Georgia Bar Journal (404) 527-8736 Editor-In-Chief Lawyer Assistance Program (770) 612-1122 (800) 327-9631 Scott Fain Bertschi W

December 2002 Volume 8 Number 3

Non-discriminatory Jury Selection in Georgia Quick Dial Attorney Discipline (800) 334-6865 ext. 720 (404) 527-8720 Consumer Assistance Program (404) 527-8759 Conference Room Reservations (404) 527-8712 Fee Arbitration (404) 527-8750 December 2002 Volume 8 Number 3 CLE Transcripts (404) 527-8710 Diversity Program (404) 527-8754 ETHICS Hotline (800) 682-9806 (404) 527-8741 Editorial Board Georgia Bar Foundation/IOLTA (404) 588-2240 Rebecca Ann Hoelting Georgia Bar Journal (404) 527-8736 Editor-in-Chief Lawyer Assistance Program (770) 612-1122 (800) 327-9631 Scott Fain Bertschi W. Fray McCormick Lawyers Foundation of Georgia (404) 659-6867 Elizabeth Lee Branch E. Peyton Nunez Law Practice Management (404) 527-8772 Erin Reynolds Chance Erick H. Rock Membership Records (404) 527-8777 Charles Madden Cork III Cynthia B. Smith Meetings Information (404) 527-8790 Lynda Carney Crum John I. Spangler III Pro Bono Project (404) 527-8763 Professionalism (404) 225-5040 John Michael Gross Robert R. Stubbs Sections (404) 527-8774 Michelle Wilkins Johnson Jerre Bailey Swann Jr. Unauthorized Practice of Law (404) 527-8743 Sarah Howard Lamar Kristin H. West Young Lawyers Division (404) 527-8778 Marcus D. Liner Pamela Y. White-Colbert

Manuscript Submissions Advisors The Georgia Bar Journal welcomes the submission of Theodore Harris Davis Jr. unsolicited legal manuscripts on topics of interest to D. Scott Murray the State Bar of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 Marisa Anne Pagnattaro pages, double-spaced (including endnotes) and on letter-size paper. Citations should conform to A UNIFORM Editors Emeritus SYSTEM OF CITATION (17th ed. 2000). Please address unsolicited articles to: Rebecca Ann Hoelting, State Bar Marisa Anne Pagnattaro, 01-02 L. Dale Owens, 87-89 of Georgia, Communications Department, 104 D. Scott Murray, 00-01 Donna G. Barwick, 86-87 Marietta St. NW, Suite 100, Atlanta, GA 30303. William Wall Sapp, 99-00 James C. Gaulden Jr., 85-86 Authors will be notified of the Editorial Board’s deci- Theodore H. Davis Jr., 97-99 Jarry B. Blackstock, 84-85 sion regarding publication. L. Brett Lockwood, 95-97 Steven M. Collins, 82-84 The Georgia Bar Journal welcomes the submission of Stephanie B. Manis, 93-95 Walter M. Grant, 79-82 news about local and circuit bar association happen- William L. Bost Jr., 91-93 Stephen E. Raville, 77-79 ings, Bar members, law firms and topics of interest to Charles R. Adams III, 89-91 Robert H. Walling, 75-77 attorneys in Georgia. Please send news releases and other information to: Joe Conte, Director of Communications, 104 Marietta St. NW, Suite 100, Officers of the State Bar of Georgia Atlanta, GA 30303; phone: (404) 527-8736; James B. Durham President [email protected]. William D. Barwick President-Elect Robert D. Ingram Secretary Disabilities George Robert Reinhardt Jr. Treasurer If you have a disability which requires printed materi- James B. Franklin Immediate Past President als in alternate formats, please contact the ADA coor- Derek J. White YLD President dinator at (404) 527-8700 or (800) 334-6865. Andrew W. Jones YLD President-Elect Headquarters Peter J. Daughtery YLD Past President 104 Marietta St. NW, Suite 100 Atlanta, GA 30303 Communications Committee (800) 334-6865 (404) 527-8700 FAX (404) 527-8717 William H. Dodson II Chairperson www.gabar.org Aasia Mustakeem Vice-Chairperson South Georgia Office 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Communications Staff (800) 330-0446 (912) 387-0446 FAX (912) 382-7435 Joe Conte Director Robin E. Dahlen Assistant Director Sarah I. Bartleson Communications Coordinator December 2002 Volume 8 Number 3

Legal 19 Natural Gas Deregulation in Georgia: A Market in Transition By Charles T. Autry and Roland F. Hall On the Cover Features Striking Out in the Batson Box: A Guide to 28 Historic Law School Hosts 2002 Fall BOG Meeting Non-ddiscriminatory Jury By Robin E. Dahlen Selection in Georgia 31 State Bar Expects Another Productive Legislative Year The Batson challenge in jury By Mark Middleton selection is misunderstood 34 Georgia Bar Foundation Awards $2.3 Million in Grants by many in the field. By Len Horton Edward D. Tolley and 35 Cumulative IOLTA Revenues Surpass $50 Million Jason J. Carter address By Len Horton the issue on page 12. 38 East Meets West: Georgia Delegation Explores China By George Mundy 41 Three Governors: Herman Talmadge, the Georgia Supreme Court and the Gubernatorial Election of 1946 Departments By Lucian Emery Dervan 46 The Grand Old Courthouses of Georgia: 4 From the President The Henry County Courthouse at McDonough 8 From the Executive Director By Wilber W. Caldwell 10 From the YLD President Publisher’s Statement 48 Bench & Bar The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (bi-monthly) by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303. © State Bar of Georgia 2002. One copy 52 Office of the General Counsel of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, GA. Opinions and conclusions expressed in articles herein are those of the authors and not necessarily those of the Editorial Board, 53 Lawyer Discipline Communications Committee, Officers or Board of Governors of the State Bar of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement does not imply endorsement 55 Law Practice Management of any product or service offered. POSTMASTER: Send address changes to same address. 58 South Georgia Office 59 Pro Bono Page Advertisers Index 60 Section News AAA Attorney Referral Service. . . . 29 Insurance Specialists, Inc...... 33 ANLIR ...... 51 John Rubio, ELPDG ...... 6 63 In Memoriam Arthur Anthony...... 43 LexisNexis ...... IFC Best Law Firm Solutions ...... 45 Litchfield Plantation ...... 17 65 CLE Calendar Butterfield, Reimer & Associates . . 42 Mainstreet ...... 47 Daniels-Head Insurance ...... 15 Merchant & Gould ...... IBC 71 Notices Daniel Turner Builders ...... 23 Mitchell Kaye Valuation ...... 11 DSI Technology ...... 57 Real Estate Exchange Services. . . . . 9 72 Classified Resources Georgia Lawyers Insurance Co. . . . . 2 SoftPro Corporation...... 21 Gilsbar, Inc...... 7 South Georgia ADR Service, LLC . . . 5 Golden Lantern ...... 61 West Group...... 25, 37, 72, BC Gregory Connor ...... 44 By James B. Durham Indigent Defense: President Responsibility and Reform

“ It is the policy of this state to provide the constitutional guarantees of

the right to counsel and equal access to the courts to all its citizens in Icriminal cases.” This is the policy of the state of Georgia as set forth in

from the the Georgia Indigent Defense Act adopted in 1979. The State Bar of Georgia

supported this policy prior to 1979, in 1979 and continues to support it today.

The legislature further states that it is the policy of this state to provide: ade-

quate defense services for indigent defense persons accused of a crime; ade-

quate compensation for counsel who represent indigent defense persons

accused of a crime; and guidelines to ensure indigent persons receive a fair

trial. In addition, the state sought to ensure the independence of counsel

when representing indigents and accepted the responsibility for funding the As lawyers, we indigent defense system. It should be a goal of all Georgia lawyers to assist need to educate our state in attaining the policies and principles promulgated in this act. the public and Unfortunately, more than 20 rized into two broad areas — inad- years after the enactment of the equate funding and a lack of uni- remind them of statute, the goals set forth have not formity in the quality of legal serv- been fully achieved. Although ices delivered. the importance of attorneys and Superior Court Individual counties bear the pri- judges throughout the state have mary responsibility for funding indigent persons worked diligently to achieve the indigent defense in this state. goals of the act, they have not Indigent defense is a constitutional- having equal always had access to the necessary ly mandated public responsibility resources. There are a number of and should be fully funded by the access to our issues concerning the quality of the state that authorized it. As a result delivery of legal services to indi- of the state of Georgia not accepting legal system. gent persons accused of a crime, the funding responsibility, there are and these problems can be catego- discrepancies throughout the state

4 Georgia Bar Journal in funding levels. These disparities lead to claims of ineffective assis- mended level. Three years ago, in in some areas of the state result in tance of counsel and a depletion of another jurisdiction, a single con- inadequate resources to fund indi- resources for new trials. One coun- tract defender handled 685 cases gent defense appropriately and ty incurred expenses totaling (felonies and misdemeanors). adequately. In addition, individual $256,519.46 to retry a single death United States District Court Judge counties oversee the manner in penalty case. This equaled more Marvin Shoob has ordered Fulton which the delivery of legal services than 10 percent of the county’s County to meet the caseload limits are provided. Although many anticipated revenue for that year. of Guideline 6.1, the only instance counties do an excellent job of pro- The Supreme Court of Georgia where that guideline has been viding indigent defense, with 159 Guideline 6.1, which tracks the made mandatory for a county. counties and 159 potentially differ- caseload recommendations estab- The need for indigent defense ent delivery systems, the risk of dis- lished by the American Bar reform is, unfortunately, all too crepancies in the quality of the serv- Association in 1973, recommends a apparent. The State Bar’s Board of ices delivered multiplies. maximum of 150 felonies per year Governors originally recommended The burden placed upon some for a full-time defender. In Georgia, the creation of the Chief Justice’s systems leads to over-worked this is not always the case. One Commission on Indigent Defense in attorneys and attorneys without public defender has reported that January of 2000. The commission has the adequate resources to investi- during one seven-week period a been carefully considering data from gate cases. Due to these difficulties, single attorney disposed of 90 all over the state and has listened to attorneys make mistakes that often felonies, far in excess of the recom- participants in the indigent defense

December 2002 5 system and their recommendations. ed by public defender systems when accused of a crime. We often The State Bar of Georgia made a and that the alternative system forget the judicial system does not presentation to the commission in complies with all applicable uni- punish the accused, but only pun- May of 2002. We requested the com- form state standards relating to ishes the convicted. People more mission consider the following six indigent defense representation. readily understand the concept of principles in its deliberation: 4. The process for selecting and freedom, within the context of 1. Indigent defense is a constitu- compensating indigent defense defending one’s country when tionally mandated public counsel should assure that indi- threatened by an aggressor. The responsibility. gent defense counsel and prose- concept of defending our freedom 2. Indigent defense is a state cutors are comparably compen- by making sure every citizen, irre- responsibility and should be sated and that indigent defense spective of their financial back- fully funded by the state at a counsels are afforded the same ground, has the resources to level that adequately protects degree of professional independ- defend himself or herself when the constitutional right to effec- ence as that of privately retained accused of a crime is much more tive assistance of counsel in criminal defense counsel. difficult for people to comprehend. criminal proceedings. 5. Indigent defense counsel Nonetheless, a citizen’s right to 3. In order to ensure a uniform should be provided investiga- defend himself or herself when quality of representation tors, paralegals and expert wit- accused of a crime remains a cor- throughout the state, Georgia nesses necessary to make an nerstone of freedom in our coun- should adopt a public defender independent assessment of the try. It is one of the freedoms our system, organized by judicial case and to assure fairness and forebears gave their lives to attain. circuits, that relies on appointed due process throughout each The absence of this right caused counsel for conflict and over- stage of the proceeding. many of them to seek out America flow work and is subject to dis- 6. Georgia should provide indi- more than 200 years ago. We must cernable professional standards gent defense counsel in capital make every effort to preserve a administered uniformly on a post conviction proceedings legal system that is a model for the statewide basis by an independ- and in other post conviction preservation of freedom through- ent oversight commission. The proceedings that involve a sen- out the world. commission should be author- tence of life or other substantial This is an issue that not only ized to permit judicial circuits to period of imprisonment. affects lawyers, but it affects all of implement alternative delivery Obviously, the commission will society. As lawyers, we need to systems if the commission have many points to deliberate educate the public and remind determines that the alternative beyond these six principles. It is them of the importance of indigent system is designed to meet or charged with an extremely difficult persons having equal access to our exceed the quality of indigent task. We believe, however, its work legal system. We expect the deci- defense representation provid- will be the start of needed reform sion of the Supreme Court to the indigent defense system in Commission on Indigent Defense “How I Dug Myself Out Of Georgia. by the end of the year. This could Debt, About to Quit Practicing Law, To Signing 10 to 30 New It is a commonly held belief that be the best opportunity since the Cases Per Month!” indigent defense is an unpopular 1960s, and since the enactment of By Eric A. Gang, Esq. cause outside the legal community. the Georgia Indigent Defense Act, FREE Special Report reveals how I dug The State Bar of Georgia should that the State Bar has had to facili- myself out of debt, making $500 a week, help educate the public and the tate change in the indigent defense frustrated, about to quit practicing law, to opening 3 law firms in 18 months, media about the importance of a system. We need the input, the signing a multitude of quality cases citizen’s right to defend himself or support and the energy of all of the including a $200,718.66 case that I herself when accused of a crime. lawyers in Georgia to help bring settled on 1/3/02. People often confuse the concept of about a long-awaited change in a Call 1 (800) 639-3419 for a FREE 24-Hour Recorded Message to order your free copy! being “hard on crime” with all citi- system that defines our state and © 2002 ELPDG, Inc. zen’s rights to defend themselves country.

6 Georgia Bar Journal

By Cliff Brashier Bar Center: Enhancing Law-Related Education

he State Bar of Georgia’s new Bar Center has been designed to

provide exceptional facilities for public education regarding the

judicial process and the rule of law in the United States. While Executive Director T most other state bar associations own their buildings, none have sufficient

space to offer anything comparable to the extensive law-related educational

programs outlined below. This one component of the Bar Center offers a sig-

nificant opportunity not heretofore available and has been extremely well

received by every public leader who has reviewed our plans. Working with from the the Georgia Law-Related Education Consortium in Athens, Ga., the 33,000

plus members of the State Bar will be honored to offer Georgia’s citizens the The Bar Center best educational opportunity of this type in the United States. truly offers The Bar Center is strategically school year will benefit from their a unique located in the heart of the state’s interactive day as participants in the most sought after school field trip judicial process at the Bar center. opportunity to venues, which include CNN Center, The Bar Center’s conference floor Centennial Olympic Park, the High contains over 40,000 square feet enhance law- Museum and the recently devoted exclusively to judicial, announced Aquarium/World of legal and public educational func- related education Coke complex, to name a few. With tions. Extensive renovations are many schools seeking educational planned for this floor to accommo- for Georgia experiences for all elementary, mid- date the large number of students, dle and high school classes, the attorneys and judges who will use students and the demand far exceeds the supply. As it daily. Several areas of special general public. such, it is estimated that approxi- interest for public education are mately 50,000 Georgia children each planned as follows:

8 Georgia Bar Journal Courtroom — A mock court- anteed by our Constitution and Civic Groups and Charitable room will greatly enhance law- laws. The Bar Center will also Organizations — When not in use related education in Georgia. The archive and display original legal for professional activities, the Constitution, Bill of Rights and the documents and other law-related meeting and conference facilities of freedoms all citizens enjoy will historic exhibits. the Bar Center will be available for take on new meanings as students Woodrow Wilson’s Law Office— public uses. observe the judicial process in The law office furniture used by The Bar Center truly offers a action. Staff members will use age U.S. President Woodrow Wilson unique opportunity to enhance appropriate, scripted trials to cre- when he practiced law in Georgia law-related education for Georgia ate a lasting impression of the is presently in storage at Georgia students and the general public. I importance of the rule of law in our State University. A historic replica encourage all of you to tour the society. The students will be of his office as it existed in 1882 will facility and share our vision for the assigned roles (judge, prosecutor, be re-opened for public viewing at Center. Please feel free to bring defense counsel, bailiff, court the Bar Center. The project will your family, friends, clients and col- reporter, witness, defendant, plain- bring together existing memorabil- leagues with you when you visit. tiff and juror) with everything ia and information on Wilson’s life As always, I am available if you scripted except for the jury’s ver- as a young Georgia lawyer and his have ideas or information to share; dict, which will be voted on by the family background, both before please call me. My telephone num- student jurors. We believe this and after he became the 28th presi- bers are (800) 334-6865 (toll free), experience will greatly enhance the dent of the United States. A video- (404) 527-8755 (direct dial), (404) students’ education of the judicial taped presentation will accompany 527-8717 and (770) 988-8080 system. Since lawyers and judges the exhibit and will illustrate the (home). will be attending meetings and social and cultural legacy of the seminars at the Bar Center on most Wilson Era in Georgia. days, they will be invited to observe the students and participate by offering supportive comments or answering questions. In addition, the courtroom will be used by the State Bar’s High School Mock Trial Program, in which over 100 schools and over 1,500 students from throughout Georgia participate annually. Museum of Law — The State Bar plans to work with the Georgia Legal History Foundation and other interested parties to host a museum of law, which will also be open to school tours and other public uses. Famous Georgia trials and significant U.S. Supreme Court decisions will be featured. This unique addition will be one of the few museums in the United States that will be dedicated to the education of our citizens on the history and importance of the judicial branch of government in the preservation of the freedoms guar-

December 2002 9 By Derek J. White Our Credit With Others Has Improveth YLD President

y first article for the Georgia Bar Journal was titled, “Every

Single Act Either Weakeneth or Improveth our Credit MWith Other Men. . . .” At the ABA/YLD Fall Conference, held Oct. 9 -12, 2002, in Cincinnati, Ohio, our reputation (credit) as a State

Bar was notably improved. from the The ABA/YLD is comprised of sentative of the state YLD that the officers of the ABA/YLD and made the submission. officers of several affiliate State Bar Our YLD Truancy Intervention Younger Lawyers Divisions (State Project was one of the many pro- YLD), such as the State Bar of grams and projects submitted and Georgia YLD. These officers have selected for presentation at the Fall If you see or periodic conferences to share the Conference. Fortunately for us, as a nuts and bolts of successful pro- Bar, Caren Cloud of Kids In Need learn of any grams and projects of the individ- of Dreams (KIND), Inc., provided ual divisions to provide a conduit the attendees with a highly inspira- person who for replicating them across the tional presentation of our project. nation. It was at an ABA/YLD con- Cloud is a co-chair of our YLD volunteers with ference where our annual Great Truancy Intervention Project, along Day of Service Project was first with YLD Director Kevin Snyder of any project of exposed to the officers of the State Parker, Hudson, Rainer & Dobbs in Bar of Georgia YLD. Atlanta. Although Snyder was our profession, Prior to the commencement of a unable attend the conference, we conference, the ABA/YLD selects do appreciate his dedication and please take the outstanding programs and projects hard work as a volunteer with the time to tell them from the many submitted by the Truancy Project. His efforts, various affiliate state YLDs. Those although unseen by most, are “Thank You.” selected are presented at an appreciated by those children with ABA/YLD conference by a repre- whom he comes in contact.

10 Georgia Bar Journal From the very beginning of the vate partner to help the Court and that could be touted. However, presentation, Cloud riveted the Bar manage this project. Thus, these projects are successful only conference attendees to their seats KIND, Inc., was incorporated and because attorneys such as Cloud, with some of the hard facts that led initially funded by a Centennial Snyder, the other YLD officers and to the inception of our Truancy Gift to the Atlanta Community, as directors, our Board of Governors Project. The Truancy Project was donated by the firm of Alston & of the State Bar and countless vol- started approximately 11 years ago Bird of Atlanta. unteers that have pledged to make in response to the number of stu- As a result of the efforts of a few a difference in our communities, dents who were attending court members of our legal community our profession and our state. proceedings more than they were over 11 years ago, a project that So, if you see or learn of any per- attending school due to truancy. In was essentially started with one son who volunteers with the 1994, over 15,000 children went attorney, one staff member and one Truancy Intervention Project or through the Fulton County juvenile court judge has become a any project of our profession, Juvenile Court system. Thirty per- project overseen by the Fulton please take the time to tell them cent of those children were under County Juvenile Court System, “Thank You.” For it is the the age of 13. More telling of the KIND, Inc., the Atlanta Bar unselfish deeds that go so unsung, severity of truancy in the state of Association, the State Bar of yet are so needed. Georgia is that 82 percent of all Georgia YLD, over 200 volunteer adult prison inmates are high attorneys and 50 non-attorney vol- ENDNOTES school dropouts. unteers. Since its inception, the Across the nation, a student Truancy Project has served over 1. The Complete Works of George Savile, First Marques of drops out of school every 10 sec- 1,700 students in the Atlanta area. Halifax. (1789). onds of every school day. Dropouts The success of the project is now 2. Facts cited in Cloud’s presenta- are six times more likely to be being replicated throughout the tion paper. unwed parents and seven and a state in other cities, such as 3. Id. half times more likely to be Savannah and Columbus. dependent on welfare than gradu- Hopefully, the success of the proj- ates. Each school failure costs soci- ect will reach all corners of our ety a minimum of $440,000 in lost great state. earnings and taxes over the lifetime Finally, Cloud concluded her of the individual. Finally, truancy remarks by explaining why the is the number one predictor among Truancy Intervention Project of boys and the number two predictor Georgia was so successful. She among girls of future criminal attributes its success to the caring activities. nature and dedication of the mem- After stating these alarming sta- bers of the Bar. Dedication epito- tistics, Cloud kept the audiences mized by those who saw the need attention by explaining the incep- of the project in order to provide a tion of the Truancy Project in the needed bridge for the widening state of Georgia. Judge Glenda gap of educational disparity in our Hatchett, former chief judge for the state. Fulton County Juvenile Courts, This presentation by Cloud, and Terry Walsh, the YLD presi- where she expounded on the good dent of the State Bar of Georgia at and selfless deeds of our fellow Bar that time, brainstormed and members, truly improveth our devised what is now our Truancy credit (as a bar) with others. And Intervention Project for the state of there are many other worthwhile Georgia. Luckily, they realized Bar projects that provide a service early that there needed to be a pri- to our community and profession

December 2002 11 Striking Out in the Batson Box: A Guide to Non-discriminatory Jury Selection in Georgia By Edward D. Tolley and Jason J. Carter “The defense strikes juror number 23 your honor.” “Objection, your honor. This is racially motivated. The defense has used all of its strikes only on white jurors and under Batson v. Kentucky, jurors can not be stricken because of their race.” “Well,” the judge asks the defense counsel, “Do you have an explanation?” “Your honor, I’m the commissioner of the Little League here in town. I have met enough parents to know which ones are going to cuss a nine-year-old for dropping a foul ball. This juror is that kind of person. As a matter of fact, this juror’s nephew plays on one of our teams and that kid’s father is no longer allowed at games. This is not the kind of juror the defense is looking for…” “This appears to be a race neutral explanation. Unless the prosecution has more evidence of discriminatory intent, the objection will be overruled.”

