trial Lawyers Code of Conduct published perjury—as well as against the interest of the client—for by the American Trial Lawyers Association in 1982, one example, counseling the client to go to trial rather than conceivably could be led astray. Rule 5.6(d) of that Code sign on to a negotiated plea agreement. Essentially, the explicitly permits contingent fees in criminal cases. In ban has been uniformly enacted in order to preclude an support of that rule, the Association argues that contin- attorney from having any pecuniary interest in the out- gent fees are needed more in a criminal case than in a come of a criminal case. civil case for the simple reason that the criminal defen- Looking quickly at the relevant rules, the ABA dant goes to prison if he loses and therefore is obviously Standards for Criminal Justice, Defense Function Stan- less able to pay than he would were he acquitted. Further- dard 4-3.3(f), as well as ABA Model Rule of Professional more, the contingent fee would not impact negatively on Conduct 1.5(d)(2), prohibit the contingent fee in a crimi- the cause of justice because criminal defense attorneys nal case. These are the standards that federal courts often would take on a contingent fee in only those cases where follow, although there is no written policy on this subject the defense appears to be particularly strong. Whether or and, doctrinally, the federal courts are adrift as to what not you agree with the ATLA arguments as opposed to the consolidated rules of conduct they should follow.3 The ABA arguments, keep in mind that, in contrast to the judges in the Southern District of Georgia, and many ABA Code, the ATLA Code has not been adopted by any others, often look to the ABA Model Rules, but will also jurisdiction.4 Also, you should take note that ATLA is, in look to the state rules. If the truth be known, most federal large respect, a practice-advocacy organization and, judges simply employ something of a “smell test” while consequently, is more likely to advance positions which relying upon the ABA Model Rules, as well as the canons have not been accepted by those outside of its organiza- and rules of the State Bar as guiding authority. This is not tion. If you have read the ATLA Code, our frank advice to unusual or even questionable as no codification of ethics you is consider it as an academic curiosity and position can preemptively cover every set of ethical questions statement rather than as a viable ethics code in which you which arise. can take refuge. In any event, referring back to the ABA consider- We think that this prohibition is an easy one to ations, you should know that certain fees—though they understand. Quite simply, do not draft a contingent fee may be appear to be contingent on a certain series of arrangement in a criminal case. As mentioned earlier, you

FEBRUARY 1999 13 may create an escalating fee scale which sets varying fees forfeited will be prevented from retaining counsel of conditioned upon the final stage of litigation without choice. Defendants ... may be able to find lawyers willing to violating the prohibition. But do not do such things as represent them, hoping that their fees will be paid in the giving yourself some sort of springboard bonus plan event of acquittal.”7 If this does not smack of a contingent based upon the results you fee situation, then we do not achieve for your client. (In know what does. other words, do not estab- Through these two lish a $10,000 fee and then One can easily see how a client and decisions, the Supreme include a provision which Court has stated to all gives you a $5,000 reward if his attorney might develop attorneys concerned: “Sure you get your client off the you might get paid, but hook.) The public and the conflicting interests in a situation only if you spring your Bar are wary of these client.” This has turned a agreements and, in no where the Government agrees to large class of criminal uncertain terms, have forfeiture cases into de prohibited them as against drop a few substantive counts in facto contingent fee cases. public policy. return for the defendant pleading Indeed, the four dissenting If you will, allow us to justices in Caplin & digress for a moment to guilty to the forfeiture count. The Drysdale agreed that the mention briefly how some majority opinion might aspects of federal forfeiture client may get a reduced sentence or have unwittingly created a laws have actually con- new class of criminal verted much of the criminal no sentence at all while his attorney contingent fee cases.8 One practice into a contingency commentator has argued: fee practice. In 1984, does not get paid. “In the face of the Court’s Congress enacted the pronouncements implying Comprehensive Forfeiture Act, which amended the RICO the legitimacy of criminal contingent fees, state ethics statute as well as the Continuing Criminal Enterprise codes and contracts case law seem puny indeed.”9 provisions of the Comprehensive Drug Abuse Prevention One can easily see how a client and his attorney and Control Act of 1970. The 1984 changes empowered might develop conflicting interests in a situation where the Government to seize and seek forfeiture of a the Government agrees to drop a few substantive counts defendant’s assets that were either derived from profits in return for the defendant pleading guilty to the forfeiture from the criminal enterprise or were used in furtherance count. The client may get a reduced sentence or no of the enterprise. sentence at all while his attorney does not get paid. What As those of you who practice in federal courts are may be good for the client may not be good for the aware, in 1989, the United States Supreme Court, in the attorney and the chief concerns behind most major ethical twin cases of United States v. Monsanto,5 and Caplin & canons come into play. If you need further elaboration on Drysdale, Chartered v. United States,6 declared that the this topic, ask F. Lee Bailey and those North Florida amendments apply to those assets which were used to pay jurists whom he referred to as “backwater judges” and we attorneys fees. Just think about this for a minute. In are sure they will be happy to paint for you a more essence, the Court has stated that, when a criminal textured picture than we could ever hope to.10 defendant’s entire assets are subject to forfeiture, the Let us move on to something else and conclude by payment of his attorney’s fee is contingent upon his simply stating that we have mentioned the irony created acquittal or, in the event of a guilty verdict, the jury by the Supreme Court for your amusement and consider- finding the subject assets not forfeitable. Certainly, this is ation. Despite the Supreme Court’s decisions, de jure a contingent fee situation. Consider the following lan- contingency fees are still banned even while de facto guage from the pen of Justice White, the author of the contingency fees may have been created. majority opinion in Caplin & Drysdale: “The forfeiture statute does not prevent a defendant who has nonforfeit- Media Rights Ban able assets from retaining any attorney of his choosing. Nor is it necessarily the case that a defendant who pos- This will not take much space nor should it. It is easy sesses nothing but assets the Government seeks to have enough to see that the Ethical Considerations, Directory

14 GEORGIA BAR JOURNAL Rules, and Standards of Conduct preclude attorneys from in advance. Therefore, in apparently “routine” crimi- acquiring interests in the media rights of their clients’ nal cases, experience will dictate to the lawyer what stories. Directory Rule 5-104(B) unequivocally prohibits the reasonable fee will be even at the initial client a defense attorney from acquiring any media rights interview. In more complex cases, however, the at- interest in his client’s case prior to the conclusion of “all torney must do some preliminary investigation into aspects of the matter.” This prohibition is particularly what the case is all about before a reasonable flat fee important in the criminal defense field where, because can be quoted.11 clients are often poor but may have a bestseller story to tell, the temptation to bargain for the rights to the story is One authority gives the following checklist for an strongest. attorney to consider when determining the size of the fee The media rights ban has been promulgated to keep a to be charged: lawyer’s attention where it should be—on the interests of 1. The time and effort to be required in the case for the client. Ethical Consideration 5-4 explains that the effective representation; acquisition of media rights by the attorney might tempt 2. The responsibility assumed by counsel considering the the attorney “to subordinate the interests of his client to nature of the case; his own anticipated pecuniary gain. For example, a 3. The novelty and difficulty of the questions involved; lawyer in a criminal case who obtains from his client 4. The skill requisite to the proper representation in that television, radio, motion picture, newspaper, magazine, case; book, or other publication rights with respect to the case 5. The likelihood that other employment will be pre- may be influenced, consciously or unconsciously, to a cluded; course of conduct that will enhance the value of his 6. The fee customarily charged in the locality for similar publication rights to the prejudice of his clients.” services; The prohibition is clear and unambiguous; unless any 7. The gravity of the criminal charge; of you need to make a quick cellular phone call to your 8. The experience, reputation, and ability of the lawyer; literary agent, nothing more needs to be said on that 9. The capacity of the client to pay the fee.12 matter. All of these factors are important and they are essen- tially reflected in the ABA Model Code, as well as in the Reasonable Fee Requirement Georgia Bar Directory Rules and the ABA Standards for Criminal Justice. When discussing the fee with the client, ABA Model Code Rule 1.5(a) sets forth the require- it is important for you to identify which of these factors ment that an attorney’s fee must be “reasonable.” This necessitate (or justify) your fee; clearly state to your requirement is worded somewhat differently in the client the reasons for the level of your fee. Once these Georgia Bar rules in that Directory Rule 2-106(A) does factors have been explained and your client understands not mandate a “reasonable” fee but, rather, prohibits a them, it would be to your benefit to include in your “clearly excessive fee.” This different language is essen- engagement letter the reasons for the fee. tially followed in the ABA Standards for Criminal Justice; Looking first to factor one. When discussing this Defense Function Standard 4-3.3(c) states that it is factor, remember that in many instances, particularly in “unprofessional conduct for a lawyer to enter into an federal court, criminal defense attorneys are operating agreement for, charge, or collect an illegal or clearly under the pressure of time. Therefore, if you anticipate a unreasonable fee.” Whether there is any practical differ- drawn-out case which will drag on for several months or ence between the differing language is an issue for the even years, then the reason for a higher fee will be law professors to hash out during their coffee breaks. obvious given the high number of attorney hours likely to There are some factors, however, which appear to be result. If, however, you are in federal court (for example) universal when determining the propriety of the fee and have to prepare and try your case within two-and-a- charged to the client by the attorney. These factors will be half months from the date of indictment or initial appear- discussed below. ance, then the time pressures are immense, thereby As one commentator has noted: increasing the premium charged for the hours to be worked. Explain to your client that his case inevitably Setting the fee in a criminal cases that the client can will cut into your own time with family and friends and afford to pay, as a practical matter, greatly differs that a higher fee must be charged due to the urgency of from setting the fee in other cases because criminal his situation and your 24-hour on-call status. Also, if you defense lawyers often must charge flat fees and get it are in federal court with a criminal case, then you may

FEBRUARY 1999 15 have to juggle or cancel personal plans (such as family you are an attorney who is just now getting into the vacations, etc.) due to the long arm of the local federal practice of criminal defense, remember that you are wet judge. While this may not solicit any sympathy from a behind the ears and that there are many, many things out client who is facing 20 years to life in the penitentiary, in the practice that you learn about only through experi- your purpose is not to make him feel sorry for you but to ence. No one becomes an expert in criminal defense by understand why he is forking over the money you are taking a seminar in law school or by reading the latest asking for. book by Professor Alan Dershowitz. Remember that and, Factor two simply refers to the magnitude of the case if you take nothing else away from this portion of the and the attorney’s responsibility in that case. If your client discussion, remember this: make no false claims as to is facing a stiff sentence, then a higher fee may be neces- your reputation or level of expertise. Err on the side of sary due simply to the fact that the stakes are high and humility. your resulting involvement (to the detriment of the rest of Finally, factor nine is simple common sense. Do not your practice) will be that much higher. This same make your client rip the gold teeth out of his mother’s analysis applies to factors three and four pertaining to the mouth to pay your fee. While the fee need not be comfort- novelty/difficulty of the questions involved and the level ably assumable by your client, it should take into consid- of skills required to meet the challenge of the law and eration his worldly circumstances. “If paying the fee takes facts. In this instance, you are simply predicting that you all the client’s money, then a lower fee might be appropri- will have to perform more legal research and leg work ate. If the client is well off, a higher fee would be justi- and, as a consequence, more time will be spent by you fied. In addition, this overlaps with the seventh factor on than if this were a simple one-count possession with the gravity of the charge and the second factor on respon- intent to distribute indictment. Also, you are asserting that sibility assumed because the wealthy first offender facing you possess or will obtain the skill necessary to meet your substantial jail time has a greater financial risk involved client’s needs and that level of expertise justifies the rates in the case than a habitual offender accustomed to going charged. to jail with not much to lose even by imprisonment.”13 In our experience, we have found factor five to be the Of course, these factors are not all-inclusive. There most pertinent in setting the level of fees. When an are a multitude of other factors which you feel may attorney agrees to represent a client in a criminal matter, require a higher fee. Our point is simply this: explain the he essentially agrees to not represent anyone else who relevant factors and, where possible, put them into the might have an adverse interest to his client—in practice, engagement letter. every other person, charged or uncharged, involved in the transaction at issue. This is simply a business decision Nonrefundable retainer fees which must be made by you as an attorney. Explain to your client the possibility of other fees in the case and Many, if not most, criminal defense attorneys charge that, because you are now precluded from accepting those nonrefundable retainer fees in their cases. Recently, this other fees, he is the sole source of income you will practice has generated some controversy due in large part achieve from the case. Explain how this makes necessary to the rabble-rousing of two professors from Cardozo the charging of fees higher than the normal hourly rate. Law School in New York: Lester Brickman and Lawrence Factor six is probably the least important of all the A. Cunningham.14 factors but is still a factor important enough to be consid- “Ethical rules do not specifically address non- ered and explained. Factor seven, meanwhile, is closely refundable fee agreements. Most ethics committees to related to factor two. have passed on the question permit this distinction in fee Factor eight essentially repeats the reasons for the agreements that nonrefundable retainers are permissible if premium fee when you are one of those attorneys with an properly handled.”15 Georgia is one of these states. If you immense level of expertise in a matter. Also, consider the look at the State Bar of Georgia Formal Advisory Opinion fact that, if you are a well-respected defense attorney who No. 91-2 (which can be found in the back of your State casts fear into the hearts of the prosecutor, then you may Bar of Georgia Directory and Handbook), you can see be more likely to get a better negotiated plea agreement that the Bar considers it “okay” to charge nonrefundable for your client simply because the prosecutor does not fees in criminal cases: “A ‘flat’ or ‘fixed’ fee is one want to risk losing a conviction. Be careful, however, charged by an attorney to perform a task to completion, when discussing this factor. Do not make any claims that for example, to draw a contract, prepare a will, or repre- you cannot back up because they may come back to haunt sent the client in court, as in an uncontested divorce or a you in either an ethics complaint or malpractice action. If criminal case. Such a fee may be paid before or after the

16 GEORGIA BAR JOURNAL task is completed.”16 The Bar contrasts this with a fort, by contract or otherwise, to contravene this Rule prepaid fee arrangement: “A ‘prepaid fee’ is a fee paid by shall be null, void, and unenforceable, and lawyers the client with the understanding that the attorney will or law firms involved in making any such effort shall earn the fee as he or she performs the task agreed have violated this Rule.19 upon.”17 The Bar advises that “flat fees” may be placed in a practice’s general operating account when paid In support of their proposition, the professors argue whereas “prepaid fees” should be placed in a trust that “the attorney-client relationship is not an arm’s- account until earned, hour by hour, by the attorney.18 length one involving parties bargaining in parity; rather it This Advisory Opinion indicates that the Georgia is a relationship between a fiduciary and a beneficiary in Bar has no problem with the assessment and immediate which . . . the client reposes trust and confidence in the realization of the flat fee in lawyer. Accordingly, the criminal cases. This is lawyer has a built-in advan- good for the Georgia tage over his client simply criminal law practitioner. Do not make your client rip the gold because of his professional The question, however, is status.”20 not thoroughly resolved teeth out of his mother’s mouth to In their North Carolina and there are wolves out Law Review article, there of which you should pay your fee. While the fee need not Brickman and Cunningham be aware. be comfortably assumable by your celebrate the fact that the We want to discuss New York Appellate Divi- briefly the contentions of client, it should take into consid- sion (and, as it would turn Professors Brickman and out later, the New York Cunningham. The main eration his worldly circumstances. Court of Appeals) adopted problem Brickman and their position pertaining to Cunningham have with the nonrefundable retainer fee is the ethics of nonrefundable fee agreements. The case that it deprives a client of his right to choose an alternate discussed is In re Cooperman.21 Let us give you a quick course of legal action. Essentially, the imposition of a overview of the highlights of the Cooperman decision nonrefundable retainer fee deprives a client of his right and then we will discuss how—and if—it applies to you to discharge his lawyer, with or without cause, at any as a Georgia lawyer. time, without penalty. Brickman and Cunningham A New York Bar disciplinary proceeding was brought propose that the American Bar Association incorporate a against the attorney, Edward Cooperman: the proceeding new rule into its Model Rules of Professional Conduct. was focused upon the issue of whether “nonrefundable Specifically, the new rule would state: fee” and “minimum fee” retainer agreements were valid in criminal cases (or in any case for that matter).22 The Nonrefundable Retainers Prohibited; Advance Fees attorney was a general practitioner who also claimed to Deposited to Client Trust Account. When a client specialize in criminal law; the disciplinary committee of (or any other person on behalf of a client) pays a the New York Bar sent him a letter in September 1985 lawyer or law firm any sum of money or delivers warning him not to charge or accept nonrefundable any other property as payment in advance for speci- retainers because those retainers were unethical.23 De- fied services to be rendered in a specified matter, no spite this warning, the attorney subsequently entered into such money or property shall be or become the prop- several nonrefundable fee agreements.24 erty of the lawyer or law firm until such time, if any, The agreements contained the following provision as it shall have been earned through the rendering (although the fees varied): “‘My minimum fee for appear- of such services. All such money and property shall ing for you in this matter is fifteen thousand ($15,000) be deposited by the lawyer or law firm promptly dollars. This fee is not refundable for any reason whatso- upon receipt into a separate trust account mandated ever once we file a notice of appearance on your be- in this jurisdiction for the receipt of client property, half.”25 This matter was brought to the Bar’s attention and shall be withdrawn only when such portions of when one of the clients fired the attorney at a very early it shall have been earned through the rendering of stage in the proceedings and the attorney refused to such services. The lawyer or law firm shall promptly refund any portion of the fee to the client.26 refund any unearned money or property to the client The New York Appellate Division held that the upon the conclusion of the representation. Any ef- nonrefundable fee violated the rules of ethics: “The words

FEBRUARY 1999 17 ‘nonrefundable fee’ are imbued with an absoluteness unnecessary the recording of billable hours. As will be which conflicts with DR 2-110(A)(3), which provides that borne out below, the recording of hours is, for your a lawyer who withdraws from employment shall refund purposes, a safety measure and is easy enough to do. promptly any part of a fee paid in advance that has not Despite the Advisory Opinion mentioned previously, been earned. We find the use of these retainer agreements State Bar of Georgia Standard of Conduct 23 still applies to be unethical and unconscionable in spite of the inherent to criminal attorneys. That standard states: “A lawyer who right of attorneys to enter into contracts for their ser- withdraws from employment shall refund promptly any vices.”27 In so ruling, the court seemed primarily con- part of a fee paid in advance that has not been earned.” cerned with the fact that such an agreement impermissi- Standard of Conduct 21 shows that the term “withdraws bly fettered a client’s ability to seek alternate legal from employment” not only refers to the voluntary act of representation without the attorney, but also to the penalty. The court stated, involuntary withdrawal “Since an attorney’s fee is after his discharge by the never truly nonrefundable Do not do such things as giving client.29 Therefore, if you until it is earned, the use of are fired by a client, you this term, which by defini- yourself some sort of springboard might anticipate that he will tion allows an attorney to come back to you looking keep an advance payment bonus plan based upon the results for some refund of his fee. irrespective of whether the you achieve for your client. In other This is the purpose that the services contemplated are recording of hours serves. rendered, is misleading, words, do not establish a $10,000 In the event that a client interferes with a client’s persists in seeking a refund right to discharge an fee and then include a provision after firing you during a attorney, and attempts to preliminary stage of the limit an attorney’s duty to which gives you a $5,000 reward if representation, the advis- refund promptly, on dis- able thing would be to hold charge, all those fees not you get your client off the hook. on to a quantum meruit fee yet earned.”28 and return the remainder to You might say: “Well, Judge Moore, you just told us the client. that flat fee arrangements are fine in Georgia so what is Just as in a civil case, record every minute of time the purpose of discussing Cooperman and the academic you work on the case and describe what work was done arguments?” The answer is this: the ground has been on the case. This way, if a client comes back to you shaken and to prevent it from opening into an abyss in seeking a refund after firing you, you can figure out what Georgia the burden is upon you to act ethically when it hourly fee you charged and for how many hours. Keep in comes to these nonrefundable fees, particularly when a mind that you might be justified in charging a premium client fires you. hourly fee due to the nine factors discussed earlier. Then In our opinion, it is pretty clear that, though you may you tender a refund to your client. If he complains, tell the client the fee is nonrefundable and though the explain to him the work performed, show him the billing client may agree to that facet of the engagement letter, records and the method of computing the hourly rate, and, public policy is strongly leaning towards requiring hopefully, that will be the end of it. Should he complain attorneys who are fired to refund those portions of the to the Bar, then at the very least you will have documen- “unearned” fees. This may never apply to you. You may tation of your work and, with the engagement letter, survive your whole legal career without having a client documentation of the reasons for the higher than normal fire you. But, considering that it might happen to any hourly fee (particularly when it comes to the inability to Georgia defense lawyer at any time for any reason, we represent other individuals in the case). suggest that you take simple steps to protect yourself from the client and the ethics panel. Conclusion Once you have written the engagement letter, you should record your hours with the same exacting scrutiny We all have to keep in mind that, in this day and age, as if you were handling a civil case for a bank. Most attorneys, as a profession, are subject to constant criticism criminal defense attorneys do not do this. They take the and public reprobation. It is our impression that criminal attitude that they charge a simple flat fee which renders defense attorneys are particularly singled out as targets of

