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LTN Free to members of the State Bar of Georgia. #1 2010 Customer Satisfaction Survey Members of the State Bar of Georgia now have access to Fastcase for free. Unlimited search using Fastcase’s smarter legal research tools, unlimited printing, and unlimited reference support, all free to active members of the State Bar of Georgia. Log in at www.gabar.org and click the Fastcase logo. And don’t forget that Fastcase’s free apps for iPhone, Android and iPad connect to your bar account automatically by Mobile Sync. All free as a bene t of membership in the State Bar of Georgia. Quick Dial Editorial Board Attorney Discipline 800-334-6865 Editor-in-Chief ext. 720 404-527-8720 Bridgette E. Eckerson Consumer Assistance Program 404-527-8759 Members Conference Room Reservations 404-419-0155 Julia Anderson Christina Virginia Hendrix Fee Arbitration 404-527-8750 Robert Henry Beer Michelle J. Hirsch CLE Transcripts 404-527-8710 Diversity Program 404-527-8754 Donald P. 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Gaulden Jr., 85-86 Manuscript Submissions D. Scott Murray, 00-01 Jerry B. Blackstock, 84-85 The Georgia Bar Journal welcomes the submission of unsolicited legal manuscripts on topics of interest to the State Bar of William Wall Sapp, 99-00 Steven M. Collins, 82-84 Georgia or written by members of the State Bar of Georgia. Theodore H. Davis Jr., 97-99 Walter M. Grant, 79-82 Submissions should be 10 to 12 pages, double-spaced (including endnotes) and on letter-size paper. Citations should con- L. Brett Lockwood, 95-97 Stephen E. Raville, 77-79 form to A UNIFORM SYSTEM OF CITATION (19th ed. 2010). Stephanie B. Manis, 93-95 Please address unsolicited articles to: Bridgette Eckerson, State Bar of Georgia, Communications Department, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303. Authors will be notified Officers of the State Bar of Georgia of the Editorial Board’s decision regarding publication. Charles L. 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South Georgia Office Communications Staff 244 E. Second St. (31794) P.O. Box 1390 Sarah I. Coole Director Tifton, GA 31793-1390 800-330-0446, 229-387-0446, FAX 229-382-7435 Jennifer R. Mason Assistant Director Coastal Georgia Office Derrick W. Stanley Section Liaison 18 E. Bay St. Stephanie J. Wilson Administrative Assistant Savannah, GA 31401-1225 877-239-9910, 912-239-9910, FAX 912-239-9970 Publisher’s Statement The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (February, April, June, August, October, December) with a special issue in November by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. Copyright State Bar of Georgia 2013. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia and additional The opinions expressed in the Georgia Bar Journal mailing offices. 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GBJ Legals Departments 10 4 From the President 26 Live-In Lover Complaints: 8 From the YLD President Think Twice Before You File 32 Bench & Bar by Deborah S. Ebel and Margaret E. Simpson 38 Office of the General Counsel 16 40 Lawyer Discipline A Primer on Heirs Property Law Practice Management and Georgia’s New Uniform 42 Partition of Heirs Property Act: 44 Section News 30 Protecting Owners 50 Member Benefits of Heirs Property 52 Writing Matters by Crystal Chastain Baker 56 Professionalism Page and Shunta Vincent McBride 62 In Memoriam GBJ Features 64 CLE Calendar 24 68 Notices Georgia Bar Foundation 71 Classified Resources Awards $435,822 in Grants 72 Advertisers Index 42 by Len Horton 26 State Bar of Georgia Election Overview by Judy Hill 28 Notice of Expiring Board Terms 30 56 Crisp County Courthouse at Cordele: The Grand Old Courthouses of Georgia by Wilber W. Caldwell From the President

by Charles L. Ruffin Photo by Zach Porter Photography Georgia Legal Legends: Horace T. Ward and Ben F. Johnson Jr. Second in a series of historical profiles in observance of the 50th anniversary of the State Bar of Georgia.

ugust of this year was the 50th anniver- During the 1950s and early 1960s, the dominant public policy issue in Georgia—for all three branches sary of the March on Washington and Dr. of government, the rule of law and society in general— was school desegregation. A significant part of the Martin Luther civil rights movement was the A effort to gain admission for King Jr.’s famous “I Have “As we also celebrate the 50th African-American students into Georgia’s primary and a Dream” speech. Dr. King anniversary of the State Bar secondary schools, colleges and universities—including called on America to rise up of Georgia this year, I would our state’s law schools. Efforts to desegregate and live out the true mean- like to take this opportunity Georgia’s law schools—public and private—were cen- ing of its creed that all men to celebrate the legacy of two tered on two separate cases, prominently featuring two are created equal and should men who would become Georgia lawyers who did their household names in our be judged not by the color of state’s legal community: part to live out that creed.” Horace T. Ward and Ben F. their skin but by the content Johnson Jr. In 1950, Georgia native of their character. Horace T. Ward became the first African-American to apply for admission to the University of Georgia School As we also celebrate the 50th anniversary of the State of Law. The denial of his application was not unex- Bar of Georgia this year, I would like to take this oppor- pected, but it set in motion a lengthy saga in Georgia’s tunity to celebrate the legacy of two Georgia lawyers legal history that would change our state forever. And who did their part to live out that creed. Horace Ward would play a leading role in that change,