12 Georgia Bar Journal the Equal Protection Clause forbid TODAY’S LAW: ury selection is crucial in the prosecutor from challenging potential jurors based solely on the every trial, and even a sin- THE ANATOMY juror’s race.3 Moreover, Batson OF A BATSON gle mishandling of a allowed the defendant to make a J showing of discrimination by rely- CHALLENGE Batson challenge based on race or ing solely on the facts of his own The U.S. Supreme Court pre- case. The so-called “Batson chal- gender discrimination can result in scribed the form of a Batson challenge,” based only on selection of lenge in the 1995 case Purkett v. an otherwise fair trial being over- jurors in the trial at hand, was born. Elem.9 As shown in the little league The Batson logic was soon turned. Yet, despite its widespread example above, there is a three- extended. The Court, in Powers v. step process to challenging a Ohio,4 allowed white defendants to use and its grave importance, the peremptory jury strike as discrimi- object to prosecutors’ exclusion of natory: Step one, the opponent, or Batson challenge is still misunder- African-Americans from the jury. challenger, of the strike must make The race of the defendant became stood by many in the field. out a prima facie case of discrimina- irrelevant and the Equal Protection tion. Once this case is made, step This article provides a brief claim that is the basis for a “Batson two, the burden of production background on the current law, challenge” was not only based on shifts to the proponent of the strike explains the anatomy of a Batson the defendant’s rights, but on the to come forward with a race neu- challenge, and examines the most juror’s right not to be excluded tral explanation for why the partic- common pitfalls involved in ensur- because of his or her race. Based on ular juror was stricken. Once this ing that jurors are not excluded in a this logic, the court also extended minimal burden of production is discriminatory way. Batson to cover civil trials,5 reason- met, step three, the opponent or ing that a juror’s rights were no dif- challenger of the strike must meet FOUNDATIONS ferent when he or she was exclud- its burden of persuasion and prove ed improperly by civil litigants. OF THE to the judge that the strike was These decisions paved the way actually motivated by discrimina- CURRENT LAW for Georgia v. McCollum,6 which tory intent.10 In 1965, the U. S. Supreme Court created the so called “reverse- In Georgia, and in the Eleventh decided Swain v. Alabama,1 estab- Batson challenge.” In McCollum, Circuit, this system of analysis is lishing that the Equal Protection the Court held that a prosecutor can followed closely, with Georgia Clause of the Fourteenth challenge a defendant’s strikes if courts adding a state law require- Amendment ensured a black they are racially biased. Because ment that the explanation also be defendant access to a trial where the Constitution only proscribes “case related.”11 (This may be a jurors of his or her own race were state power, in order for the viola- problem for the defense in the not stricken solely because they tion of the potential juror’s rights to Little League example!) Moreover, were black. Under the Swain fall under the 14th Amendment, Batson and “reverse-Batson” chal- regime, however, a defendant this decision forced the Court to lenges are analyzed in virtually the could not prove that a prosecutor make a drastic theoretical leap and same way,12 so there is little differ- was discriminating against jurors consider the criminal defendant a ence between challenging a defen- based on that defendant’s trial state actor. dant’s strikes, and challenging alone. Courts required evidence Soon thereafter, the court those of the state. that the entire system was “per- extended Batson to cover gender- Step 1: The Prima Facie Case: verted” in order to overturn a based discrimination as well.7 “Objection, your honor. This is racial- conviction. Today, any discrimination based ly motivated. The defense has used all Two decades later, the Court on gender or race, regardless of of its strikes only on white jurors...” scrapped this evidentiary require- whether the juror is a member of a Whether a prima facie case of ment. Batson v. Kentucky2 reiterated protected class, is improper.8 racial discrimination exists is a that the defendant’s rights under

December 2002 13 The proponent of the strike need only artic- calls on the opponent of the strike to bear the burden of persuading the ulate a race-neutral explanation, and then judge that there exists discriminatory intent. “The ultimate burden the burden shifts to the opponent of the of persuasion regarding racial motivation rests with, and never strike to prove purposeful discrimination. shifts from, the opponent of the strike.”24 question of fact for the judge. In ty,” or certain forms of eye contact, A number of cases have been both the Eleventh Circuit and state the court noted that these may overturned because the second and courts, great deference is given to reflect stereotypical attitudes and third steps of the Batson analysis the trial judge’s finding in this should be given increased scruti- were combined and the trial court regard.13 This threshold question is ny.20 A court also found that the improperly required the striking thus very difficult to appeal and is state’s explanation that it was strik- party to justify the strike in step quite important in eliminating the ing a juror because the juror had a two, instead of making the oppos- use of discriminatory strikes. monogrammed gold tooth, was ing party prove discriminatory An indication of racial discrimi- based on an impermissible racial intent in step three.25 nation can arise due to a pattern of stereotype.21 Indeed, in Georgia “a party may strikes, or to a single strike that This initial step in the analysis is strike from mistake, or from igno- appears motivated by race or gen- an issue of fact for the judge. If the rance or from idiosyncrasy as long der. Georgia courts have recog- opponent of the strike shows the as the reasons do not relate to a nized prima facie cases where the indicators of discrimination, courts juror’s race.”26 This is perhaps the defendant used all of his perempto- move to step two of the analysis. only area in which the term ry strikes against white venireper- Step 2: Burden of Producing an “peremptory” still applies. A trial sons,14 where the defendant used Explanation: “Your honor, I am the court cannot reject a race/gender- 11 of 12 strikes to remove white commissioner of the Little League here neutral explanation for striking a people from venire,15 where the in town…” juror on grounds that it is not cred- state used all of its peremptory This step in the process is more ible or that it is whimsical, but strikes to exclude black jurors,16 noteworthy for what it is not. If must accept it, at this stage, if it is where the state used nine of 10 there is a prima facie showing of “facially neutral.”27 strikes against black jurors,17 racial discrimination, the judge will The proponent of the strike need where the state used six of 10 order the proponent of the strike (or only articulate a race-neutral expla- peremptory strikes plus one alter- strikes) to explain their reasoning. nation, and then the burden shifts nate strike to eliminate all of the However, there is no decision made as to the opponent of the strike to potential black jurors from the to the validity of the explanation at this prove purposeful discrimination.28 panel.18 Further, a prima facie case point. This is where most problems The Eleventh Circuit even uses a existed where the State used all of with Batson challenges arise, and “dual motivation” analysis to its strikes to exclude black people, mistakes at this stage often lead to allow a strike where there is an even when the percentage of trials being overturned. explicitly racial motivation along African-Americans on the petit According to the U. S. Supreme with a legitimate motivation, if the jury was greater than the percent- Court, the “explanation” does not legitimate explanation would have age on the venire.19 have to be persuasive or even plau- been sufficient to motivate the Even when there is no clear pat- sible.22 The only issue at this stage strike. In King v. Moore,29 for exam- tern, a prima facie case may exist in the game is the facial validity of ple, the prosecution explained their against certain strikes where there the explanation. Unless discrimina- strike in two ways. The first expla- appears to be stereotyping. For tory intent is inherent in the articu- nation was explicitly racial — they example, in a case where black lated reasons, those reasons will be were going to strike a juror because jurors were struck for seemingly considered race-neutral.23 she was a black woman; the second minor mistakes on a jury question- It is only after this burden of pro- was different and legitimate. The naire, “showing signs of immaturi- duction is met that the court then court held that the state met its bur-

14 Georgia Bar Journal den of production and the oppos- Once the proponent of the strike Initially, in trying to prove that ing party failed to meet its burden meets their minimal burden of pro- discriminatory intent exists, there of persuasion because a Batson duction and articulates a race neu- are two very helpful facts. First, error only arises in circumstances tral reason for their strike, the oppo- courts have held that when the where the legitimate reason is nent, or challenger of the strike, make up of the group excluded by insufficient itself to motivate the must persuade the judge that the one party closely parallels the strike.30 reason is “pretextual” and the strike racial makeup of the venire, almost Georgia courts, it seems, have a is actually made with discriminato- any neutral explanation will suf- slightly different approach. There ry intent.32 As stated above, the rea- fice. But, as the racial make-up of is language in some Court of son for the strike can be based on those excluded by strikes “deviates Appeals decisions that once a dis- idiosyncrasy, mistake, ignorance or further and further from the statis- criminatory motivation is found, it whim, but it cannot be based on tically expected result, it is increas- cannot be overcome by other race race or gender.33 Keeping in mind ingly likely that race bias — -inten- or gender-neutral reasoning.31 In that the opponent of the strike bears tional or not — is the real reason any court, it is difficult to fail to the burden of proving that the prof- for the disparity and greater scruti- meet the burden of production at fered race-neutral explanation is ny must be given to the proffered this stage of the analysis. mere pretext, the article now turns explanations…”34 Second, although Step 3: The Burden of Persuasion: to an analysis of explanations and no presumption arises if race neu- Can the prosecution prove the Little their race neutrality. tral reasons are not neutrally League reason is pretextual? applied, this is evidence of pur-

December 2002 15 Indeed, courts have held that any Batson ry.48 In two similar cases, prosecutors struck jurors based on the claim should be made before the jurors hunch or advice of a third party— the sheriff in one case and the vic- selected to try the case are sworn in order to tim’s widow in the other—and in both cases the appellate court remedy the situation as efficiently and effec- remanded the cases demanding further explanation.49 tively as possible. In Parker v. State,50 the state failed to articulate race-neutral reasons for striking three African- poseful discrimination.35 Indeed, family, one indicated he knew Americans where the prosecutor’s “the opponent of a strike may carry something of the case, had coun- explanations included the fact the its burden of persuasion by show- seled inmates in jail and had a one of them appeared to be sleeping that similarly situated members pending suit against a police offi- ing, one had a dour expression on of another race were seated on the cer, and the prosecution’s reasons her face, and one appeared “hos- jury.”36 were clear and reasonably tile” and was unemployed. The There are many examples of specific.43 Moreover, familiarity court ruled that the explanations race-neutral explanations. Employ- with the defendant or the defen- reflected unacceptable stereotypi- ment and age have been held to be dant’s family has been explicitly cal attitudes to particular groups race-neutral factors.37 Where a held race-neutral.44 and could not serve as the basis for court struck an unemployed black New trials are granted surpris- exercising peremptory strikes. nightclub singer, the reasons were ingly often, however, where dis- In a case involving gender dis- racially neutral because unemploy- criminatory motivation is found. crimination, where the defendant ment could show lack of commit- The Court found clear error where was accused of beating to death a ment and dedication to communi- the prosecution used six of 10 homosexual man who tried to ty.38 A court ruled that discrimina- strikes and one alternate juror sodomize him, a Batson issue arose tory intent was neither proven nor strike to eliminate all of the black because the prosecution used all inherent where a black defendant people from the panel and then six of its peremptory strikes against struck three whites, one of whom explained that they were striking male jurors, apparently theorizing was “familiar with drugs,” one was all the jurors with the same last that males would be less sympa- “pro-prosecution” and the other name as defendants prosecuted by thetic to the homosexual victim.51 strike was unexplained.39 A strike the district attorney’s office.45 The court found that discriminato- based on the fact that jurors were Moreover, it was not race-neutral ry intent was not proven because students was found race-neutral to strike a black juror because he is several of the excused jurors had (but was improper because it was a member of an all black profes- expressed hostile attitudes toward not “case related”).40 Sleeping or sional organization and believes gay men. The court ruled that these inattentiveness is a race-neutral that “racism is everywhere,” were gender-neutral reasons and and case related reason to strike a including the judicial system,46 or that the opponent of the strikes did juror.41 It was race-neutral for a because a juror was a member of not carry its burden of persuasion prosecutor to strike a juror who sat the NAACP.47 as a matter of law. behind the defendant’s mother on In a case involving gang activity, In Hernandez v. New York, a case the morning of jury selection, knew a district attorney struck two black dealing with discrimination the defendant’s mother and the public housing residents reasoning against Latinos, the U.S. Supreme prosecutor had prosecuted the that their dislike of gang members Court ruled that a prosecutor could defendant’s cousin.42 Race-neutral would make them biased. This was strike Latino jurors if he or she reasoning was found where the not held discriminatory as a matter believed that the particular juror state used nine out of 10 strikes on of law, but the court reiterated that would not defer to the “official” black venirepersons, but eight of ordinarily strikes based on residen- translation of anticipated Spanish them knew the defendant or his tial location alone are discriminato- language testimony.52 The Court

16 Georgia Bar Journal held that there was no per se viola- upon attorneys to demand that 6. 505 U.S. 42, 112 S.Ct. 2348 (1992). tion because the prosecutor had race and gender discrimination not 7. J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419 (1994). established two groups — those be tolerated. 8. Regarding application to white that would defer to the official jurors see e.g., U.S. v. Allen-Brown, translation and those that would Edward D. Tolley is a 243 F.3d 1293 (11th Cir. 2001) not — and Latinos and non-Latinos partner in the firm of (Batson is not limited to racial Cook, Noell, Tolley, minorities, but applies to anyone were in each group. who is excluded from a jury Bates & Michael, because of their race). PROCEDURAL Athens, Ga. He is the 9. 514 U.S. 765, 115 S.Ct. 1769 (1995). recipient of both the 10. Id. ISSUES AND State Bar of Georgia Profession- 11. Parker v. State, 219 Ga. App. 361, alism Award and the Chief 464 S.E.2d 910 (1995) (see especial- CONCLUSION ly J. Pope’s concurrence, reiterating Justice’s Award for Community the need, under State law, to enun- In addition to the actual trial Service. Tolley has authored ciate a case related reason for a procedure of a Batson challenge, numerous trial practice and aca- strike in addition to the require- there are other procedural issues demic articles. ments of Purkett). 12. The Eleventh Circuit explicitly that attorneys should be aware of. Jason Carter is a rejected the idea that greater While the U. S. Supreme Court has scrutiny is required when the chal- student member of allowed for the preservation of a lenge is to the defendant’s strikes. the State Bar of Batson claim despite “inartful- U.S. v. Stewart, 65 F.3d 918 (11th Georgia and a second Cir. 1996). Georgia Courts have ness,”53 it is still possible to waive year law student at done the same implicitly, but have your rights to make a Batson chal- the University of overturned several cases where the lenge by failing to file a timely Georgia, where he serves on the burden of persuasion regarding objection to the opposing side’s discriminatory intent was shifted Georgia Law Review. Carter improperly to the defendant. See 54 peremptory strikes. Indeed, recently published Power Lines: n. 26 infra. courts have held that any Batson Two Years on South Africa’s claim should be made before the Borders, a book detailing his expe- jurors selected to try the case are rience as a Peace Corps volunteer sworn in order to remedy the situ- in Africa. He is presently a law ation as efficiently and effectively clerk at Cook, Noell, Tolley, Bates as possible.55 It is also extremely & Michael, Athens, Ga. important, in the course of making objections, to preserve on the ENDNOTES record the racial or gender compo- 1. 380 U.S. 202, 85 S.Ct. 824 (1965). sition of the panel, the petit jury 2. 476 U.S. 79, 106 S.Ct. 1712 (1986). 56 3. It is important to note that the and the jurors who were stricken. Batson decision is based solely on The issue of racial or gender dis- the 14th amendment. The Sixth crimination in the selection of the Amendment, with its “fair cross- jury must be preserved for appeal. section” requirement, does not prohibit the prosecutor from exer- Understanding the way in which cising its preemptory challenges to Batson v. Kentucky and its progeny exclude potential jurors based on impact the way juries are selected race. The Sixth Amendment has been construed to mean that if the will allow lawyers to ensure their venire is a fair cross section of the clients get a fair trial, and will pre- community, the petit jury need not vent the costs of appeals and new be. Holland v. Illinois, 493 U.S. trials. But, more importantly, 474, 110 S.Ct. 803 (1990). 4. 499 U.S. 400, 111 S.Ct. 1364, (1991). because the vigilance of lawyers is 5. Edmonson v. Leesville Concrete the very essence of our system of Co., 500 U.S. 614, 111 S.Ct. 2077, rights, in choosing juries it falls (1991).

December 2002 17 13. U.S. v. Stewart, supra n.10; See e.g. 28. Malone v. State, 225 Ga. App. 315, 47. Ledford v. State, 207 Ga. App. 705, Ayiteyfio v. State, 254 Ga. App. 1, 484 S.E.2d 6 (1997). 429 S.E.2d 124 (1993). 561 S.E.2d 157 (2002). 29. 196 F.3d 1327 (11th Cir. 1999). 48. Smith v. State, 264 Ga. 449, 448 14. Burkett v. State, 230 Ga. App. 676 30. Id. See also Wallace v. Morrison, 87 S.E.2d 179 (1994). See also Congdon 497 S.E.2d 807 (1998). F.3rd 1271 (11th Cir. 1996) (prose- v. State, 262 Ga. 683, 424 S.E.2d 630 15. Williams v. State, 249 Ga. App. cutor’s admission that race was “a (1993) (stereotyping based in part 292, 548 S.E.2d 63 (2001); Hinson v. factor” in the exercise of perempto- on place of residence was not a State, 237 Ga. App. 366, 515 S.E.2d ry strikes does not, by itself, estab- race-neutral reason to strike). 203 (1999). lish a Batson violation). 49. Congdon v. State, 262 Ga. 683, 424 16. Lingo v. State, 263 Ga. 664, 437 31. Rector v. State, 213 Ga. App. 450, S.E.2d 630 (1993) (sheriff was key S.E.2d 463 (1993). 444 S.E.2d 862 (1994). prosecution witness and requested 17. Ford v. State, 262 Ga. 558, 423 32. See Purkett, supra, n.9; O’Neal v. that the juror’s be struck because S.E.2d 245 (1992); Berry v. State, State, 226 Ga. App. 224, 482 S.E.2d of their place of residence and his 262 Ga. 614, 422 S.E. 2d 861 (1992); 478 (1997). belief that all black people in that Mattison v. State, 215 Ga. App. 33. See Ayiteyfio, supra, n.27. location disliked him); Lewis v. 635, 451 S.E.2d 807 (1994) (prosecu- 34. Ford v. State, 262 Ga. 558, 423 State, 262 Ga. 679, 681, 424 S.E.2d tor using five of six strikes on S.E.2d 245, 247-8 (1992). 626 (1993) (state does not satisfy African-Americans); 35. See e.g. McKibbons v. State, 216 Ga. burden of providing race neutral 18. Ridley v. State, 235 Ga. App. 591, App. 389, 391, 455 S.E.2d 293, 295 reason “by stating that its peremp- 510 S.E.2d 113 (1998). (1995). tory challenges were exercised in 19. Smith v. State, 263 Ga. 224, 430 36. Hinson v. State, 237 Ga. App. 366, deference to the wishes of an indi- S.E.2d 579 (1993); see also Weems v. 369, 515 S.E.2d 203, 206 (1999). vidual concerned with the case.”) State, 262 Ga. 101, 416 S.E.2d 84 37. Burkett v. State, 230 Ga. App. 676, 50. Parker v. State, 219 Ga. App. 361, (1992) (fact that percentage of 497 S.E.2d 807 (1998); Gilbert v. 464 S.E.2d 910 (1995). blacks on jury was greater than State, 226 Ga. App. 230, 486 S.E.2d 51. Tedder v. State, 265 Ga. 900, 463 percentage of blacks in array after 48 (1997) (employment); Chandler S.E.2d 697 (1995). peremptory strikes was inadequate v. State, 266 Ga. 509, 467 S.E.2d 562 52. Hernandez v. New York, 500 U.S. to prove that there was no Batson (1996) (race neutral reasons found 352, 111 S.Ct. 1859 (1991). violation). where white jurors were struck 53. Ford v. Georgia, 498 U.S. 411, 111 20. Tharpe v. State, 262 Ga. 110, 416 because they were employed as S.Ct. 850, (1991). S.E.2d 78 (1992). supervisors and had authoritarian 54. Greene v. State, 260 Ga. 472, 396 21. Rector v. State, 213 Ga. App. 450, personalities). S.E.2d 901 (1990). 444 S.E.2d 862 (1994); see also 38. Minor v. State, 264 Ga. 195, 442 55. State v. Sparks, 257 Ga. 97, 355 Congdon v. State, 262 Ga. 683, 424 S.E.2d 754 (1994). S.E.2d 658 (1987). S.E.2d 630 (1993) (strike based on 39. Crutchfield v. State, 218 Ga. App. 56. See Love v. State, 205 Ga. App. 27, fact that juror was a member of a 360, 461 S.E.2d 555 (1995). 421 S.E.2d 125 (1992) (Defendant certain race and lived in a certain 40. Chunn v. State, 210 Ga. App. 209, did not preserve record sufficient- neighborhood was based on 435 S.E.2d 728 (1993). ly. Colloquies are included in impermissible stereotyping). 41. Hood v. State, 245 Ga. App. 391, record but are not competent evi- 22. Purkett, 514 U.S. at 768 537 S.E.2d 788 (2000). dence of facts observed); see also 23. Id. 42. Hall v. State, 261 Ga. 778, 415 Merritt v. State, 201 Ga. App. 150, 24. Hinson v. State, 237 Ga. App. 366, S.E.2d 158 (1991). 410 S.E.2d 349 (1991) (Alleging that 368, 515 S.E.2d 203, 205 (1999); see 43. George v. State, 262 Ga. 436, 421 strikes are “suspect” is insufficient, also Jackson v. State, 265 Ga. 897, S.E.2d 67 (1992). party has burden to show it affir- 463 S.E.2d 699 (1995). 44. Hightower v. State, 220 Ga. App. matively in record); Adams v. 25. See e.g., Chandler v. State, 266 Ga. 165, 469 S.E.2d 295 (1996). State, 199 Ga. App. 541, 405 S.E.2d 509, 467 S.E.2d 562 (1996); 45. Ridley v. State, 235 Ga. App. 591, 537 (1991) (Defendant’s attorney Williams v. State, 249 Ga. App. 510 S.E.2d 113 (1998). preserved on the record facts tend- 292, 548 S.E.2d 63 (2001); Smith v. 46. Randolph v. State, 203 Ga. App. ing to show discrimination, but State, 229 Ga. App. 765, 494 S.E.2d 115, 416 S.E.2d 117 (1992) (court failed to make motions or objec- 757 (1997); Burkett v. State, 230 Ga. held that juror’s belief that the tions to strikes. Issue was not pre- App. 676, 497 S.E.2d 807 (1998) judicial system contained racism served for appeal). (court found specifically that trial was not dispositive of bias); see also judge combined steps two and Walton v. State, 267 Ga. 713, 482 three of the Batson analysis by S.E. 2d 330 (1997) (strike not race- finding prematurely that an expla- neutral where prosecutor’s explanation was pretextual and placing nations that juror felt there was a the burden of persuasion on the dual system of justice, and that proponent of the strike). juror knew a particular black attor- 26. Ayiteyfio v. State, 254 Ga. App. 1, ney were not supported by the 2-3, 561 S.E.2d 157, 159 (2002). record and where the trial judge 27. Leeks v. State, 226 Ga. App. 227, offered a “neutral” explanation on 483 S.E.2d 691 (1997). the prosecution’s behalf).

18 Georgia Bar Journal Natural Gas Deregulation in Georgia: A Market in Transition

By Charles T. Autry atural gas deregulation in Georgia has yielded unexpected difficul- and Roland F. Hall ties, as evidenced by a barrage of consumer complaints and a call by Nsome consumers, lawmakers and regulators for a return to re-regulation.1 The recently passed amendments to the Natural Gas Competition and

Deregulation Act of 1997 (the Act)2 attempt to

address many of these difficulties, and ensure

that Georgia will remain at the forefront of the

nationwide movement toward deregulation of

the retail natural gas industry. After post-deregulation consumers com- plained of improper billing, dramatically higher gas bills and improper disconnections, lawmakers in both the Georgia House and Senate proposed bills to bring back regulation.3 However, the breadth of the new amendments, contained in the 2002 Natural Gas Consumer’s Relief Act (the Amendments),4 signal that the governor and the General Assembly, at least at present, are committed to continuing what has become the largest “test market” in the United States for retail natural gas deregulation, with over 1.4 million customers in Georgia now able to select their natural gas supplier.5 The Georgia model has been recognized as the “first real example of the development of a fully competitive retail market for natural gas in the U.S.”6 The amendments fall into three basic categories: Increased Competition. Many of the Amendments are aimed at increasing competition, most notably by allowing the natural gas affiliates of electric membership corporations (EMCs) to enter the natural gas market.