18 GEORGIA BAR JOURNAL blame for what’s wrong with America and are described as destroyers of the national community. As criminal Endnotes defense attorneys, we know that these criticisms are unfounded. We know that criminal defense attorneys are 1. The Tjoflat Rule is that rule, passed during the Chief Judge- the shield between the accused citizen and a Government ship of Gerald Tjoflat, through which the United States Court of Appeals for the Eleventh Circuit has essentially stated that which is capable of abuses of powers as well as innocent retained counsel are presumptively required to represent their mistakes. We know that criminal defense attorneys are the clients during any appeal from the final judgment of convic- essential fibers which hold together our constitutional tion and/or sentence imposed. The Tjoflat Rule presumes that fabric. But the majority of most Americans do not see us a flat fee charged by a criminal defense lawyer is sufficient to ensure that lawyer’s representation of his client on appeal. this way. Therefore, criminal defense attorneys have to be 2. See JOHN WESLEY HALL, PROFESSIONAL RESPONSIBILITY OF THE particularly careful when it comes to ethical matters or CRIMINAL DEFENSE LAWYER 166 (2nd ed. 1996). else they will simply contribute to the unfavorable 3. Bruce A. Green, Whose Rules of Professional Conduct impression held by the public. Should Govern Lawyers in Federal Court and How Should Simple measures can prevent complicated problems. the Rules Be Created?, 64 GEO. WASH. L. REV. 461, 463-64 Talk with your potential client, not just at him, and (1996). counsel him as to the reason for your proposed fee. Once 4. Peter Lushing, The Fall and Rise of the Criminal Contingent Fee, 82 J. CRIM. L. & CRIMINOLOGY 498, 513 (1991). he agrees to the fee, put the agreement in writing and 5. 491 U.S. 600 (1989). have the client sign on to it. Keep in mind that you cannot 6. 491 U.S. 617 (1989). charge a fee which gives you an extraordinary pecuniary 7. Id. at 625 (emphasis added). interest in the outcome of your client’s case; contingent 8. Id. at 649 (Blackmun, J., dissenting.) fees and fees comprised of the assignment of media rights 9. Lushing, supra note 4, at 539. are prohibited. Remember that the nonrefundable retainer 10. For a well-written article discussing how to avoid being cast fee is completely legal and ethical in Georgia in criminal into such an undesirable position, see Mark C. Hansen, Tak- cases but that you, as attorneys, should take steps to not ing Fees: A Primer on Attorneys’ Fee Forfeitures, 19 No. 2 abuse that privilege. Perhaps the easiest step to take is to LITIGATION 17 (1993). keep time records of your criminal cases; show your 11. Hall, supra note 2, at 153. client and the Bar that you have “earned” your fee and 12. Id. at 155-56. 13. Id. at 156 n.20. you will keep your fee as well as your reputation. U 14. See Lester A. Brickman & Lawrence A. Cunningham, Nonre- fundable Retainers Revisited, 72 N.C. L. REV. 1 (1993); Lest- This article is taken from written materials and a speech delivered by the er A. Brickman, The Advance Fee Payment Dilemma: Should Hon. William T. Moore Jr. to the Georgia Association of Criminal Defense Payments Be Deposited to the Client Trust Account or to the General Office Account?, 10 CARDOZO L. REV. 647 (1988); Lawyers. Judge Moore was sworn-in as U.S. District Lester A. Brickman & Lawrence A. Cunningham, Non-re- Judge, Southern District of Georgia, on October 31, 1994. fundable Retainers: Impermissible under Fiduciary, Statutory He is a graduate of Georgia Military College and the and Contract Law, 57 FORDHAM L. REV. 149 (1988). University of Georgia School of Law. Prior to his ap- 15. Hall, supra note 2, at 163. pointment to the bench, Judge Moore was a partner in 16. State Bar of Ga. Formal Advisory Op. No. 91-2. the Savannah law firm of Oliver Maner & Gray LLP 17. Id. where he concentrated in federal criminal defense and federal and state 18. Id. trial practice. From 1977 through 1981, he served as the U.S. Attorney for 19. Brickman & Cunningham, Nonrefundable Retainers Revisit- ed, supra note 14, at 39-40. the Southern District of Georgia. 20. Id. at 10-11. Timothy M. O’Brien is an associate with the Savannah law firm of Oliver 21. 591 N.Y.S.2d 855 (N.Y. App. Div. 1993), aff’d, 611 N.Y.S.2d Maner & Gray LLP. He is an honors graduate of the 465 (N.Y. 1994). University of Virginia and the University of Florida 22. Id. at 856. College of Law, and is a member of the State Bars of 23. Id. at 859. Georgia and Florida. From 1995 to 1997, Mr. O’Brien 24. Id. served as law clerk to Judge Moore. Currently, he prac- 25. Id. at 856. tices in the firm’s litigation section handling federal 26. See In re Cooperman, 611 N.Y.S.2d at 470-71. criminal defense and federal civil litigation. 27. In re Cooperman, 591 N.Y.S.2d at 857. 28. Id. 29. See In re Collins, 246 Ga. 325, 326 (1980).

FEBRUARY 1999 19 LEGAL ARTICLES

A PRODUCE DEBTOR’S NIGHTMARE; A PRODUCE CREDITOR’S DREAM 4 Perishable Agricultural Commodities Act

By D. Richard Jones III and Greg B. Walling

I. Overview property of the bankruptcy estate. The claims of PACA Creditors are superior to claims of secured lenders.4 If a f a Produce Debtor does not promptly pay the PACA Debtor makes payment from the trust assets to Produce Creditor, there are powerful weapons other creditors who have notice of a breach of the PACA available to the unpaid Produce Creditor: The trust, then the PACA Creditor may trace the trust proceeds federal Perishable Agricultural Commodities Act and collect it from third parties.5 The interest of PACA (PACA)1 and its state counterpart, Georgia’s “mini- beneficiaries trumps that of nearly every other creditor.6 PACA.”I 2 PACA establishes a floating trust over the Produce Debtor’s inventories, receivables, and cash for II. PACA: The Federal Act the benefit of unpaid creditors who sold produce to the Produce Debtor.3 If the requirements of PACA are met by Congress, in passing the 1984 Amendments to PACA the unpaid seller of produce, PACA is a powerful weapon that established the floating trust, recognized the unique to collect the sums due from the Produce Debtor. Since flow of commerce of agricultural products and its impor- PACA establishes a trust, the assets of the trust are not tance to the survival of the nation’s food distribution

20 GEORGIA BAR JOURNAL Photo courtesy of the Georgia Department of Agriculture, Tommy Irvin, Commissioner Photo courtesy Department Tommy of the Georgia of Agriculture,

FEBRUARY 1999 21 system.7 If a seller’s invoice for perishable agricultural Debtor’s produce-related inventory and proceeds thereof, commodities is not promptly paid, the seller in turn regardless of which produce seller is the source of the cannot make payment to the persons from whom it inventory.15 The burden is on the Produce Debtor to purchased the produce - either another broker or dealer in determine which assets, if any, are not subject to the agricultural commodities or the farmer himself. If it were trust.16 Commingling of trust assets is contemplated.17 not for the special non-segregated trust created by the 1984 Amendments to PACA, these unpaid dealers and A. Technical Requirements farmers would have only an unsecured claim against the The Act specifies several technical requirements that PACA Debtor and would not have any pre-judgment must be carefully satisfied by the unpaid seller who recourse against the PACA Debtor’s remaining perish- desires to obtain the benefits of the statutory trust. The able agricultural commodities, cash and receivables. unpaid supplier, seller or agent will lose the benefits of the trust unless such person has given written notice of It must be remembered that PACA was not enacted intent to preserve the benefits of the trust to the commis- to protect those in the Debtor’s shoes, but rather to sion merchant, dealer or broker within thirty days (i) after prevent the chaos and disruption in the flow of per- expiration of time prescribed by which payment must be ishable agricultural commodities sure to result from made, as set in regulations issued by the Secretary of an industry-wide proliferation of unpaid obligations. Agriculture, or (ii) after expiration of such other time by While in isolation this may seem a harsh course to which payment must be made, as the parties have ex- follow, in the macroeconomic sense PACA serves to pressly agreed to in writing before entering into the ensure continuity of payment and therefore survival transaction.18 The regulations define prompt payment to of the industry. Congress has plainly decided that it be ten days after the day on which the produce is accepted would be less disastrous to risk the liquidation of a by the PACA Debtor.19 Accordingly, the unpaid seller single purchaser than to threaten the entire produc- ordinarily will lose the benefits of the trust unless he tion chain with insolvency.8 gives written notice of intent to preserve trust assets within thirty days following the expiration of ten days PACA is concerned with “perishable agricultural after the produce is accepted. commodities,” defined in the Act to be fresh fruits and The parties may agree in writing for prompt payment fresh vegetables of every kind and character, whether or to be longer than ten days, but the seller cannot qualify not frozen or packed in ice.9 PACA protects unpaid for coverage under the trust if the agreement allows suppliers and sellers who sell perishable agricultural payment more than thirty days after the buyer’s receipt commodities in interstate or foreign commerce to com- and acceptance of the produce.20 When the parties ex- mission merchants,10 dealers11 or brokers. 12 A transaction pressly agree to a payment time different from that is considered to be in interstate commerce if the com- established by the regulations, a copy of the agreement modity is part of that current of commerce usual in the must be filed in the records of each party in the transac- trade in that commodity whereby such commodity and/or tion and the terms of payment must be disclosed on the products of such commodity are sent from one state invoices, accounting and other documents relating to the with the expectation that they will end their transit, after transaction.21 purchase, in another.13 The written notice of intent to preserve trust benefits The heart of PACA is the provision that perishable should set forth information in sufficient detail to identify agricultural commodities received by a commission the transaction subject to the trust.22 The regulations merchant, dealer or broker in all transactions, and all specify that the notice must be in writing, and must inventories of food or the products derived from perish- include the statement that it is a notice of intent to pre- able agricultural commodities, and any receivables or serve trust benefits, and must include information which proceeds from the sale of such commodities or products, establishes for each shipment: (i) the name and address of shall be held by the commission merchant, dealer or the trust beneficiary, seller-supplier, commission mer- broker in trust for the benefit of all unpaid suppliers or chant, or agent and the debtor, as applicable; (ii) the date sellers of such commodities or agents involved in the of the transaction, commodity, contract terms, invoice, transaction until full payment has been received by the price and the date payment was due; (iii) the date of unpaid suppliers, sellers or agents.14 receipt of notice that a payment instrument has been Trust assets are to be preserved by the Produce dishonored (if appropriate); and (iv) the amount past due Debtor as a nonsegregated “floating” trust. This unusual and unpaid.23 “floating” characteristic applies to all of the Produce

22 GEORGIA BAR JOURNAL Courts tend to construe strictly the technical require- PACA Debtor to escrow its proceeds from produce sales, ments of PACA. If the written notice of intent to preserve identify its receivables, inventory and assets, and then benefits is not sent to the Produce Debtor, the Produce separate and maintain produce-related assets as the PACA Creditor will lose the benefits of the trust.24 Invoices or trust for the benefit of all unpaid suppliers having a bona notices addressed to the individual principal of the fide claim.31 The court may prevent further dissipation of corporate debtor without identifying the corporate debtor, trust assets and set up mechanisms to conserve the assets have been held to be insufficient under PACA.25 needed to satisfy the trust creditors.32 In 1995, Congress amended PACA to provide for an Often, an unpaid seller of perishable agricultural additional method for commodities will find that unpaid PACA Creditors to few others have satisfied preserve their trust claims the technical requirements without having to file a Congress recognized the unique flow of the Act. Therefore, a written notice of intent to PACA Creditor who has preserve trust assets. of commerce of agricultural satisfied the technical However, the 1995 PACA requirements and who amendment only applies to products and its importance to the promptly files suit in PACA Creditors who are federal district court will be licensed under PACA.26 An survival of the nation’s food in a better position to be unpaid PACA licensee may distribution system. If a seller’s paid in full out of the trust use ordinary and usual assets, prior to payments to billing or invoice statements invoice for perishable agricultural secured creditors, unse- to provide notice of the cured creditors or bank- licensee’s intent to preserve commodities is not promptly paid, ruptcy creditors. If, how- the trust. The bill or invoice ever, there are multiple must include (i) the pay- the seller cannot make payment to PACA creditors and the ment time period if it is PACA trust assets are different from that estab- the persons from whom it purchased insufficient to satisfy all of lished by the regulations, their claims, the PACA (ii) the terms of payment, the produce. trust assets are distributed and (iii) the following on a pro rata basis to all statement: beneficiaries who protect their rights to trust benefits.33 If the PACA Debtor files bankruptcy to stay a suit in The perishable agricultural commodities listed on this federal district court, some bankruptcy courts have invoice are sold subject to statutory trust authorized granted the creditor’s motion for withdrawal, deferring to by Section 5(c) of the Perishable Agricultural Com- the action in the federal district court.34 The automatic modities Act, 1930 (7 U.S.C. Sec. 499e(c)). The seller stay in bankruptcy may be lifted to allow claims against of these commodities retains a trust claim over these the PACA trust assets to continue in federal district court, commodities, all inventories of food or other prod- since the trust assets are not property of the bankruptcy ucts derived from these commodities, and any receiv- estate.35 Other courts prefer for the bankruptcy courts to ables or proceeds from the sale of these commodi- have jurisdiction over the collection of PACA assets and ties until full payment is received.27 administration of payments to PACA Creditors.36 In either case, the trust proceeds are separate from a PACA B. Remedies Debtor’s bankruptcy estate.37 A PACA trust beneficiary is The Federal district courts are vested with jurisdiction entitled to claim trust property even ahead of creditors specifically to entertain actions by trust beneficiaries to holding security interests in the property.38 enforce payment from the trust.28 The district courts have A PACA Debtor may have transferred trust assets to jurisdiction to entertain injunctive actions by unpaid third parties. If that is the case, another weapon available beneficiaries.29 An unpaid PACA Creditor has several to the unpaid PACA Creditor is the tracing of trust assets weapons at his disposal in enforcing the remedies in into the hands of third parties. Transferee liability for PACA. receiving assets subject to the PACA trust rests on tradi- Upon showing that the trust is being dissipated or tional trust law and depends upon whether the transferee threatened with dissipation,30 the court should require the received the trust assets for value and without notice of

FEBRUARY 1999 23 breach of trust.39 Lenders with actual or constructive tural commodities handled by the dealer.47 knowledge of a PACA trust must refund any monies they The Georgia Act provides that the dealer in agricul- receive in violation of the trust.40 Accordingly, if an tural products must make prompt payment for agricultural unpaid PACA Creditor learns, in discovery or otherwise, products purchased in Georgia. Prompt payment is that trust assets have been conveyed to a third party in defined to be payment twenty days following delivery, violation of the trust, the third party may also be subject unless explicitly stated otherwise in a written contract to suit brought by the unpaid PACA Creditor to recover agreed to by the producer and dealer.48 the trust assets. Mini-PACA attempts to prevent disputes as to iden- A final weapon of the PACA Creditor is the imposi- tity, quantity, quality or condition of produce delivered by tion of personal liability on the producer to the dealer. the managing agents, The Georgia Act provides officers and directors of a that, at the time of delivery corporate PACA Debtor. The Counsel for an unpaid seller of of the agricultural products courts that have imposed to the dealer, the dealer and personal liability on a perishable agricultural commodities producer shall jointly issue corporate officer rely on the who has satisfied the requirements a Certificate of Receipt and trust principal that an Quality to the producer or individual who is in a of PACA has powerful weapons to the producer’s agent unless position to control the assets explicitly stated otherwise of the PACA statutory trust ensure prompt and full payment. in the written contract. The may be personally liable for Certificate should at the breach of fiduciary duty. The PACA trust imposes liability least contain information regarding the: (1) name and on the trustee, whether a corporation or a controlling address of the dealer in agricultural products; (2) name person of the corporation, who uses trust assets for any and address of the producer; (3) delivery date and time of purpose other than repayment of the supplier.41 The receipt; (4) description of the product as to identity, imposition of personal liability of the corporation’s quantity, quality and condition and grade of the products; officers or directors is a powerful weapon even if the (5) price per unit; and (6) terms of the transaction.49 corporate officer or director files a Chapter 7 bankruptcy, Information contained in the Certificate of Receipt and seeking a discharge of liability. The Bankruptcy Code Quality pertaining to quality, quantity and price is presumed provides an exception to discharge for fraud or defalca- to be satisfied unless the agricultural product is inspected tion while acting in a fiduciary capacity, embezzlement or and a certificate stating the product is in a different condition larceny.42 is issued by an inspector within 48 hours of delivery of the agricultural product to the dealer.50 II. Georgia’s “Mini-PACA” When a dealer to whom produce has been shipped finds the produce to be in a spoiled, damaged, unmarket- Georgia’s “mini-PACA”43 may apply to intrastate able or unsatisfactory condition, the dealer must have the transactions. produce examined by an inspector assigned by the Mini-PACA protects sellers of fruits, vegetables, eggs Commissioner. The inspector executes and delivers a and pecans, but it does not apply to dairy products, certificate to the applicant, with a copy to the shipper, cotton, tobacco, grains and other basic farm crops.44 The stating the day, the time, the place of inspection and the requirements of the mini-PACA apply to dealers in these condition of the produce.51 agricultural products covered by the Act.45 If the dealer of agricultural products fails to make The Georgia Act makes it unlawful for a dealer in prompt payment within 20 days of receipt of the agricultural agricultural products to engage in business in Georgia products, fails to have the Certificate of Receipt and Quality without a state license issued by the Commissioner of issued where products are delivered to the dealer, or fails to Agriculture.46 Before a license is issued, the Commis- have an inspection conducted if the produce is spoiled, sioner is required to receive a surety bond of at least damaged or unmarketable where products are shipped to the $1,000; the Commissioner may require a greater amount, dealer, the dealer is in violation of mini-PACA.52 Any person not exceeding the maximum amount of business done or claiming damage from a breach of the conditions of a estimated to be done in any month by the applicant. The dealer’s bond may enter a complaint to the Commissioner bond is conditioned to secure the faithful accounting for for investigation and hearing and, ultimately, for action on and payment to producers of all proceeds of all agricul- the bond.53 The Commissioner also has the power to