4 Georgia Bar Journal later becoming the first African-American to serve as a federal judge in Georgia. According to his biography in the New Georgia Encyclopedia, written by Robert A. Pratt of the University of Georgia, Judge Ward was born July 29, 1927, in LaGrange, the only child of Minnie Ward. He never Celebrating knew his father, and because his mother was a live-in the United States Constitution domestic worker, Ward lived with his maternal grand- parents. Despite not starting school until age 9, he was a bright student whose fourth-grade teacher convinced 225 years the principal to allow him to skip the fifth grade. He would graduate as valedictorian of the East Depot Street High School Class of 1946. Ward left LaGrange bound for Atlanta and Morehouse College, where he majored in political science. He completed his bachelor’s degree in three years and by 1950 had earned a master’s degree from Atlanta University (now Clark Atlanta University). During his postgraduate studies, Ward was taken under the wing of William Madison Boyd, chair of the political science department at Atlanta University and president of the Georgia branch of the NAACP. Ward’s interest in becoming a lawyer stemmed from his learning about Austin Thomas Walden, one of the few African-American attorneys practicing in Georgia in those days. Ward did not want to have to leave the state to attend law school. Boyd had been looking for someone to break the color barrier at the University of Georgia; in Ward, he believed he had found someone with the credentials to do so. Ward agreed to take the first step in the application process, which Robert Pratt describes this way: SCALIA McCULLOUGH Photo credit: The Collection of the Photo credit: William B. McCullough Supreme Court of the United States On Sept. 29, 1950, Ward formally applied to law school at UGA. The university registrar forwarded Ward’s application to the Board of Regents—a pro- CONSTITUTIONAL cedure that was not followed for white applicants. When the executive secretary of the Board of Regents SYMPOSIUM offered Ward out-of-state tuition assistance, Ward refused it and insisted that his application be judged Please join the State Bar of Georgia in on its merits. Despite Ward’s repeated requests for celebrating the United States Constitution updates on the status of his application, the regents 225 years after its ratification. continued to stall. Finally, on June 7, 1951, the registrar informed Ward by letter that his application had been denied. The university’s decision came more March 12-14, 2014 than nine months after Ward had filed his application. For the next 12 months Ward tried in vain to The Westin Buckhead Atlanta get university officials to give him a reason for their decision. Up to this point, university officials, Confirmed speakers include including the president and University System of U.S. Supreme Court Justice Antonin Scalia Georgia chancellor, had insisted that Ward was and David McCullough, two-time winner simply “not qualified” for admission, despite his stellar academic performance at both Morehouse of the Pulitzer Prize and recipient of the and Atlanta University. University officials stead- Presidential Medal of Freedom. fastly denied that UGA excluded blacks; the fact that no black had ever been admitted to the university For more information, contact was merely coincidental. Meanwhile, the Board of Steve Harper at [email protected]. Regents decided to ‘modify’ the admissions crite-