December 2002 19 Consumer Protection. The natural gas prices and interstate facilities, have the option of choos- Amendments also provide pipelines. ing a supplier other than their local increased consumer protec- A. Federal Efforts natural gas utility. tions, including a consumer Bill Gas marketing began to evolve The focus of deregulation has of Rights, customer service as an unregulated industry in the now turned to customer choice pro- standards and standards gov- late 1970s when congressional leg- grams for residential and smaller erning marketing efforts. islation and Federal Energy commercial natural gas customers. Distribution of Costs. Finally, Regulatory Commission orders States have been slow to engage in the Amendments aim to achieve deregulated wellhead gas prices retail restructuring for residential an acceptable balance for the and restructured interstate pipeline and smaller commercial customers, distribution of costs among res- operations.7 Pipeline companies primarily because of concerns idential consumers, small com- became primarily transporters, about customer service, billing and mercial consumers, and large allowing producers, LDCs and reliability. Because of these con- commercial and industrial cus- marketers to play a larger role in cerns, state retail choice programs tomers. supplying natural gas to end users. for residential gas customers did This article will first discuss the Utilities could buy gas at unregu- not appear until the mid-1990s.9 context in which Georgia’s deregulated prices directly from produc- Customer choice programs are at lation program was developed and ers, and non-regulated gas mar- work in over 20 states, either will briefly examine the restructur- keters could buy and sell gas using through legislative enactment or ing of the wholesale and retail nat- the pipeline transportation net- through private utility programs.10 ural gas markets. The article will work and provide packages of gas C. Restructuring Efforts in next discuss the Amendments and supply and services. The numbers Georgia their impact on Georgia’s retail nat- of national, regional and local non- The Georgia model for retail ural gas market. regulated gas marketers swelled in competition remains the most order to take advantage of the new fully-developed example of a com- RESTRUCTURING competitive environment, and petitive retail market for natural OF THE WHOLE- many of those marketers were affil- gas. Signed into law in April 1997, iates of producers, LDCs and the Natural Gas Competition and SALE NATURAL pipeline companies. Deregulation Act established a GAS MARKET B. Effects on State and Local framework for the transition to a Markets restructured retail market in which Retail natural gas restructuring The first impact of interstate gas marketers could compete to in Georgia came about in reaction deregulation on the retail markets serve retail customers. Georgia’s to major changes in the structure of was on large commercial and two investor-owned LDCs, Atlanta the nation’s natural gas industry industrial customers. Beginning Gas Light Company (AGL) and that began over 20 years ago. As shortly after the advent of deregu- United Cities Gas Company, were late as the 1970s, every step of nat- lation in the interstate market, state given the option of unbundling gas ural gas production, transportation governments and agencies began sales from distribution service.11 If and distribution was regulated. allowing LDCs to provide unbun- an LDC took this option, the LDC The prices charged by producers dled services to large commercial would eventually become a pipes- and pipelines were subject to feder- and industrial customers, an action only distribution company, with al regulation, while state agencies which gave customers the option of the LDC distributing gas sold to regulated the prices charged by the purchasing natural gas separately consumers by marketers certified local distribution companies from transportation services.8 by the Commission. AGL elected (LDCs), such as Atlanta Gas Light Large customers were then able to this option.12 Company, that sold the gas to retail bypass the LDCs and arrange for Unlike pilot programs in other users. In the 1970s, various pres- distribution services to be provided states, Georgia’s program provided sures caused by shortages in the by third parties. Today, the majori- that once an LDC elected to unbun- interstate gas markets resulted in ty of the nation’s large-volume cus- dle sales, full retail competition calls for deregulation of wholesale tomers, such as electric generating could occur almost immediately.

20 Georgia Bar Journal Under the Act, the LDC would other Amendments address the Rules must be set that establish be required to exit the commodity basic framework of Georgia’s greater protection for residen- sales function, and firm retail cus- restructuring effort. Many of the tial customers. tomers would be forced to select a Amendments were suggested by a An acceptable balance must be gas marketer. Deregulation took Blue Ribbon Task Force (Task Force) achieved for the distribution of place in less than a year and that was created in 2001 by Gov. Roy costs among the different types involved 1.4 million retail cus- Barnes in order to address issues of customers. tomers in AGL’s service territory.13 arising from deregulation.14 On Feb. The new amendments are dis- In August 1999, the retail cus- 5, 2002, the Task Force issued a Final cussed below in relation to each of tomers in AGL’s service area that Report with conclusions and recom- these areas. had not yet chosen a marketer were mendations based on testimony pre- A. Amendments Intended to randomly assigned one, and by sented to the Task Force, summaries Increase Competition October 1999 AGL had exited the of approximately 14,000 consumer The Task Force found that merchant function and provided complaints and reports received despite the initial influx of mar- only distribution services. from various agencies and entities. keters into Georgia, as of early The concerns expressed by the 2002, four marketers controlled 94 AMENDMENTS Task Force in its Final Report are rep- percent of the deregulated mar- TO THE ACT resentative of those expressed since ket.15 The Task Force identified the deregulation by the public, the need to maintain a competitive While many of the Amendments Commission and lawmakers, and market with improved options for contained in the 2002 Natural Gas can be distilled into three basic areas: consumer choice, and it specifically Consumers’ Relief Act are directly More competition is needed in recommended removing the barri- aimed at resolving problem areas order to gain the full advan- ers that prevented EMCs from identified by consumer complaints, tages of a deregulated market. entering the natural gas market.

December 2002 21 The Amendments related to (3) Lack of Competition – because of their ability to access increased competition can be bro- Temporary Directives EMCs’ familiarity with many of the ken down into the following areas: Under the Amendments, if services common to the gas indus- (1) billing and meter reading serv- more than 90 percent of firm try, such as customer service and ices; (2) interstate capacity assets; retail customers in a particular billing, and because of consumers’ (3) price regulations in non-com- delivery group are served by experience with the reliability and petitive market areas; and (4) lift- three or fewer marketers, the continuity of the EMCs standing ing restrictions on EMCs. presumption arises that market behind their gas affiliates.23 The most wide-ranging changes related to competition are those that allow natural gas affiliates of EMCs to enter the natural gas market in Georgia.

(1) Billing and Meter Reading conditions are not competitive, (a) Requirements for Services and the Commission may Obtaining Certificate of Under the Amendments, a com- impose temporary directives on Authority pany can perform “customer marketers, including price regu- Under the Amendments, the services” without obtaining a lations.18 Commission’s order granting certificate, with such services Temporary directives can also the certificate of authority must “including without limitation be issued if the Commission include terms and conditions to billing, meter reading, turn-on determines that prices paid by govern the relationship service, and turn-off service.”16 customers in a delivery group between the EMC and its affili- (2) Interstate Capacity Assets are “not constrained by market ate that “prevent cross-subsi- At present, AGL handles inter- forces and are significantly dization between the provision state transportation and storage higher than such prices would of electricity and the provision for some marketers in exchange be if they were constrained by of natural gas services, . . . for a monthly charge. Under the market forces.”19 encourage and promote fair Amendments, by July 1, 2003, (4) Allowing EMCs into the competition in the overall retail the Commission must hold a Market natural gas market, and . . . pro- hearing regarding a plan for The most wide-ranging changes tect the privacy of both electric assignment of interstate capaci- related to competition are those and natural gas consumers.”24 ty assets (interstate pipelines that allow natural gas affiliates of The terms and conditions in the and out-of-state gas storage EMCs20 to enter the natural gas order granting the certificate capacity) held by AGL (except market in Georgia. The Georgia must require the EMC and its for assets required for balanc- Electric Membership Corporation gas affiliate to fully allocate all ing). The plan, if adopted, will Act,21 which governs the business electricity activity costs and gas allow assignment of assets to activities that EMCs may engage activity costs between the marketers who meet technical in, had previously been interpreted EMC’s electricity activities and and financial requirements for as precluding EMCs from entering the gas activities of its gas affili- managing such assets.17 the natural gas market. The ate, and to develop a cost allo- To the extent assignment Amendments now allow “EMC gas cation manual that establishes occurs, marketers will no longer affiliates”22 to apply for and obtain rules for the pricing of transac- be able to rely on AGL to certificates of authority to become tions between the EMC and its arrange for transportation and gas marketers, although EMCs are gas affiliate to ensure that cross- storage, and will either have to still not allowed to directly enter subsidization does not occur.25 acquire the necessary expertise the market. EMC gas affiliates are The Commission may require and manage resources them- uniquely positioned to provide a that the EMC offer customer selves or purchase such services new element of competition to the services to all marketers at the from another marketer. natural gas market in Georgia same rates and on the same

22 Georgia Bar Journal terms and conditions as offered The Act’s major changes in this services provided by AGL to to an affiliate. Such services area include choosing a regulated marketers and consumers, and must be on a confidential basis, provider that will serve low- require AGL to meet certain such that the EMC does not income and high-risk consumers; benchmarks as to turn-on/turn- share information regarding a the creation of a “Bill of Rights” for off service, call center response marketer with any other mar- consumers; and a requirement that time, and forecasting.34 keter, including its EMC gas the Commission adopt rules The Commission is required affiliate.26 requiring disclosure statements to review performance at (b) Requirements for and standards for service. These least annually.35 Relationship Between EMC Amendments can be divided into The Commission can have an and Gas Affiliate the following categories: (1) estab- independent auditor exam- The boundaries of the permitted lishment of a regulated provider; ine compliance with the serv- relationship between an EMC and (2) conditions of service; (3) ice quality standards.36 its gas affiliate are specified by required disclosure of information; The Amendments also required statute and the Commission’s (4) billing; (5) remedies; and (6) Bill the Commission to adopt rules rules: of Rights. establishing service quality Not more than one-half of the (1) Regulated Provider standards for marketers and the persons serving as directors of a One of the biggest changes is the regulated provider.37 The rules gas affiliate can at the same time establishment of a regulated adopted by the Commission serve as directors of an EMC.27 provider to serve two classes of require marketers to: meet An EMC’s investment in, loan consumers: (a) low-income resi- benchmarks established by the to, or guarantee of the debts and dential consumers (designated as Commission in certain areas, obligations of an EMC gas affil- Group 1); and (b) high risk con- such as call center service, iate cannot exceed a specified sumers who have been unable to billing accuracy, and respon- percentage, and investments obtain or maintain service (desig- siveness to computer inquiries; and loans cannot reflect rates nated as Group 2).31 require the filing of quarterly available through the use of tax The regulated provider is reports; and require the exempt financing and cannot be required to establish rates for Commission to review compli- tied to loans from or guaranteed each class of consumer. ance on an annual basis.38 by the federal or state The Commission selects the reg- In addition, the Commission government. ulated provider through a com- was required to adopt rules B. Consumer Protections petitive request for proposals. governing marketers’ terms of The Commission received over The selection process takes service for consumers.39 The 14,000 complaints from consumers place every two years, although rules adopted by the after the 1997 deregulation, and the the Commission in its discretion Commission provide minimum Governor’s Office of Consumer can extend the term to three terms of service and specify the Affairs, as well as the marketers years or terminate service after disclosure statement to be given themselves, received many addi- one year.32 The Commission tional complaints.28 In addition, has selected SCANA Energy numerous news articles criticized Marketing, Inc., as the initial deregulation, which was described regulated provider. as “a nightmare of billing and cost- (2) Conditions of Service hike problems for residential con- Under the Amendments, the sumers”29 and as a “major failure Commission was required to of public policy.”30 Over 125,000 issue rules and regulations disconnections occurred in 2001. establishing service quality stan- Thus, it is only natural that the bulk dards for AGL.33 The rules of the Amendments are aimed at adopted by the Commission set providing protection for standards for the customer serv- consumers. ice, billing and meter reading

December 2002 23 to consumers.40 The require- Marketers are now required to Retail customers now have a ments include: file any changes in terms and cause of action when damaged Each marketer must obtain conditions at least 30 days prior by a marketer’s violation of any Commission approval of to the effective date of such order of the PSC or any of the policies for handling billing changes. The Commission can PSC’s rules concerning mar- disputes and requests for suspend the effective date for keters’ terms of service, billing payment arrangements.41 up to 90 days “if it appears to practices, and “substantial” vio- Advertised prices must now the commission that the pro- lations of rules concerning pro- be presented in a standard posed terms and conditions are vision of information to con- pricing unit.42 unconscionable or are unfair, sumers, and can recover actual Consumers are given a deceptive, misleading or con- damages, incidental and conse- three-day right of rescission fusing . . . .”48 quential damages, and attor- after receiving a disclosure (4) Billing ney’s fees.53 statement stating prices and Under the Amendments, late Such violations are also terms of service.43 fees are now limited, and mar- declared to constitute a viola- Marketers may not request keters are required to give con- tion of the Fair Business disconnection of service sumers a reasonable amount of Practices Act.54 where bills were not sent in time to pay bills before late fees (6) Bill of Rights a timely manner, and must or penalties are applied.49 The amendments provide a Bill offer a reasonable payment When a billing error is reported of Rights that includes the fol- arrangement prior to dis- to a marketer, the marketer now lowing: connection.44 has 30 days to correct the billing All consumers must have (3) Required Disclosure of error, and if the marketer does access to reliable, safe and Information not do so, the burden of proof is affordable gas service, The new Bill of Rights for con- on the marketer to show that including high quality cus- sumers includes the “right to the bill is correct.50 tomer service.55 receive accurate, easily under- The marketer cannot impose a Consumers have the “right to stood information about gas late fee or penalty or disconnect receive accurate, easily marketers, services, plans, service while the billing error is understood information terms and conditions, and being disputed if the disputed about gas marketers, services, rights and remedies.”45 amount constitutes the total plans, terms and conditions, Marketers must provide disclo- amount of the past due balance. and rights and remedies.”56 sure statements that allow for (5) Remedies All consumers must receive comparison of prices and serv- The Act now makes clear that a accurate and timely bills.57 ices on a uniform basis and that marketer’s certificate of authori- The statement of intent by state the terms of service and ty can be revoked or suspended the General Assembly now the marketer’s payment and if the Commission finds that the specifically states that “pro- cancellation procedures. The marketer has failed “repeated- tecting natural gas con- disclosure statements must ly” or “willfully” to meet obliga- sumers in this new reliance include specified information tions to consumers under the on market based competi- concerning the components of Act, the Commission’s rules and tion is the most important charges and billing methods.46 regulations, or the certificate.51 factor to consider in any Bills “shall be accurate and The Commission is to provide decision to be made in understandable and shall con- for consumer protection rules accordance with this tain sufficient information for a that have “self-executing mech- Article.”58 consumer to compute and com- anisms” that will resolve com- C. Shifting of Costs pare the total cost of competitive plaints in a timely manner, and A major issue involved in retail retail natural gas services.”47 that encourage marketers to restructuring concerns the shifting Certain specified information resolve complaints without of costs among the different types must be included on all bills. recourse to the PSC.52 of retail customers. Before deregu-

24 Georgia Bar Journal lation, state regulators typically ly residential consumers, experi- one of the concerns causing the required rate structures using enced higher prices.60 The differ- shift in costs was that large cus- cross-subsidies; in other words, ence in savings had also been wide- tomers would bypass the local dis- large commercial and industrial ly reported in the media.61 The tribution system. The Panel noted customers were effectively charged Panel noted: the possibility that the Commission more to subsidize residential and In the Atlanta Gas Light could authorize AGL to impose a small commercial customers.59 In Company service territory, the surcharge on interruptibles to go those states that have experiment- firm customers pay for the toward meeting AGL’s revenue ed with deregulation, the trend has entire cost of the distribution requirements for the distribution been that large customers, with system. Interruptible customers system, but did not resolve the more negotiating power, have pay no more than the marginal issue or make any recommenda- experienced more price benefits costs to serve them. When the tion.63 The amendments do in fact than residential customers and Act was passed, approximately shift more costs to large customers. small commercial customers. $50 million in costs was shifted The amendments require the With regard to Georgia, the Blue to firm customers. The current Commission to establish a sur- Ribbon Panel noted that while a system does not prohibit mar- charge for interruptible cus- small number of natural gas users – keters from placing these tomers “sufficient to ensure that including large industrial cus- charges on interruptibles, but it such customers will pay an tomers – received lower prices after discourages this in practice.62 equitable share of the cost of the deregulation, most users, especial- The Panel also noted that at least distribution system over which

December 2002 25 such customers receive serv- edying these problems, the retail 2. 1997 Ga. Laws 798 (codified in ice.”64 The surcharge is collect- natural gas market in Georgia scattered sections of O.C.G.A. §§ 46-4-150 to 166). ed by marketers and paid into remains a market in transition. 3. Dave Williams, State of the Senate the Universal Service Fund. An Address Gives Barnes Pulpit to Push exemption is made for certain Charles T. Autry is a Agenda, Online Athens, Jan. 26, 2002, available at hospitals with a high percent- partner and founding http://www.onlineathens.com/sto- age of Medicare and Medicaid member of Autry, ries/012702/new_0127020050.shtml. patients. Hortin & Cole, LLP. 4. 2002 Ga. Laws 499. Autry received his B.A. 5. These statistics were obtained from If there are any amounts in the the Internet site of the Energy from the University of Fund in excess of $3 million at Information Administration, a sta- Georgia, an M.B.A. from Georgia tistical agency of the United States the end of a calendar year, the State University, his J.D. from the Department of Energy. See excess funds can be used by the University of Alabama School of http://www.eia.doe.gov/oil_gas/ Commission to provide refunds natural_gas/restructure/restruc- Law and an L.L.M. in Taxation ture.html. to all retail customers. from Emory University School of 6. George R. Hall, Consumer Benefits The amendments increase the Law. He is a member of the from Deregulation of Retail Natural percentage of AGL revenues Atlanta Bar Association, the Gas Markets: Lessons from the Georgia Experience, Study prepared from interruptible service that American Bar Association and the for AGL Resources, Inc., by PHB are earmarked for the Universal Electric Cooperative Bar Hagler Bailly, Inc., at 5 (March 10, Service Fund.65 “The effect of Association. In addition, he is a 2000). member and past chairman of the 7. For a discussion of the various this is to increase the amount of orders issued by the FERC, see gen- money paid by the interruptible Georgia Electrical Membership erally Elisabeth Pendley, Corporation Counsel Association. customers going into the Deregulation of the Energy Industry, 31 Land & Water L. Rev. 27, 30-32 Universal Service Fund, so that Roland F. Hall joined (1996). the . . . Fund can be utilized to 8. U.S. Natural Gas Markets: Recent the law firm of Autry, assist low-income persons in Trends and Prospects for the Future, Horton & Cole, LLP, as Energy Information paying for their natural gas and an associate in Administration, Office of can be utilized for natural gas September 2001. Hall Integrated Analysis and refunds to all retail customers Forecasting, U.S. Dept. of Energy, received his J.D., at 20. 66 under the new law.” magna cum laude, from the 9. For a state-by-state analysis of the The amendments establishing Walter F. George School of Law at history and current status of retail the regulated provider were also Mercer University in 1994 and his choice programs, see http://www.eia.doe.gov/oil_gas/ intended in part to eliminate B.A., magna cum laude, from natural_gas/restructure/restruc- subsidization of high-risk cus- Mercer University in 1991. He is a ture.html. tomers by other customers.67 member of the Atlanta Bar 10. See id. See also Blue Ribbon Natural Association and the American Bar Gas Task Force, Final Report to Governor Roy E. Barnes and CONCLUSION Association. General Assembly of the State of Georgia at 8 (Feb. 5, 2002) [here- Although the problems resulting ENDNOTES inafter Blue Ribbon Report]. from Georgia’s deregulation model 1. See Doug Gross, Georgia Tackling 11. O.C.G.A. § 46-4-154. arose in part from outside forces, Natural Gas Woes, Online Athens, 12. United Cities Gas Company has no March 3, 2002, available at immediate plans to deregulate its such as rising wholesale costs and http://www.onlineathens.com/st services. an unusually cold winter in 2000, ories/030302/view_0303020076.sht 13. Blue Ribbon Report, supra note 10, at 7. most would agree that many of the ml. In early 2001, the then-current Chairman of the Georgia Public 14. The Task Force was created by an problems resulted from the acceler- Service Commission, testifying Executive Order issued by ated pace of deregulation and the before the Georgia House and Governor Barnes on November 18, 2001. Blue Ribbon Report, supra lack of preparedness of marketers Senate Appropriations Committees, called gas deregula- note 10, at App. 1. entering the Georgia market. While tion a “failure” and stated that he 15. Id. at 10. the most publicized of the new favored re-regulation. See Electric 16. O.C.G.A. § 46-4-152(7). See id. § 46-4-153(a)(1). amendments, such as those provid- Consumers’ Alliance, ECA Newsletters, Feb. 2001, available at 17. O.C.G.A. § 46-4-155(e)(13). ing additional protection for con- http://www.electricconsumers.org/ 18. O.C.G.A. § 46-4-157(b) & (c). sumers, go a long way toward rem- News/Newsletters/0201news.htm. 19. O.C.G.A. § 46-4-157(d).