24 GEORGIA BAR JOURNAL suspend or revoke the license of the dealer on certain grounds, such as failure to account promptly and properly or Endnotes to make settlements with the producer.54 1. 7 U.S.C. § 499a et seq (1994). The Georgia Act does not apply to farmers or groups 2. Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1, et of farmers in the sale of agricultural products grown by seq. themselves, persons who paid cash at the time of the 3. 7 U.S.C. § 499e(c)(2). purchase of agricultural products, or holders of food sale 4. C.H. Robinson Co. v. B.H. Produce Co., 723 F. Supp. 785, establishment licenses issued pursuant to the Georgia 791 (N.D. Ga. 1989), aff’d on other grounds, 952 F.2d 1311 Food Act.55 (11th Cir. 1992). 5. A creditor receiving payment of PACA assets must show that any trust property received was transferred “for value” and III. Summary “without notice of breach of trust.” C.H. Robinson Co., 952 F.2d at 1314. Counsel for buyers and sellers of produce should be 6. Continental Fruit Co. v. Thomas J. Gatziolis & Co., 774 F. aware of the federal PACA56 and Georgia’s mini-PACA. Supp. 449, 453-454 (N.D. Ill. 1991). Counsel for an unpaid seller of perishable agricultural 7. Congress intended to eliminate the burden of commerce and commodities in interstate or foreign commerce who has to create the special PACA non-segregated floating trust, satisfied the technical requirements of PACA has powerful which would be enforced over the interests of lenders, se- cured creditors, and unsecured creditors in bankruptcy. See In weapons to ensure prompt and full payment. The primary Re Fresh Approach, Inc., 51 B.R. 412, 422 (Bankr. N.D. Tex. weapon is suit in federal district court to implement the 1985); see also 7 U.S.C. § 499e(c)(1). PACA trust for the benefit of unpaid PACA sellers. Further, 8. In Re Fresh Approach, 51 B.R. at 420. if a third party receives PACA trust assets in breach of and 9. 7 U.S.C. § 499a(b)(4). with notice of the trust, the unpaid PACA seller can file suit 10. Defined in id. § 499a(b)(5). against the third party to trace the PACA trust assets. If the 11. Defined in id. § 499a(b)(6). PACA Debtor files bankruptcy, the PACA trust assets, 12. Defined in id. § 499a(b)(7). whether administered in federal district court or in bank- ruptcy court, are not property of the bankruptcy estate. 13. Id. § 499a(b)(8). Courts impose personal liability on the managing officers 14. Id. § 499e(c)(2). for breach of their corporate fiduciary duty, which may not 15. In re Fresh Approach, 51 B.R. at 422. be dischargeable in bankruptcy. 16. Id at 421. Georgia’s mini-PACA provides a powerful remedy in 17. 7 C.F.R. § 46.46(b). intrastate transactions in agricultural products if the dealer 18. 7 U.S.C. § 499e(c)(3). fails to meet its obligation under the Act. Upon complaint 19. 7 C.F.R. §§ 46.46(e) & 46.2(aa)(5). of the unpaid seller, the Commissioner of Agriculture, 20. Id. § 46.46(f)(2)(ii), (e)(2). after investigation and hearing, may pursue action on the 21. 7 U.S.C. § 499e(c)(3). bond or, in certain cases, the Commissioner may revoke 22. Id. the license of the dealer in agricultural products. U 23. 7 C.F.R. § 46.46(f)(1). 24. In re Milton Poulos, Inc., 947 F.2d 1351 (9th Cir. 1991). D. Richard Jones III is a trial lawyer. He was born and 25. In re John De Francesco & Sons, 114 B.R. 335 (Bankr. D. raised, and lives and works in Atlanta. He received his Mass. 1990). Bachelor of Arts degree from the University of Virginia 26. Licenses, in any event, are required for commission mer- in 1974 and his law degree, Order of the Coif, from chants, dealers and brokers. 7 U.S.C. § 499c(a). Emory University Law School in 1978. His diverse trial 27. Id. § 499e(c)(4). practice includes wrongful injury and death, malprac- 28. Id. § 499e(c)(5). tice, employment law, contract and PACA cases. 29. Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154 (11th Cir. 1990). Greg B. Walling is a partner of Jones & Walling P.C. 30. “Dissipation” means any act or failure to act which could in Sandy Springs, concentrating in commercial real result in the diversion of trust assets or which could prejudice estate, wills and estates, and litigation. He received or impair the ability of unpaid sellers to recover money owed his B.A. from Mercer University in 1982 and his J.D., in connection with produce transactions. 7 C.F.R. § 46.46(a)(2). cum laude, from the Walter F. George School of Law at 31. Frio Ice, 918 F.2d at 159. Mercer University in 1985. Continued on Page 61

FEBRUARY 1999 25 LEGAL ARTICLES Is There a National Child Support Center In Your Future?

By Robert Swain

ou have never been on welfare? No one ents must work or lose benefits. But the law which freed you know receives welfare? Welfare welfare reform from federal red tape, created new federal reform means little or nothing to you. But mandates for child support enforcement programs. do you pay child support? Or receive child All states, including Puerto Rico, the Virgin Islands, support? Or represent someone in a legal Guam, and the District of Columbia operate child support actionY involving child support? Are you an employer? Do enforcement programs under federal law, title IVD of the you do business with a bank? insurance company? credit Social Security Act. PRWORA made changes to the U.S. company or a utility company in America? If you do Code that affect businesses and workers in America. The business or own property or have a bank account in 1996 federal law among other things requires: America, then welfare reform touches you. It reaches w the creation of a national registry of new hires; deep into every business and into many employee’s w the enactment by states of nation-wide wage withhold- pocketbooks. Half of all marriages end in divorce. Most ing laws; divorces involve children and child support. w new state laws for bank account matching of delin- The Personal Responsibility and Work Opportunity quent payors; Reconciliation Act of 1996 (PRWORA)1 reformed w the creation of a national registry of support orders; welfare. Welfare ended as an entitlement. States created and with block grant money new temporary assistance w the creation of “state disbursement units” for wage programs to replace welfare. Now, many welfare recipi- withholding.

26 GEORGIA BAR JOURNAL National New Hire Reporting2 tion law limits the amount that can be withheld; generally, the limit is set at 50% of the employee’s net pay after All employers, as defined by IRS must report new taxes.11 The employer must send the child support hires or re-hires to each state’s child support registry.3 In deduction to Georgia which distributes the money in Georgia these reports are sent to the Department of accordance with federal law to the family. Administrate Services. DOAS collects the data and creates a state “new hire” data base. All states must Bank Account Matching provide copies of these data bases to the federal Office of Child Support States must enact laws that allow for the Enforcement. The composite of all the state child support agency to match employer “new hire” reports from all delinquent accounts with bank the states is the “national new hire accounts - savings, checking and data base.4 State child support agen- brokerage accounts.12 This law also cies use the state and national “new applies to accounts and funds held hire” data bases to find people by credit unions, stock brokers, and who owe or may owe insurance policy issuers.13 Once an child support. account is found belonging Once an absent to a delinquent parent is found, obligor, the CSE the state agency agency can admin- has two business istratively seize the days to send a account.14 The wage withholding account holder can order to the appeal the seizure employer5 or and receive a initiate other hearing. But while administrative or legal waiting for a actions to obtain an order hearing, the money for support or enforce an existing in the account is frozen. order. If there is no appeal, the state agency takes up to the amount of the child support owed National Wage Withholding from the account.15 The same process works to find and seize the cash value of an insurance policy or the money All states have enacted the Uniform Interstate Family in a credit bureau or money market account. Support Act (UIFSA).6 One part of this Act requires the A 1998 amendment to PRWORA authorizes the interstate enforcement of child support orders by wage federal parent locator service (FPLS) to establish or assist withholding. Georgia did this during the 1997 legislative states in establishing a clearinghouse for multi-state session, effective January 1, 1998.7 The enactment of financial institutions.16 Multi-state financial institutions UIFSA effectively repeals the venerable Uniform Recip- will be able to submit “account” data to a clearinghouse rocal Enforcement Act (URESA).8 One part of UIFSA rather than to each state in which it does business. Com- requires the interstate enforcement of child support orders puter matches, (hits) obtained from the financial institu- by wage withholding.9 Under this provision a state child tions then will be sent to each state for enforcement support agent or private attorney can send a wage with- actions including the seizure of accounts. This clearing- holding order to an employer in Omaha, Nebraska. The house operation will enable states to search for accounts Nebraska employer must honor the Georgia order by without regard to state boundaries. Financial institutions deducting the amount stated in the order from the will benefit by the reduction of the costs in terms of time employee’s pay check. The employer must send the and money associated with requests from multiple states money to the state issuing the order, Georgia in this for the data matching of accounts. Logically, this could example, where the State Disbursement Unit will process lead to a computer matching program of national finan- (beginning April 1, 1999) the money for distribution to cial data against a national registry of all support orders. the family. The employee can fight the wage withholding The federal law anticipates this by requiring the creation but the employer cannot.10 The federal consumer protec- of a national case registry.

FEBRUARY 1999 27 National Case Registry to grow as long as it is relatively easy for employers to comply with the mandates. And computers make compli- You should not be surprised to learn that states are ance by employers relatively painless. required to create a registry of all support orders.17 If you In the soon-to-be twenty-first century world, state get a divorce and child support is ordered after October 1, enforcement agencies and private attorneys will still 1998, this order must be included in the state registry. perform the front-end work; i.e., establish paternity and Any order that is modified after October 1, 1998 also will orders for support and perform reviews and modifications be added to the registry of orders. This registry will of existing orders. The rest, from locating the absent record all payments and legal actions taken for each parent to the collection of the last dollar owed, will be registered order. All of this information will be sent by done through the evolving automated federal/state child each state to a National Case Registry.18 To make this support enforcement system. Without most people dream (or nightmare to some) a reality, eventually all knowing it, we may discover that we have created a child support payments must be matched to this national National Child Support Enforcement Center based on a case registry. This means that there must be a central linking of all states and employers, perhaps via the point of accountability for all child support payments. Internet21 and the Eastern Regional Interstate Child Support Enforcement Association—http://www.ericsa.org. The State Disbursement Unit The non-payment of child support is a national problem, indeed a disgrace. If parents cared financially States must establish a single collection point in each for their children, there would be no need for welfare or state for all wage withholding payments from employ- state child support enforcement programs. But there are ers.19 Since January 1, 1994, federal and state law requires too many irresponsible parents. The 1996 congressional wage withholding as part of virtually all orders for child response to the non-payment of support moves the nation support.20 Collectively these state collection centers will step-by-step toward a federal solution. It is a solution that process all of the employer deducted child support takes the choice of paying support away from responsible payments in the nation. To further centralize the collec- and irresponsible parents alike. U tions in each state, the federal government wants to end the local payment of support to CSE agencies and the Robert Swain is the Deputy Director of the Child Sup- courts. The centralization and re-direction of payments port Enforcement Section of the Division of Family and started in many states October 1, 1998. By October 1, Children Services. He currently is assigned as the man- 1999, courts and child support receivers, assuming state ager of the State Disbursement Unit project. He earned law is enacted pursuant to the federal mandate, will no a B.A. and a J.D. from Mercer University. longer process income deduction payments. Even income deduction payments between private parties paid by the employer directly to a family must be re-directed to the SDU. This mandate ostensibly will make the processing Endnotes of wage withheld support easier for employers. One check, one list, sent to one place in each state for process- ing. This payment information will eventually become 1. The Personal Responsibility and Work Opportunity Reconcil- part of the National Case Registry. iation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996). Conclusion 2. 42 U.S.C. § 653(i) (Supp. III 1997). 3. O.C.G.A. § 19-11-9.2. Duty of employers to report hiring or Most of the money needed to pay child support is in rehiring of persons. the hands of employers and financial institutions. People 4. 42 U.S.C. § 653(A) grudgingly accept payroll deductions. Employers are 5. Id. § 653(A)(g) (transmission of wage withholding notice to efficient tax collectors. Employers collect a lot of child employers). support. In Georgia, 70% of the more than $335 million 6. Id. § 666(a)(19)(f) (Uniform Interstate Family Support Act in child support collected by the state in State Fiscal Year (UIFSA)). 1998 came from employer deductions. The remainder 7. O.C.G.A. § 19-11-100 et seq. (effective January 1, 1998). came from tax offset programs and direct payments from 8. Id. § 19-11-40.1. obligors as the result of court or administrate actions. The amount of support collected by employers will continue Continued on Page 60

28 GEORGIA BAR JOURNAL Imagine This (West) Pickup 8/98 p60

FEBRUARY 1999 29 FEATURES Governor Barnes Keynotes Midyear Meeting By Jennifer M. Davis Bars. Perhaps even more helpful Governor Roy E. Barnes during the than the BLI program itself was the annual Board of Governors dinner. THE BOARD OF GOVERNORS extensive manual of resources He discussed the pride he had in his of the State Bar of Georgia returned presented to every attendee to share chosen profession and vowed to to Atlanta for the Midyear Meeting with their respective groups. stand up for lawyers during the which was held January 21-23 at the course of his administration. He Swissôtel in Buckhead. In addition Gathering with Colleagues explained that given the adversarial to the Board meeting on Saturday, nature of the legal system, “we can’t there were the usual array of events Later Thursday evening, the expect everyone to love us, we just for sections, alumni groups, commit- Lawyers Foundation of Georgia expect them to respect us.” He asked tees, and foundations. hosted a reception and introduced its everyone in the room to promise new director, Lauren Larmer Barrett. “whenever a lawyer is disparaged — Learning to Lead She brings her experience as a even if it’s your worst adversary — lawyer who formerly worked in the you’ll speak up. The day and time to Lawyers from across the state fundraising division of Georgia Tech let lawyers be trashed for no reason gathered on Thursday to begin the to this position which will run the is gone.” Gov. Barnes said, “I’ll convention with a training workshop. charitable arm of the State Bar of speak up for the profession. When The Bar Leadership Institute (BLI) Georgia. the Bar is attacked wrongly, I’ll say, attracted a variety of leaders who are Friday began early with law ‘Wait, what if we didn’t have this involved with the State Bar, local school alumni breakfasts held by system?’” He added, “Lawyers are bars, voluntary bars, and sections or Emory, Georgia State, Mercer and what separates us from other systems committees within these groups. The the University of Georgia. Also that of government where disputes are intensive three-hour workshop let day the State Bar Executive Meeting settled with the butt of a gun or the attendees choose from breakout hosted a luncheon gathering with the force of arms.” sessions on topics including: plan- Council of State Court Judges. Gov. Barnes reminded everyone ning a successful Law Day celebra- Lunch proved to be a popular time to that another value of our democracy tion; coping with the media; commu- meet with a total of 14 sections is the right to counsel. “When I was nicating with your members; recruit- taking the opportunity to learn, first practicing, we all had to take ing and retaining members; top 10 network and visit. Later that evening, appointed criminal cases. Now, secrets of successful bars; and two more sections held business lawyers disdain those who defend dealing with access to justice. meetings and receptions, as did the criminals as much as the public. We Following three workshop Young Lawyers Division. all have the obligation to represent sessions, attendees reconvened to criminals. It is our duty as lawyer to learn ideas for revitalizing their Governor Reminds tell the public that those who defend association from Dianne Dailey, who liberty are entitled to as much works with the ABA Section Officers Lawyers to be Proud respect as other lawyers.” Conference Committee on Commu- The highlight of the Midyear He next explained the early days nity Outreach to State and Local Meeting was a keynote address by when he developed his propensity to

30 GEORGIA BAR JOURNAL 12

1. Gov. Roy Barnes (third from left) pauses with the Cobb delega- tion of the Board of Governors: (from left) Dennis O’Brien, Judge Adele Grubbs, Robert Ingram, Bob Beard and YLD President Ross Adams. 2. President Bill Cannon presents Georgia Legal Services Executive Director Phyllis Holmen with a $250,000 check repre- senting lawyers’ donations to the annual fundraising campaign. 3. Visiting at the Mercer alumni breakfast are: (l-r) Lamar Sizemore, President-elect Rudolph Patterson and Anton Mertens. 3 pursue a legal career. In fact, the did not earn him a lot of money. He listed and he got his pension. Gov. Governor was the first in his family told the story of Jake Sterling, a Barnes concluded, “It took a lawyer to go to college and ultimately law sharecropper who lived for years to demand that Jake get what he was school. His father owned a general with his father. Jake worked for 30 entitled to. That’s what it means to mercantile in Mableton where he years for the railroad laying track. practice law.” spent his after school days working. One day, the Governor’s father asked Across the railroad tracks lived the him to investigate whether Jake was Mentoring New Lawyers man who would change the entitled to any Social Security. Jake Governor’s life. His name was put on a starched white shirt and At the 165th meeting Board of Harold Glower and he was the overalls to accompany his lawyer Governors on Saturday morning, professional law assistant to Su- downtown. Once there, officials members heard an update on a preme Court Justice Harrill Dawkins. asked Jake for his middle name. The program which will ensure the values When the young Roy Barnes tired of elder gentleman explained he didn’t that drew the Governor to the profes- hoisting Purina feed sacks, he would have one officially but had adopted a sion are instilled in new lawyers. slip over to Mr. Glower’s and read middle name when filling out John T. Marshall reported the Stan- one of the many books that stocked paperwork when he first went to dards of the Profession Committee he his neighbor’s shelves. Mr. Glower work for the railroad. He chose as chairs is implementing a pilot study shared books along with his daily his new middle name the last name to test the program which was experience as a laborer in the justice of his crew foreman, John Bell. From approved by the Board in June of system. “By senior high school, I that day on, he was known as John 1997, and authorized by Supreme was already Shepardizing cases,” Bell Sterling. Officials next asked Court order in October of that year. recalled the Governor. “Mr. Glower when Jake was born. He innocently The proposed program was initiated instilled not only a love but also replied, “I don’t rightly know. Mama during the term of then-Bar President respect for the law. He showed me said it was cold.” As it turns out his Ben F. Easterlin IV. that the law protected us and made lawyer, the future Governor of our The program will explore us what we are [as Americans]. The state, had an affidavit stating Jake whether law school graduates love of law gives us order.” had been a railroad laborer during become better lawyers if guided Gov. Barnes went on to say that the presidency of Woodrow Wilson during their first two years of prac- the most rewarding cases he has from 1912-1920. They checked the tice by an experienced lawyer. The handled over the years as those that census, found “John Bell Sterling” pilot is a four-year program: 1998

FEBRUARY 1999 31 was spent planning and obtaining so the Bar was refunded half its Governors meeting: funding; 1999 will mark the selec- initial contribution. The Standards of w Judicial District Profes- tion of 150 lawyer mentors and the Profession Committee is continu- sionalism Program (JDPP): Robert beginning lawyers; 2000 would see ing to explore other funding sources. D. Ingram, Co-chair of the Bench the actual implementation of the and Bar Committee, updated the mentorship program which would Dues to Remain Same Board on this program which uses last two years. peer intervention to address profes- Ron Ellington, former dean of This Committee and over 80 sional problems at the local level. the University of Georgia School of others continuously strive to offer The Committee is drafting Bar rules Law, is developing to govern the pro- the curriculum which gram which will will take place in Southern Conference Statistics: Budget per Member eventually be submit- CLEs and outside the ted to the Board for Number of Number of Total Budget classroom. The consideration. In Rank State Staff Members Budget per Member lawyer mentor and developing the rules, 1 Georgia (97-98) 55 29,630 $4,474,000 $151.00 student will be the Committee is 2 Louisiana 21 18,000 $3,000,000 $166.67 required to meet a exploring 3 Maryland 25 18,300 $3,200,000 $174.86 minimum of once a hypotheticals to 4 Missouri 40 23,100 $4,500,000 $194.81 month. Three six- determine exactly 5 Virginia* 78 34,200 $7,275,000 $212.72 hour continuing legal how possible prob- 6 Oklahoma 34 14,224 $3,500,000 $246.06 education seminars lems — such as a 7 Kentucky 35 12,536 $3,200,000 $255.26 will apply a series of judge who is ignor- 8 Arkansas 10 4,145 $1,100,000 $265.38 practical problems to ing the uniform rules 9 Alabama 35 12,409 $3,460,000 $278.83 the practice of law. — will be addressed. 10 West Virginia* 12 4,835 $1,390,000 $287.49 The first year will Implementation 11 North Carolina* 86 27,532 $8,000,000 $290.57 concentrate on skills efforts will continue 12 Tennessee 12 6,800 $2,000,000 $294.12 like setting fees, over the next several 13 Mississippi 20 6,000 $1,900,000 $316.67 resolving legal months. 14 Texas 300 62,144 $23,304,000 $375.00 disputes, dealing w Georgia Bar 15 Florida 265 57,500 $23,000,000 $400.00 with other lawyer, Foundation: Execu- 16 South Carolina 37 9,500 $4,100,000 $431.58 etc. In the second tive Director Len 17 Kansas 27 6,000 $2,600,000 $433.33 year, participants can Horton reported that choose two of four *Voluntary and Unified figures combined 1998 was the best courses on specific year thus far for the areas of law. the highest quality programs at a program. He discussed the Phillips John Marshall explained in his minimal cost. Because the leaders case in Texas which challenged the report to the goal of the pilot pro- and staff of the Bar watch expenses constitutionality of IOLTA at the gram is to find out whether it will carefully, we are able to maintain the U.S. Supreme Court. He also an- work. And if the answer is yes, then lowest bar dues in the country. For nounced that Board of Governors can it be sustained? But the most the fifth year in a row, the Board of members John Chandler and Charles important question he said is, “Does Governors voted to set the State Bar T. Lester Jr. affirmed that their firm, it make a difference in the level license fees at $150 for active Sutherland, Asbill & Bennan, would competence and professional val- members. The chart on this page defend the IOLTA program in ues?” Mr. Marshall pointed out the shows how Georgia compares to Georgia if such a case was ever filed. potential added value of reminding other bars within the Southern He also reported on the unique those who volunteer as mentors of Conference of Bar Associations. action of the Georgia Supreme Court the same core values that lead them While Georgia may boast the following the Phillips decision. to the practice. lowest dues, there is no shortage of Unlike other states where the high The State Bar had allocated programs and services offered by the court was either remained silent or $50,000 to test the program. Since Bar and related organizations. merely suggested its support for then, the Open Society Institute Following are just three which were IOLTA, Georgia’s Supreme Court (OSI) donated $25,000 to the pilot reported on during the Board of issued an order instructing the

32 GEORGIA BAR JOURNAL 1 2

1. The General Practice & Trial Section, led by Chair John Timmons (left) and outgoing Chair Bill Lundy (right) honored lawyer legislators during their an- nual luncheon. Pictured (l-r) are Rep. Jim Martin, Rep. Stephanie Stuckey, Secretary of State Cathy Cox, Rep. Rich Golick and Sen. Billy Ray. 2. (l-r) During the Lawyers Foundation reception, President Bill Cannon visits with John Chandler and Earle Lasseter, who serves as ABA Treasurer-elect. 3. (l- 10 r) Udai Vikram Singh and Albert Bolet visit during the Women and Minorities in the Profession Committee luncheon. 4. During the Bar Leadership Insti- tute, speaker Dianne Dailey shares ideas with Jesse Lael of the Georgia Asian Pacific American Bar Association. 5. During the annual American Law Insti- tute breakfast, Judge Dorothy Beasley introduces Lance Liebman, the new Director of ALI. 6. At the Board meeting Saturday, David Lipscomb leads a breakout group discussion of proposed revisions to the disciplinary rules. 7. 9 Paul Kilpatrick presents the Court Filings Committee report at the Advisory Committee on Legislation meeting. 8. On behalf of the Council of Juvenile Court Judges, Judge A.J. Welch presents their legislative proposal to the Board of Governors. 9. Standards of the Profession Committee Chair John Marshall updates the Board on the mentoring pilot project for law students. 10. Stonewall Bar Association members Melinda Agee and James Tarleton 8 7 discuss topics presented at the Bar Leadership Institute.

6 5 4 3

Trustees of the Georgia Bar Founda- President William E. Cannon Jr. Dennis C. O’Brien, who chairs the tion to conduct business as usual. hopes to spread the message of these effort, updated the Board on the w Foundations of Freedom: good deeds across the state in an group’s work. All lawyers are invited The many public service programs effort to improve the public’s percep- to be part of the speaker’s bureau to which benefit from IOLTA monies tion of lawyers. He instituted the take the message to civic, commu- distributed by the Georgia Bar Foundations of Freedom program nity and school groups. Volunteers Foundation are just one example of which was discussed in detail in the the good work that lawyers do. last issue (Dec. 1998, page 50). Continued on Page 57

FEBRUARY 1999 33 FEATURES Board of Governors Outlines 1999 Legislative Agenda

By Thomas M. Boller at a rate of 90 percent of the state would require the clerks to maintain base salary for superior court judges. printed copies of indexes even if the and Mark Middleton House Judiciary Chair, Rep. Jim filing system is computerized. This THE 1999 GEORGIA GENERAL Martin, is the author of the bill. protects against computer system Assembly convened on Monday, Amending Service Statute to failures and addresses questions over January 11. Thirty-eight attorneys Conform to Federal Rule: The accuracy and availability of records. were sworn in to serve in the 180- proposal would require payment of Urge Congress to Reject the member House and eight attorneys service costs by certain defendants, Repeal of McDade Amendment: were elected to serve in the 56- such as corporations or competent Congress has passed legislation member Senate. And for the first adults, that choose to not acknowl- known as the McDade Amendment time in 16 years, a lawyer, Roy E. edge service. The acknowledgment which reversed efforts by the Justice Barnes, was inaugurated as Governor of service would not waive defenses Department to exempt their prosecu- of Georgia. relating to venue and jurisdiction. tors from state ethics rules. The State While the 1999 legislative Appellate Judge Retirement: Bar’s position is consistent with session is expected to be dominated This proposal conforms appellate requiring all attorneys to abide by by initiatives addressing urban retirement criteria to the Superior state ethics rules. sprawl, regional transportation Court standard by lowering the age Endorsement of State Court planning, health care reform, and from 65 to 60 years of age. Under Filings Committee Report: This property tax relief, the legislature legislative rules, this bill would be report by the State Bar’s Courts will address a number of key issues carried over to the next session after Filings Committee contains recom- affecting the operation of the courts a mandatory actuarial study. mendations for a plan and procedure and the practice of law. The State Choice of Law in Commercial for collecting civil and criminal case Bar’s 1999 legislative agenda, Transactions: This bill allows non- filing data on a statewide basis. The adopted and approved by the Board resident parties to choose Georgia State Bar has not adopted specific of Governors at its November and law in commercial transactions. The legislation, but all interested parties Midyear meetings, is summarized bill also provides for venue in cases are in the process of working on a below: involving this choice, but the bill bill that would resolve data owner- Expansion of the Court of does not affect other venue provi- ship issues. The State Bar recognizes Appeals: This proposal expands the sions currently provided for under that the data is public information Georgia Court of Appeals by adding Georgia law. and will insist that the public have a new panel of three judges and one Sanctions for Failure to Cancel access to this data. judge to serve as administrative and Security Deeds: The bill provides Appropriation for Domestic chief judge. for a $500.00 penalty when lenders Violence Program: This position State Funding of Juvenile fail to cancel satisfied loan instru- endorses the Chief Justice’s budget- Courts: Currently, county revenues ments. ary request of $2.5 million for use in are the primary source for juvenile Requirement for Superior providing legal services to the court judgeships. This proposal Court Clerks to Maintain Printed victims of domestic violence. The entitles each circuit to state funding Indices and Books: This proposal request represents an increase of

34 GEORGIA BAR JOURNAL $500,000 from the $2 Act to implement changes million appropriated for appropriate in light of the first time last year. recently adopted regula- Appropriation for tions by the Internal CASA Program: This Revenue Code. item endorses additional The State Bar’s funding of $219,541 for a Advisory Committee on total allocation of Legislation agreed to $839,541 for the CASA support the Indigent (Court Appointed Special Defense Council’s funding Advocates) program. request, which includes an Revisions to Corpo- increase of $2 million for rate Code: The following FY 2000, and to support proposal contains five the Appellate Resource revisions to the corporate Center’s funding request, code. which includes an addition On January 11, two lawyers were sworn-in to the state’s 1. Amendment of unused of $200,000. highest public offices—Governor and Lieutenant Governor. classes of blank pre- In addition to advocat- Above, former Gov. Zell Miller hands over the seal of Geor- ferred stock: Amend ing the State Bar’s gia to Gov. Roy Barnes. Below, Lt. Gov. Mark Taylor is sworn O.C.G.A. Section 14-2- adopted agenda, we in by Judge Cindy Wright as his son, Fletcher, looks on. 602 to allow a board of provide legislative track- directors to amend the ing services to each rights of series of section of the State Bar. If preferred stock without you become aware of shareholder approval if legislation that impacts no such shares were your area of practice, outstanding. please contact the legisla- 2. Electronic proxy tive contact person for voting: Amend your section or Mark O.C.G.A. Sections 14- Middleton at (770)825- 2-722 and 14-2-140 to 0808. add a new definition for For full texts of the “electronic transmis- Bar’s legislative propos- sion” or transmitted als, weekly legislative electronically.” It is updates, addresses/phone believed that this numbers for House and amendment would Senate members, or other allow Georgia to join important information several states in bringing signifi- nize the definition of “Beneficial regarding legislative activities and cant cost savings to corporations Owner” to be consistent with the the Bar’s legislative program, visit with large numbers of sharehold- most recent definition adopted by our Web site at www.gabar.org, or ers. the General Assembly. call our office at (404) 872-0335; 3. Mergers of parent corporations 5. Exceptions to transacting business fax (404) 872-7113. U into subsidiary corporations: in Georgia: Amend O.C.G.A. Amend O.C.G.A. Sections 14-2- Section 14-2-1501 to clarify Thomas M. Boller and Mark Middleton are leg- 1104 and 14-2-1302 to allow a instances when a certificate of islative representatives for the State Bar of parent corporation owning at least authority is not necessary to Georgia. 90 percent of a subsidiary corpora- conduct business in Georgia. tion to merge into the subsidiary. Revisions to Limited Partner- 4. Definition of beneficial owner: ship and Limited Company Act: Amend O.C.G.A. Section 14-2- This proposal amends the Georgia 1110(4) and 14-2-1131(1) harmo- LLC Act and Limited Partnership

FEBRUARY 1999 35 FEATURES

Georgia Justice Project Gets Boost with a $100,000 UPS Grant

By Andy Bowen space for their client/offender job Founded in 1986 by John A training program, New Horizon Pickens, a top Atlanta lawyer who THE GEORGIA JUSTICE Landscaping (NHL). The service left a promising corporate career to Project (GJP), a unique non-profit employs indigent clients who are just provide free legal help for the poor, group that provides legal defense, out of prison, awaiting trial or are the Georgia Justice Project uses a counseling and holistic approach support for indigent combining advo- clients to help them cacy and rehabili- lead crime-free tative services that lives, is the 1998 has helped more recipient of a than 1,100 indi- $100,000 Corpo- gent men and rate Office Region/ women get District Grant from through their legal the United Parcel problems and Service Founda- reach the potential tion. to go on to lead “They’re doing crime-free, drug- so much good in free lives. the community, and GJP’s lawyers they’ve been doing provide aggressive it without signifi- legal defense for cant financial clients who sign a Jerry Collins (left), employee relations manager for United Parcel Service, resources for so contract agreeing receives a thank-you plaque from David Rocchio of the Georgia Justice long, that the to take part in Project (right). Behind are Doug Ammar (left), Executive Director of GJP, choice was not a rehabilitative and Marcus Cook, a team member of New Horizon Landscaping Service. difficult one for us programming, to make,” commented Evern Cooper, trying to get back on their feet addiction counseling, job training, UPS Foundation Executive Director. financially, physically or emotion- GED classes and other activities and “The employees who nominated GJP ally. NHL provides landscaping treatment. And, they must stay and the UPS Foundation’s Board of services for residential and commer- crime-free. It is unique in the nation Trustees felt strongly that the Geor- cial customers in the metro-Atlanta and will soon be joined in its work gia Justice Project truly was meeting area. by a sister organization, the Athens an urgent human welfare need, “Now we’re going to be able to Justice Project. U which was one of the selection touch the lives of so many more criteria.” people,” commented Mr. Ammar. Andy Bowen is a former daily newspaper edi- GJP Executive Director Doug “On their behalf, and on behalf of the tor in Georgia who is a freelance writer and Ammar said the grant will be used to community it will benefit, we can’t media relations practitioner. help them acquire more building say thanks enough to UPS.”

36 GEORGIA BAR JOURNAL Clayton County Restoring Courthouse, Building Justice Complex MORE THAN 100 2000, the complex was years later, the 1898 designed to alleviate Clayton County overcrowding at both the Courthouse will present courthouse and undergo a renovation the current detention to restore the building facility in Lovejoy. Both to its original charm. existing facilities will be The renovation is part renovated for govern- of a $119 million mental use by the project project that includes team as part of the the creation of the new The new Clayton County Justice Complex will be completed in overall plan by 2001. Clayton County Justice 2000, and the Courthouse restoration will begin. (Art courtesy Due to extensive Complex. Beginning in of Hellmuth, Obata & Kassabaum, Inc.) population growth in 2000, the historic Clayton County, the Clayton County Courthouse will be modern structure houses property county’s justice system has under- restored for use in county operations, deeds, wills and judge’s courtrooms. gone great changes. The current to include administrative functions. Current renovation plans include Lovejoy detention center was built in The courthouse, one of raising the annex, restoring the 1986 and was at capacity within two Jonesboro’s most enduring and original, Early Southern style years. A one-percent special purpose, familiar landmarks, was transformed architecture facade and remodeling local option sales tax is funding the in the 1960s when the original the interior for office space. 726,855-square-foot facility, which facade was covered by a brick and The ground-breaking of the is expected to meet the county’s cement annex, and again in the state-of-the-art justice complex, took needs through 2015 and beyond. U 1980s. Today, the larger, more place in October. To be completed in Fulton County’s Child Advocacy Center In Planning FULTON COUNTY DISTRICT Attorney Paul L. Howard announced that his office will spearhead efforts to establish metro-Atlanta’s first Children Advocacy Center, a multi- disciplinary approach to assisting victims of child abuse and non- offending family members. In addition to the Fulton County District Attorney’s Office, the Children’s Advocacy Center will be a collaborative project involving law enforcement, child protective services, medical professionals, During a recent trip to Texas, representatives of the Fulton County District educators, victim’s rights advocates, Attorney’s Office and the Georgia Center for Children gathered on the steps civic and business leaders, as well as of the Children’s Advocacy Center in Dallas. Back row (l-r): Cynthia Williamson, representatives from the judicial Suzie Ockleberry, LaVann Weaver and Leslie Miller-Terry. Front row (l-r) system. U Jacquelyn Drake, Paul Howard, Cynthia Roberts-Emory and Deborah Espy.

FEBRUARY 1999 37 FEATURES

President-elect Seeks Committee Participation for 1999-2000

EACH YEAR THE STATE BAR committee and wish to continue, on the Web site where you can e-mail offers Georgia attorneys an opportu- please indicate on the form below. your preferences. To find it, go to nity to contribute to the legal profes- Prior service does not ensure auto- www.gabar.org/ga_bar/bar/index.htm. sion and the public by volunteering matic reappointment. Also, you can The Bar strives to make appoint- to serve on one of the State Bar’s let us know if you wish to change to ments that will achieve diversity and many standing and special commit- another committee. broad representation of Georgia’s legal tees. President-elect Rudolph N. A listing of committees appears on community. While we would like to Patterson, who will take office in page 53 of your Directory & Hand- appoint everyone to their preferred June, encourages Bar members to book. Members are encouraged to committees, the number of requests take advantage of this opportunity. express committee preferences using often exceeds the number of vacan- If you presently serve on a the form below. There is also a form cies. Thank you for your interest. U

State Bar of Georgia Committee Preference Form 1999-2000 Name:______Bar No.: ______Firm, Employer, Agency: ______Address: ______Phone: ______Year Admitted to Practice: ______Fields in which you practice: ______How many attorneys practice in your office:______Have you ever served on a State Bar Committee? If so, which one(s)? ______Are you presently serving on a Committee? If so, which one? ______Do you wish to continue serving on that Committee? If not, please list a new Committee ______Please list a maximum of three committees you are interested in working with in 1999-2000: 1. ______2. ______3. ______Return by mail to the State Bar, Attn: Committees, or fax to (404) 527-8717

38 GEORGIA BAR JOURNAL Rave Reviews (West) - New

FEBRUARY 1999 39 primarily from there being too much SEEN UP CLOSE, THE BAR’S about which to write. Nevertheless, it is such great work that is being accomplished that I am going to try. WORK IS VERY IMPRESSIVE But I must warn you that this column may turn into a work to be continued. member of each of those commit- Just focusing on the Young tees, and with the assistance of the Lawyers Division, there are dozens YLD Executive Committee, uses of topics. For example, we recently those committees to fulfill the hosted the 10th Annual Legislative purposes of the Division. Breakfast. The panel consisted of However, in addition to those Chief Justice Robert Benham, duties, the YLD president also sits on Attorney General Thurbert Baker, the Executive Committee and the Judge J. D. Smith of the Court of Board of Governors of the State Bar, Appeals, Sen. Rene Kemp, Chair of By Ross J. Adams which adds more responsibilities. the Senate Judiciary Committee and he President of the Young Among those duties is to be a liaison Rep. Jim Martin, Chair of the House Lawyers Division has a to several State Bar committees. This Judiciary Committee. In attendance Tmultitude of responsibilities in were several lawyer-legislators, addition to presiding over an almost many members of the Supreme 9,000-member section of the State Court and Court of Appeals and Bar of Georgia. While my duties are As a result of my representatives of the executive not nearly as extensive as those of branch, including Secretary of State the State Bar President, the YLD participation in the Bar, Cathy Cox. Also present were President has many other responsi- dozens of lawyers gathered to speak bilities, which are assigned by the I have seen so many with our guests and to hear the panel State Bar’s bylaws, the YLD bylaws speak. This was a fantastic opportu- and the President of the State Bar. good things that our nity for young lawyers to meet our Most importantly, of course, the Bar is accomplishing lawmakers and find out what is YLD President is the chief executive planned for the upcoming legislative officer of the Division, responsible that I am truly amazed. session. for carrying out the purposes of the Another major YLD project Division. Those purposes include year, I am liaison to the Uniform just completed is the Aspiring fostering among the members of the Rules Committee and the Family Youth Program. Over 50 young Bar the principles of duty and Courts Committee. I also serve on lawyers donated their time assist- service to the public; improving the the Program Committee and the ing 6th, 7th and 8th graders at administration of justice; furthering Standards of the Profession Commit- Walden Middle School in Atlanta, the aims, purposes and ideals of the tee. In addition, the YLD President helping them with their school State Bar of Georgia; fostering sits on the Chief Justice’s Commis- work and teaching them sports- discussion and interchange of ideas sion on Professionalism, the Georgia manship. BellSouth Telecommuni- relating to the duties, responsibilities Bar Foundation and the Lawyers cations sponsored the program and and problems of the younger mem- Foundation of Georgia. the honorary chair was Chief bers of the State Bar; and encourag- As a result of my participation in Justice Benham. This is an ongoing ing the interest and participation of so many parts of the Bar, I have seen program, and will take place again the younger members of the State so many good things our Bar is in the spring, and also will be Bar in the activities of the Bar. To accomplishing that I am truly expanding to other parts of the fulfill those responsibilities, the YLD amazed. The problem with being state. has about 30 committees devoted to aware of so much good work is The Corporate and Banking service to the bar, service to the deciding how to write about that Committee has also done some great public and substantive legal issues. work. Writing these columns can be work. In addition to sponsoring a The President is an ex-officio stressful, but that stress stems seminar entitled “Nuts and Bolts of