26 Georgia Bar Journal 20. Electric membership corporations 38. Ga. Comp. R. & Regs r. 515-7-8 are nonprofit cooperative organi- (Service Quality Standards for Looking for a zations that were first formed in Certificated Marketers and the 1930s to bring electricity to Regulated Provider). new position? rural areas of the United States. 39. O.C.G.A. § 46-4-158.2(1)-(9). The Rural Electrification Act, 7 40. Ga. Comp. R. & Regs r. 515-7-9 U.S.C. § 901, now known as the (Natural Gas Marketers’ Terms of Rural Utilities Service, was enacted Service). Looking for by Congress in 1936, and empow- 41. Ga. Comp. R. & Regs r. ered the Rural Electrification 515-7-9-.02(8). a qualified Administration (“REA”) to begin a 42. Ga. Comp. R. & Regs r. program to encourage the avail- 515-7-9-.02(1). professional? ability of electric power in rural 43. Ga. Comp. R. & Regs r. 515-7-9-.05. areas. 44. Ga. Comp. R. & Regs r. 515-7-9-.04. The objective was to provide 45. O.C.G.A. § 46-4-151(9). electricity to those sparsely set- 46. O.C.G.A. § 46-4-158.3(1)(A)-(M). Look no further tled areas which the investor- 47. O.C.G.A. § 46-4-158.3(2). owned utilities had not found it 48. O.C.G.A. § 46-4-160(j). profitable to service. To this end 49. O.C.G.A. § 46-4-160(h). than the State Bar REA makes long-term low-inter- 50. O.C.G.A. § 46-4-160.2). est loans to approved [EMCs] 51. O.C.G.A. § 46-4-153(b). of Georgia’s organized and owned by their 52. O.C.G.A. § 46-4-160(a)(3). consumer members . . . . 53. O.C.G.A. § 46-4-160.5(a). Online Career Salt River Project Agr. Imp. & 54. O.C.G.A. § 46-4-160.5(b). Power Dist. v. Fed. Power 55. O.C.G.A. § 46-4-151(b)(9)A). Center Comm’n, 391 F.2d 470, 473 (D.C. 56. O.C.G.A. § 46-4-151(b)(9)(B). Cir. 1968). There are forty-two 57. O.C.G.A. § 46-4-151(b)(9)(F). www.gabar.org EMCs in Georgia. 58. O.C.G.A. § 46-4-151(a)(4). 21. O.C.G.A. §§ 46-3-170 to 541. 59. Kenneth W. Costello & Daniel J. 22. An “EMC gas affiliate” is a sepa- Duann, Turning Up the Heat in the rately organized entity of which Natural Gas Industry, Reg.: The Post jobs the majority interest is owned, Cato Rev. of Bus. & Gov’t., Vol. 19, held by or managed by one or No. 1 (1996). Post resumes more EMCs and which applies for 60. Blue Ribbon Report, supra note 10, a certificate of authority. at 10. Search jobs 23. Under the Amendments, the gas 61. See, e.g., Chris Holly, Gas activities that an EMC gas affiliate Deregulation is No Peach – Study, The Search resumes can perform do not include mar- Energy Daily, Sept. 13, 2000, at 1. keting and distribution of liquified 62. Blue Ribbon Report, supra note 10, petroleum gas (propane). at 25. 24. O.C.G.A. § 46-4-153.1(b). 63. Id. Powered by the Legal 25. O.C.G.A. § 46-4-153.1(b)(1)(A). 64. O.C.G.A. § 46-4-154(e). Career Center Network 26. O.C.G.A. § 46-4-153.1(b)(2). 65. O.C.G.A. § 46-4-154(b). 27. O.C.G.A. § 46-4-153.1(e). 66. Memorandum to Members of the 28. Blue Ribbon Task Force Report, Georgia House of Representatives supra note 10, at 5 & App. 8. from State Representative Jimmy 29. Tom Barry, Deregulation Remains Skipper, at 8, Apr. 15, 2002. Key Issue for Georgia Utilities, 67. Id. at 16-17. Atlanta Bus. Chronicle, Jan. 11, 2002, available at http://atlanta.bizjournals.com/atl anta/stories/2002/01/14/focus12. html. 30. Matthew C. Quinn, Public Pressure Sure to Make Deregulation a Hot- Button Issue, Atlanta Journal- Constitution, Jan. 11, 2002, at 81. 31. O.C.G.A. § 46-4-166(a). 32. O.C.G.A. § 46-4-166(a), (b), (f). 33. O.C.G.A. § 46-4-158.1(a)(1). 34. Ga. Comp. R. & Regs r. 515-7-7 (Service Quality Standards for the Electing Distribution Company). 35. O.C.G.A. § 46-4-158.1(d). 36. O.C.G.A. § 46-4-158.1(g). 37. O.C.G.A. § 46-4-158.1(a)(2).

December 2002 27 GBJ feature

Historic Law School Hosts 2002 Fall BOG Meeting By Robin E. Dahlen

Appointments unanimous vote, nominated the he University of Georgia and Nominations following attorneys to a two-year Law School in Athens, term to the Georgia ABA Delegate: The Board, by unanimous vote, George E. Mundy (Post 2); Myles E. Ga., served as the back- T approved the appointment of Gary Eastwood, of Atlanta (Post 2); and drop for the 188th meeting of the C. Christy, of Cordele, for a three- Donna G. Barwick, of Atlanta (Post year term to the Judicial 4). Election ballots for the afore- Board of Governors of the State Bar Qualifications Commission. The mentioned contested races will be of Georgia. State Bar President Board unanimously approved the mailed in December 2002. reappointment of Aasia James B. Durham, of Brunswick, Mustakeem, of Atlanta, for a two- Advisory Committee presided over a productive and year term, and George E. Mundy, on Legislation informative board meeting, which of Cedartown, to fill the expired term of William E. Cannon Jr., of Following a report by Jeffrey O. included a portion dedicated to Lake Junaluska, N.C., to the CCLC Bramlett, committee chair, the intense discussion in the form of Board of Trustees. The Board received breakout sessions on the issue of the following officer multidisciplinary practice (MDP). nominations: Jeffrey O. Bramlett, of In addition, attendees enjoyed the Atlanta, and J. traditional Friday evening recep- Vincent Cook, of tion, which was held in the law Athens, for the position of treasurer; school rotunda, and a tailgate party Robert D. Ingram, of prior to the University of Georgia Marietta, for the position of secre- versus New Mexico State football tary; and George R. Supreme Court Justice Carol Hunstein and BOG game on Saturday afternoon. The Reinhardt Jr., of Member Dennis O’Brien (right) visit with Chuck Tifton, for the posi- Dawgs, consequently, won the Jones, who will graduate from the University of tion of president- Georgia School of Law in 2005, during the Friday game 41 to 10. elect. The Board, by night reception.

28 Georgia Bar Journal Board passed, by unanimous vote, the following: Appellate Practice Section — Certification of Questions of Law to the Georgia Supreme Court: Currently, Federal Appellate Courts can certify questions of Georgia law to the Supreme Court of Georgia. This proposal requires that a change in Court Rules, legislation and an amendment to the Georgia Constitution would also allow Federal District Courts (trial Lawyer’s Foundation of Georgia Executive Director Lauren Barrett pres- courts) to certify questions as well. ents State Bar President Jim Durham with a contribution for the new Bar This matter was approved last year Center during the BOG meeting on Friday afternoon. and passed the full Senate and House Judiciary without trouble. It was held in the house Rules Committee in the closing days of the session. Georgia CASA — Appropria- tions Request: Currently, the state funds the Georgia Court Appointed Special Advocates at a level of $1,095,000. The request for the FY 2004 Budget is an increase of $390,000 to develop new programs Above left: State Bar President Jim Durham and his wife, Kathleen, during and enhance the existing program. the Saturday pre-game tailgate party. Above right: BOG members enjoy Georgia Indigent Defense the Friday night reception held at the University of Georgia Law School. From left: Allegra Lawrence, Bettina Yip and Karlise Grier. Council: Juvenile Discovery Bill. This bill creates a mechanism for dis- Meeting attendees get covery in juvenile cases. The bill geared up for the Georgia passed last year, but was vetoed football game at the pre- because of a costly amendment game tailgate party on that was tacked on the bill. The Saturday morning. From left: Julie Daughtery, for- bill allows for juvenile defen- mer YLD Immediate Past President Pete Daughtery, YLD President Derek White and Kelli White.

BOG member Joseph Roseborough (left) and former State Bar President Rudolph Patterson discuss the finer points of Georgia football at the Friday night reception.

December 2002 29 dants to seek discovery from by the litigation regarding the the prosecution and, when trees, construction overruns and an applicable, allows the prose- extremely adverse leasing market, cution to seek information on it is projected that the Bar needs an the juvenile’s alibi. addition $7 million in equity to 2003-2004 Budget Request: complete the Bar Center project. The Georgia Indigent Council Based on current fundraising esti- (GIDC) is seeking an addition- mates, the Bar has raised $1.5 mil- al $4,793,989 in the State FY 03- lion and my soon receive another 04 Budget for its Grants to $1.5 million toward the needed Counties subsidies. This equity. Additional fundraising State Bar President Jim Durham (right) vis- amount would: increase the efforts continue. In addition, its with BOG member Dow Kirkpatrick state contribution to 20 percent George R. Reinhardt Jr. provided during the Friday night reception. of the total, up from the cur- the Income Statement by rent 11.35 percent; a $300,000 Department for the 12 months end- increase to $537,935 for the ing June 30, 2002. new Improvements Grants Related Organizations Program; and a $307,052 increase to the Multi-County President Durham presented a Public Defender’s office to add resolution to Rudolph N. Patterson, four additional staff people. of Macon, recognizing the Georgia Supplemental Budget: Bar Foundation as being one of the GIDC is seeking an $115,000 most successful IOLTA programs increase to the Multi-County in the country. In addition, Lauren Defender’s budget for mov- Barrett, executive director of the ing expenses, and $21,542 for Lawyers Foundation of Georgia, a 2.25 percent cost-of-living presented a $250,000 contribution adjustment. to the Bar for the Bar Center. State Bar President-Elect Bill Barwick and Business Law Section — Additional Business his wife, BOG member Donna Barwick, Georgia Limited Liability pose for the game during the pre-game Company Revision: This bill State Bar Past-President Linda A. tailgate festivities. would: change Georgia law Klein, of Atlanta, provided a report to allow a person without an on MDP, which lead into several economic interest in an LLC breakout sessions to further discuss to be a member or manager the topic. The Board also received a of an LLC; grant voting copy of UPL Advisory Opinion No. rights to certain members 2002-01. Delia T. Crouch, of and managers by written Newnan, reminded members of the operating agreement; and Board of Georgia Legal Service’s allow non-members to own annual campaign and encouraged an interest in profits, etc., of all members to participate. State Bar an LLC. This change would President-Elect William D. Barwick, conform Georgia’s law to the of Atlanta, provided a report on the Delaware statute. 2004 Annual Meeting, which Bar Center and is scheduled to be held June 17-20 in Orlando, Fla. BOG member Nancy Jean Whaley and her Treasurer’s Report husband, John, show off their team colors Robin E. Dahlen is the assistant President Durham provid- during the pre-game tailgate party. director of communications for ed an update on the Bar the State Bar of Georgia. Center. Due to delays caused

30 Georgia Bar Journal GBJ feature

State Bar Expects Another Productive Legislative Year By Mark Middleton

continues to work n the midst of a monumental toward making recom- election year, the State Bar’s mendations regarding criminal justice issues, leadership and its legislative and the business com- I munity readies a pack- representatives have been busy age of tort reform items. preparing for the 2003 Session of “This year is bringing great challenges and the General Assembly. The con- opportunities, and I am clusion of the lengthy 2002 regular confident that we will be up to the task,” stat- session provided no break as the ed State Bar President State Bar and its committees and Jim Durham.

sections have been active on sever- New 2003 Legislative al key issues. Agenda Items As always, with the 2003 session This fall, various approaching, the State Bar’s State Bar sections have Advisory Committee on once again prepared Legislation (ACL) has met to con- legislative proposals sider several proposals from the comprised of issues of State Bar sections. Also, the importance to the State Fiduciary Law Section’s Bar. The ACL has con- Guardianship Committee, having sidered these proposals concluded its review of the and forwarded recom- Guardianship Code, has prepared mendations to the State a proposal for significant reorgani- Bar’s Board of zation of Title 29 of the Code. Governors. Meanwhile, the Chief Justice’s In response, the Commission on Indigent Defense Board of Governors

December 2002 31 passed the following proposals at Special Advocates at a level of seek discovery from the prosecu- its September meeting: $1,095,000. The request for FY 2004 tion and, when applicable, allows 1. Certification of Questions of Budget is an increase of $390,000 to the prosecution to seek information Law to the Georgia Supreme develop new programs and on the juvenile’s alibi. The Indigent Court: Currently, only federal enhance existing program. The Defense Council’s budget request appellate courts can certify ques- State Bar has been a major support- was also made part of the State tions of Georgia law to the er of the CASA program’s appro- Bar’s legislative agenda. The Supreme Court of Georgia. This priation efforts for many years. request includes the following proposal, which requires an 3. Georgia Indigent Defense items: amendment to the Georgia Council Legislative and An additional $4,793,989 in the Constitution, would also allow Appropriations requests: The State FY 03-04 Budget for its Federal District Courts to certify State Bar’s Indigent Defense Grants to Counties subsidies. questions as well. This matter was Committee recommended support This amount would increase the approved last year and passed the for the Indigent Defense Council’s state contribution to 20 percent Senate before being caught up in proposal to create a mechanism for of the total amount spent on the last minute flurry of bills at the discovery in juvenile cases. A simi- indigent defense, up from the end of the session. lar bill passed last year, but was current 11.35 percent; 2. Georgia CASA Appropriations vetoed because of an amendment A $300,000 increase to $537,935 Request: Currently, the state funds that was tacked on the bill. The bill for the new Improvements the Georgia Court Appointed allows for juvenile defendants to Grants Program; A $307,052 increase to the Multi-County Public Defen- der’s office to add four addi- 2002-2003 State tional staff people; and A $115,000 increase in the Supplemental Budget to the Bar Elections Multi-County Defender’s budget for moving expenses, and ou are encouraged to vote online in the 2002-2003 State Bar Election. $21,542 for a 2.25 percent Cost- Casting your vote online should be even easier than last year! In the of-Living adjustment. Y Elections area of the State Bar’s Web site, you can view an up-to-date 4. Georgia Limited Liability list of all candidates beginning in December. Bios and pictures for Officer Company Revision: This proposal candidates, Board of Governor’s candidates (in contested races) and YLD is designed to strengthen the Officer candidates can be viewed at the click of a mouse. Georgia LLC statute in order to For a few days during the first week of December, all active bar members make Georgia more competitive will have the opportunity to vote EARLY via the Web site at www.gabar.org BEFORE the paper ballots are mailed. Every vote received online represents with the State of Delaware. the saved cost of a paper ballot. We encourage you to take advantage of this Currently, many Georgians are opportunity, as it will be much more cost efficient and a better use of your dues forced to go to Delaware to create monies. Rest assured that your vote will be kept confidential and that no business entities in order to accom- preliminary counts will be tallied. Bar staff will not have access to the data. plish sophisticated business trans- For those of you who do not choose to vote via the Internet, a paper ballot actions. This proposal seeks to will be mailed on Dec. 13, 2002, and you can still choose to research the address that problem and will candidates online. All votes must be in by 12 p.m., Jan. 22, 2003, to be valid. Allow a person without an eco- We will have the results available Jan. 24, 2003. nomic interest in an LLC to be a member or manager of an LLC; Grant voting rights to certain Vote Online! members and managers by written operating agreement; and www.gabar.org Allow non-members to own an interest in profits, etc., of an

32 Georgia Bar Journal LLC. This change would con- bers of the State Bar have partici- that are strictly political in nature. form Georgia’s law to the pated as members, and the legisla- Summary Delaware statute. tive representatives and Indigent Other issues will undoubtedly be Defense Committee members have Just as 2002 was a busy and pro- added to the State Bar’s legislative monitored the proceedings with ductive year for the State Bar, 2003 agenda at the Midyear Meeting in interest. promises more of the same. As the January. “I am grateful for the level While the State Bar has not Bar continues in the 2003 General of the expertise that our sections approved any specific legislation, Assembly, do not hesitate to con- and ACL members bring to the the Board of Governors did pass a tact your legislative representatives deliberation of these important resolution setting forth its support and section chairs regarding issues issues,” said ACL Chairman Jeff for dramatic improvements in the of importance to you. Bramlett. The deadline for submit- quality of representation provided ting proposals to the ACL for the for indigent defendants. Tom Boller, Rusty Sewell, Wanda Midyear Meeting is Dec. 9, 2002. Segars and Mark Middleton are Tort Reform the State Bar’s professional legisla- Guardianship tive representatives. They can be The State Bar is also closely mon- reached at (404) 872-2373, via fax Code Revision itoring a package of tort reform at (404) 872-7113, or by e-mail at proposals that is being prepared The Fiduciary Law Section’s [email protected] and Guardianship Code Revision for introduction in the 2003 [email protected]. Also, Committee has worked diligently Session. Such a package is likely to the State Bar’s legislative agenda to produce recommendations that include provisions relating to can be found online at reorganize, modernize and clarify expert witness qualifications, the www.gabar.org/legislat.asp. the statutes relating to the dismissal rule, the abolition of joint guardianship of persons and prop- and several liability, and a cap on erty of minors and adults. non-economic The proposed revision provides damages. distinct chapters for provisions The State Bar’s relating to children and adults. leadership will Georgia State University profes- determine which sor Mary Radford, the committee’s of these specific reporter, and fiduciary law expert provisions, if any, Bill Linkous, the committee’s chair, are rightfully have done a great service to the within the scope State Bar in this effort. The Council and purpose of of Probate Court Judges has acted the State Bar’s to support the package. The ACL is legislative efforts. expected to act on the proposal at Because of legal its December meeting. limitations imposed on any Indigent Defense mandatory bar’s The State Bar has committed lobbying efforts, considerable time to monitoring the State Bar gen- the activities of the Chief Justice’s erally focuses its Commission on Indigent Defense. activities to mat- This Commission, which was ters affecting the formed at the request of the State practice of law Bar, has taken several months to and /or the access review the status of criminal justice to justice, and and appears to be poised to make foregoes involve- recommendations. Various mem- ment on issues

December 2002 33 GBJ feature

Georgia Bar Foundation Awards $2.3 Million in Grants By Len Horton

Women, Northeast Georgia from the Georgia Bar Foundation. t its meeting at the Council on Domestic Violence, the Macon’s Adopt-A-Role Model pro- State Bar of Georgia’s and Georgia gram, which provides mentoring State Bar of Legal Services’ Pro Bono Project, for kids at risk of getting in serious Georgia’s new Bar and the Savannah Area Family trouble with the law, received A Emergency Shelter. $25,000. The Ash Tree Center on Sept. 13, 2002, the Board In addition to supporting organ- Organization in Savannah received of Trustees of the Georgia Bar izations providing civil legal serv- $15,000. The Children’s Tree House ices, the Georgia Bar Foundation in Columbus, which is a model for Foundation awarded a total of $2.3 awarded a total $51,000 to the fol- how to bring together in one loca- lowing organizations providing tion virtually every organization in million to 33 different law-related legal assistance to those charged the community working to help organizations in Georgia. with crimes: Athens Justice children, received $15,000. The Project, which is patterned after the Golden Isles Children Center in The Georgia Legal Services highly-successful Georgia Justice Brunswick received $15,000 for its Program and Atlanta Legal Aid Project run by Doug Ammar in child advocacy work. The 7th together received $1.5 million, Atlanta; and the Southern Center Judicial Administrative District making the total grant awards for Human Rights, which is led by ADR Office in Cartersville received given to both organizations more nationally recognized Stephen than $17 million since IOLTA came Bright. By order of the to Georgia. Other providers of civil Supreme Court of Georgia, legal services to people who cannot the Georgia Indigent afford to pay for representation Defense Council receives 40 received more than $220,000. Those percent of net IOLTA rev- organizations included Aid To enues. Children of Imprisoned Mothers, Catholic Social Services, the Supporting Disability Law and Policy Center Georgia’s Children of Georgia, the Georgia Law Center Children continue to be a for the Homeless, Halcyon Home, high priority for grant awards The Haven, Hospitality House for

34 Georgia Bar Journal $10,000 to fund mediators in child deprivation cases. Terry Walsh’s Truancy Intervention Project, Cumulative IOLTA which is based in Fulton County, received $75,000 to help expand Revenues Surpass the program throughout Georgia. The Law-Related Education $50 Million Consortium of the Carl Vinson Institute at the University of By Len Horton Georgia, which is a major force for educating kids about our form of n 1986, as Georgia’s voluntary IOLTA program struggled to get off the government and why it is so ground, the possibility of seeing $50,000 in one month seemed to be an impossible dream — $500,000 in a month might logically be attributed important to us all, received I to insanity or more probably an addition error. Several other states with $75,000. Since IOLTA was created smaller lawyer populations were reporting greater revenues from their in Georgia, this organization has Interest On Lawyer Trust Accounts programs. Something was clearly received awards totaling $992,022. wrong in Georgia. But what? Another educational program cre- Interviews with literally hundreds of Georgia attorneys turned up noth- ated for children is the Youth ing. Maybe what was needed was a super salesman. Even lawyers famil- Judicial Program of the State iar with banking law had no idea what might be wrong. Many bankers YMCA of Georgia. It received also had no idea why our revenues were so slow to take off. Even bankers who were also lawyers had no idea. Lawyers with major investments in $10,000, making its total $96,400 banks had no idea. Georgia IOLTA revenues were struggling and hardly since IOLTA began. The Young creating even an upward blimp on a graph of monthly revenues. Maybe Lawyers Division High School IOLTA was not meant for Georgia. Mock Trial program, which Something was soaring, even if it wasn’t IOLTA revenues. My frustra- receives its core funding from the tion was reaching ionospheric levels, and it showed no inclination to Georgia Bar Foundation, received return to earth. Either find the answer or find a new job. And a therapist $58,000. This program, under the wouldn’t be a bad idea either. capable leadership of Stacy Rieke A banker who was a vice president at C&S was sympathetic and will- and benefiting from the personal ing to brainstorm with me about the problem. A pretty fair amateur therapist, Loyd Smith was smart, outspoken and a devoted banker who was interest of Justice George Carley, used to trying to help solve problems. has received $525,000 since IOLTA “Wouldn’t it be funny if what was wrong was the law itself?,” he asked began in Georgia. me one day at lunch. He went on to explain how the growth of C&S had Disputes regarding custody of been nearly blocked by laws that limited branching throughout Georgia. It children can be devastating for was more of a musing than an assertion, but I was desperate for anything. families and frustrating for courts. Later that afternoon, I called Loyd and asked him what percentage of The Georgia Bar Foundation Georgia cities and towns was covered by C&S. Eighteen percent of all the awarded several grants for cities and towns in Georgia had C&S branches in them. The remaining places had other, mostly smaller, banks serving them. Thanks to Loyd, I guardian ad litem programs. The had my theory. I contacted my counterpart in the state Georgia was most Atlanta Volunteer Lawyers often compared unfavorably with: North Carolina. When the largest bank Foundation (AVLF) program, like in North Carolina started offering IOLTA accounts, in what percentage of many programs supported by Bar the cities and towns were IOLTA accounts available? The answer came Foundation funds, has become a quickly: 89 percent. I had my answer. It was as if Georgia were playing model for other areas of the state. North Carolina, and the score was: Georgia 18, North Carolina 89. AVLF received $25,000. Marty Ellin For the first time I understood what I was facing. Knowing what was and Dan Bloom are continuing the wrong helped me realize the importance of signing up rural banks as well as big city banks. I set up a telephone calling system and started making work of Debbie Segal in helping the revenues graph go up while my frustration level started coming down. similar programs get started in There were still sad moments ahead as, for example, when NCNB won other areas of the state. Four C&S in a hostile takeover. Loyd had his wonderful way of summing Points, which received $20,000, is things up. Continued on page 36 Continued on page 37