40 GEORGIA BAR JOURNAL MARCH 18-21 AT CALLAWAY GARDENS YLD Planning Spring Meeting JOIN THE YOUNG LAWYERS Gardens. The YLD has reserved tee LaRaia, wine connoisseur and teacher Division and State Bar of Georgia times on Callaway’s famous Moun- from the The Wine School in Atlanta. Executive Committee for the YLD tain View Course, The demonstration will continue Spring Meeting the weekend of which is amoung the through dinner, as Anita explains the March 18-21, 1999 at Callaway nation’s top-rated techniques of proper wine tasting. The Gardens in Pine Mountain, Georgia. courses, and is home to evening will not be complete though, The weekend convenes Friday the PGA TOUR’S without first playing a few games of with the YLD Executive Committee Buick Classic. Other the YLD’s famous Bingo! We’ve got meeting at 4:00 p.m. Then the YLD leisure activities great prizes lined up, so we hope to invites everyone to join them for a include tennis, raquetball, fishing, see you there! group dinner at 7:00 p.m. at the Oak boating and hiking. And don’t forget To register for the meeting, Tree Victorian Restaurant near about the Horticultural and Butterfly please call the YLD Office at (404) Callaway. Centers! 527-8778 or (800) 334-6865. The Saturday morning, the YLD The meeting will conclude room rate for Callaway Gardens is Executive Council will meet at 10:00 Saturday evening with a wine-tasting $96 per night. To reserve your room, a.m. Once the meeting wraps up, the reception and group dinner. Wine please call the hotel directly at 1- rest of the day is free to enjoy the lovers will not want to miss this 800-CALLAWAY. U many activities available at Callaway reception, which will feature Anita

Corporate and Banking Law” the Committee has also worked on projects benefiting youth and small business owners. With the assistance of Equifax, the Committee estab- lished the YES program to teach high school age children about budgeting and credit. The Committee also published a pamphlet, sponsored by CT Corporate System, entitled “Which Legal Entity is Right for your Business,” describing each type of business entity available in Georgia. This pamphlet was so well It’s not too late to volunteer to serve done that the Secretary of State’s office began including it in every as a judge/evaluator corporation formation packet that the Saturday, March 13 at the office distributed. As I feared, I have reached the State Finals in Lawrenceville end of my allotted space without For more information contact even scratching the surface of the good work accomplished by the the mock trial office at: Young Lawyers Division and the State Bar of Georgia. As such, I am 800/334-6865 (ext. 779), 404/527-8779 forced to end this column with those or [email protected] dreaded words, to be continued. ... U

FEBRUARY 1999 41 Wallace Law registry pickup 12/98 p37

42 GEORGIA BAR JOURNAL Record Attendance at Midyear Meeting STATE BAR SECTIONS MEM- bers turned out in record numbers to attend sponsored events in conjunc- tion with the Midyear Meeting. On January 22, seventeen sections held meetings at either the Swissôtel or Ritz-Carlton Buckhead. Those groups who held events were: Aviation, Bankruptcy, Computer, Environmental, Family, Fiduciary, General Practice & Trial, Health, Intellectual Property, International, 12 Labor & Employment, School & College, Senior Lawyers, Taxation, Tort & Insurance Practice, and Workers’ Compensation. At right are some photo highlights of the4 various events. Computer and Intellectual Property Law combined their meetings. Pictured (photo 1) is Larry K. Nodine of Atlanta, Chair of Intellectual Property. The Computer Law Section is chaired 6 3 by Jeffrey R. Kuester of Atlanta (not pictured). Taxation, chaired by Lyonnette M. Davis of Atlanta, announced upcoming plans for their section. (Pictured l-r, photo 2, are Ms.Davis and Gregory L. Fullerton of Albany, Past Chair of the Section). Secretary of State Cathy Cox addressed the General Practice & Trial Section (photo 3). Workers’ Compensation, 5 4 chaired by Larry Neal Hollington of Augusta, held their (renowned) midyear reception. (photo 4, l-r, tion, speaks to members at their ducted elections and turned the gavel Larry Hollington and H. Michael luncheon meeting (photo 5). over to Jean S. Marx of Atlanta Bagley, Immediate Past Chair). Labor & Employment broke (photo 6). U E. Alan Armstrong, Atlanta, attendance records as outgoing Chair Chair of the Aviation Law Sec- James M. Walters of Atlanta, con- —Lesley T. Smith, Section Liaison

FEBRUARY 1999 43 Making 1999 Gossip-Free in Your Firm

By Terri Olson that everyone can fall under its spell. memo that provides concrete No one is exempt, although of course examples of what constitutes GOSSIP IS PARTICULARLY some people are by nature chattier, unacceptable gossip, such as: damaging in law firms, because not w Discussing anything related to a only does it contribute to the same client matter within the firm to problems it does elsewhere— anyone who does not have a paranoia, tension, bad relationships Gossip is rampant in specific business need to know, or and wasted time—but it’s possible to anyone outside of the firm for that client confidences will be part of organizations where any reason; this gossip. It’s hard to control w Talking about other employees’ because, like bad driving, everyone little real information personal problems, including deplores it yet most people are guilty health, reasons for absences or of it at one time or another. is shared with staff or marital difficulties; Therefore, the first rule for associates. It is also w Talking about other employees’ diminishing gossip is to recognize work habits, work hours or common when abilities; w Talking about employee relationships, employees feel whether romantic, good or bad; w Speculating about personnel powerless. issues, including hiring or firing plans, salaries, bonus distributions Health less kind, or less concerned over the and evaluations. validity of rumors than others. But When you tell employees that they gossip is a universal human weak- shouldn’t gossip about others, make Care ness, not something limited to sure that you have not removed their women, secretaries, or those with too only outlet for complaints about co- Audi- much free time. So when you say, “I workers. All staff should have a never gossip” (which everyone says), supervisor who can listen to and deal admit “except when I think it’s a with personnel problems; the trick is to tors relevant issue; except when it’s true ensure that complaints are delivered and everyone knows it anyway; only to that person and not to other pickup except when it’s too good to waste; sympathetic ears. except when I’m telling someone Because gossip is an outlet in who won’t pass it on” or whatever stressful situations, it is frequently a 12/98 applies to you. symptom of other problems in the Since everyone admits office firm. It is rampant, for example, in p75 gossip is bad, yet most people organizations where little real spread rumors at one time or information is shared with staff or another, simply telling your em- associates. It is also very common in ployees “no gossiping” is rarely situations where employees feel that effective: everyone will agree and they are fundamentally powerless unfortunately continue as before. concerning major issues like salary, Hold a meeting or circulate a distribution of work and feedback on

44 GEORGIA BAR JOURNAL performance; gossip makes them feel one who started the rumor. Refusing In summary, remember the involved and important. In addition, to listen to gossip need not come following tips to avoid gossip gossip is frequently a symptom of across as rudeness: the best response problems in your office: poor management. If tardiness, poor (albeit one that comes surprisingly w Admit that at one time or another, performance, or even worse is slowly to most employees) is “I’m we are all part of the problem and allowed to continue unchecked, sorry, but I’ve got work to do.” all need to be part of the solution; resentful employees will gossip As your mother probably told w Agree with your employees about about the offender, and the you long ago, the only way to make what constitutes gossip, and why offender’s friends will spread rumors sure that nobody else finds out about it is harmful; in return. So provide your staff with something is to tell nobody else w Keep confidential information less material for gossip by providing about it. Nobody, not even your absolutely confidential, not shared them with firm management and a secretary. Sometimes those with with one or two “trustworthy” suitable level of information about long-term secretaries feel that a sort people; firm business. Involved and re- of spousal privilege extends to all w The truth or falseness of the rumor spected employees typically have conversations held with that person. being spread is irrelevant; fewer gossip problems because they Bear in mind that your secretary may w Whether you are spreading gossip already know what the facts are, and not feel the same way; although or soaking it in is irrelevant; they are too busy to listen to anyone many are extraordinarily discreet, w Provide as much information and else’s version. some are not. I once worked with a feedback to employees as pos- Rumors and tales cannot spread firm where partners were mystified sible; gossip does not flourish without two participants: the one about why confidential hiring under these circumstances. U talking and the one listening. Most information kept filtering down to employees will attempt to defend the associates even though the Terri Olson is the Director of the State Bar’s themselves by indicating that they partners had not said a word to them. Law Practice Management Program. are only guilty of hearing gossip; It turned out that the associates were they weren’t spreading it. Nip this good friends with most of the justification in the bud. If everyone partners’ secretaries. in an office walks away the second The anecdote also illustrates someone else begins gossiping, the another one of the problems men- rumor dies right there. Make it clear tioned earlier: if the associates had Medical to staff that, although it may seem been provided with a discreetly harsh, someone who is known to edited version of the facts up front, while away the hours listening to they would not have been hounding Expert someone else’s chatter will be the secretaries for tidbits from the subject to the same discipline as the rumor mill. Testi- mony pickup 12/98 Garret new p74

FEBRUARY 1999 45 Drafting Divorce Settlement Agreements

By Doug Hill for instance by allowing one parent ing Saturday? Good Friday?) and the to make medical decisions and the other party to have Spring Break in a THE KEY TO DRAFTING A other to decide educational matters. given year, define both holidays in a divorce settlement agreement, as In providing for visitation or way that is mutually exclusive. with drafting any contract, is to “secondary physical custody,” in Better yet, give the same party both anticipate and provide for all contin- addition to granting the noncustodial Spring Break and Easter in the same gencies while avoiding the use of parent the right to see the child “at year to avoid a conflict. Another vague generalities or ambiguous all such times and under such solution is not to award specific terms. This article will discuss some reasonable conditions as the parties holidays to either party, but to of the more common pitfalls and tips may agree upon,” always provide for provide that “in the event a school or for avoiding them. a schedule to take effect in the event federally recognized holiday falls on Probably a majority of disputes the parties are unable to agree. In the the Friday preceding or the Monday between former spouses involve absence of a schedule, even the following the noncustodial parent’s issues relating to custody and slightest disagreement can spawn weekend to have the child with him visitation. It is impossible to foresee litigation. or her, visitation shall be extended 24 and forestall all of the potential Make the visitation schedule as hours to include such holiday.” issues that can arise in relation to specific as possible. Define what is Under this arrangement, each parent child-rearing; however, a lot of meant by the “first and third week- will get one-half of the holidays over recurring problems can be avoided end,” i.e., “the weekend commenc- time. If the agreement does provide for with a little foresight. ing on the first and third Friday of visitation by the noncustodial parent each month.” If the parties intend to during specific holidays, don’t forget Child Custody alternate weekends, identify the first to supersede the normal weekend weekend in the cycle, which parent schedule by providing that the custo- Increasingly, parties are agreeing will have the child, and how the dial parent will have the child at to exercise “joint custody” of their pattern will be affected by holidays reciprocal times, e.g., “during all children. Unfortunately, that phrase that interrupt the normal cycle. There holidays as defined above which are can mean entirely different things to must be some way of determining who not expressly granted to the noncusto- different people. In drafting an is entitled to a particular weekend, dial parent.” agreement it is a good idea to often months or even years in the When providing for time with address physical and legal custody future, if the court is to enforce either the child during the summer, con- separately. party’s rights in a contempt hearing. sider using the same dates each year, Legal custody governs the right Speaking of holidays, avoid a e.g., July 1 through July 31, or a to make decisions which affect the mere reference to “alternate holi- specific trigger date, e.g., “com- education, health and welfare of the days.” At least identify them by mencing at 6:00 p.m. on the seventh child. In addition to providing for reference to “school holidays” or day following the last day of school consultation between the parties and “federal holidays” or the specific for the school year.” If the dates are access to school and health records, events, e.g., Memorial Day, Labor going to change each year, be sure to any agreement should provide that Day, etc. Remember, Spring Break provide that whoever has the author- one parent has the ultimate decision and Easter are not synonymous. ity to select the dates for that year making authority over particular Some years Easter falls during the does so by a certain date, such as decisions (or a practical means of school Spring Break, but not always. May 1, or require sufficient advance resolving any “tie”). Remember, it is If it is intended for one party to have notice that the other party can plan possible to divide this responsibility, Easter (does that include the preced- his or her summer vacation with the

46 GEORGIA BAR JOURNAL child. Be sure to provide specifically it clear what the parties intend. Just be sure the agreement specifies that the custodial parent is allowed Birthdays, Mother’s Day, who will pay for these expenses and uninterrupted time with the child for Father’s Day, and other special how long the calls will last. that purpose and that he or she has family occasions need to be identi- the same right to telephone contact fied and specific times established Dividing Personal with the child, and even weekend for their observance, if the parties visits, if the child is with the other desire. The same holds true for week Property parent for an extended length of night visits. Often the parties want to The division of property can be time. The agreement should also keep the schedule flexible to accom- the most complex issue in a divorce specify whether the summer visita- modate changes in the child’s agreement, particularly if the assets tion will be exercised in one continu- activities or the parents’ employ- are substantial. Provisions relating to ous block of time or, if not, a Qualified Domestic Relations minimum increment of time. Orders and tax and bank- (Otherwise, “30 days” can be ruptcy considerations are spread out to include 15 two- divorce photo beyond the scope of this day weekends!) article. Instead, this article Defining “Christmas” from 12/96 will focus on common presents its own set of issue oversights involving the sale problems. Christmas Day or transfer of the marital does not always fall at the residence and common forms midpoint of the winter school of personal property. holiday. Thus, giving each In dividing personal parent “one-half” of the property, including bank holiday or “one week at accounts, vehicles, stocks and Christmas” could result in bonds, and household goods one parent having the child and furnishings, always on Christmas Day during provide for the payment of successive years. If the parents live ment; however, language should be any debts secured by such property. in the same area, they may choose to included that designates a specific (Even bank accounts may serve as divide the school break at 12:00 night and time in the event the collateral for certain loans.) If the noon on Christmas Day, but that may parties cannot agree or designates property has not been physically result in one parent getting more than which party will choose the night divided already, specify the date by half of the school holiday. If one and how and when notice is to be which the property will be picked up parent lives out of state, forcing a given to the other party. or delivered and by whom. Remem- child to travel on Christmas Day Finally, there is the issue of ber, if any property is not addressed may be impractical, as well as unfair telephone communication. This in the agreement, the parties’ owner- to the child. Giving each parent one remains a problem in some cases in ship rights in that property, whether week commencing on December 25 spite of, or perhaps because of, individual or joint, remain as they or 26 in alternate years assures an improved communication technol- were before the divorce. approximately equal division of the ogy. The solution to this problem If one party is awarded the school holiday, but, by dividing the will vary with the age of the child ownership of the marital residence, remaining time into two short and the parties’ circumstances. be sure to include the requirement segments, it may not give the other Setting a definite day and time for that the other party execute a quit- party sufficient uninterrupted time to each call is just one possibility. claim deed as well as language to travel with the child to visit out-of- Getting a separate telephone line and effectuate the transfer of title in the state family. In short, there is no answering machine for the child event they fail to do so. The agree- magic language for dealing with this (even a cellular phone or a pager so ment should also specify what debts holiday; family traditions vary the child is accessible at all times) is are secured by the real property and greatly and what works for one another, if the parties can afford it. who is responsible for satisfying family may not work for another. Stipulating that the child who is old each loan. While the parties cannot, The emphasis should be on what will enough to do so can call whenever between themselves, alter their work in each situation and then make he or she wishes is a third option. respective obligations to a lender,

FEBRUARY 1999 47 each can and should agree to indem- Alimony & Child Support (Unless the agreement provides nify and hold the other harmless otherwise, child support is not from any indebtedness assumed by The issues associated with reduced pro rata as each of several that party. alimony and child support are often children attains the age of majority.) If one party is to receive a future relatively simple compared to Be careful drafting an agreement lump sum payment in exchange for custody and property matters; which provides for an automatic his or her interest in the home, be however, there are a few areas in modification based upon a change in sure to specify the date or the the payor’s income. A minimum circumstances under which the payment should be specified to avoid payment will become due, e.g., “at the possibility that the amount could the earlier of such time as the If the agreement does decrease to zero. Also specify what youngest child attains the age of 18 type of compensation is being or will years or ceases to reside in the home not specifically provide be considered as income. Salary, or the former spouse sells or refi- commissions, bonuses, a vehicle nances the residence.” Particularly if to the contrary, allowance or reimbursement for you represent the recipient, make alimony payments expenses, and contributions to a sure the various contingencies retirement plan may all constitute establish an outer time limit within terminate upon the “income,” and the parties may intend which the payment must be made, to include or exclude any or all of otherwise both parties may be dead death of either party or these. Don’t forget to provide for a before any money changes hands. means of verifying changes in If the agreement requires the the remarriage of the income, such as requiring the parties marital residence to be sold, now or to exchange income tax returns, and in the future, you must clearly define party receiving the to specify the date on which the each party’s rights and responsibili- automatic change will take effect, ties in connection with the sale. payments and child preferably annually or on the effec- Establish a method for selecting the tive date of an increase in salary. real estate agent and determining not support terminates Another area involving support only the listing price but, more when the youngest which can trap the unwary practitio- importantly, the ultimate selling ner arises when one or both parties price. Keep in mind that the property child attains 18 years agree to pay for a child’s college may not sell immediately. Include education. The agreement should provisions to govern which party of age or otherwise first specify the particular expenses will have the use of the home to be covered, e.g., tuition, room and pending the sale, who will pay the becomes emancipated. board, books, student activity fees, monthly mortgage payment and the transportation, etc. The agreement taxes and insurance premiums (if the which special care needs to be taken. should also provide for the manner in latter are not included in the monthly Even the most basic agreement which any scholarship monies payment), who will pay for routine should specify the amount of the received (or monies contributed by maintenance as well as repairs that payments, when they are due, e.g., the child or from other sources) will may be necessary to make the home “on or before the first and fifteenth be credited against the amount more marketable, and specify days of each month,” and when or otherwise due. whether the payor will be reimbursed under what circumstances they will Be careful that the obligation to for any of these expenses from the terminate. Remember, if the agree- pay is not conditioned upon the proceeds of the sale. Don’t overlook ment does not specifically provide to approval or input of the payor into the possibility that neither party will the contrary, alimony payments the decision of which college the choose to reside in the home pending terminate upon the death of either child will attend. Such a provision the sale. In that event, special party or the remarriage of the party may permit a party to avoid his or provision may need to be made for receiving the payments and child her obligation merely by voicing an payment of the mortgage and utilities support terminates when the young- objection to the school selected. and the right to rent the home. est child attains 18 years of age or However, most agreements otherwise becomes emancipated. should contain some parameters on

48 GEORGIA BAR JOURNAL the parties’ obligation. Generally, the parties will want to limit the amount they may be required to pay to “the cost of attending the University of Georgia for an in-state resident student.” Consider also restricting the length of time payments will be made, e.g., a maximum of four years or until the child reaches a specified age (typically age 22 or 23, by which time the child is expected to gradu- ate), and requiring that the child attend school as a full-time student while maintaining a specified Hill International - minimum grade point average. In setting these parameters, be aware 4C pick up 12/98 that, in the absence of language to the contrary, once the obligation to pay post-minority expenses termi- nates, such as if the child does not attend school one quarter, the obligation may not be revived if the child subsequently reenrolls. Also, since the child could be held to be a third-party beneficiary of such an agreement, it is a good idea to include a clause that permits the parents to avoid their obligation, or to impose additional conditions on the child, if both parents consent to a modification. In conclusion, there is no such thing as a failsafe divorce agreement. People intent on antagonizing their former spouses can be fiendishly clever. Even so, clear and compre- hensive language can go a long way toward avoiding future litigation. By following these suggestions, the parties’ rights and obligations should be clear enough to avoid fruitless disputes over petty matters, thereby limiting counsels’ future involve- ment to those more serious issues for which he or she can expect to be compensated. U

Doug Hill is an attorney at Custer & Hill PC in Marietta. This article is reprinted with per- mission from the Cobb Bar News.

FEBRUARY 1999 49 Forsyth County Bar Goes to School By Lisa C. McCranie and planning a field trip to the familiar with these stories, they had courthouse. For the past two years he to look at each story from a different LAW-RELATED EDUCATION IS has been involved with a mock trial perspective and come up with a making a difference in Forsyth team in Jane Grebe’s fifth grade verdict. Participating in the mock County. According to Superior Court class at Sawnee Elementary. Judge trial helps the students see both the Judge Richard S. Gault of the Bell- Gault feels it is important for stu- prosecuting attorney’s and the Forsyth circuit in defendant’s points of Cumming, “It view, and learn that teaches students the there are two sides importance of being to every story. law-abiding citizens At Otwell and the conse- Middle School, quences of their Connie Lenich and conduct. With law- Christine Hartley’s related education, eighth grade Georgia there is a better history classes put chance of keeping on a mock trial as them from being in well. Each student court as adults.” received part of a The Forsyth scenario involving a County School murder case and had System has inte- to come up with grated law-related their own testimony education (LRE) into North Forsyth High School’s 1998 Mock Trial team. based on the infor- its classrooms thanks mation they were to a cooperative effort between the dents to gain knowledge as early as given. The students were responsible teachers and the local bar associa- possible not only of the legal profes- for all aspects of the trial from tion. Last year, members of the sion, but also other professions to making a stage look like a court- Forsyth County Bar Association expose students to possibilities for room, to costumes, to testimony and purchased LRE materials from the their future. Getting involved with questions. All of the court officials Carl Vinson Institute for every the students is personally rewarding were represented from the bailiff to school in Forsyth County. These because of the positive feedback he the judge with even the other eighth materials have become part of the receives from them. “It’s fun for me grade classes making up the court curriculum in classes like govern- to see them get excited; but it’s audience. The mock trial is a great ment, social studies and history, as difficult to disabuse them of how way for students to learn about court well as a part of extracurricular they see lawyers portrayed on t.v.,” procedures. To help the students activities such as the Mock Trial he said. prepare for the trial, Ms. Lenich and competition. Ms. Grebe’s fifth graders love Ms. Hartley relied upon An Introduc- Judge Gault became involved doing the mock trial. The first year tion to Law in Georgia, written by with the Forsyth County schools five the case was based on “Goldilocks the State Bar Young Lawyers Divi- years ago as a Partner in Education and the Three Bears,” and the second sion and published by the LRE by working with a second grade year on “The Three Little Pigs.” Consortium at the Carl Vinson class, visiting a couple times a year Even though the students were Institute.

50 GEORGIA BAR JOURNAL Ms. Lenich feels LRE is impor- in the community help the students According to Ms. Vail, “Once tant for students to realize that in a on the defense and prosecuting teams students become involved they want few years they could be on a jury, refine their case. Judge Gault holds a to do it over and over again. Kids get making decisions for their peers; dress rehearsal for each team, hooked on this.” Some students they are citizens enjoy it so much and in just a few that they return years will be as practicing legal adults, Everything that mock trial has to offer I am attorneys to help voting and the teams making deci- directly rewarded by. ... College admissions prepare for the sions for them- especially like seeing ‘mock trial team member’ on competition. selves and the If you are people around applications because it shows determination, interested in them. Mock trial law-related helps them to aggressiveness, public speaking, getting along well education, please think things contact the through and with others and a host of other characteristics.” Georgia LRE make an in- Consortium at formed decision —Taylor Howard, Sophomore the Carl Vinson based on the Institute of facts at hand. usually in his courtroom, giving Government of the University of While mock trials in the elemen- feedback to each attorney and Georgia; 201 North Milledge Av- tary and middle schools are inte- witness regarding his or her perfor- enue; Athens, Georgia 30602-5482; grated into the curriculum, at the mance. Experience has proven Judge (706) 542-2736. U high school it is an extracurricular Gault to be a good teacher; North activity. Teacher Kathy Vail has been Forsyth High School has come in Lisa C. McCranie works with the Chief Justice the mock trial team coach at North second place at the state Mock Trial Commission on Professionalism. Forsyth High School for the past 10 Competition for the last four years. years and has enjoyed every minute of it. In fact, she is a former Georgia LRE Teacher of the Year. The mock trial team is made up of 14 members from grades 9-12 who actively compete for their position on the team. Some of the students are interested in a legal career while others just wish to refine their verbal and analytical skills. Most students like the mental challenge of never knowing what will happen next. It’s Second Annual Awards Banquet different from drama where you Saturday, April 24, 1999 follow a script. High school junior North Central Marriott, Clairmont Road, Atlanta Lauren Ducharme recognizes the w w w skills she has developed as a member Among the honorees: of the team: “From this program not only do you obtain a better under- Georgia Bar Foundation standing of the law, but you are given Gwinnett Judicial Circuit and Court Administration Staff an opportunity to improve your and the 1999 Georgia Champion Mock Trial Team speaking style and to learn to think w w w logically on your feet, which are skills For tickets and sponsorship information contact Carol Brantley at transferred into everyday life.” 404/874-9300 or [email protected] Working with Ms. Vail, attorneys

FEBRUARY 1999 51 A LITIGATION RESOURCE WORTH ITS WEIGHT

Robert L. Haig, ed. Business and Commercial Litiga- The most striking features of this work are its subject tion in Federal Courts, American Bar Association matter orientation and its emphasis on strategy and Litigation Section and West Group. 6 vols., 6690 pages practical issues. Litigating an ERISA case? Go to Chapter and 2 diskettes of forms/jury charges $480 68 on ERISA. Are you troubled by a pesky RICO or Reviewed by John A. Chandler Securities Fraud issue? The experts will tell you how. In addition to substantive areas, there are informative he American Bar Association’s Section of Litiga- chapters on subjects such as jury selection and closing tion has published a massive, six-volume work arguments. Moreover, the Shaffer/King chapter on Sanc- Tentitled Business and Commercial Litigation in tions (Rule 11, discovery abuses) provides wise counsel: Federal Courts, which arrived on my desk complete with “Even well-founded sanctions motions entail costs that may a WordPerfect disc of forms. Edited by Robert L. Haig, a not be worth the fight” (Vol. 3, Ch. 48.2, p. 853). partner in Kelley Drye and Warren LLP in New York, this This work gives you more than the law. The Profes- work was written by 152 lawyers and judges. This series sional Liability chapter provides common law and fills the void between treatises that focus on the Federal statutory theories of liability for professional negligence, Rules of Civil Procedure and Evidence and those that are common pleading and discovery issues, a oriented toward single subjects or state law checklist of “essential allegations and de- claims. By focusing on the substance, fenses,” illustrative pleadings (including strategy and tactics for handling business those you can easily lift from the accompa- litigation in federal court, the treatise is nying disc) and jury instructions. worth its hefty $450 price (15 percent I kept the books around for a few discount to ABA members). weeks to see how they met the needs of The thought of reading nearly 7,000 a trial practice. A colleague asked for pages seemed somewhat daunting. I an “example of a petition for writ of therefore first looked at the authors—was mandamus filed in federal court this written by lawyers trying to make against an officer or employee of the names for themselves or by seasoned United States.” I could find no such veterans? The latter is the gratifying form, though there is a petition for answer. I turned to the chapter mandamus to the Court of Appeals. devoted to the area in which I most Several other more mundane requests, often find myself—the representation however, were easily satisfied. of accounting firms and law firms—to The law cited is illustrative, not exhaustive. discover that the authors are the best in our In several instances, key Eleventh Circuit deci- area of concentration: Dan Kolb and Jerry sions are not cited, although shepardizing the cases Snider at Davis Polk & Wardwell. Representing account- that are cited gets the reader to Eleventh Circuit prece- ing firms, Dan tried the Butcher Bank cases in Tennessee dent. (settled after months of trial) and tried and won (after an After using the books, I highly recommend them. 18-week jury trial) the combined FDIC/class action They are an extraordinary effort and an extraordinarily growing out of the failure of Continental Illinois Bank. useful work by knowledgeable practitioners. Any lawyer These are not rookies and are not lawyers who are afraid who regularly handles business litigation in federal court to try cases. The same can be said for Charlie Shaffer and needs access to these works. U Dan King from King & Spalding (“Sanctions”), and a number of the chapters are written by highly respected John A. Chandler is a partner in Sutherland Asbill & Brennan LLP who federal judges such as Chief Judge Roger Vinson of the has represented plaintiffs and defendants in business litigation in fed- Northern District of Florida (“Removal”). The authors eral courts for more than 25 years. know what they are talking about.

52 GEORGIA BAR JOURNAL Official Opinions Regents’ Tuition Remission and private persons solely to induce Reimbursement Program, as the economic activity for the general Education; Board of Regents does not employ welfare. (12/14/98 No. U98-15) Governor’s them as “full-time employees.” Regents; Board of; appropria- Honors Program. (12/21/98 No. 98-22) tions for. The General Assembly is Official Code of within its power to require informa- Georgia Annotated Unofficial Opinions tion of the Board of Regents under § 20-2-306(a) does Code Section 45-12-88 so long as its not authorize the Judges, Superior Court; exercise of the power does not State Board of retirement system benefits. A infringe upon the constitutional Education to Attorney General superior court judge who was a power of the Board to govern the include home- Thurbert Baker member of the Superior Court University System, particularly its schooled students in the Judges Retirement System and who power to receive and allocate as a Governor’s Honors Program. paid the requisite contribution to lump sum “[a]ll appropriations made (11/12/98 No. 98-18) obtain spousal benefits under that for the use of any of all institutions Taxation; Real estate transfer system may not recoup those spousal in the university system.” (12/14/98 tax. Georgia’s real estate transfer tax contributions if she subsequently No. U98-16) U applies to easements acquired by chooses to reject spousal benefits public utilities through condemna- under the new Georgia Judicial tion. (11/12/98 No. 98-19) Retirement System. (11/2/98 No. Fingerprinting; misdemeanor U98-13) criminal offenses. Updating of Officers and Employees, crimes and offenses for which the Public; gratuities. Local school AAA - Georgia Crime Information Center is system employee suggestion pro- authorized to collect and file finger- grams do not violate the constitu- pickup prints. (12/14/98 No. 98-20) tional prohibition against gratuities. Taxation; County ad valorem (11/12/98 No. U98-14) tax digest. O.C.G.A. § 48-5-304 Public funds; incentive grants 12/98 permits the Department of Revenue to private entities. Under current to accept an ad valorem tax digest precedent the Georgia Constitution p66 submitted for review by a county in a does not permit direct grants to revaluation year of either (a) the disputed assessed value of property involved in arbitration or appeals is 5% or less of the total assessed value of all property reflected on the taxable tangible digest, or (b) the number of parcels of property involved in arbitration or appeals is Arthur Anthony 5% or less of the total number of parcels shown on the digest. (12/21/ pickup 12/98 98 No. 98-21) University System employees; tuition benefits. ROTC faculty p68 members are not eligible to receive benefits pursuant to the Board of

FEBRUARY 1999 53 In Atlanta Jones & Askew LLP announces In Duluth that Holmes J. Hawkins III, Mary Robert E. Banta has opened Anthony Merchant Ph.D, and Lana L. Layton has joined the the Atlanta office of Fragomen, William L. Warren have been firm of Mary A. Prebula PC as an Del Rey, Bernsen & Loewy, an elevated to partner. The office is associate. The office is located at immigration firm headquartered in located at 191 Peachtree St., NE, 3483 Satellite Blvd. NW, Suite 200, New York. Mr. Banta is managing 37th Floor, Atlanta, GA 30303-1769; The Crescent Building, Duluth, partner of the Atlanta office. The (404) 818-3700. Georgia; (770) 495-9090. office is located at 1175 Peachtree St. NE, 100 Colony Square, Suite In Calhoun In Elberton 700, Atlanta, GA 30361; (404) 249-9300. The law firm of Howard W. Phelps & Campbell LLP Elrod & Thompson announces Jones PC, in Calhoun, announces announces that James W. Webb has that J. Vance Burgess III, David A. that Brent Erwin has joined the firm joined the firm. The office is located Dismuke, and Thomas C. Grant as an associate. The office is located at 313 Heard St., P.O. Box 1056, have become associates with the at 109 North Wall St., P.O. Box Elberton, Georgia 30635; (706) 283- firm. The office is located at 1500 1147, Calhoun, GA 30703-1147; 5000. Peachtree Center-South Tower, 225 (706) 625-2233. Peachtree St. NE, Atlanta, GA In Macon 30303; (404) 659-1500. In Conyers Williams & Henry LLP an- Shaffer, Raymond & Dalton, a nounces that Joseph A. Fried has Jeremy A. Moulton has joined firm practicing in the areas of become a partner in the firm and will the firm of Moulton & Massey as an domestic relations, personal injury continue to practice in the areas of associate. The office is located at and wrongful death, announces their medical malpractice, trucking and 904 Center St., Conyers, GA 30012; relocation. The new office is located catastrophic personal injury. The (770) 483-4406. at 3618 Vineville Ave., Macon, office is located at 1100 Peachtree Georgia 31202; (912) 471-1112. St., Suite 2020, Atlanta, GA 30309; In Decatur (404) 873-3000. In Washington DC Steven A. Nelson and Leonard Gwendolyn R. Keyes, the R. Gray Jr. have joined First Ameri- youngest and first African-American Securities and Exchange can Title Insurance Company, female to be elected to DeKalb Commission Chairman Arthur National Accounts Division, Mr. County’s Office of Solicitor General, Levitt has named Michael R. Nelson as Manager and Counsel, and was sworn-in on Jan. 15, 1999. She McAlevey Deputy Director of the Mr. Gray as Underwriting Counsel. replaces Ralph Bowden who served Division of Corporation Finance. Their office is located at 5775 as Solicitor General for 16 years. Mike McAlevey will leave his Glenridge Dr., Suite A-240, Atlanta, David Paul Pollan announces partnership at the law firm of GA 30328; (404) 836-6303. that the Law Office of David Paul Alston & Bird LLP next month to Womble Carlyle Sandridge & Pollan, Attorney and Counselor has join the Commission. As Deputy Rice announces that James H. relocated. He will continue to Director, Mr. McAlevey will be a Thompson, a resident of the firm’s practice in the areas of elder and senior advisor to the Director and Atlanta office, has been named a disability law from his new location will play a key role in the manage- new member of the Banking, Fi- at 309 Sycamore St., Decatur, GA ment of the Division of Corpora- nance and Property Practice Group. 30030; (404) 373-4562. tion Finance. The office is located at 1201 W Peachtree St., 31st Floor, Atlanta, GA 30309; (404) 888-7463.

54 GEORGIA BAR JOURNAL Tifton Bar Members Host Chamber of Commerce Event SUNSET TIFTON, A CHAMBER of Commerce sponsored “business after hours” event, was hosted by Tifton attorneys Joseph Carter and Bob Richbourg at their beautiful new office suite in the historic Lee building next to the State Bar of Georgia’s Satellite Office. The Satellite Office assisted Carter and Richbourg with preparations for the event. Several Tifton Circuit Bar Association members who are also Chamber members attended the evening of fellowship and networking. Chamber Director Carla Willet expressed her appreciation to Carter Tifton Bar Association and Chamber members (l-r): Ken Hiyler, Larry Mims, and Richbourg for their support of Benton Allen, Bob Richbourg, Lisa Gibbs, Joe Kunes, Melanie Cross, Joseph the Chamber of Commerce. U Carter and Buck Rigdon.

Mainstreet pick up 12/98 p.61

FEBRUARY 1999 55 Client Relations

Involving the Client in the Decision-Making Process By Henry W. Ewalt effort to the client’s business to client is reassured that he or she has render effective representation. retained a competent lawyer. The Initial Meeting: Now let’s examine some things Ask what goals the client wishes that should occur between lawyer you, as his or her lawyer, to accom- The Foundation of the and client early in the relationship. plish. What does the client want out Relationship The initial meeting with the of this case? Make a list. Read it client is critical to setting the tone for back to the client. Ask the client A COUPLE OF THINGS SHOULD the entire relationship. Permit the whether any other items should be never be done in an initial meeting, included on the list. or ever, with a client. We will Some clients need assistance in discuss them before we explore what thinking through what their goals should be done. If you feel the goals are really are. They also may need help First, it does no good to guilt- clarifying what they expect from trip the client by saying that if he or totally unrealistic and their lawyer. You should use the she had come to you before, the information you acquired from the client would not be in all this that you won’t be able client about what is to be accom- trouble. Most lawyers who use this plished to assist in goal setting and approach are trying to obtain a to convince the client lawyer expectations. superior-inferior relationship with The success and strength of a the client and also to position over time to modify lawyer’s relationship is largely themselves in case the matter governed by acquiring this informa- becomes worse. No matter how them, you will probably tion and using it effectively to build rewarding or protective to the lawyer be better off declining the relationship. So, if the client does it might be to guilt-trip the client, not articulate the expectations, the this paternalistic, judgmental ap- to undertake the lawyer, in the interest of developing proach obviously is not the way to a fruitful relationship, must politely build a good working relationship representation. probe to marshal the materials between adults, which includes most necessary to construct the advanta- lawyers and clients. client to tell every detail, even geous relationship. Second, telling the client how irrelevant ones, and to express In addition to goals, the lawyer busy you are and how many other feelings. Ask questions to gain should learn at least enough informa- matters you have to handle will not relevant information and to show tion from the client to answer the build the confidence of the client. you are interested. Take notes to following questions by the end of the The initial meeting with the client assure that what the client is saying initial meeting with the client: provides the lawyer with the perfect is important to you and to remember audience for boasting; however, to what the client said about this boast about how busy one is will particular situation. Discuss some of only worry the client about whether the general aspects of the law so the you will devote sufficient time and