December 2002 35 “You take a Georgia baby and a ticipation in making grant decisions North Carolina baby and cut off the and in setting policy for the Georgia legs of the Georgia baby,” he said. Bar Foundation and considers two “Then you wait 20 years and ask board positions to be banker posi- the two of them to run a 100-yard tions. Furthermore, please note that dash. Who, do you think, is going most of the work done to make to win?” He went on to explain that IOLTA accounts send interest to the Georgia banking laws had inadver- Bar Foundation is done by bankers. tently killed the banking industry As impressive as the work of in the state and made even bankers and lawyers has been in Georgia’s major bank vulnerable to generating $50 million over the last takeover by an aggressive North 16 years, the next 16 should be even Carolina bank. “That explains why more impressive — $75 million to North Carolina banks are buying $80 million is a reasonable expecta- Georgia banks instead of the other tion. These funds are so crucial for way around,” he said. virtually every law-related pro- With Loyd’s help I began to Rudolph Patterson, former State gram in Georgia that I cannot understand what would be neces- Bar president and secretary of the imagine Georgia’s future without sary to make IOLTA thrive in Georgia Bar Foundation, accepts a IOLTA. No comparable funding Georgia. We surpassed the $50,000 proclamation congratulating the source is anywhere in sight. per month level when IOLTA was Foundation on the $50 million The world, however, is not yet voluntary and began to look at what milestone. perfect. The Washington Legal it would take to move IOLTA rev- Foundation has challenged the con- of Georgia, almost $350,000 to the enues to an even higher level. With stitutionality of IOLTA in Pro Bono Project of Georgia Legal the unrelenting help of then State Bar Massachusetts, Texas and the state Services and the State Bar of President Jim Elliott, the Supreme of Washington. IOLTA won totally Georgia, more than $4.3 million to Court of Georgia created opt-out and in Massachusetts and partially in the Georgia Civil Justice then mandatory IOLTA, and the the state of Washington, but was not Foundation and, the biggest one of world changed immediately. so lucky in Texas. The Washington all, almost $17 million to the Monthly IOLTA revenues sur- case will be argued before the Georgia Indigent Defense Council. passed $500,000 year before last, Supreme Court of the United States At the Sept. 27, 2002, meeting of and, best of all, cumulative IOLTA on Dec. 9, 2002. The Texas case may the Board of Governors of the State revenues since IOLTA began in or may not be consolidated with the Bar of Georgia, President Jim Georgia surpassed $50 million dur- Washington case. Regardless, the Durham read a proclamation con- ing July 2002, a figure of which all final decision will be made before gratulating the Georgia Bar Georgia lawyers and bankers the end of June 2003. Foundation on the $50 million should be proud. The IOLTA community was milestone. Rudolph Patterson, sec- Name a law-related organization taken by surprise in the Texas case. retary of the Bar Foundation and that is trying to do good things to This time IOLTA supporters are former president of the State Bar of help people in Georgia. The odds fully prepared. No matter what Georgia, accepted the award. are that the Georgia Bar decision is made, the Georgia Bar This incredible success would not Foundation, through your IOLTA Foundation has John Chandler, have been possible without the help contributions, is helping or has Charlie Lester and the resources of of Georgia bankers. In Georgia they helped them. More than $13 million Sutherland, Asbill & Brennan have played a bigger role than per- has gone to Georgia Legal Services, pledged to help us. We also have haps they have in any other state in more than $4.3 million to Atlanta the many talents of David Webster, the union. In recognition of their Legal Aid, almost $1 million to the a constitutional lawyer and schol- assistance, the Georgia Bar Law-Related Education Consortium ar. We will win in the Supreme Foundation is the only bar founda- at the University of Georgia, more Court of the United States; I believe tion to have as its president a full- than $600,000 to start the Office of that. But, if we don’t, together we time banker. The Georgia Bar Dispute Resolution, more than will find a way to save the estimat- Foundation is also unique in that it is $500,000 to the BASICS program of ed $75 million for Georgia. We owe the first to have a full-time banker as the State Bar of Georgia, $500,000 to the thousands of Georgians who treasurer at the same time that it has start the Lawyers Foundation of rely on funding from the Georgia a full-time banker as president. The Georgia, almost $500,000 to the YLD Bar Foundation no less than our Supreme Court of Georgia recog- Mock Trial program of the State Bar very best effort. nizes the importance of banker par-

36 Georgia Bar Journal such a program in LaFayette, and The Georgia First Amendment lawyers and bankers of this state. the Chatham County Domestic Foundation (GFAF), under the Even with serious economic condi- Relations Initiative in Savannah leadership of Hollie Manheimer, tions and with IOLTA interest rates received $30,000. has become an acknowledged at an all-time low, the Georgia Bar Sharing the Wealth resource regarding the law applica- Foundation, pursuant to its mis- ble to public meetings and public sion created by order of the Several organizations that could records. It is not unusual for news Supreme Court of Georgia, award- be included in more than one cate- organizations and governments to ed the fourth largest total grant gory also received grant awards. seek Manheimer’s advice. awards in its history. While many The BASICS program of the State Georgia’s former Chief Justice grantees received less than they Bar of Georgia, which is effectively Charles Weltner, a strong advocate expected versus last year, the managed by Ed Menifee, educates of open meetings and open lawyers and bankers of Georgia prisoners in various D.O.C. facilities records, became the lawyer for continue to work together to make about how to survive outside prison whom GFAF’s annual banquet was a significant difference in the abili- without resorting to a life of crime. named. GFAF received $16,000. ty of these grantees to help It received $60,000. Since 1986, The last of the organizations dif- Georgians. BASICS has been awarded $516,901. ficult to categorize is the Recording The Center for Children and for the Blind & Dyslexic, Georgia Len Horton is the executive direc- Education, based in Macon, has Unit, which is based in Athens. tor of the Georgia Bar Foundation. established a name for itself as an This organization, led effectively authority regarding the law as it by Lenora Martin, received $5,000 applies to children in school. Its to record legal and law-related education hotline helps parents books so that the blind and dyslex- solve problems regarding school ic can more easily learn. discipline and support services. In addition to The award was for $10,000, and the grant awards $40,000 has been awarded in total already men- since 1998. tioned, a $750,000 Rome’s Exchange Club Center grant was award- for the Prevention of Child Abuse ed to the State Bar received $25,000. Under the hands- of Georgia in on supervision of Sam Evans, a no- April to help nonsense man who is the Board fund the Bar president, this organization pro- Center. Further- vides supervised visitation and a more, mandatory safe place where children can be payments to the transferred from one parent to Georgia Civil another. Justice Founda- The Georgia Center for the Law in tion (10 percent of the Public Interest received $15,000 net IOLTA rev- to help in its environmental work. enues as required The shortage in Georgia court- by order of the rooms of interpreters has become a Supreme Court of major problem. Both Presiding Georgia) amount- Justice Leah Sears and Justice Carol ed to $488,235. Hunstein have expressed concerns All together, about this problem. The Georgia these awards are Bar Foundation awarded $15,000 to an awesome con- support the Georgia Commission tribution to on Interpreters. Georgia by the

December 2002 37 GBJ feature

East Meets West: Georgia Delegation Explores China

By George Mundy

everal years ago while attending an American SBar Association meeting, I had dinner with a good friend, Richard Pena, a former president of the State Bar of Texas. Richard told me about his experiences leading a State Bar of Texas delegation to China, which was sponsored by the People to People Ambassador

Programs. People to People The Georgia delegation gathers in front of the Palace Museum in Taipei. Ambassador Programs, headquar- Georgia Forms a sion to Hong Kong for those who tered in Spokane, Wash., is an Delegation were interested. Their planning organization originally founded by included excellent hotels, all trans- Approximately a year ago, as portation needs, shopping and site President Eisenhower to promote immediate past president of the State seeing opportunities, as well as friendly relations among all coun- Bar, I was invited by the People to most meals in excellent restaurants. People Ambassador Programs to However, the professional focus of tries through the medium of scien- form a State Bar of Georgia delega- the delegation was to meet with tific, professional and technical tion to visit China. Having some our legal counterparts in China to knowledge of the Texas experience, I compare and discuss similarities exchange. Richard indicated that decided to give it a try. and differences in our two legal the China trip was one of the most The People to People personnel systems. We were particularly put together an all-inclusive, two- unique and enjoyable things he focused on access to legal services week trip to China, involving stays in China, as well as the role of an had ever done. in Beijing, Shanghai and an exten- attorney in China.

38 Georgia Bar Journal A preliminary agenda was con- proper protocol. cluded and the State Bar of Georgia Beginning at 11:45 as well as the People to People to p.m., we flew 13.5 Ambassador Programs, began to hours, crossing invite State Bar of Georgia mem- the International bers as potential delegates. The trip Date Line and los- opportunity was disseminated to ing a day to arrive our membership through letters, in Hong Kong. announcements at Bar meetings After a layover of and in the Georgia Bar Journal, as several hours, we well as CLE flyers. flew to Beijing. Within two months it was clear Many of us had we would be successful in forming a been traveling at Members of the delegation stand on the steps of the delegation. Over 600 of our members this point nearly Municipal Court in Shanghai. expressed interest in the trip and 30 hours. We received documentation. We eventu- checked into the ally received a commitment from 33 five star Kunlun of our members and guests to form Hotel, had a won- the State Bar of Georgia delegation. derful buffet meal The People to People personnel indi- and everyone cated a delegation of 25 is considered went to bed early. large and a delegation of 33 is con- China is exactly a sidered exceptional. Many of our 12-hour time dif- delegates communicated prior to the ference from trip and we even designed State Bar Georgia. of Georgia lapel pins to use as gifts Beijing, the Former State Bar President George E. Mundy poses in the restored section of the Great Wall of China. for our hosts in China. political and Great Wall at the Badaling Section. The Journey Begins administrative center of the People’s Republic of China, gov- Our guides and interpreters were On Sept. 5, 2002, the delegation erns more than 3.5 million square excellent and very candid in dis- assembled in Los Angeles, where miles of territory and no less than cussing Chinese problems, such as we were able to meet each other 20 percent of the world’s popula- the one child policy, the AIDS epi- and the travel manager who would tion. It is one of the largest and demic and minority population accompany us throughout the trip. fastest growing municipalities in concerns. Our delegation consisted of 25 modern China, home to some 12 Comparing Notes members of the State Bar of million people. Although Beijing is Georgia and eight guests or spous- an extremely modern city and is On Monday, September 9, our es. Our members came from many busy preparing for the 2008 delegation meetings began with a locations in Georgia, as well as sev- Olympic Games, the city has seri- briefing from three deputy minis- eral members from other states. ous problems with traffic conges- ters from the Chinese Ministry of Delegates ranged from a former tion and air quality. Justice. They gave us an overview managing partner of a large On Saturday and Sunday, of the Chinese legal system and this Atlanta law firm to single practi- September 7 and 8, we were able to sparked an interesting question and tioners and everything in between. do a significant amount of site see- answer session. It seemed the We quickly learned that the State ing, including the Forbidden City, Chinese were just as interested in Bar of Georgia delegation was The Summer Palace, Tian’anmen the American system as we were in diverse, interesting, friendly and Square and the Great Wall. I am theirs. In the afternoon, we met knew how to have a good time. proud to report that many of our with a Chinese law firm, which had In Los Angeles we were briefed State Bar of Georgia delegates been founded by an American in on what to expect in China and made it to the highest point of the 1985. We quickly learned that any

December 2002 39 professional with a command of the istic the city appears. We visited the for three more days before return- Chinese language would have famous Yu Garden and the Old ing home. We enjoyed excursions unlimited opportunities in China. Town area of Shanghai and strolled to the Kowloon Peninsula, Victoria This particular firm now had offices along the famed Bund. Peak and Repulse Bay, where in eight cities and appeared to be many Chinese still live in floating very successful. ships or junks. Those of us who On Tuesday, September 10, our extended to Hong Kong also had delegation met with the senior class incredible shopping opportunities of the Peking University School of and certainly contributed to the Law. The students were very inter- overall Hong Kong economy. ested in the role of lawyers in the Broadening Horizons United States. They had many questions for our delegation on how mat- Since returning home, I have ters were resolved in America. This heard from most of our delegates. session ended with a tour of the The reaction to our experience was beautiful Peking University overwhelmingly positive with Campus. That afternoon we met State Bar of Georgia lapel pins everyone saying the trip exceeded were produced as gifts for the with the All China Lawyers their expectations. Not only did we hosts in China. Associations, which is a mandatory have the opportunity to see and bar association to which all Chinese On Thursday, September 12, we experience some unique and exotic lawyers belong. We learned that met with another prosperous locations, we also had the opportu- there are approximately 100,000 Chinese law firm but the most nity to interact and learn from our lawyers in China today to serve interesting experience was that counterparts in China. Our accom- almost 1.8 billion people. Twenty- afternoon observing a civil trial at modations were beautiful, trans- five years ago there were no lawyers the Shanghai Municipal Court. Our portation was convenient and com- in China. One of their bar associa- delegation watched an entire trial fortable, the food was sometimes tions biggest concerns was how to in a modern courthouse with up to unrecognizable, but many times raise revenue without raising dues. date translation facilities. That delicious. While we had concerns It appeared they had the same evening after an excellent dinner about Chinese water quality, no one dilemma as our own bar association. the delegation enjoyed seeing a in the delegation experienced health On Wednesday, September 11, Chinese acrobat show. concerns. We found the Chinese to we flew to Shanghai. Shanghai, the On Saturday, September 14, we be friendly, interesting, energetic fourth largest city in the world, is had another delegation meeting with and totally committed to develop- one of China’s most cosmopolitan a law firm and had an interesting ment of a modern and western areas, virtually the only one, which discussion of the practical aspects of lifestyle. This trip and serving as strikes an immediate familiar chord practicing law in China. It is obvious delegation leader was simply one of with most western visitors. the world is a much smaller place the most unique, enjoyable and Shanghai has a population of more than it was even a few years ago. The gratifying experiences of my life. than 14 million people, of whom afternoon was free for shopping and The State Bar of Texas has spon- more than half live in the urban core. touring and that evening our delega- sored six separate delegations to The city considers itself the leading tion enjoyed a farewell dinner featur- locations all over the world. The cultural and educational center of ing the famous Peking duck. State Bar of Florida is about to send China although they also experience Further Exploration its first delegation to China. I hope traffic and air quality problems. We the State Bar of Georgia will offer learned that Shanghai has more than On Sunday, September 15, we future opportunities of this type to 3,000 skyscrapers over 30 stories and flew to Hong Kong, were most of our membership. they are building 150 more. There the delegation returned home. were no skyscrapers in Shanghai 25 However, a number of us took George E. Mundy is a former years ago. Our delegates were advantage of an extension to Hong president of the State Bar of struck with how modern and futur- Kong and enjoyed its many sites Georgia.

40 Georgia Bar Journal GBJ feature

Three Governors: Herman Talmadge, the Georgia Supreme Court and the Gubernatorial Election of 1946

By Lucian Emery Dervan

was Eugene Talmadge. Eugene erman Talmadge, Talmadge, often referred to as the “wild man from Sugar Creek,” was who died March 21, a Democratic demagogue who had 2002, was a gover- served as Georgia’s governor from H 1933-1937 and 1941-1943 when he nor, senator, and Georgia icon who was defeated by Arnall.1 controlled state politics for much As the campaign evolved, Talmadge dominated the issues of the last half of the 20th century. and made the entire election about white supremacy. This focus on While many events in Talmadge’s race occurred because of two fed- life deserve attention, one event in eral court decisions involving the right of blacks to vote in primaries. particular stands out amongst the First, in 1944, a Texas court ruled Herman Talmadge served as that blacks must be allowed to vote trials and tribulations, victories governor of Georgia from in electoral primaries. This deci- and scandals in this long American 1949 to 1955. sion was followed quickly by the The Election of 1946 filing of a similar suit in Georgia by political life. In 1946, the Georgia Primus King against the Muscogee In 1946, as Ellis Arnall complet- County Democratic Committee. gubernatorial election brought a ed his final year as Georgia’s gov- King won the suit in federal court state government to its knees, a ernor, the only primary that mat- in 1945 and, after being affirmed tered in Georgia during this peri- by the Fifth Circuit, Georgia’s state Supreme Court to the height od, the Democratic primary, was appeal to the United States beginning to heat up. Prevented Supreme Court was denied. of its power and Talmadge into the from running for re-election under Talmadge, however, was intent on national spotlight as a revolver tot- Georgia’s constitutional term lim- preventing blacks from voting in its, Arnall’s chosen successor was the primaries and promised a ing aspiring governor. James Carmichael, a state legislator “Democratic white primary.” and supporter. The main opposi- While Talmadge failed to create a tion for the primary endorsement whites-only primary, the issue

December 2002 41 third possible governor, M.E. Thompson, who had been elected Georgia’s first lieutenant governor, waited on the side-lines. In early January, Arnall shifted strategies and aligned with Thompson. The attorney-general, Eugene Cook, issued a ruling stating that the legislature did not have the authority to elect a governor and that Gov. Arnall would remain in the office until Thompson was inaugurated lieutenant governor. On January 14, despite Arnall’s insistence he still held title to the Herman Talmadge campaigns in Royston, Ga., during the 1948 guberatorial office, the legislature took up the race. Talmadge defeated Gov. M. E. Thompson in a special election. issue of electing a governor. It has been reported that as the session helped mobilize voters in rural his belief that should his father die began, Thompson aides began counties for his candidacy. This before assuming office, the Georgia serving laced drinks to Talmadge strategy was successful, and Constitution delegated the authori- supporters in an effort to pass a Talmadge won the Democratic pri- ty to the legislature to elect a gov- resolution instilling Thompson as 5 mary on July 17, 1946.2 ernor from the two remaining can- governor. Any such attempt While most general elections in didates with the most votes.3 failed, however, and the over- the South during this period Those who were concerned had whelmingly pro-Talmadge legisla- involved little more than confirm- their worries validated as ture began preparing to elect him ing the Democratic nominee, the November arrived — the general governor. A problem arose, how- Georgia general election of 1946 election was on November 5 and ever, when Talmadge forces dis- was approached slightly different- Eugene Talmadge won the election covered he had only 617 write in ly by some. As the Democratic con- while still in the hospital. votes, placing him third among the vention approached in October, In all great events, there is one remaining candidates. As noted Eugene Talmadge was already ill decisive moment when the debacle above, the constitution only per- and confined to a Jacksonville, Fla., begins. For Georgia, that moment mitted the legislature to select a hospital. In response to these con- arrived on Dec. 21, 1946, when governor from the next two highest cerns, Herman Talmadge, Eugene’s Gov.-Elect Eugene Talmadge died. vote recipients. The legislature son, initiated a write-in campaign Knowing a storm was brewing in adjourned briefly and reconvened for himself. The reason for this was the capital, the story in the newspa- with a miraculous 58 new votes for per next to the pronouncement of Talmadge from his home county. It Talmadge’s death was a piece should be noted that these titled, “3 Leaders Loom for uncounted votes were all in the Governorship.”4 Immediately, same handwriting, in alphabetical Herman Talmadge (hereafter order and some of the voters were “Talmadge”) began campaigning dead at the time of the election. for support in the legislature. At These new write-in votes gave the same time, Gov. Arnall Talmadge the lead with 675 votes. declared that he would remain in The legislature moved immedi- office until such time as a special ately to elect and inaugurate election was held and a successor Talmadge, who then made his way chosen. While Talmadge and to the governor’s office upstairs Arnall began a war of words, the where Arnall had barricaded him-

42 Georgia Bar Journal self in with several supporters. mobilized and positioned around The Courts Talmadge and his aides broke the capital, but conflict was avert- down the door and a fight erupted ed. At one point, however, Three major suits became the resulting in numerous injuries, Talmadge troops seized furniture focus of the judiciary’s involvement including a broken jaw for Thad from Arnall’s secretary and stenog- in the controversy. In each, the Buchanan, an Arnall supporter. rapher and took control of the underlying question was who held The evening ended peacefully, switch board. As citizens feared a rightful title to the office of gover- however, with Arnall being escort- war may break out on the streets of nor. To resolve this issue, the courts ed safely home as Talmadge and Atlanta, Arnall and Talmadge each had to examine the state constitu- 8,000 to 10,000 of his supporters acted as governor and denied the tional mandate that the legislature filled the capital. other’s authority to control the may only intervene in the election if The next day the locks were executive branch of government. “no person shall have” a majority of changed, but Arnall still arrived for Thompson, who had been on the the vote. What made the analysis work as if he were governor. side lines during much of the clash particularly difficult was the fact Unable to enter his office, Arnall between Arnall and Talmadge, that Eugene Talmadge had conducted business at a desk in the reemerged on January 18 when he received a majority of the vote in capital rotunda. This temporary was sworn in as lieutenant gover- the election, but, because of his sub- facility was abandoned by Arnall nor. Shortly after the ceremony, sequent death, no one possessed a when pro-Talmadge supporters Arnall resigned and Thompson majority at the time the legislature lobbed firecrackers into the desk claimed to have succeeded to the published the results. The question area, after which point Arnall office of governor. Thompson was remained, therefore, had the consti- retired to a nearby law office, then substituted as plaintiff in the tutional requirements for legislative though Talmadge supporters suit initiated by Arnall, which intervention been met? claimed he had commandeered the became the focal point of the dis- The first suit, as discussed men’s bathroom. The day was not pute. The battle was no longer above, was initiated by Arnall and any less dramatic for Talmadge, spilling into the streets or taking later carried on by Thompson, who who arrived for his first day as place in the corridors of the state was substituted as plaintiff after governor with a .38 caliber Smith & capital. After Thompson’s assump- assuming the office of governor. Wesson in his pocket. tion of power, two governors sat in The case was heard by Judge Almost immediately after separate offices and claimed to be Walter C. Hendrix, who ruled in Talmadge’s inauguration, Arnall the rightful holders of executive favor of Talmadge. The lengthy filed suit attempting to enjoin power. The dispute would last for decision came to the conclusion Talmadge from acting as governor. two more months until the Georgia that the constitution did not intend While the court set a hearing for Supreme Court finally resolved the the legislature only be able to act if February 7, more dangerous moves matter. no one, including the deceased, were being made by the Arnall and Eugene Talmadge, had received a Talmadge camps as each fought for majority. control of the military. During World War II, the Georgia National Guard was mobilized and, as a result, another institution called the State Guard was created as its temporary replacement within the state. In 1946, however, the National Guard had returned, yet the State Guard had not been dis- banded. To make matters worse, the National Guard supported Talmadge and the State Guard Supported Arnall. The troops were

December 2002 43 A dispute over the highest office in the state had involved barricaded doors, fights in the capital, armed militias surrounding government buildings and candidates carrying weapons to protect themselves as they attempted to exercise the executive powers.

Construing the Consti- in Floyd County, the court this time imperfections, but that when tution as we do, it is clear that supported Thompson. popular elections do not the General Assembly had the [T]he General Assembly achieve a result, representa- right to decide when there was, under this provision of tive government steps in to was no election by the people. the Constitution, without prevent a complete break- It did decide that on account jurisdiction to declare any per- down. Government, like life, of the death of the Governor- son to have been elected gov- must go on.8 Elect there had been no elec- ernor of Georgia, there sole The cases now stood two for tion by the people. In our right being confined to the Talmadge and one for Thompson. opinion the Constitution then right to declare that Eugene The State Supreme Court would put the duty and responsibili- Talmadge had received a have to resolve the issue lest the ty on it to elect and install a majority of the votes cast for uncertainty that inhabited the capi- Governor. This duty and governor of Georgia in said tal continue indefinitely. responsibility it decided as it election; that therefore, Ellis The three cases from the lower saw fit. When it acts within Arnall continued in office as courts were appealed directly to its authority courts cannot governor until his resignation; the Georgia Supreme Court and interfere.6 and that M.E. Thompson hav- were argued and decided together. Under this interpretation of the ing been elected and so The reason for moving the issue constitution, Arnall had not contin- declared by the General directly before the Supreme Court ued in office until Thompson was Assembly, and having quali- was to speed up the case. The Chief sworn in as lieutenant governor, fied as lieutenant governor of Justice of the Georgia Supreme and, therefore, Thompson had not the State of Georgia, upon said Court remarked, “[i]f counsel for succeeded to the office of governor. resignation becoming effec- both sides should agree to acceler- The second case was Bryars et al. tive, became acting governor ate the hearings in the several cases v. Thompson, in which Thompson of Georgia…7 involving the governorship before sued the Board of Pardons and Thus, the lower courts were now the Supreme Court, I am sure the Parole to force them to deliver cer- split over who was the rightful Court would entertain such a tain information to him as gover- governor. motion.”9 Agreeing to the acceler- nor. Heard by Judge Claude Porter The final case was Fulton ated appeals process, the three National Bank of Atlanta v. Talmadge cases were docketed for March 6 et al., in which the bank filed suit to before the Georgia Supreme Court. Pick Up determine whether Talmadge or On March 19, 1947, the Georgia Gregory Conner Thompson rightfully controlled Supreme Court, in a 5-2 decision, October page 40 state funds held by the bank. The ruled that Thompson was rightful- case was decided by Judge Bond ly governor, and the controversy Almand in Henry County and, was over as quickly as it began.10 concurring with Judge Hendrix’s The opinion, written by Justice opinion, upheld Talmadge’s claim Duckworth, begins with the issue to the office. of whether the court has jurisdic- The answer seems to be that tion to decide the controversy. governments, like human While the opinion admits that beings, have frailities [sic] and issues, which are purely political,

44 Georgia Bar Journal are not within the jurisdiction of to protect themselves as they 3. This belief was because of Article the court, the court holds that attempted to exercise the executive V, section I, Paragraph IV of the Georgia Constitution of 1945 where the construction of a consti- powers. In the end, however, the which read in part, “but, if no per- tutional provision is in question the judiciary intervened to quell the son shall have such majority, then judiciary holds exclusive jurisdic- emotion and danger of the situa- from the two persons having the tion. Therefore, the court considers tion and peacefully end the contro- highest number of votes… the General Assembly shall immedi- whether under the Georgia versy. The matter was not over for ately, elect a Governor…” Constitution the General Assembly Thompson and Talmadge, howev- 4. M.L. St. John, 3 Leaders Loom for had the power to elect Herman er. While Georgia settled down in Governorship, ATLANTA CONSTITUTION, Dec. 22, 1946, at 1. Talmadge governor. In finding that the following months under the 5. See Gary Pomerantz, When Georgia the General Assembly acted out- leadership of Gov. Thompson, had Three Governors, ATLANTA side its power, the court states “[i]n Talmadge prepared to make anoth- JOURNAL AND CONSTITUTION, Dec. this State all power and sovereign- er bid for the office he felt entitled 29, 1996, at 4D; Georgia’s Three Governors Controversy, at ty repose in the people.” The to in 1947. Talmadge did not have www.gdnpeachnet.edu/faculty/s- power to elect a governor, there- to wait long. In 1948, Talmadge buchanan/governor.htm (last visit- fore, does not transfer to the legis- defeated Thompson in a special ed Dec. 5, 2000). lature unless the voters fail to give election. 6. James B. Sanders, THE GEORGIA GUBERNATORIAL CONTROVERSY OF a candidate a majority of the vote. 1947 71 (1947) (unpublished thesis, In the current situation, the court Lucian Dervan is a 2002 graduate M.E. Thompson Collection, Special notes, Eugene Talmadge received a of Emory University School of Law Collections and Archives, Robert W. Woodruff Library, Emory majority of the votes cast and, and an associate with King & Spalding. Dervan received his B.A. Univ.) (quoting Arnall v. therefore, regardless of his death, Talmadge, No. 1693 (Henry from Davidson College. The opin- the conditions precedent for leg- County Superior Court Feb. 12, ions expressed herein are solely islative intervention were not pres- 1947)). those of the author and do not 7. Id. at 72 (quoting Bryars et al. v. ent. While Eugene Talmadge pos- necessarily represent the opinions Thompson, No. 15792 (Floyd sessed a majority, his death pre- of King & Spalding. County Superior Court Feb. 7, vented him from being sworn in as 1947)). governor and, therefore, this inabil- 8. Id. at 74 (quoting Fulton National Endnotes Bank of Atlanta v. Talmadge et al., ity of the majority vote recipient to Number 15798 (Henry County assume office created a necessity 1. The other two candidates in the Superior Court Feb. 15, 1947)). for Gov. Arnall to remain in office. Democratic primary were Eurith 9. M.L. St. John, High Court would Rivers, another former Governor, Speed Action in Governor Case, The court concludes its opinion by and Hoke O’Kelly, a disabled war ATLANTA CONSTITUTION, Feb. 11, noting that upon the resignation of veteran. 1947, at 1. Gov. Arnall, Lt. Gov. Thompson 2. See James F. Cook, THE GOVERNORS 10. Thompson v. Talmadge, 201 Ga. had a duty and responsibility to OF GEORGIA 232-33 (Mercer Univ. 867, 872 (Ga. 1947). Press 1995). 11. Id. at 898. assume the office of governor and execute its functions. Thus, Thompson is “entitled to perform all of the duties and exercise all the authority which by the constitution and laws are imposed upon the governor of this state.”11 After the opinion was handed down, Talmadge stepped aside graciously. A dispute over the highest office in the state had involved barricaded doors, fights in the capital, armed militias surrounding government buildings and candidates carrying weapons

December 2002 45 GBJ feature

The Grand Old Courthouses of Georgia: The Henry County Courthouse at McDonough

By Wilber W. Caldwell

the last minute enry County was cre- switch, and we can only presume that ated from land ceded when Golucke pre- to the state of sented his new H Richardsonian design, Georgia by the Creek Indians in the the quality and charm 1821 Treaty of Indian Springs. One of his creation eclipsed Bryan’s more of the five original counties cut Spartan visions of the Romanesque Revival. from this massive tract between the Although modest Ocmulgee and Flint Rivers, Henry in scale and restricted by a surprisingly established its county seat at small budget (the building’s original McDonough in 1823 and complet- contracted cost was ed a fine brick vernacular court- only $13,789), the Henry County Court- house there in 1831. house is a comfortable By the mid-1880s, McDonough combination of Henry lay at the junction two railroads, Hobson Richardson’s and agitation for a new courthouse monumental had begun. In November of 1896, Richardsonian county records reveal that Atlanta Romanesque style architect, Andrew J. Bryan, had and Henry County’s been selected to design Henry’s comfortable rural monument to the county’s growing tastes. Golucke expectations. But by the time the applies Richardson’s notice to contractors appeared in Romanesque vocabu- the Henry County Weekly in lary freely, featuring a February of 1897, the plans of massive arched ent- another Atlanta architect, James rance, distinctly Rich- Golucke, were cited as the accepted ardsonian window design. We are given no reason for groupings and em- Built in 1897 by James Wingfield Golucke, architect.

46 Georgia Bar Journal ploying granite banding and bold Picturesque tongue that combined ingly reveled in the brooding nos- stone voussoirs to mimic the mass and movement and projected talgic distorted sense of history that American master’s signature poly- a singularly American and power- soothed the angry tormented spirit chromy. Although this was fully urban aura. On the face of it, of a defeated agrarian Old South Golucke’s first of many nothing could have been more inap- come face to face with the modern Richardsonian Courthouses in propriate for tiny McDonough in age. Georgia, it is certainly his finest, 1897. But here Golucke’s genius sur- and he virtually copied the plan in faces. Employing the Romanesque Excerpted by the author from later designs in Union, Schley, vocabulary of Richardson, Golucke Wilber W. Caldwell, The Jones and Baker Counties. fashioned his own intimately per- Courthouse and the Depot, The Architecture of Hope in an Age of Between 1894 and his death in sonal Romanesque Revival, which Despair, A Narrative Guide to 1907, Golucke designed 27 court- although modern, was also softly Railroad Expansion and its Impact houses in Georgia. Just as this pro- rural, disarmingly rustic and on Public Architecture in Georgia, lific Atlanta architect would later strangely pastoral. Like the pure 1833-1910, (Macon: Mercer tame the wildly Baroque excesses of Romanesque architecture of University Press, 2001). Hardback, American Beaux-Arts Classicism, Richardson’s medieval models in 624 pages, 300 photos, 33 maps, 3 he would first wrestle with the mas- France and Spain, it was the archi- Appendices, complete Index. This sive masculinity of the tecture of a simple, struggling peo- book is available for $50 from Richardsonian beast. Henry Hobson ple who lived very close to the land. book sellers or for $40 from the Richardson’s buildings transcended Here was a building to capture the Mercer University Press at their Romanesque vocabulary to divided mind of the South. It spoke www.mupress.org or call the create a unique language, a strange- to Henry County’s modern aspira- Mercer Press at (800) 342-0841 ly modern and yet unmistakably tions, and at the same time, it seem- (inside Georgia) or (800) 637-2378.

December 2002 47 School Council member David H. Gambrell to pro- KUDOS vide initial funding for the first phase of a teaching Forty-two Kilpatrick Stockton lawyers have and courtroom technology project. The gift will recently been honored by their peers in The Best fund new teaching technology in classrooms, and

Bar Lawyers in America 2003-2004. The Atlanta-based the law school’s Tuttle Courtroom will become an attorneys are among a larger group of 69 “electronic courtroom,” containing state-of-the-art Kilpatrick Stockton attorneys honored in this computer and court-reporting equipment. year’s publication across the firm’s seven domes-

& Fisher & Phillips LLP has added another western tic offices. The following were honored: Miles J. U.S. office. The firm has merged with Gordon & Alexander, Richard R. Cheatham, Alfred S. Meneghello, P.C., a labor and employment law Lurey, Joel B. Piassick, Dennis S. Meir, Susan A. boutique in Portland, Ore. With this merger, Cahoon, A. Stephens Clay IV, Randall F. Hafer, Fisher & Phillips has five offices and 46 attorneys Miles J. Alexander, Richard R. Cheatham, W. in the western United States. Randy Eaddy, Daniel T. Falstad, Hilary P. Jordan, Larry D. Ledbetter, Colvin “Corky” T. Georgia State University College of Law, which Leonard III, James D. Steinberg, David A. opened its doors on Sept. 13, 1982, recently cele- Stockton, G. Kimbrough Taylor, Michael H. brated its 20th anniversary with a party for alumni, friends and the university community. The Bench Trotter, William J. Vesely Jr., Joseph M. Beck, Richard A. Horder, Rupert M. Barkoff, Phillip H. party was a kick-off for a year-long celebration at Street, David M. Zacks Jr., Miles J. Alexander, the school. Fully accredited by the American Bar Anthony B. Askew, Joseph M. Beck, William H. Association since 1990 and a member of the pres- Brewster, Joan L. Dillon, James L. Ewing IV, tigious Association of American Law Schools Jamie L. Greene, James D. Johnson, John S. Pratt, since 1995, the College of Law is gaining national Dean W. Russell, Stephen M. Schaetzel, Jerre B. recognition for its faculty scholarship, student and Swann, Virginia S. Taylor, William H. Boice, alumni successes, innovative programs and trail- Richard R. Boisseau, James H. Coil III, Diane L. blazing use of technology. Prucino, Tim Carssow, Candace L. Fowler, C. Murray Saylor Jr., a partner in the Harold E. Abrams, R. Alexander Bransford, and Saylor Law Firm LLP in Atlanta, was Harold E. Abrams. elected president of the American Additionally, the following Atlanta-based Association of Attorney-Certified Kilpatrick Stockton attorneys were recognized as Public Accountants (AAA-CPAs) at lawyers who have been listed for 20 years, in all 10 the organization’s recent national editions of The Best Lawyers in America: Harold E. convention in Jackson Hole, Wyo. Abrams, Miles J. Alexander, Alfred S. Lurey and The Supreme Court Historical Society selected Joel B. Piassick. Sutherland Asbill & Brennan LLP litigation part- Merchant & Gould has recently earned some ner Teresa Wynn Roseborough as one of two industry accolades. In its September issue, attorneys to re-argue the famous Supreme Court Managing Intellectual Property listed the firm case Gibbons v. Ogden which, in 1824, broadly among the top 25 biggest IP practice firms in the defined Congress’s right to regulate commerce. United States. In its May issues, IP Worldwide The re-enactment was part of the society’s annual named the firm in its list of “Frequent Filers” as National Heritage Lecture, which took place in the one of the top five plaintiff firms for IP litigation, Supreme Court’s chambers in September. and Intellectual Property Today listed the firm sec- Steve O’Day, Smith, Gambrell & Russell’s ond in its index of top trademark firms. And, in its Environmental Law Practice Group lead partner, is July issue, IP Worldwide cited the firm as one of the making a fight against a development near “Leaders of the Pack” in its annual “Who Protects Savannah his personal cause. O’Day has been IP in America” article. named senior litigation counsel by the Southern Nezida S. Davis was recently appointed chief of Environmental Law Center. As his first task, he will the Atlanta field office of the U.S. Department of take over their fight against Emerald Pointe, a devel- Justice’s Antitrust Division. Prior to her appoint- opment which recently was granted a permit to ment as chief, Davis served as the office’s assistant build three bridges across state-owned marshlands. chief for seven years. Glenn D. Baker was recently appointed assistant chief of the Atlanta field office. ON THE MOVE Fisher & Phillips LLP partner, Claud L. “Tex” McIver, has been elected the new incoming chair In Atlanta of the Labor and Employment Law Section of the Atlanta Bar Association. A senior partner at Fisher Schulten Ward & Turner, LLP, announced that & Phillips LLP, McIver has more than 30 years William C. McFee Jr. joined the firm as of counsel. experience in labor and employment law. McFee will continue his practice in commercial real estate and business organizations. The firm is locat- Emory University School of Law has received a gift ed at 260 Peachtree St., NW, Suite 2700, Atlanta, GA of $250,000 from Atlanta attorney and Emory Law 30303; (404) 688-6800; www.swtlaw.com.

48 Georgia Bar Journal Bench Freed & Berman, P.C., announced that Suzanne 1400, Atlanta, GA 30309; (404) 817-6000; Fax (404) Deddish and Steven Wagner have become associ- 817-6050; www.nmrs.com. ated with the firm. Deddish was previously asso- Kilpatrick Stockton LLP announced the addition ciated with Hunter, Maclean, Exley & Dunn of of Richard B. Hankins and Keith W. Kochler to Savannah. Prior to joining the firm, Wagner the firm as partners in its labor and employment served as law clerk to the Hon. Charles A. Pannell practice group. The firm’s office is located at Suite Jr. The firm is located at 3423 Piedmont Road, NE, 2800, 1100 Peachtree St., Atlanta, GA 30309-4530; Suite 200, Atlanta, GA 30305; (404) 261-7711; Fax (404) 815-6500; Fax (404) 815-6555; www.kil- (404) 233-1943; www.freedberman.com. patrickstockton.com. & Kilpatrick Stockton LLP announced the election of Debbie Segal as partner. Segal has served as full-time pro bono counsel at Kilpatrick Stockton Bar since January 2001 when the firm created the position, the first of its kind in Georgia and the Carolinas. The firm’s office is located at Suite 2800, Gardner Hutter Kent 1100 Peachtree St., Atlanta, GA 30309-4530; (404) 815-6500; Fax (404) 815-6555; www.kilpatrick- stockton.com. Joan G. Crumpler has joined the law firm of Dawson & Manton. Crumpler joins the firm’s civil litigation practice, which includes civil trial litiga- Maxwell McKeon tion, premises liability, medical malpractice, Needle & Rosenberg named five new, non-equity wrongful death, products liability and automotive officers. New officers include Nancy K. Gardner, personal injury. Crumpler will also focus on insur- Jacqueline M. Hutter, Daniel A. Kent, Lawrence ance coverage and consumer law issues. The firm D. Maxwell and Tina Williams McKeon. The is located at 328 Alexander St., Marietta, GA 30060; office is located at The Candler Building, 127 (770) 919-7554; Fax (770) 499-0502; www.dawson- Peachtree St., NE, Atlanta, GA 30303-1811; (404) manton.com; [email protected]. 688-0770; Fax (404) 688-9880. McKenna Long & Aldridge LLP announced that Alembik, Fine & Callner, P.A., announced the Edward A. Kazmarek, W. Scott Laseter and Carol addition of Andrew B. Goldberger, David T. R. Geiger are joining the firm’s environmental Hodges, Wayne S. Melnick, Michele A. Ritz, law practice as partners. Most recently, Kazmarek, Stacey Ferris-Smith, Monica L. Wingler and Laseter and Geiger practiced with Kilpatrick Joseph M. Winter. The office is located at Marquis Stockton. The firm is located at 303 Peachtree St., One, Fourth Floor, 245 Peachtree Center Ave., NE, Suite 5300, Atlanta, GA 30308; (404) 527-4000; Atlanta, GA 30303; (404) 688-8800; Fax (404) 420- Fax (404) 527-4198. 7191; www.AFCLaw.com. Douglas Ashworth has left the firm of Green and Ashworth to join the legal staff of the Council of Superior Court Judges. In his private practice, he represented various local governments, including the Franklin County Board of commissioners, the Franklin County School District and the cities of Lavonia and Carnesville. In his position with the

Brooks Horne Kresky Lore Council of Superior Court Judges, his responsibil- ities include assisting judges with death penalty habeas corpus cases. The council office is located at 18 Capital Square, Suite 108, Atlanta, GA 30334; (404) 657-5951; [email protected]. After more than 13 years with the State Bar of Georgia, Office of the Pickering Hopkins Wright General Counsel staff member Nelson Mullins Riley & Scarborough, L.L.P., Duane Cooper left to pursue an announced the addition of several partners to the opportunity as the deputy solicitor law firm’s Atlanta office. Steve Brooks, Lew general with the Solicitor General of Horne, Caroline Kresky, Steve Lore, Rusty the State Court of Fulton County. Pickering and Anita Wallace Thomas were Gladstone, Doherty & Associates, PLLC, brought on as partners to the firm. Two addition- announced that Maria Sheffield has joined the firm al attorneys, Kay Hopkins and Bright Wright, as an associate in its Atlanta office. Sheffield was pre- were added as of counsel. The firm is located at viously with the Georgia Department of Insurance, 999 Peachtree St., NE, First Union Plaza, Suite where she served as agency lobbyist and general

December 2002 49 counsel to the department’s regulatory services divi- In Columbus sion. Sheffield specializes in insurance regulatory law and government relations. The firm is located at Page, Scrantom, Sprouse, Tucker & Ford, P.C., 3330 Cumberland Blvd., Suite 500, Atlanta, GA announced that Robert C. Brand Jr., Judson P. 30339; (770) 933-6270; Fax (770) 675-3490. Grantham and Thomas F. Gristina have become Bar partners in the firm. The firm is located at 1043 Levine & Smith, LLC, announced that Rebecca S. Third Ave., Columbus, GA 31901; (706) 324-0251; Olson and Todd A. Orston have become associat- Fax (706) 323-7519.

& ed with the firm, located at One Securities Centre, 3490 Piedmont Road, NE, Suite 1150, Atlanta, GA 30305; (404) 237-5700; Fax (404) 237-5757. In Conyers Talley, Sharp & French, P.C., announced that Teri The Atlanta Law firm, Davis Law Group, P.C., L. Smith has become associated with the firm. The has recently become affiliated with the office is located at 1892 Ga. Highway 138, SE, Washington, D.C., and San Francisco firm of Belli, Conyers, GA 30013; (770) 483-1431. Weil & Grozbean, P.C. The Atlanta firm will be known as Belli, Weil, Grozbean & Davis, LLP. In Macon The firm will continue to represent clients in the Bryan D. Scott announced the forma- areas of catastrophic injury and wrongful death Bench tion of The Law Office of Bryan D. litigation, family law, criminal defense, civil litiga- Scott. The Law Office of Bryan D. tion and real estate, and other transactional mat- Scott will primarily concentrate on ters. The Atlanta office is located at 8010 Roswell commercial and business advice and Road, Suite 200, Atlanta, GA 30350-7024; (770) litigation, personal injury, 993-3300; Fax (770) 552-0100. wills/estates/trusts and student hearings and appeals. The office is located at 3416 Vineville Ave., Macon, GA 31204; (478) 477-0016; Fax (478) 477-3020; [email protected]; www.scottlawoffice.com. In Savannah A. Robert Casella has become associated with the law firm of Weiner, Attorney coaches are needed for Shearouse, Weitz, Greenberg & Shaw, LLP. His practice will be con- high school teams throughout Georgia centrated in criminal and civil litigation and appeals. The office is located Berkmar High School ...... Lilburn at 14 East State St., Savannah, Brookwood High School ...... Snellville GA 31401; (912) 233-2251; Fax (912) Dacula High School ...... Dacula 235-5464. *Fannin County High School ...... Blue Ridge *Harrison High School ...... Kennesaw In Washington, D.C. Johnson High School ...... Gainesville After 26 years with the law department of AT&T, *McIntosh High School ...... Peachtree City Roger A. Briney has joined the Washington, D.C., Middle GA Homeschoolers ...... Macon office of Davis Wright Tremaine LLP as of coun- *North Cobb High School ...... Kennesaw sel. Briney joins the firm’s telecommunications Paideia School ...... Atlanta and litigation practice groups, and will focus his *Richmond Hill High School ...... Richmond Hill practice primarily on state and federal govern- Riverdale High School ...... Riverdale ment procurement and telecommunications. The *Southwest Magnet School ...... Macon office is located at Suite 450, 1500 K St., NW, *Tri-Cities High School ...... East Point Washington, DC 20005, (202) 508-6600; Fax (202) Walton High School ...... Marietta 508-6699; www.dwt.com. Woodward Academy ...... College Park

THESE SCHOOLS NEED COACHES! In West Palm Beach, Fla. AS A MEMBER OF THE STATE BAR OF GEORGIA, YOU Lewis, Longman & Walker, P.A., CAN MAKE A DIFFERENCE IN YOUR COMMUNITY BY announced that Kristin K. Bennett SERVING AS A MENTOR TO A TEAM IN YOUR AREA! has joined the firm’s West Palm Beach office as an associate. Bennett For more information, contact the Mock Trial Office at was previously assistant counsel (404) 527-8779 or toll free (800) 334-6865 ext. 779 with the Environmental Protection or email: [email protected] Commission of Hillsborough for online sign-up go to: County. The firm is located at Suite 1000, 1700 www.gabar.org/mtjoinform.asp Palm Beach Lakes Blvd., West Palm Beach, FL An * indicates that these teams have NO COACHES! 33401; (561) 640-0820; Fax (561) 640-8202.

50 Georgia Bar Journal The Right Move. American National Lawyers Insurance Reciprocal (Risk Retention Group) Offers The Legal Professional Liability Insurance Coverage Your Practice Needs.

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the our associate sits in the armchair departing lawyer across from you, fidgeting nerv- had sig- ously. “I wanted to let you know nificant Y contact that I’ll be leaving at the end of the month,” with or she says. I plan to open my own law office.” actively repre- “I’m sorry to hear that, Brooke,” you say. sented “I guess I’ll need to get with you about the the client. files you’ve been working on so that I’ll be up It pro- to speed on them by the time you leave. I’ll hibits the have to brush up on procedures in the new departing Family Court — you’ve been doing all the

General Counsel lawyer domestic cases and I’m rusty.” from providing any misleading information “That’s just it,” she replies. “I’m hoping to about the facts or circumstances under which take the domestic cases with me. I’ve already the lawyer is leaving the firm. Within those called the clients whose files I’m working on restrictions, however, the lawyer may notify and asked if they want me to continue to clients of his or her departure, new location, handle their cases…” and willingness to continue to provide legal “That sneaky whippersnapper!” your part- services to the client and the client’s right to ner fumes upon hearing the news. “She’s not the lawyer of his or her choice. only walking out on us, she’s trying to steal While Brooke has not violated the letter of our clients! I’m going to have her brought up the rule or the Formal Advisory Opinion, it on charges before the Bar!” probably would have been more professional “Calm down,” you say. “I’m not sure for her to notify the firm of her departure

Office of the Brooke has done anything wrong.” before telephoning clients. The Formal “But she has solicited our client’s business Advisory Opinion provides that a “joint noti- and stolen cases right out from under our fication by the law firm and the departing noses — that can’t be ethical!” attorney to the affected clients. . . is the pre- A quick look through Part VII of the ferred course of action for safeguarding the Georgia Rules of Professional Conduct con- client’s best interests.” firms your hunch that Brooke is acting with- Lawyers who find themselves in this posi- in the scope of the rules. The prohibitions on tion typically are able to resolve informally solicitation do not apply to existing clients. any disputes as to fees, transfer of files and Since Brooke was actively working on the notice to the courts about a change in coun- files, her telephone calls were not communi- sel. In the rare instance when a firm is not cation “with a prospective client for the pur- able to work things out with a departing pose of obtaining professional employment” lawyer, the lawyers should remember the within the meaning of Rule 7.3. mandate of Formal Advisory Opinion 97-3 Formal Advisory Opinion 97-3 further that “the main consideration underlying our clarifies the ethical considerations for a Canons of Ethics is the best interest and pro- departing lawyer who wants to communicate tection of the client.” with clients of the former law firm. The Feel free to call the Bar’s Ethics Hotline at Opinion allows communication only where (404) 527-8720 or (800) 334-6865, ext. 720.