56 GEORGIA BAR JOURNAL What Does the Client Continued from Page 33 the proposed rules, they will be published in the Georgia Bar Journal Expect From the Lawyer? will be provided with pattern for member comment. Each client brings unique speeches and a seven minute video expectations based on prior experi- that depicts three lawyers in their Conclusion ences or no experience with lawyers. everyday lives. The video is being If lawyers are going to meet those produced by Dan Sperling Video Inc. With improvements to the expectations, they must be known. and should be ready by mid-March. disciplinary process and new pro- Also Adsmith, an advertising agency grams like Foundations of Freedom, How Much Time, Effort, in Athens, has been hired to develop there is much to look forward to as four camera-ready ads for use by the State Bar of Georgia approaches and Money is the Client lawyers, firms, or local bars within the new millennium. This is your Willing to Commit to this their communities — whether in a chance to get involved by signing up local paper, high school football for the speakers bureau on page 69 Matter? program, theater playbill, etc. The or joining a committee using the Some clients will invest large Bar is also putting the finishing form on page 38. By working sums of money in a legal pursuit but touches on the “Client Care Kit” together, lawyers can make this a not the time required. Others have which lawyers can disseminate to new dawn for the profession and limited funds to expend or think a every client. It will contain important rediscover, as Gov. Barnes said, matter is only worth a limited forms designed to open the lines of “what it means to practice law.” U investment of money. The lawyer communication between lawyer and needs to know this because it will client. Finally the Bar is publishing a determine what course-of-action brochure to dispel 10 myths about options are available. lawyers, including, “How can a Being judgmental about the lawyer represent someone who’s goals will accomplish nothing at this guilty?” This will be available as part stage. For instance, saying that no of the Bar’s consumer pamphlet one has ever won a case like this is series and for lawyers to display in not a confidence builder. If you feel their reception areas. the goals are totally unrealistic and that you won’t be able to convince Improving the Disciplinary the client over time to modify them, you will probably be better off Process declining to undertake the represen- One of the greatest services the tation. The reason for this is that State Bar offers the public is protecting under these circumstances, it is them through the disciplinary process. Dan highly unlikely that you will able to During this meeting the Board again develop a satisfactory relationship broke into small group discussions to with the client. review the draft of proposed changes Turner Failure to develop a satisfactory to Georgia’s current disciplinary rules client relationship would, in the long to be more in line with the ABA Builders run, do your practice more harm than Model Rules of Professional Conduct. good. It will cause harm because you President Cannon has called a special will not be building toward repeat meeting of the Board on March 5 in pickup 8/ business and the client is very likely Macon to solely discuss these revi- to “bad-mouth” you to others. U sions. The proposed disciplinary rules 98 p50 are posted on the Bar’s Web site at Reprinted by Permission of the ABA from www. gabar.org. Members are encour- Through the Client’s Eyes, by Henry W. Ewalt, aged to review the rules and pass their published by the ABA Law Practice Manage- comments on to their Board of ment Section. © 1994 American Bar Associa- Governors representative before the tion. All rights reserved. March 5 vote. If the Board approves

FEBRUARY 1999 57 he Georgia Bar Foundation Inc. sponsors activities to promote charitable, scientific and educational purposes for the public, law students and lawyers. Memorial contributions may be sent to the Georgia Bar Foundation Inc., T800 The Hurt Building, 50 Hurt Plaza, Atlanta, Georgia 30303, stating in whose memory they are made. The Foundation will notify the family of the deceased of the gift and the name of the donor. Contributions are tax deductible. Benbensity, Lewis M. Admitted 1973 Johns, Alan Gordon Admitted 1988 Atlanta Died November 1998 Conyers Died November 1998 Davis Jr., I. Burl Admitted 1969 Mims, Gary Gene Admitted 1984 Macon Died December 1998 Atlanta Died December 1998 Foss, Tony James Admitted 1973 Neisler Jr., Hugh Mitchell Admitted July 1939 Augusta Died August 1998 San Antonio, TX Died January 1999 Harmon, Nolan Bailey Admitted 1952 Phillips, Erle Admitted 1948 Myrtle Beach, SC Died December 1998 Atlanta Died January 1999 Henderson Jr., Devaul L. Admitted 1970 Suddath, Ronald Newton Admitted 1990 Richmond Hill Died October 1998 Hogansville Died November 1998 Hishon, Elizabeth Anderson Admitted 1972 Atlanta Died January 1999

Name City Discipline Date of Supreme Court Order

Keith W. Benning ...... Augusta ...... indefinite suspension with conditions ...... Nov. 9, 1998

Reginia Rogers Jackson ...... Washington DC ...... voluntary surrender of license ...... Nov. 9, 1998

Donnie E. Perry ...... Woodstock ...... 36-month suspension with conditions ...... Dec. 4, 1998

Frank B. Perry ...... Ringold ...... public reprimand ...... Nov. 20, 1998

William S. Sumner...... Atlanta ...... reinstated ...... Nov. 19, 1998

E. Herman Warnock...... McRae ...... public reprimand ...... Dec. 4, 1998

Christopher Lyle Weems...... Molena ...... 18-month suspension...... Nov. 9, 1998

CAUTION! Over 30,000 attorneys are eligible to practice law in Georgia. Many attorneys share the same name. You may call the State Bar at (404) 527-8700 or (800) 334-6865 to verify a disciplined lawyer’s identity. Also note the city listed is the last known address of the disciplined attorney.

58 GEORGIA BAR JOURNAL Defendant Employer Settles for $275,000 Summary of Recently Published Trials When Employee Sexually Assaults Plaintiff During Job Interview Plaintiff was being offered a job at Bibb Superior Ct...... Collection - Infliction of Emotional Distress ...... Defense Verdict defendant’s retail shoe store when she was Chatham Superior Ct...... Artificial Stucco - Termite Damage - Bond ...... $12,000 lured into a private room and sexually Clarke State Ct...... Institutional Care - Transporting Youth Offender - Falldown ...... $95,000 assaulted by Defendant’s employee who had Clayton State Ct...... Auto Accident - Turning - Right-of-Way ...... $125,000 a prior record of sexual assault. (Solomon v. Clayton State Ct...... Auto/Van Accident - Intersection - Red Traffic Light...... $330,000 Family Dollar Stores; Fulton County State Clayton Superior Ct...... Auto/Truck Accident - Intersection - Right-of-Way ...... $25,000 Court) Cobb State Ct...... Contract - Sale of Travel Agency - Collection ...... $96,054 w w w Cobb State Ct...... Auto Accident - Intersection - Veering Off Road ...... $65,000 Shopper Obtains $390,000 Verdict in Cobb Superior Ct...... Auto Accident - Intersection - Right-of-Way ...... $30,000 Falldown at Wal-Mart Cobb Superior Ct...... Auto Accident - Intersection - Minor Passengers Injured ...... $65,500 Plaintiff, a middle-aged female, was Coweta State Ct...... Single Vehicle Accident - Emergency - Deer in Road ...... Defense shopping at Wal-Mart when she slipped and Verdict fell in auto cleaner residue resulting in a DeKalb State Ct...... Multi-Car Accident - Rear-End - Liability Admitted ...... $18,000 fractured sacrum. (Vining v. Wal-Mart; DeKalb State Ct...... Auto Accident - Exiting Parking Lot - Right-of-Way ...... $25,500 Muscogee County U.S. District Court) DeKalb State Ct...... Dental Malpractice - Crowns - Preexisting Periodontitis Defense Verdict w w w DeKalb Superior Ct...... Auto Accident - Removal of Road Shoulders - Warnings ...... $62,459 Failure to Remove Sponge From Chest DeKalb Superior Ct...... Falldown - Apartment Balcony - Railing Maintenance ... Defense Verdict After Heart Surgery Leads to $554,000 Fulton State Ct...... Auto Accident - Rear-End - Sudden Stop ...... $45,500 Settlement in Wrongful Death Case Fulton State Ct...... Auto Accident - Read-End - Epileptic Seizure ...... $150,000 The very active 83-year-old plaintiff died Fulton State Ct...... Auto/Cement Truck Accident - Lane Change - Settlement ...... $50,000 from circulatory problems created by a surgical sponge that was left in the chest Fulton State Ct...... Collection - Advertising Services - Quantum Meruit ...... $125,500 upon completion of aortic valve replacement Fulton State Ct...... Multi-Vehicle Collision - Speeding - Loss of Control ...... $2,900,000 surgery. (Girardot v. Levy; Fulton County — Fulton State Ct...... Dog Bite - Minor - Dog with Known Propensity to Jump Fence ...... $30,000 settled prior to filing) Fulton State Ct...... Auto/Taxicab Accident - Rear-End - Stopped on Highway ...... $40,000 w w w Fulton Superior Ct...... Conversion - Shareholder Profits - Derivative Suit ...... $259,071 Retail Store Found Liable in the Amount Fulton U.S. Superior Ct. ... Employment - Sexual Harassment - Constructive Discharge ...... $23,932 of $355,308 for Malicious Prosecution of Fulton U.S. District Ct...... Auto/Truck Accident - Rear-End - Braking Violations ...... $5,800,000 Shoplifting Charge Gwinnett State Ct...... Dental Malpractice - Placement of Crown - TMJ...... Defense Verdict Plaintiff, a middle-aged female, was Gwinnett Superior Ct...... Auto Accident - Rear-End - Following Too Closely ...... $14,000 shopping at Defendant KMart with friends Hall U.S. District Ct...... Employment - Sexual Harassment - Juvenile ...... Defense Verdict when she was arrested and ultimately Muscogee State Ct...... Auto Accident - Rear-End - Following Too Closely ...... $1,115 incarcerated for 24 days on shoplifting charges which were subsequently dismissed. Let us help you settle your case (Lovett v. KMart; Cobb County State Court) The Georgia Trial Reporter is the litigator's best source for impartial verdict w w w and settlement information from State, Superior and U.S. District courts. Tenant Recovers $500,000 Against For 10 years GTR case evaluations have assisted the Georgia legal Apartment Complex for Sexual Assault community in evaluating and settling difficult cases. Our services Resulting from Inadequate Security include customized research with same-day delivery, a fully searchable While a tenant at defendant’s apartment CD-ROM with 10 years of data and a monthly periodical of recent case complex, plaintiff was sexually assaulted, summaries. Call 1-888-843-8334. battered and robbed by an intruder who entered the premises due to the inadequate Wade Copeland, of Webb, Carlock, Copeland, Semler & Stair of Atlanta, says, security provided by defendant landlord. “Our firm uses The Georgia Trial Reporter's verdict research on a regular basis to assist us (Zinn v. Tempo Vista Apartments; Fulton in evaluating personal injury cases. We have been extremely pleased with both the results County State Court) and service and would recommend them to both the plaintiff's and defense bar.”

FEBRUARY 1999 59 Honorable Edward H. Johnson President of the association. Also, was installed as Chief Judge of the Mark C. Dukes has been appointed Justice Benham Court of Appeals of Georgia on Dec. to the Board of Managers. Mr. 16, 1998. In a separate ceremony on Mullinax and Mr. Dukes are mem- Honored by Jan. 6, 1999, Hon. Anne Elizabeth bers of Dority and Manning PA, a Barnes was sworn-in as Judge of the South Carolina intellectual property Law Students Court of Appeals following her law firm. election this past November. Cheryl Rivera Smith, share- The Quinnipiac College School of Beau Hays, of Hays & Potter PC holder of Smith & Jouette PC, was Law in Connecticut and the Black in Atlanta, was appointed Chair of recently appointed President of Law Students Association (BLSA) the Commercial Practice and Proce- Weststar Title Company. The law there, held a dinner in honor of Chief dures Committee of the Commercial firm and Weststar Title Company are Justice Robert Benham in October Law League of America. The located at 17736 Preston Road, Suite 1998. The Chief Justice spoke to an Commercial Law League, founded in 200, Dallas, TX 75252; (972) 931- assembly of students, professors, 1895, is North America’s premier 7445. colleagues and friends and shared his organization of bankruptcy and George S. Stern, a senior passion for the law. Chief Justice commercial law professionals. Mr. partner with Stern & Edlin PC in Benham was presented a framed Hays is active in the practice of Atlanta, has been elected President picture of the Supreme Court of creditors’ rights and business bank- of the American Academy of Matri- Connecticut by Justice Norcott. ruptcy law. monial lawyers. Stern previously According to The Quinnipiac The National Board of Trial served in a number of official Legal Times, “Mr. Sekou Gary, Advocacy announces that Alaric A. positions with the Academy, includ- President of BLSA and a third-year Henry has successfully achieved ing President-elect, First Vice student at QCSL, introduced Chief Board Certification as a civil trial President, Treasurer and Governor. Justice Benham as an extraordinary advocate through the NBTA. He also served as Governor and judge who is among the 100 most The Carolina Patent Trademark Treasurer of the International Acad- influential Black Americans today and Copyright Law Association emy of Matrimonial Lawyers and and whose court is noted as one of announces that J. Bennet Mullinax was a founder of the US chapter of the most progressive.” U has been elected Second Vice the international organization. U

Continued from Page 28 14. Id. § 19-11-32 et seq. (process to col- 20. O.C.G.A. § 19-6-32(a)(3)(a.1)(1) (en- lect delinquent support accounts; lim- tering income deduction order for 9. Id. § 19-11-150 (issuance of income itations). aware of child support; when order deduction order); see also id. § 19-11- 15. Id. § 19-11-37 (challenges to levy, effective; hearing on order). 151 (obligation of employer upon mistakes, procedures; reimburse- 21. Internet sites of interest for those receipt of income deduction order). ment); 42 U.S.C. §666(a)(19)(c)(1)(g) wishing more information include: 10. Id. § 19-6-33(c) (grounds by which (securing assets). Federal Office of Child Support En- the obligor can contest the income 16. 42 U.S.C. § 666(a)(14) (high volume, forcement—http://www.acf.dhhs.gov/ deduction order). automated administrative enforce- programs/cse; National Child Support 11. Id. § 19-6-33(e)(1) (statutory refer- ment in interstate cases). Enforcement Association—http:// ence to section 303b of the federal 17. Id. § 654(A)(e) (state case registry); www. ncsea.org; American Bar Asso- Consumer Protection Act, 15 U.S.C. § O.C.G.A. § 19-11-39 (computerized ciation Family Law Section—http:// 1673(b)). central registry for support). www.abanet.org/family/home.html; 12. Id. § 19-11-30.1 (computer based reg- 18. 42 U.S.C. § 654(A)(F)(1) (federal and the Eastern Regional Interstate istry); see also 42 U.S.C. § 666(a)(17) case registry of child support orders). Child Support Enforcement Associa- (financial institution matches). 19. Id. § 654(27) (state disbursement tion—http://www.ericsa.org. 13. O.C.G.A. § 19-11-30.2 (definitions; unit); Id. § 654(B)(a) state disburse- information from financial institu- ment unit. tions).

60 GEORGIA BAR JOURNAL Continued from Page 25 40. In Re Richmond Produce Co., 112 resentative or received to be handled B.R. 364, 377 (Bankr. N.D. Cal. on a net return basis from the produc- 1990). er. Id. § 2-9-1(2). 32. DeBruyn Produce Co. v. Olympia Produce Co., 734 F. Supp. 483, 485 41. Morris Okun, Inc. v. Harry Zimmer- 46. O.C.G.A. § 2-9-2 (1990). (N.D. Ga. 1989), where the court or- man, Inc., 814 F. Supp. 346, 348 47. O.C.G.A. § 2-9-5 (Supp. 1998). dered the escrow of $567,519.03 for (S.D.N.Y. 1993). 48. Id. § 2-9-11.1(b). the benefit of trust creditors. 42. 11 U.S.C. § 523(a)(4); In re Jesse 33. J. R. Brooks & Sons v. Norman’s Russell Nix, 1992 WL 11943 (M.D. 49. Id. § 2-9-11.1(c). Country Market, Inc., 98 B.R. 47 Ga. 1992). 50. Id. § 2-9-11.1(c). (Bankr. N.D. Fla. 1989). 43. Dealers in Agricultural Products Act, 51. O.C.G.A. § 2-9-11 (1990). 34. In re Anthony Tammaro, Inc., 56 B.R. O.C.G.A. § 2-9-1 et seq. 52. See supra notes 48, 49 & 51. 999 (D.N.J. 1986). 44. O.C.G.A. § 2-9-1(1)(Supp. 1998). 53. O.C.G.A. § 2-9-6 (Supp. 1998). 35. In re Ron’s Produce Co., Case No. 45. A dealer in agricultural products is 54. O.C.G.A. § 2-9-7 (1990). A90- 10975-ADK (Bankr. N.D. Ga. defined as any person, association, Oct. 29, 1990). itinerant dealer, partnership or corpo- 55. O.C.G.A. § 2-9-15 (Supp. 1998). 36. In re United Fruit & Produce Co., 86 ration engaged in the business of buy- 56. A similar arrangement exists in the B.R. 14 (Bankr. D. Conn. 1988). ing, receiving, selling, exchanging, sale of livestock to packers, namely negotiating or soliciting for sale, re- 37. In re San Joaquin Food Serv., Inc., the Packers and Stockyards Act, codi- sale, exchange or transfer of any agri- 958 F.2d 939, 939 (9th Cir. 1992). fied at 7 U.S.C. § 196 (1994). cultural products purchased from the 38. In re Kornblum, 81 F.3d 284 (2d Cir. producer or his agent or his represen- 1996). tative or received on consignment 39. C.H. Robinson Co. v. B.H. Produce from the producer or his agent or rep- Co., 952 F.2d 1311 (11th Cir. 1992).