52 Georgia Bar Journal Discipline Notices (Aug. 21, 2002 – Oct. 14, 2002)

By Connie P. Henry

DISBARMENTS Surrender of License of Larry James Eaton (State Bar No. 237880). Eaton represented an AND VOLUNTARY individual and a corporate client in a dispos- SURENDER OF LICENSE sessory matter. He abandoned the matter

Discipline and failed to communicate with the individ- Timothy John Jones ual client about the status of the case. In Augusta, Ga. aggravation of discipline, the Court took into Timothy John Jones (State Bar No. 403915) consideration Eaton’s substantial experience has been disbarred from the practice of law in the practice of law and his prior discipli- in Georgia by Supreme Court order dated nary offenses. Sept. 16, 2002. In 1994 Jones agreed to represent a client in a personal injury matter. Although he told the client he was negotiat- SUSPENSIONS ing a settlement, he settled the case without Brace W. Luquire Lawyer her authorization and never filed a lawsuit. Columbus, Ga. When Jones received the settlement check, he By Supreme Court of Georgia order dated deposited it in his escrow account and used Sept. 16, 2002, Brace W. Luquire (State Bar No. the funds for his own benefit. Jones relocated 461400) has been suspended from the practice his office but failed to inform his client. When of law in Georgia for a period of 12 months, the client finally reached him, he advised her with conditions for reinstatement. Luquire that he had paid the doctor’s bills, when he was hired to represent a client in claims aris- had not. In December 1999 the client called ing from an automobile accident. He failed to Jones and found that his telephone had been take any action on the client’s behalf. The disconnected. In January 2000 Jones called Court considered Luquire’s prior disciplinary his client and told her he had settled her case history in aggravation of discipline. and would mail her a check for $2,000 within a week. On or about Feb. 27, 2000, Jones sent Paul Henry Wyatt the client a check for $1,400, but the check Atlanta, Ga. was returned for insufficient funds. By Supreme Court of Georgia order dated Sept. 30, 2002, Paul Henry Wyatt (State Bar John Thomas Rutherford No. 779225) has been suspended from the McDonough, Ga. practice of law in Georgia for a period of one On Sept. 16, 2002, the Supreme Court of year commencing 10 days from the date of Georgia accepted the Petition for Voluntary the order. Respondent pled guilty in the Surrender of License of John Thompson United States District Court for the Northern Rutherford (State Bar No. 621455). On March District of Georgia to a criminal information, 26, 2002, Rutherford pled guilty in the Superior which charged him with two counts of Court of Henry County to three counts of Misrepresentation and Concealment of Facts. bribery in violation of OCGA §16-10-2.

Larry James Eaton Keith H. Salmon Fayetteville, Ga. Warner Robins, Ga. On Sept. 16, 2002, the Supreme Court of On Sept. 30, 2002, the Supreme Court of Georgia accepted the Petition for Voluntary Georgia issued an order indefinitely sus-

December 2002 53 pending Keith H. Salmon (State Bar FORMAL LETTER INACTIVE CASES No. 622695) from the practice of law in Georgia, with conditions for OF ADMONITION Five cases were moved to inac- reinstatement. In July 1999, Salmon tive status by the Supreme Court Daniel L. Henderson agreed to represent a client in a after attorneys were disbarred. Temple, Ga. divorce case and received a $100 On Sept. 13, 2002, the Supreme fee. After sending a demand letter Court of Georgia accepted the SUSPENSION that he proceed with the case, Petition for Voluntary Discipline of Salmon finally filed her divorce on LIFTED Daniel L. Henderson (State Bar No. July 11, 2000. The parties entered 345460) for a Formal Letter of Donald O. Nelson into a settlement agreement and Admonition. Henderson was Townsend, Ga. the client paid Salmon an addition- appointed to represent a client in By order dated Sept. 16, 2002, the al $200. Salmon closed his office in the appeal of a criminal matter. The Supreme Court of Georgia lifted January 2001, and failed to notify client made numerous attempts to the suspension of Donald O. his client, nor did he return her contact Henderson, but got no Nelson (State Bar No. 537800). In calls. In March 2001 the Court noti- response. Although, Henderson 1995, Nelson was suspended from fied the client that her case had eventually handled the client’s post the practice of law after pleading been dismissed for want of prose- conviction proceedings, he admit- guilty to a crime involving moral cution. Salmon returned his client’s ted that his failure to communicate turpitude. call with respect to the dismissal with his client caused the client and told her he would file the worry and concern. REINSTATEMENT agreement and revive the case, but he took no further action. Alan Austin Gavel INTERIM Sarasota, Fla. PUBLIC SUSPENSIONS On Sept. 16, 2002, the Supreme Court of Georgia accepted the peti- REPRIMAND Under State Bar Disciplinary tion for reinstatement of Alan Michael Joseph Davis Jr. Rule 4-204.3(d), a lawyer who Austin Gavel (State Bar No. Atlanta, Ga. receives a Notice of Investigation 288010). On Sept. 14, 1998, the On Sept. 13, 2002, the Supreme and fails to file an adequate Court imposed a suspension from Court of Georgia ordered that response with the Investigative the practice of law for a period of 36 Michael Joseph Davis Jr., (State Bar Panel may be suspended from the months, with conditions for rein- No. 212040) be administered a pub- practice of law until an adequate statement. Gavel complied with all lic reprimand in open court by a response is filed. Since Aug. 21, conditions for reinstatement. judge of the Superior Court where 2002, two lawyers who were sus- Connie P. Henry is the clerk of the Davis resides or where the actions pended for violating this Rule have State Disciplinary Board. resulting in discipline occurred. A been reinstated. client retained Davis to represent him in the appeal of a criminal conviction. Davis received partial pay- Lawyer Assistance Program ment and advised the client’s former counsel that he would take over Alcohol/Drug Abuse and the representation. Davis failed to timely file a brief and enumeration Mental Health Hotline of errors, which resulted in the dismissal of the client’s appeal. 800-327-9631 ? Help is available and all Need Help calls are confidential.

54 Georgia Bar Journal Your Year-End Practice Management Checklist By Natalie R. Thornwell

Do you have proper malpractice insur- hether you are a sole prac- ance coverage? titioner, small-firm, cor- Do you have written and signed fee agreements for every client you represent? porate, government or Do you perform a conflict of interest W check on every new client? large-firm attorney, you can benefit from tak- Do you use file opening and closing

Management ing a look at the way you have been doing checklists for each client file? Do you have a detailed disaster recovery things with an eye towards improving. So, plan that you have shared with everyone in your office? with the New Year upon us, let’s start Have you reviewed your filing and stor- reviewing 2002 and planning for 2003 and age procedures lately? Is your vendors list up-to-date with all of beyond. Use the following year-end checklist the correct contact and product/service- specific information? to help you get a head start on improving Are all of your legal research your law office. products/services current? Have you recently completed an invento- Year-End Office ry of your law office library for complete- Management Review ness and relevancy to your current practice areas and needs?

Law Practice Do you have a written policies and procedures manual? Year-End Technology Checks Do you have enough staff for the work- Do you have up-to-date computer sys- load of your firm? If not, have you tems for the entire office? planned on hiring additional staff? Are the computers in your office net- Do you need to hire an office manager or worked together so you and your staff administrator? can easily share work product and net- Have you reviewed your salaries and work devices like printers and copiers? benefits offerings recently? Is your network reliable? Do you need to open a branch office? Do you have the latest service releases, If you are in a partnership, do you have a fixes and patches needed for your hard- written partnership agreement? ware and software systems? Do you have an associate training and Is your Internet connection reliable? review program? Have you prepared a technology budget Do you have regular (monthly at least) for the coming year(s)? meetings for partners and/or associates? Does your current technology budget Have all employees signed employment include funds for training? agreements with the firm? What are the training methods you have Does every position (not person) in your used for keeping you and your staff up on firm have a written job description, the software tools you are using in your including yourself? law practice?

December 2002 55 Do you have or need a network for working while away from end sheet fed scanner with administrator in-house or can the office? appropriate OCR scanning soft- you use an outside vendor? Can your office fax from the ware? Are all of your technology ven- desktop? Does your technology promote dor contracts current and rele- Are your telephone, voicemail firm “knowledge manage- vant to your present technology and other communication sys- ment?” situation? tems up to date? Year-End Do you have computerized case Are your monitors adequate, Financial Checks especially for staff, if they are in management, time and billing, front of the monitor all day? and accounting systems that are Are you billing monthly or as Do you have a regular backup appropriate for a firm of your soon as you complete a matter and restore routine for your size? or major parts of a matter? daily work product? If you are a litigation firm, are Do you review your accounts Do you keep backups both off your litigation support tools receivable monthly and have and on site? adequate for the courtroom? staff follow-up with non-paying Are you in need of a PDA – Do you have a firewall set up clients? (Palm, Handspring, or for your office (and home) net- Do you track and bill for all Blackberry), Pocket PC, or all- works? expenses incurred on behalf of in-one (Phone + PDA) device If you are striving to become your clients? paperless, do you have a high-

The Georgia Annual projects of the Consortium The Georgia include a newsletter, The LRE Circuit; Law-Related promotion of LRE Week activities; a Education poster contest; awards for outstanding LRE teachers, supporters, and students; Consortium: teacher training; curriculum • encourages, develops, and supports LRE programs in Georgia;development; and support of other LRE • promotes the inclusion of LRE in pre-K, K-12, post-secondary,activities throughout the state. and adult curricula; As you can see, the Consortium is • promotes public awareness concerning the benefits of aan active, multi-faceted organization with comprehensive law-related education program; and many available resources. Please • collects and disseminates information about state and nationalconsider joining us. We believe you will LRE programs and resources. be greatly rewarded.

Regular Member [$10] Supporting Member [$20] Sustaining Member [$35]

Silver Member [$50] Gold Member [$100] Platinum Member [$200] Lifetime Member [$500] Members at this level are not asked to contribute membership dues following the first year, but may choose to pay dues or make donations as desired.

Name: School/Organization: Address: Phone No.: city state zip Make checks payable to: Georgia LRE Consortium. Mail to: Georgia LRE Consortium • J.W. Fanning Blg. / Univ. of GA • 1234 S. Lumpkin St. • Athens, GA 30602

56 Georgia Bar Journal Have you been charging interest Is your written marketing plan Does your firm “brand” really on past-due account balances? up-to-date? fit the firm? Do you have your books up-to- Have you met recently with Resources for date? your top-paying clients? Do you track time for all mat- Have you met recently with the New Year ters regardless whether you are your lowest-paying clients? You may find that you desper- charging by the hour or charg- Have you been in your own ately need to improve certain areas ing a flat fee? reception area lately? of your practice after completing Is time-tracking required of all Are you getting feedback on the above checklist. The Law employees? your service from your existing Practice Management Program will Are your operating and trust clients via a client satisfaction gladly assist you with materials accounts balanced and recon- survey? from our resource library; an e- ciled through last month? Do you have a Web site that mail query response; a no-cost tele- Have you paid all of your invites new business? phone consultation; or a low-cost, required quarterly and annual Have you changed/do you in-person consultation to help with taxes for the year? need to change your firm any of your specific practice man- Do you have an accountant or brochure? agement needs. In fact, your first bookkeeper? Are client-focused newsletters New Year’s resolution should be: Have you met with your offered via e-mail? contact the Bar’s Law Practice accountant or bookkeeper to go Are all of your practice areas Management Program at (404) 527- over your chart of accounts and covered in your client newslet- 8770 or 8772; visit the Law Practice reporting needs for the coming ter marketing? Management Program online at tax year(s)? Do you accept online or credit www.gabar.org/lpm.asp; or e-mail Have you developed a budget card payments? us at [email protected] to help for your firm? Are you in the habit of creating improve your practice. Is your payroll processed on and sharing with your clients a The Law Practice Management time and with the appropriate case plan and budget? Program wishes you a happy and withholdings? Does your file closing letter prosperous New Year! Does your payroll service send invite repeat and new business? you regular reports on your Does your advertising set you Natalie R. Thornwell is the account? apart from the competition? director of the Law Practice Are you and your associates Do you carry high-quality busi- Management Program of the brining in the amount of rev- ness cards? State Bar of Georgia. enue you budgeted for over the Have you developed an “elec- past year? tronic business card” and mar- Have you written off uncol- keting message for all of your e- lectible accounts for the year? mail correspondence? Have you reached your billable Are you getting the best deal on hours goals for the year? your Yellow Pages advertising? Have all shareholders in the Have you developed a market- firm received current profit and ing script for use by your staff loss statements? when asked, “What does your Do you share firm financial firm do?” information with staff to Have you monitored how and enhance productivity? why clients chose you as their Year-End Marketing attorney? Have you been fired by any of Assessment your clients? Did you bring in new clients in What do you say when some- the past year? one asks, “What do you do?”

December 2002 57 Activities Abound at South Georgia Office

By Bonne Cella

Office The South Georgia Office recently facilitat- ttorneys from several different ed an “Ethics over Lunch” program for the South Georgia areas convened Houston County Bar Association. Preysh Maniklal, vice chairman for the Investigative A at the State Bar South Georgia Panel of the State Bar of Georgia, presented Office recently for a 2002 update titled the program. The South Georgia Office also facilitated a “Preventing Legal Malpractice Claims and “Professional Enhancement Program” (PEP) Ethics Complaints.” The program was a serv- for the Lookout Mountain and Catoosa Circuits. PEP is a service of the State Bar of ice of the State Bar of Georgia, in conjunction Georgia and includes useful and helpful sub- with American National Lawyers Insurance ject matter.

Reciprocal (ANLIR). Bonne Cella is the office administrator of the State Bar’s South Georgia Office. The South Georgia Office was also a training ground for volunteers who will help with South Georgia a new domestic violence shelter in the Tifton The South Georgia Office is Judicial Circuit. The shelter, to be named available to assist local bars. Ruth’s Cottage, should be completed and If your bar association needs assistance with pro- fully funded in the next year. The training grams, contact the Satellite Office of the State Bar was provided by Halcyon Home in of Georgia at (800) 330-0446 and they will facili- Thomasville and focused on handling crises tate the program for you. phone calls.

Attorneys from several different South Georgia areas gather for the ANLIR program at the South Georgia office. Panel members included State Bar Treasurer Rob Reinhardt, State Bar Deputy General Counsel Paula Frederick and Jill Wells of ANLIR.

Volunteers who will help with a new domestic violence shelter in the Tifton Judicial Circuit prepare for domestic violence training at the South Georgia Office.

58 Georgia Bar Journal Volunteer Attorneys

Page Gain New Training

By Mike Monahan

n Aug. 27, 2002, ABC, A

Business Commitment Com- Omittee of the State Bar, and the Atlanta Bar Association sponsored a training Pro Bono session for more than 20 volunteer lawyers at

State Bar headquarters on property tax Volunteer lawyers gather at the Bar Center appeal hearing procedures. Jeff Plowman, a to discuss property tax appeal hearing partner at Nelson, Mullins, Riley and procedures. posed DeKalb County property tax increase. Scarborough, is the ABC pro bono attorney Some elderly residents’ assessments would for the Lynwood Park CDC. ABC is helping result in a 300 percent property tax increase. As a result of a community educational effort, Lynwood Park residents who have filed 120 residents of Lynwood Park have filed a timely appeal of their assessments. These property tax appeal hearings to obtain pro individuals need volunteer attorneys to rep- bono legal assistance. resent them at a hearing of their appeal before the DeKalb County Board of “Together We Can” is the motto of the Equalization. Lynwood Park Community, an African- ABC Committee member Plowman mod- American community located in an unincor- erated this session by providing: porated section of northwest DeKalb County. A brief overview of Lynwood Park; Surrounded by more affluent neighborhoods, An outline of the process of a property tax Lynwood Park residents live in a community appeal in DeKalb County; of approximately 300 homeowner families of Issues to be raised on appeal; and whom over 98 percent are African American. Legal materials on the hearing appeal. In 1995, following a very intense situation Among the law firms who participated in where some properties in the community the training were King & Spalding, Cohen & were in the process of being developed for Caproni and W. Wheeler Bryan. upper income housing, the community made If you would like more information, or a commitment to improve the quality of life would like to volunteer for this project, con- in Lynwood Park. The initial result of this tact Mike Monahan, State Bar of Georgia Pro action was the formation of the Lynwood Bono director, at [email protected] or (404) Park Community Project, whose priorities are 527-8762. affordable housing and youth development. The Lynwood Park Community and its Mike Monahan is the director of the State residents are now threatened by the pro- Bar’s Pro Bono Project.

December 2002 59 Special Events Fuel Section Activities

News embers of the William Needle Administrative Law Section addresses members of the Mrecently met at the State Bar’s Intellectual Property headquarters to plan for the year. Members Law Section during an event held at the will receive a membership directory by the Bar Center. end of this year. A questionnaire has been cir-

Section culated to members to learn the interests of The Family Law Section, chaired by Emily its members and identify volunteers for sev- “Sandy” Bair is, as always, busy. The section has just completed their summer Family Law eral planned projects. The section is chaired Institute. To see pictures of this year’s insti- by Frances Cullen Seville. tute, go to the section’s Web page on the State Bar’s Web site at www.gabar.org and view The Aviation Law Section is already gear- more than 100 pictures. Next year, members ing up for its Feb. 7, 2003, seminar, which will will travel to Amelia Island, Fla., for the 2003 feature several interesting guest speakers. Institute. Another newsletter full of informa- The line-up for the seminar includes: David tive articles has been circulated to members. Kennedy, a former Navy test pilot and tech- For a limited time, this newsletter will be fea- nical consultant on films “Pearl Harbor” and tured on the Web page of the section. “Behind Enemy Lines;” John Goglia, member The Intellectual Property Law Section is off of the National Transportation Safety Board; to a running start this year. The largest section David Boone, of the firm Schaden, Katzman, event yet to be held at the new State Bar head- Lampert and McClune, who will speak on quarters was led by the IPL Section Licensing Daubert motions; and section member Mark Committee on Sept. 12, 2002, with William Stuckey, of Macon, who will give a presenta- Needle speaking on both intermediate and tion on the 9/11 Victims Fund and related advanced licensing issues that IP legal profes- legislation. sionals may encounter. On Oct. 2, 2002, the sec- The Environmental Law Section held its tion’s Patent Committee conducted a patent annual summer seminar at the Hilton in roundtable meeting at King & Spalding, with Sandestin, Fla. The event was a resounding speakers Joseph R. Bankoff and Christopher J. success. The section began holding brown Sprigman of King & Spalding, and John L. bag lunches for members with informative North from Sutherland, Asbill & Brennan, speakers several years ago and they continue speaking antitrust and patent litigation. And with monthly meetings that are well attend- finally, the Trademark Committee of the sec- ed. In November, the section co-sponsored a tion held a luncheon on Oct. 10, 2002, with one-day Water Law Seminar with the Schuyla M. Goodson, trademark counsel with Agriculture Law Section at the Marriott The Coca-Cola Company, Dinisa Hardley, of Marquis Hotel in Atlanta. Thomas Kennedy Sampson & Patterson, The section has established an endowment Michael Hobbs of Troutman Sanders LLP, and at Georgia State University in honor of the Ginabeth Hutchinson, of Alston & Bird, speak- late A. Jean Tolman of Arnall Golden & ing on the topic of “Electronic Trademark Gregory LLP. The section is chaired by Anne Filings: A New Reality with the PTO.” H. Hicks.

60 Georgia Bar Journal Intellectual Property and in full swing. The dates for the sec- from the City Court should have Entertainment & Sports Sections tion meetings are Thursday and gone to the Court of Appeals, rather partnered in a three-state seminar Friday, January 9-10, 2003, at the than to Superior Court, and that the Superior Court was therefore cor- in the sunny locale of Puerto Swissotel in Atlanta. Over 22 sec- rect in dismissing the appeal. Vallarta in November. Attendees tions will be represented at this The Court of Appeals held that earned an entire year of CLE credit year’s meeting and that’s a record. the rules permitting transfer of an while there. A brochure is available on the Bar’s appeal filed in the wrong court to School & College Law Section Web site and all active bar mem- the correct court applied only to members have just received a new bers will receive a brochure in the cases in the Court of Appeals or the Georgia Supreme Court. Those and improved section newsletter. mail. Register early to receive the rules, the court said, did not permit The section is chaired by Patrick W. lower registration price. a Superior Court to transfer an McKee and the newsletter editor is incorrectly filed appeal to the Court Melvin B. Hill Jr. In addition, sec- NEWS FROM of Appeals. The court suggested, tion members recently enjoyed a THE SECTIONS however, that Sawyer would have very successful meeting at Amelia been permitted to amend his Notice of Appeal to designate the correct Island, where Supreme Court of Appellate court, but he did not do so. Georgia Chief Justice Normal Practice Section Judge Eldridge filed a vigorous Fletcher made a surprise visit. dissent, pointing out that (1) the Browse the Web — the State Bar’s By Christopher J. McFadden, Georgia Supreme Court had trans- Web site that is at www.gabar.org. Chairman, and Kenneth A. ferred several incorrectly-filed cases Click on “Member Resources” and Hindman, Section Member to Superior Court; (2) that the Court of Appeals opinion ran against the again on “Sections.” All 35 sections 1. CASES No Transfer of Case if Appeal Court’s policy of deciding cases on are represented on this newly Incorrectly Filed in Superior Court the merits whenever possible; and designed site. Many post their Sawyer v. City of Atlanta, 2002 (3) that the law which required newsletters, event notices and WL 1751349 (Ga.App. July 30, Sawyer to appeal to the Court of resource information. A section 2002). Appeals was easily misunderstood, member roster is posted on each Sawyer was convicted of several because the governing provision was not found in the appeals “section” of section Web page and this informa- traffic misdemeanors in the City Court of Atlanta. The 1996 legisla- the Code, but in a separate volume. tion is updated nightly. For those tion which “re-created” the City 2. NEW COURT OF section members who would like to Court provided for appeals in such APPEALS RULES receive advance notices of section cases to “...the appropriate appel- The Georgia Court of Appeals events and newsletters, list your e- late court of this state....” Sawyer has enacted a new set of rules, mail address with the Bar. filed a Notice of Appeal to the effective September 5, 2002. The full text of these rules can be found Fall is a busy time for section Superior Court of Fulton County, which was dismissed for lack of at Noteworthy items include: ICLE seminars. An overview of jurisdiction. In a decision by a Rule 1: Document Requirements upcoming seminars is available at seven-judge panel, the Court of — now specifies that Times www.iclega.org and registration Appeals held that Sawyer’s appeal New Roman Regular 14pt can be accomplished online. There is also a link to ICLE under “Section Meetings” on the State Bar’s Web site. Holiday get-togethers are being planned for many of the sections. For information on “How to Join A Section,” visit the State Bar’s Web site and join the fun! Bar members can join at any time during the Bar year. Plans for section meetings during Midyear Meeting of the Bar are

December 2002 61 (Western) is an acceptable font. required unless the court so On the legislative front, President Rule 23: Briefs — now requires orders. Bush recently signed into law the that briefs and applications (see Rule 41 (f) (2): Motions — 21st Century Department of Justice Rule 30) have 2” margins at the Provides that a criminal defen- Appropriations Authorization Act top and 1” on the sides and bot- dant must consent in writing to (H.R. 2215), which includes toms. This eliminates the eccen- the withdrawal of his appeal the Technology, Education, and tric 1 ½” left margin requirement. has been clarified; when the Copyright Harmonization Rule 27 (c) (2): Structure and State is the appellant, a criminal (TEACH) Act and technical amend- Content — it is now discretionary defendant is not entitled to pre- ments to the Copyright Act. The with the Court to consider vent the State from withdraw- TEACH Act amends the Copyright unsupported errors to be aban- ing its appeal. Act to provide more flexibility to doned, rather than mandatory. accredited nonprofit educational Rule 28: Oral Argument — The Technology Law Section institutions to make copyrighted word “ordinarily” has been By David Keating, instructional materials available added to subsections (b) and (f), over the Internet as part of “mediat- which deal with the number of Section Member ed instructional activities.” attorneys arguing and the order The White House's Critical The Technology Law Section of in which cases are called. This is Infrastructure Protection Board the State Bar of Georgia is an asso- to make it clear that the Presiding issued the National Strategy to ciation of attorneys from solo prac- Judge has the discretion to vary Secure Cyberspace on Sept. 18, 2002. titioners to members of the largest the procedure, if needed. In sub- The National Strategy is an adviso- firms in the State, and from start- section (c), the Court eliminated ry document that makes a series of ups to multi-national corporations. the rule that the appellant’s con- recommendations for the protection Members hail from across Georgia clusion is “confined to matters of the nation's information technol- and from across the country. The covered in the argument of ogy systems and networks. The Section has an active agenda of opposing counsel.” This change document presents these recom- meetings, seminars, and functions would appear to make it easier mendations in five categories or throughout the year at which mem- for an appellant to “sandbag” his “Levels.” Level 2 sets forth recom- bers can network, receive informa- opponent by raising new matters mendations for business entities, tion about cutting-edge issues fac- in the conclusion, though it is referred to as “large enterprises.” ing attorneys and their clients in doubtful that the Court intended The legal import of the document this area of practice, and engage in that consequence. A new subsec- comes largely from the fact that it is community service activities. tion (h) specifies that the one of the first authoritative state- The Section held its 17th Annual Presiding Judge decides all ques- ments in support of a generalized Technology Law Institute at the tions or issues that come up at legal duty on the part of businesses Georgia Center for Advanced oral argument. to protect their information systems Telecommunications Technology Rule 30: Applications for and networks from unauthorized (GCATT) in Atlanta on Oct. 3-4, Interlocutory Appeal — Some access, use, and disruption. If an 2002. The seminar included presen- subsections have been renum- enterprise fails to put in place ade- tations on the latest developments bered. New subsection (b) pro- quate information security meas- in technology law and a roundtable vides that applications should ures, the National Strategy asserts, panel discussion with questions follow the format requirements it can incur substantial economic from attendees. The Section also for briefs. A new subsection (f) losses from information security coordinated another successful vol- requires that responses be filed breaches, whether through a loss of unteer day at Tech Corps Georgia within ten days after docketing, assets, an interruption in business on Nov. 3, 2002. but states that a response is not operations, or a loss of customer The following is a list of upcom- required. and investor confidence. Losses of ing Section events. For more infor- Rule 31: Applications for this nature, the document suggests, mation, please visit the Technology Discretionary Appeal — Some can further result in shareholder Law Section's Web page at subsections have been renum- claims against the directors and www.computerbar.org. bered. Two changes parallel officers of the business for breach of Quarterly Section Meeting: those in Rule 30: subsection (b) their fiduciary duty of care. The Dec. 17, 2002 provides that applications National Strategy in Level 2 also Mid-Year Section Meeting (in should follow the format opines that security breaches can conjunction with the State Bar requirements for briefs; subsec- result in damage to third-party sys- Mid-Year Meeting): Jan. 9, 2002 tion (f) specifies a ten-day dead- tems and networks, possibly lead- Technology Law Boot Camp: To line for the response and ing to additional claims back Be Announced announces that a response is not against the enterprise directly.

62 Georgia Bar Journal he Lawyers Foundation Inc. of Georgia sponsors activities to promote charitable, scientif- Tic and educational purposes for the public, law students and lawyers. Memorial contributions may be sent to the Lawyers Foundation of Georgia Inc., 104 Marietta St. NW, Suite 630,

Atlanta, GA 30303, stating in whose memory they are made. The Foundation will notify the fam-

ily of the deceased of the gift and the name of the donor. Contributions are tax deductible.

Michael Adilman Emil Lamar Gammage Jr. Laura Matlaw Murphy Savannah, Ga. Cedartown, Ga. Atlanta, Ga. Admitted 1953 Admitted 1952 Admitted 1977 Died March 2002 Died September 2002 Died September 2002 Memoriam Willis I. Allen Bert N. Garstin Wilbur A. Orr Irwinton, Ga. Cumming, Ga. Washington, Ga. Admitted 1938 Admitted 1951 Admitted 1948 In Died April 2002 Died September 2002 Died January 2002 Claud R. Caldwell John E. Griffin Paul W. Painter Augusta, Ga. Athens, Ga. Rossville, Ga. Admitted 1932 Admitted 1948 Admitted 1943 Died June 2002 Died August 2002 Died September 2002 William H. Cone William W. Griffin Franklin H. Pierce Savannah, Ga. Atlanta, Ga. Augusta, Ga. Admitted 1948 Admitted 1947 Admitted 1937 Died May 2002 Died May 2002 Died May 2002 Lennie F. Davis Christopher E. Harvey Jr. Mary Jean Ivey Royer Columbus, Ga. Decatur, Ga. Roswell, Ga. Admitted 1938 Admitted 1950 Admitted 1963 Died March 2002 Died September 2002 Died October 2002 Robert J. Durden E.T. Hendon Jr. Jesse Paul Scaife Atlanta, Ga. Decatur, Ga. Fort Gaines, Ga. Admitted 1979 Admitted 1949 Admitted 1941 Died May 2002 Died July 2002 Died January 2002 William M. Exley Jr. Jackson L. Hudson Thomas L. Thompson Jr. Savannah, Ga. College Park, Ga. Columbus, Ga. Admitted 1950 Admitted 1978 Admitted 1950 Died July 2002 Died March 2002 Died June 2002 Winfield M. Fickle Robert A. Kahn Joe B. Tucker Stone Mountain, Ga. Roswell, Ga. Ringgold, Ga. Admitted 1950 Admitted 1993 Admitted 1956 Died September 2002 Died June 2002 Died February 2002 William J. Forehand Emile J. Languirand John J. Yanskey Tifton, Ga. Villa Rica, Ga. Marietta, Ga. Admitted 1947 Admitted 1949 Admitted 1933 Died September 2002 Died August 2002 Died January 2002 Glenn Frick Jerry K. McDermott Atlanta, Ga. Birmingham, Ala. Admitted 1949 Admitted 1974 Died March 2002 Died September 2002

December 2002 63 Laura Matlaw Murphy, 50, Atlanta, the American Trial Lawyers GUY F. DRIVER JR. Ga., died Sept. 21, 2002, from a long Association, Polk County Bar Mr. Donald W. Thurmond battle with amyotrophic lateral scle- Association and Bar Register of rosis, also known as Lou Gehrig’s Preeminent Lawyers. In 1989, E. LAMAR GAMMAGE disease. Murphy graduated from Gammage was named Claimant Robert M. Brinson Emory Law School in 1977, and was Attorney of the Year. He also a court clerk for the Georgia Court served as chairman of the Workers ANDREW J. HILL JR. of Appeals and the Georgia Compensation Section of the State David H. Gambrell Supreme Court from 1984 to 1999. Bar of Georgia. He is survived by: Along with her law career, Murphy his wife, Zan Henslee Gammage; HOWARD W. JONES was known for her running and four children, Karen Gammage Robert M. Brinson writing. In the 1970s, she was a Harvey and her husband Sam founder of the Atlanta Track Club’s Harvey, Miles Lamar Gammage SARAH McALPIN women’s competitive team, which and his wife Laura Gammage, Harold T. Daniel Jr. put her in the forefront of women’s Rebecca Gammage “Toodles” running. When she was no longer Jolley and her husband Lex Jolley, LAURA MURPHY competitive, she volunteered at the Anne Lee Gammage Kitchens and Harold T. Daniel Jr. finish line of the Peachtree Road her husband Steve Kitchens; nine Race. For the column she wrote for grandchildren, Rebecca, Same and JUDGE PAUL PAINTER the track club’s monthly magazine, Miles Harvey, Henslee Bullard, Weiner, Shearouse, Weitz, Wingfoot, she won a gold award Meg and Annalee Gammage, Greenberg & Shawe, LLP from the Georgia Magazine Eleanor Jolley, Zachary Lamar Association in 2001. Murphy is sur- Kitchens and Zan Kitchens; and H. HOLCOMBE PERRY JR. vived by: her husband, Kent two great-grandchildren, Connor Robert M. Brinson Murphy; a daughter, Sarah Bullar and Emma Grace Harvey. Benjamin F. Easterlin IV Murphy; her mother, Julia Matlaw; Kirk M. McAlpin and a brother, John Matlaw. In Memory of: Rudolph N. Patterson Emil Lamar Gammage Jr., 75, JAMES C. BRIM JR. DAN BESSENT WINGATE SR. Cedartown, Ga., died Sept. 21, 2002. Robert M. Brinson H.T. Marshall Gammage co-founded the law firm Benjamin F. Easterlin IV of Mundy and Gammage. He was a Rudolph N. Patterson member of both the Alabama and Thomas Heyward Vann Jr. Georgia State Bar Associations, the Williams Family Foundation of Georgia Trial Lawyers Association, Georgia, Inc.

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

64 Georgia Bar Journal CLE CLE/Ethics/Professionalism/Trial Practice Note: To verify a course that is not listed, please call the CLE Department at (404) 527-8710. Also, ICLE seminars only list total CLE hours. For a breakdown of the credits, call (800) 422-0893. Calendar

10 NATIONAL BUSINESS INSTITUTE December Construction Defect Claims in Georgia Atlanta, Ga. 6 CLE 9 PRACTISING LAW INSTITUTE 10 LORMAN BUSINESS CENTER INC. 12th Annual Advanced Patent Finance: The Basics Prosecution Workshop Savannah, Ga. New York, N.Y. 6.7 CLE 9.8 CLE with 1 ethics 9 10 PRACTISING LAW INSTITUTE LORMAN BUSINESS CENTER INC. Fundamentals of Patent Prosecution Solving Water Intrusion and Mold Winter 2002 Problems in Georgia San Francisco, Calif. Athens, Ga. 16.3 CLE with 1 ethics 6 CLE

9 11 PRACTISING LAW INSTITUTE NATIONAL BUSINESS INSTITUTE Coping with US Export Controls 2002 Uninsured and Underinsured Motorist Washington, D.C. Law in Georgia 13.5 CLE with 1 ethics Atlanta, Ga. 6 CLE with 0.5 ethics 9 PRACTISING LAW INSTITUTE 12 Second Annual Institute on Securities ICLE Regulation in Europe Representing Small Business Owner London, England Statewide Video Replay 13 CLE with 1 ethics 6 CLE 9 NATIONAL BUSINESS INSTITUTE 12 Examining the Principles of Collaborative ICLE Law in Georgia Landlord & Tenant Law Atlanta, Ga. Atlanta, Ga. 3 CLE with 0.5 ethics 6 CLE

10 12 ALI-ABA ICLE Real World Document Drafting Guardianship – Proposed Legislation Philadelphia, Pa. Atlanta, Ga. 6 CLE with 0.5 ethics 3 CLE

10 12 NATIONAL BUSINESS INSTITUTE ALI-ABA Georgia Land Use Trying and Winning a Civil Antitrust Case Atlanta, Ga. Washington, D.C. 6 CLE 12 CLE with 1 ethics

December 2002 65 12 NEW YORK UNIVERSITY SCHOOL 13 OF CONT. & PROF. STUDIES ALI-ABA Institute on State and Local Taxation Advanced Writing and Editing for Lawyers New York, N.Y. Philadelphia, Pa. 12.5 CLE with 1 ethics 6.8 CLE

13 12 ALI-ABA NATIONAL BUSINESS INSTITUTE Advanced Writing and Editing for Lawyers Construction Issues in Ohio with Workshop Columbus, Ohio Philadelphia, Pa. Calendar 6.7 CLE 10 CLE 13 12 PRACTISING LAW INSTITUTE CHATTANOOGA BAR ASSOCIATION 20th Annual Institute on Telecommunications The New Disclosure and Corporate Goverance Policy & Regulation

CLE Chattanooga, Tenn. Washington, D.C. 6 CLE 9 CLE 12 13 CHATTANOOGA BAR ASSOCIATION TENNESSEE BAR ASSOCIATION Ethics and Professional Responsibility The Tennessee Environmental Law Forum Chattanooga, Tenn. Nashville, Tenn. 6 CLE with 6 ethics 6 CLE

12 13 CHATTANOOGA BAR ASSOCIATION KENNESAW STATE UNIVERSITY Who is Watching You Strategies for Preventing Malpractice Chattanooga, Tenn. Rome, Ga. 2 CLE 3 CLE with 1 professionalism and 3 trial

13 13 ICLE LORMAN BUISNESS CENTER INC. Recent Developments Fundamentals of Intellectual Property Law Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE with 0.5 ethics

13 14 ICLE THE ASSOCIATION OF TRIAL LAWYERS Trial Tactics from the Masters OF AMERICA Statewide Video Replay 16th Annual Weekend with the Stars 4 CLE New York, N.Y. 9.3 CLE with 9.3 trial

13 16-17 ICLE ICLE Products Liability — Motions Selected Video Replays Atlanta, Ga. Atlanta, Ga. 3 CLE

17 13 PROFESSIONAL EDUCATION ALI-ABA SYSTEMS INC. Deposing Witnesses for Trial Nursing Home Negligence Washington, D.C. Various Dates and Locations 6 CLE 1 ethics 6 CLE with 0.5 ethics

66 Georgia Bar Journal 17 CLE US DEPARTMENT OF JUSTICE - 19 OFFICE OF LEGAL ED. ICLE Money Laundering & Asset Forfeiture for Trial Tactics from the Masters Prosecutors Statewide Video Replay Columbia, S.C. 4 CLE 16 CLE with 1.0 ethics Calendar

17 19 NATIONAL BUSINESS INSTITUTE NATIONAL BUSINESS INSTITUTE Choice of Business Entity in Georgia How to Draft Wills and Trusts in Georgia Atlanta, Ga. Atlanta, Ga. 6.7 CLE with 0.5 ethics 6 CLE with 0.5 ethics

17 PROFESSIONAL EDUCATION 19 SYSTEMS INC. CHATTANOOGA BAR ASSOCIATION Nursing Home Negligence Legislative Outlook in Tennessee Taxation Various Dates and Locations Chattanooga, Tenn. 6 CLE with 0.5 ethics 1 CLE 17 US DEPARTMENT OF JUSTICE - 20 OFFICE OF LEGAL ED. ICLE Money Laundering & Asset Forfeiture for Trial Advocacy Prosecutors Atlanta, Ga. Columbia, S.C. 6 CLE 16.0 CLE with 1 ethics 18 20 NATIONAL BUSINESS INSTITUTE ICLE Choice of Business Entity in Georgia Labor and Employment Law Atlanta, Ga. Atlanta, Ga. 6.7 CLE with 0.5 ethics 6 CLE

18 20 ALI-ABA ICLE Persuasion Workshop Matrimonial Law Trial Practice Workshop Philadelphia, Pa. Atlanta, Ga. 7 CLE with 1 ethics 6 CLE

18 20 PRACTISING LAW INSTITUTE NATIONAL BUSINESS INSTITUTE California MCLE Marathon 2002-2003 Property Tax Law in Georgia Various Dates and Locations Atlanta, Ga. 6 CLE with 4 ethics 6.7 CLE

18 NATIONAL BUSINESS INSTITUTE Medical Malpractice in Georgia Atlanta, Ga. January 2003 6 CLE with 0.5 ethics

6 19 UNIVERSITY OF MIAMI SCHOOL OF LAW ICLE 37th Annual Heckerling Institute Reel Justice: Power, Passion & Persuasion on Estate Planning Atlanta, Ga. Miami, Fla. 6 CLE 30 CLE with 4 ethics

December 2002 67 7 DISTRICT OF COLUMBIA 17 DC Rules of Professionalism ICLE Various Dates and Locations So Little Time, So Much Paper 5 CLE with 3 ethics Atlanta, Ga. 3 CLE

10 17 ICLE ICLE Winning Settlement Demand Packages Advanced Appellate Practice Atlanta, Ga. Atlanta, Ga. 6 CLE Calendar 6 CLE

10 17 ICLE NATIONAL INSTITUTE OF TRIAL Advanced Legal Writing ADVOCACY Atlanta, Ga. Power Point for Litigators CLE 6 CLE Various Dates and Locations 6.8 CLE 14 NATIONAL BUSINESS INSTITUTE 17 Recent Decision and Development Affecting LORMAN BUSINESS CENTER INC. Commercial Law in Georgia HIPAA Compliance Atlanta, Ga. Jacksonville, Fla. 3 CLE 6.5 CLE

16 21 ICLE LORMAN BUSINESS CENTER INC. Negotiated Corporate Acquisitions The Basics of Drafting Wills and Trusts in Atlanta, Ga. Georgia 6 CLE Atlanta, Ga. 6.7 CLE 22 16 NATIONAL BUSINESS INSTITUTE NATIONAL BUSINESS INSTITUTE Legal Issues Facing the Construction Industry Nursing Home Malpractice in Georgia in Georgia Savannah, Ga. Atlanta, Ga. 6 CLE with 0.5 ethics 6 CLE with 0.5 ethics

16 23 LORMAN BUSINESS CENTER INC. ICLE Employee Fringe Benefits Plaintiff’s Personal Injury Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE

16 23 LORMAN BUSINESS CENTER INC. ICLE What You Need to Know About Public Records Eminent Domain Trial Practice and Open Meetings in Georgia Atlanta, Ga. Atlanta, Ga. 6 CLE 6.7 CLE

17 23 ICLE LORMAN BUSINESS CENTER INC. Trial Tactics from the Masters Nuts and Bolts of 401 (k) Plans Statewide Video Replay Athens, Ga. 4 CLE 6.7 CLE

68 Georgia Bar Journal CLE 23 30 LORMAN BUSINESS CENTER INC. LORMAN BUSINESS CENTER INC. Georgia Exempt Organizations and the What You Need to Know About Public Unrelated Business Income Tax Records and Open Meetings Atlanta, Ga. Savannah, Ga.

6.7 CLE 6 CLE with 0.5 ethics Calendar

24 31 ICLE ICLE Art of Effective Speaking for Lawyers Recent Developments Atlanta, Ga. Statewide Video Replay 6 CLE 6 CLE

24 31 ICLE ICLE Building on the Foundation Jury Selection and Persuasion Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE

24 31 ICLE ICLE Alliances, Joint Ventures and Partnerships Franchising Atlanta, Ga. Atlanta, Ga. 4 CLE 6 CLE

31 28-29 ICLE ICLE Nuts and Bolts of Business Law Selected Video Replays Atlanta, Ga. Atlanta, Ga. 6 CLE

31 29 GEORGIA STATE UNIVERSITY LORMAN BUSINESS CENTER INC. The Presidents Authority Over Mortgage Foreclosures Foreign Affairs Atlanta, Ga. Athens, Ga. 6 CLE 5 CLE 31 30 LORMAN BUSINESS CENTER INC. ICLE Construction Management/Design-Build in Cross Exam of Experts Georgia Atlanta, Ga. Savannah, Ga. 6 CLE 6.7 CLE

30 ICLE Employment Law Atlanta, Ga. February 2003 6 CLE

30 1 LORMAN BUSINESS CENTER INC. ICLE Charitable Giving in Georgia Bar-Media Relations Atlanta, Ga. Atlanta, Ga. 7.2 CLE 6 CLE

December 2002 69 4 13 ICLE ICLE Bridge the Gap Emerging Issues in Debt Collection Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE

4 13 NATIONAL BUSINESS INSTITUTE ICLE Handling the Generation Bare Knuckles with the Judges Atlanta, Ga. Atlanta, Ga.

Calendar 3 CLE 4 CLE

4 13 CHIEF JUSTICES COMMISSION ICLE ON PROFESSIONALISM Zoning Orientation on Professionalism Savannah, Ga. CLE Atlanta, Ga. 6 CLE 2 CLE with 1 ethics and 1 professionalism

7 14 ICLE ICLE White Collar Crime Georgia Auto Insurance Claims Law Atlanta Savannah, Ga. 6 CLE 6 CLE

7 14 ICLE ICLE Abusive Litigation Common Carrier Statewide Broadcast Atlanta, Ga. 6 CLE 6 CLE

7 14 ICLE ICLE Georgia Auto Insurance Law Residential Real Estate Atlanta, Ga. Statewide Broadcast 6 CLE 6 CLE

7 14-15 ICLE ICLE Aviation Law Estate Planning Institute Atlanta, Ga. Athens, Ga. 6 CLE 9 CLE

12 19 NATIONAL BUSINESS INSTITUTE NATIONAL BUSINESS INSTITUTE Sophisticated Section 1031 Transactions in Environmental Compliance Law in Georgia Georgia Atlanta, Ga. Atlanta, Ga. 6 CLE with 0.5 ethics 6.7 CLE with 0.5 ethics

13 ICLE Abusive Litigation Statewide Video Replay 6 CLE

70 Georgia Bar Journal Proposed Amendments to the Rules of the U.S. Court of Appeals for the

Notices Eleventh Circuit

ursuant to 28 U.S.C. § 2071(b), Pnotice is hereby given of proposed amendments to the Rules of the U.S. Court of Appeals for the Eleventh Circuit. A copy of the proposed amendments may be obtained on and after Dec. 3, 2002, from the Eleventh Circuit’s Internet Web site at www.ca11.uscourts.gov. A copy may also be obtained without charge from the Office of the Clerk, U.S. Court of Appeals for the Eleventh Circuit, 56 Forsyth St., N.W., Atlanta, GA 30303; phone: (404) 335-6100. Comments on the proposed amendments may be submitted in writing to the Clerk at the above street address by Jan. 3, 2003.

State Bar Audited Financial Report

ursuant to the State Bar of PGeorgia’s Bylaws, the 2002 Audited Financial Statement is available for members interesting in reviewing the document. It is available online at www.gabar.org/financials.pdf. A printed copy is also available by contacting the Bar’s communications department at (800) 334-6865, (404) 527-8736, [email protected].

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