West (Unlock the Power) - new 4C

FEBRUARY 1999 61 NOTICES First Publication of Proposed Formal Advisory Opinion No. 94-R11

Pursuant to Rule 4-403 (c) of the the opinion should be issued. If the between the institution and its cus- Rules and Regulations of the State Formal Advisory Opinion Board tomer. Such conduct would also Bar of Georgia, the Formal Advisory determines that an opinion should be constitute an impermissible conflict of Opinion Board has made a prelimi- issued, final drafts of the opinion will interest under Standards 35 and 36. nary determination that the following be published, and the opinion will be This prohibition does not, however, proposed opinion should be issued. filed with the Supreme Court of prevent in-house counsel from State Bar members are invited to file Georgia for formal approval. attending closings as attorney for the comments to this proposed opinion institution and preparing the docu- with the Office of General Counsel of Proposed Formal Advisory ments necessary to effectuate the the State Bar of Georgia at the Opinion No. 94-R11 closing including those documents following address: that must be signed by the customer QUESTION PRESENTED: and that may benefit both the institu- Office of General Counsel In a transaction involving a real State Bar of Georgia tion and the customer. Nor does the estate lending institution and its prohibition prevent the institution 800 The Hurt Building customer, may the in-house counsel 50 Hurt Plaza from seeking reimbursement for the for the institution provide legal legal expenses incurred in the transac- Atlanta, Georgia 30303 services to the customer relative to the Attention: John J. Shiptenko tion by including them in the cost of transaction? May the real estate doing business when determining its Fifteen copies of any comment to lending institution charge the cus- charge to its customer. The charge, the proposed opinion must be filed tomer a fee for any legal services however, may not be denominated as with the Office of General Counsel by rendered relative to the transaction? a legal or attorney fee but must be April 1, 1999 in order for the com- SUMMARY ANSWER: included in the charge being made by ment to be considered by the Formal The answer to both questions is the institution. There is inherent risk Advisory Opinion Board. Any “no”. An in-house counsel for a real of confusion on the part of the comment to a proposed opinion estate lending institution assists that customer regarding the role of in- should make reference to the request entity in the unauthorized practice of house counsel. Prudent lawyers will number of the proposed opinion. law in violation of Standard 24, if he act on the assumption that courts will After consideration of comments, the or she provides legal services to its honor the customer’s reasonable Formal Advisory Opinion Board will customers which are in any way expectation of in-house counsel’s make a final determination of whether related to the existing relationship duties created by the closing attorney’s conduct at the closing. OPINION: Standard 24, proscribing assis- Notice Regarding Disciplinary Rules tance in the unauthorized practice of law, prohibits in-house counsel for a real estate lending institution from At a special meeting on March 5, the Board of providing legal services to its custom- Governors will consider changes to the disciplinary ers. See also, Georgia Code of Professional Responsibility, Canon 3; rules. The proposed rules are posted on the Web at Georgia Code of Professional Respon- sibility, Ethical Considerations 3-1 & www.gabar.org. Every lawyer is encouraged to 3-8; Georgia Code of Professional review them and contact their Board representative Responsibility, Directory Rule 3-101, and ABA Model Rules of Professional with comments prior to March 5. Conduct, Model Rule 5.4(d). Stan-

62 GEORGIA BAR JOURNAL dards 35 and 36 prohibit such conduct customer (1) is likely to create an risk of confusion about the role of in- if the ability to exercise independent unintended expectation in the mind of house counsel at the closing will be professional judgment on behalf of the customer, (2) constitutes a non- high. Prudent in-house counsel should one client will be or is likely to be lawyer receiving the fee for legal anticipate that courts may treat the adversely affected by the obligation to services rather than an attorney, (3) reasonable customer expectations another client. See also, Georgia Code constitutes a lawyer splitting a fee regarding these legal services as of Professional Responsibility, Canon with a non-lawyer, or (4) directly creating duties even in the absence of 5; Georgia Code of Professional invites the unauthorized practice of a lawyer-client relationship. The Responsibility, Ethical Consideration law. It is accordingly prohibited even Restatement (Second) of Torts reports 5-14 - 5-20; Georgia Code of Profes- if limited to actual costs. The cus- that an attorney who represents only sional Responsibility, Directory Rule tomer cannot be made a part of the the lender may still be held liable in 5-105, and ABA Model Rules of attorney/client, employer/employee negligence to a borrower. See, e.g., Professional Conduct, Model Rule relationship. Seigle v. Jasper, 867 S.W. 2d 476 (Ky. 1.7. Specifically, in-house counsel The situation in which in-house Ct. App. 1973). A similar result may may not provide legal services at a counsel attends closings as attorney obtain under traditional contract or closing or elsewhere to a customer for the lending institution and pre- agency principles regarding third borrowing from the lending institution pares the documents necessary to party beneficiaries. This position is and arising out of the existing rela- effectuate the closing is fraught with supported by the Restatement of the tionship between the customer and the both legal and ethical risks beyond Law of Lawyering. While declaring institution. This is true whether or not assistance in the unauthorized practice the current state of Georgia law on the customer is charged for these of law and conflict of interests. Even this issue would be inappropriate and services. The role of employee though the above analysis (1) requires beyond the scope of this Formal renders the actions of in-house that in-house counsel’s lawyer-client Advisory Opinion, it is clear that counsel the action of the employer. relationship be restricted to the prudent in-house counsel will not The employer, not being a lawyer, is lending institution, and (2) prohibits ignore these risks both in advising the thus being assisted in and is engaging the direct billing for legal services by lending institution and in his or her in the unauthorized practice of law. the institution, the fact remains that conduct toward the customer as a The in-house counsel by virtue of the the customer may benefit from the matter of good lawyering. U existing employer/employee relation- actions of in-house counsel. Thus the ship and its accompanying obligation of loyalty to the employer cannot exercise independent professional judgment on behalf of the customer. This prohibition does not, how- ever, prevent in-house counsel from attending the closing as the institution’s legal representative and preparing those documents necessary to effectuate the closing. This includes those documents that must be signed by the customer. In such a situation, in-house counsel is providing legal services directly to the institution even though others, including the customer, may benefit from them. Golden Lantern - The prohibition on assisting in the unauthorized practice of law does not pick up 12/98 - use prevent the lending institution from including the expense of in-house counsel in the cost of doing business “advertisement” at when determining the fee to charge its customer. The lending institution may, in other words, recoup the expenses of top the transaction including the cost of legal services. This conduct does not in and of itself, create a duty to the customer on the part of the in-house counsel nor does it constitute a violation of the prohibition against the sharing of legal fees with a non- lawyer. On the other hand, charging the cost of legal services to the

FEBRUARY 1999 63 NOTICES Notice of Filing of Proposed Formal Advisory Opinions in Supreme Court Second Publication of 36, an attorney may not simulta- taining a good business relationship neously represent clients that have with the insurance company. This Proposed Formal Advisory directly adverse interests in litigation personal interest conflict may be Opinion Request No. 94-R6 that is the subject matter of either consented to by the insured client one of the representations. Whether after full disclosure of the potential Members of the State Bar of or not this is the case in the Question conflict and careful consultation. The Georgia are hereby NOTIFIED that Presented here, depends upon the Standard 37 limitation on consent to the Formal Advisory Opinion Board nature of the representation of the conflicts does not apply to Standard has made a final determination that insurance company. 30 conflicts. Such consent, however, the following Proposed Formal If it is, in fact, the insurance should not be sought by an attorney Advisory Opinion should be issued. company that is the true client in the when the attorney believes that the Pursuant to the provisions of Rule 4- unrelated matter, then the interests of representation of the insured will be 403(d) of Chapter 4 of the Rules and the simultaneously represented adversely affected by his or her Regulations of the State Bar of clients in the litigation against the personal interest in maintaining a Georgia, this proposed opinion will insured client are directly adverse good business relationship with the be filed with the Supreme Court of even though the insurance company insurance company for to do so Georgia on or after March 1, 1999. is not a party to the litigation and the would be to violate the attorney’s Any objection or comment to this representations are unrelated. The general obligation of zealous repre- Proposed Formal Advisory Opinion consent by the clients provided for in sentation to the insured client. must be filed with the Supreme Court Standard 37 is not available in these within twenty (20) days of the filing circumstances because it is not OPINION: of the Proposed Formal Advisory obvious that the attorney can ad- Correspondent asks whether an Opinion and should make reference equately represent the interests of attorney may defend an insured to the request number of the pro- each client. This is true because client when the attorney also repre- posed opinions. adequate representation includes a sents, in unrelated litigation, an requirement of an appearance of insurance company that claims a Proposed Formal Advisory trustworthiness that is inconsistent subrogation right in any recover with the conflict of interests between against the insured client. If the Opinion No. 94-R6 these simultaneously represented representation of the insurance clients. company is, in fact, representation of QUESTION PRESENTED: If, however, as is far more the insurance company and not What are the ethical consider- typically the case, it is not the representation of an insured of the ations of an attorney defending an insurance company that is the true company, then the analysis of this insured client under an insurance client in the unrelated matter, but an situation is governed by Standards of policy while simultaneously repre- insured of the insurance company, Conduct 35 and 36 which prohibit senting, on unrelated matters, a then there is no simultaneous repre- accepting or continuing representa- separate insurance company that sentation of directly adverse interests tion if the exercise of the lawyer’s claims a subrogation right in any in litigation and these Standards do independent professional judgment recovery against the insured client? not apply. Instead, the attorney may on behalf of a client will be or is have a personal interest conflict likely to be adversely affected by his SUMMARY ANSWER: under Standard 30 in that the attor- representation of another client. In Under Standard 35 and Standard ney has a financial interest in main- interpreting these Standards, we

64 GEORGIA BAR JOURNAL are guided by Ethical Consider- even if it is wholly unrelated.”)1 adequate representation will be ation 5-14: Of course, some simultaneous provided. This is not because Geor- representation conflicts can be gia lawyers are not sufficiently Maintaining the independent consented to by the simultaneously trustworthy to act professionally in professional judgment required represented clients. Consent, under these circumstances by providing of a lawyer precludes his accep- the Standards of Conduct is limited independent professional judgment tance or continuation of em- by two requirements. The first is that for each client unfettered by the ployment that will adversely consent can only be obtained in interests of the other client. It is, affect his judgment on behalf of those circumstances in which the full instead, a reflection of the reality that or dilute his loyalty to a client. disclosure necessary to adequately reasonable client concerns with the This problem arises whenever inform the clients’ consents can be appearance created by such directly a lawyer is asked to represent provided without breach of confiden- adverse interests could, by them- two or more clients who may tiality. The second is that consent is selves, adversely affect the quality of have differing interests, whether limited, by Standard of Conduct 37, the representation. such interests be conflicting, to those circumstances in which it is If however, as is more typically inconsistent, diverse, or other- “obvious that [the lawyer] can the case, what is referred to in the wise discordant. adequately represent the interests of Question Presented as representation each [client]. . . .” In interpreting the of the insurance company is, in fact, Unlike the more familiar stan- “obvious and adequate” test for representation of an insured of that dard applied in subsequent represen- consent, we are guided by the company, then the above analysis tation conflicts, the prohibition in provisions of Ethical Consideration does not apply. In such a situation, simultaneous representation conflicts 5-15. Ethical Consideration 5-15 the attorney’s primary ethical is not dependent upon a showing that advises that all doubts about divided obligation is to the insured and not to the matters involved are substantially loyalties should be resolved against the company, thus the fact that the related. This is so because the the propriety of the prohibition against simultaneous representation and representation of adverse interests is that, generally, based, primarily, on concerns with consent should not be loyalty to clients, the appearance of obtained when clients trustworthiness, and the preservation have differing of a lawyer’s independent profes- interests in litigation sional judgment for each client. See, and rarely obtained generally, ABA/BNA LAWYERS when they have only MANUAL ON PROFESSIONAL CONDUCT potentially differing 51:104-105 and cases and advisory interests in litigation. opinions cited therein. See, also, In the circum- ABA Comm. on Ethics and Profes- stances presented National sional Responsibility, Informal Op. here, it would be 1495 (1982) (lawyer may not accept reasonable for an employment adverse to existing attorney to be Legal Re- client even in unrelated matter; concerned that the prohibition applies even when adverse interests of search present client employs most lawyers the simultaneously in immediate geographical area, represented clients thereby making it difficult for could adversely Group - adversary to retain equivalent affect the quality of counsel). See, also, ABA Model the representation by pickup 12/ Rules of Professional Conduct, jeopardizing the Comments, Rule 1.7 (“Thus, a quality of the rela- lawyer ordinarily may not act as an tionship with the 98 p69 advocate against a person the lawyer client. It is, therefore, represents on some other matter, not obvious that

FEBRUARY 1999 65 company may have interests directly disclosure of the potential adverse true representation of an insurance adverse to the other insured client is effect of the personal interest company, but a representation of an not the issue. Instead, the attorney conflict and careful consultation insured of that company, then a may have a personal interest conflict with the attorney. No attorney, personal interest conflict exists under Standard 30 which provides: however, should seek such consent if which ordinarily may be consented “Except with the written consent or he or she believes that his or her to by the insured client. U written notice to his [sic] client after business interest will, in fact, full disclosure a lawyer shall not adversely affect the quality of the Endnote accept or continue employment if the representation with the insured exercise of his professional judgment client. To seek consent in such 1. The Supreme Court of Georgia has circumstances would be in violation not, of course, adopted the ABA Mod- on behalf of the client will be or el Rules. This citation is as persuasive reasonably may be affected by his of an attorney’s general obligation of authority only. The adoption of the own financial, business, property or zealous representation of all clients. ABA Model Rules by other jurisdic- other personal interests.” Such a We conclude, therefore, that if tions did not change the analysis of conflict arises because of the the representation in the situation simultaneous representation conflicts applied in this Opinion as an interpre- attorney’s need to maintain, for described in the Question Presented tation of Georgia Standards of Con- financial reasons, a good business is a true representation of an insur- duct. The point is that this analysis is relationship with the insurance ance company, then an well established. company. unconsentable conflict of interests Personal interests conflicts are exists and that entering into or not subject to the limitation on continuing with such simultaneous consent found in Standard 37. Here, representations would be in violation the insured client may consent, in of the Standards of Conduct. If, writing, to the conflict after full however, the representation is not a

Great American pick up 12/98 p87

66 GEORGIA BAR JOURNAL Lexis Nexis (New Level) - new- full 4C

FEBRUARY 1999 67 ICLE ICLE Meet the Judges Drivers License Revocation Atlanta, GA and Suspension 3.0/0.0/0.0/0.0 Atlanta, GA 6.0/0.0/0.0/0.0 ICLE Trial Strategy ICLE CLE/Ethics/Professionalism/Trial Practice Statewide GA Basic Estate Planning March 6.0/1.0/6.0/0.0 Atlanta, GA 6.0/0.0/0.0/0.0 1998 DISTRICT OF COLUMBIA BAR 1 - FORUM BAR ASSOCIATION ICLE MEALEY PUBLICATIONS INC. Consumer Law Training Georgia Appellate Practice Emerging Insurance Battles Washington, DC Atlanta, GA Conference 6.0/0.0/0.0/0.0 6.0/0.0/0.0/0.0 Amelia Island, FL 9 NATIONAL INSTITUTE OF 11.3/0.0/0.0/1.5 NBI, INC. DBA NATIONAL TRIAL ADVOCACY 4 BUSINESS INSTITUTE Nine - Day Program ICLE Georgia Land Use: Current Newark, NJ Family Law Convocation on Issues in Subdivision 55.5/2.0/0.0/55.5 Professionalism Annexation & Zoning 18-19 Atlanta, GA Atlanta, GA ICLE 6.0/0.0/0.0/0.0 3.0/1.0/01.0/0.0 Trial Evidence ORGANIZATION 11 Atlanta, GA MANAGEMENT, INC. ICLE 12.0/0.0/0.0/0.0 OMI’s 35th Annual Trial Strategy 18 Washington Non-Profit Legal Statewide GA ICLE & Tax Conference 6.0/1.0/6.0/0.0 Washington, DC Nuts and Bolts of Corp. and 11.7/2.0/0.0/0.0 NATIONAL INSTITUTE OF Banking Law TRIAL ADVOCACY Statewide, GA 5 Deposition Skills Program 6.0/1.0/0.0/0.0 Atlanta, GA ICLE ICLE 17.8/3.3/0.0/17.8 Dealing with the IRS Workers’ Compensation for Atlanta, GA ICLE the GP 6.0/0.0/0.0/0.0 Venture Capital Atlanta, GA ICLE Atlanta, GA 6.0/0.0/0.0/0.0 3.0/0.0/0.0/0.0 Advanced Construction Law 19 Atlanta, GA 12 6.0/0.0/0.0/0.0 ICLE ICLE Trial of a Sexual Whiplash Harassment Case Atlanta, GA Atlanta, GA 6.0/0.0/0.0/0.0 6.0/0.0/0.0/0.0

68 GEORGIA BAR JOURNAL ICLE 25 26 Real Estate Practice and ICLE ICLE Procedure Courtroom Techniques Metro City and County Statewide GA Atlanta, GA Attorneys 6.0/0.0/0.0/0.0 6.0/1.0/0.0/6.0 Atlanta, GA 6.0/0.0/0.0/0.0 23 ICLE CHATTANOOGA BAR Real Estate Practice and ICLE ASSOCIATION Procedure Professionalism and Ethics HIPAA, COBRA & Health Care Statewide GA Update Plans Update: Current ERISA, 6.0/0.0/0.0/0.0 Statewide GA Tax & Other 2.0/1.0/1.0/0.0 ICLE Chattanooga, TN Mediation Advocacy ICLE 4.0/0.0/0.0/0.0 Atlanta, GA Jury Selection and Persuasion 24 6.0/0.0/0.0/0.0 Atlanta, GA 6.0/0.0/0.0/0.0 NBI, INC. SOUTHEASTERN BANKRUPTCY Georgia Foreclosure & LAW INSTITUTE 30 Repossession 25th Annual Seminar on ICLE Atlanta, GA Bankruptcy Law & Rules Successful Trial Practice 6.0/0.5/0.0/0.0 Atlanta, GA Statewide GA 14.0/1.0/3.0/3.0 6.0/0.0/0.0/0.0

Advertising Index AAA Attorney Referral 53 Analytical Services 8 ANLIR 67 jennifer ad Arthur Anthony 53 Dan Turner Builders 57 Garret Group 45 Golden Lantern 63 Great American Insurance Co. 66 Health Care Auditors 44 Hill International 49 Lexis Law Publishing 71 Lexis Nexis Back Cover, 4, 9 Mainstreet 55 Medical Expert Testimony 45 National Legal Research Group 65 South Georgia Mediation 8 Wallace Law Registry 42 West Group Inside Front, 29, 39, 61,

FEBRUARY 1999 69 Classifieds

Employment: Attorneys LAW BOOKS FOR SALE. OGGA, OFFICE BUILDING FOR SALE/ $525. Georgia Digest II, $690, or both sets LEASE. 1901 square foot brick building in ASSOCIATE POSITION. Growing for $1100. Sets are complete and pocket parts Decatur. 15 minutes to Atlanta, 2 to Decatur AV-rated Macon law firm seeks attorney with are up to date. Call Mr. Smith at (770) 534- court. Furnished. Library/conference room, two to four years experience in civil 5269. closets, phone system, basement, corner lot, litigation. Compensation and benefits are Office Space free parking, MARTA line. Occupy all or competitive based upon level of experience. lease out. 2 tenants leased. Well maintained. Send resume and compensation requirements OFFICE FOR SALE. South Georgia. Excellent investment. 103 N McDonough to: Mark E. Toth, Hall, Bloch, Garland & Established 16-year-old general practice with Street. Jim Hollingsworth; (770) 493-9586. Meyer, P.O. Box 5088, Macon, GA 31208. emphasis on litigation. Located in progres- DECATUR-DEKALB AREA. ATTORNEY JOBS. Harvard Law sive and growing county. Furnished office, Attorney and secretarial offices and suites School calls our publication: “Probably the library, equipment, computers and network. available now at the Trinity Building, 118 most comprehensive source of nationwide Will remain “of counsel” to aid transition if East Trinity Place, Decatur. Full service for and international job openings received by desired. Send all inquiries to: Confidential attorney tenants and their personnel avail- our office and should be the starting point of Reply Box #892, Georgia Bar Journal, 800 able. Close to courthouse, MARTA and any job search by lawyers looking to change The Hurt Building, 50 Hurt Plaza, Atlanta, center of Decatur. Contact one of the jobs.” Each monthly issue contains 500-600 GA 30303. following: Charles Bass, Bill Witcher or Bob current (public/private sector) jobs. $45-3 Wilson at (404) 479-4400. months. Contact: Legal Employment Report, 1010 Vermont Avenue NW, Suite. 408-GBJ, Washington, DC 20005. (800/296-9611) Visa/MC/AMEX. www.attorneyjobs.com. ATTORNEY WANTED: I need a pro- mother lawyer to help me in a custody battle for my young daughter. My case is interest- ing and can be won. Please contact me at the following address: Ms. Riggins, 861 E. Confederate Ave., SE, Atlanta, GA 30316. Thank you. Books/Office Furniture & Equipment LAW BOOKS FOR SALE. Georgia ad coming Supreme Court and Court of Appeals Reports supplemented with SE Reporter (Georgia cases) through Vol. 443-444; Georgia Digest 1st and 2nd; Official Cod of Georgia; US Code Annotate; American Jurisprudence; Am Jur Pleading & Practice; and Am Jur Forms 2nd, ALR 2nd, 3rd, 4th, 5th, Federal with Digest and Index. For sale due to retirement. G.L. Dickens, Jr. (912) 452-0595; e-mail: [email protected]. SOUTHEASTERN 2D DIGEST FOR SALE. This set is in excellent condition and is priced to sell. Call (864) 582-0879, Spartanburg, SC. WILLIAM S. HEIN COMPANY. More than 70 years later, still your #1 source for buying/selling law books. 50%-70% savings on single volumes, major sets, Federal & State, Foreign/International law, Rare/Antiquarian law. Appraisal services available. Call: 1-800-496-4346. Fax: 1-716- 883-5595. Web site: lawlib.wuacc.edu/hein/ heinused.htm THE LAWBOOK EXCHANGE LTD. buys, sells and appraises all major law book sets—state and federal. For the best prices, top quality and guaranteed satisfaction, call toll free (800) 422-6686 for free information. Mastercard, Visa and American Express accepted. www.lawbooks.exc.com

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