October 2013 5 ria by requiring that candidates By then, however, Ward had United States and made the historic take an entrance exam and that already enrolled in law school appointment of Ward as a judge they get two additional letters at Northwestern University in on the U.S. District Court for the of recommendation—one from Evanston, Ill., as prospects for his Northern District of Georgia. “In a UGA law school alumnus admission to the UGA School of Law an interesting twist of fate,” Robert and the other from the Superior anytime in the near future appeared Pratt wrote, “Ward later presided Court judge in the area where dim. His assessment of the situation over several cases in which UGA the applicant resided. was correct; on Feb. 12, 1957, the U.S. was the defendant.” District Court dismissed Ward’s suit Ward served in active status The attorneys who were repre- on the grounds that he had failed from 1979 through 1994, when he senting Ward included Walden, to reapply for admission to UGA took senior status. He retired from Constance Baker Motley and under the newly instituted guide- the bench last September. Donald Hollowell, who had just set lines requiring letters of recommen- Bootle’s ruling having effectively up his practice in Atlanta on Hunter dation and that Ward’s entering desegregated Georgia’s public insti- Street (now Martin Luther King Jr. another law school had rendered his tutions of higher learning, the issue Boulevard) with $300 he had bor- UGA application moot. was, however, far from settled at the rowed from a friend. Hollowell was Ward decided not to appeal the state’s private colleges and universi- one of only a dozen or so African- decision, having already gotten ties. State law still denied tax exemp- American lawyers in Atlanta in on with his life at Northwestern, tions to integrated private schools. 1952. It was clear to them that Ward where he earned his law degree in At the time, Ben F. Johnson Jr. would have to take the University 1959. He then returned to Georgia was the new dean of the Emory of Georgia to court to have any and worked with Hollowell and University School of Law. Working chance of entering its law school. Motley on their successful efforts, closely with Henry Bowden Sr., who Their suit was filed in U.S. District realized in 1961, to desegregate the was chairman of Emory’s Board of Court in Atlanta on June 23, 1952, an state’s flagship university. On Jan. Trustees and the university’s gen- event that was followed by numer- 6, of that year, U.S. District Court eral counsel, Johnson pushed for ous delays and legal maneuvers by Judge William A. Bootle of the and argued the landmark case that the state’s attorneys over the next Middle District of Georgia ordered would integrate Georgia’s private several years. On Sept. 9, 1953, less UGA to admit Hamilton E. Holmes universities. Throughout his career, than one month before the scheduled and Charlayne A. Hunter as the he remained a strong and effective court date of Oct. 5, Ward was draft- first African-American students in advocate for women and minorities. ed into military service, effectively the institution’s 175-year history. Johnson was born in Atlanta in suspending his case. He served two Ward joined Hollowell’s firm, 1914. Following his undergradu- years in the Army, including a year which would become Hollowell, ate work at Emory, Georgia State in Korea, before returning home in Ward, Moore & Alexander. In 1964, University and the University of 1955 and reactivating the lawsuit. Ward was elected to the Georgia Georgia, he received a J.D. from After multiple new motions for dis- State Senate, where during his first Emory Law School in 1939 and missal filed by lawyers for the uni- term one of the fellow senators was admitted to the Georgia Bar versity and state were unsuccessful, with whom he crossed paths was Association the same year. From the court date was rescheduled for a South Georgia peanut farmer 1940 through 1943, Johnson practiced Dec. 17, 1956, which was more than named Jimmy Carter. law at Sutherland, Tuttle & Brennan six years after Ward’s original appli- Fifteen years later, Carter was in Atlanta, where he came under cation to law school. serving as the 39th president of the the influence of Georgia legal giants

The Georgia Bar Journal is available online at www.gabar.org. You can now: n Search the Georgia Bar Journal in its entirety by keywords. n Access all the information of the printed edition, but electronically. n Add “sticky notes” and “favorite” tabs to the copy you access. n Share the entire Journal or specific pages of the Journal with your collegues by sending an email or posting it on social networking sites. n Link directly to advertisers within each issue. Try it now! www.gabar.org/newsandpublications/georgiabarjournal/

6 Georgia Bar Journal Judge Elbert P. Tuttle and Randloph the university and its representa- Atlanta Municipal Court, Fulton W. Thrower, among others. tives served as plaintiffs.” County Superior Court, Court of Johnson served in the Naval Challenging identical provi- Appeals of Georgia and, since 1994, Reserve from 1943 to 1946, includ- sions of the Georgia Constitution U.S. District Court for the Northern ing time on the U.S.S. Yorktown and Georgia statutes, the suit was District of Georgia (in senior status during its landings on Iwo Jima initially unsuccessful in DeKalb since 2009). Johnson went on to and Okinawa. Following the war, County Superior Court, where one create the unique Pre-Start Program, Johnson began 36 years at Emory defendant’s motion for dismissal a vehicle for recruiting African- Law School, including his service and summary judgment on behalf American students to Emory as dean from 1961 to 1972. During of the remaining defendants was Law School. this period, he also served as a granted. But Emory appealed to After leaving Emory, Johnson deputy assistant attorney general the Supreme Court of Georgia, capped his career at the College of for Georgia from 1955 to 1961 and which reversed the trial court. Law at Georgia State University, as a state senator from 1963 to According to William Turner’s serving as its founding dean from 1969. In the Senate, he was chiefly account, “The opinion rehearses the 1981 to 1985. Since 1994, the Georgia responsible for writing the reso- claim of the original petition that the State University College of Law has lutions to permit the creation of two provisions of the statute contra- presented the Ben F. Johnson Jr. the Metropolitan Atlanta Rapid dicted each other, such that the first Public Service Award to a deserv- Transit Authority (MARTA). provision, limiting the tax exemp- ing Georgia attorney. Johnson died In 1962, Johnson and Bowden tion to institutions that served the June 30, 2006, at his home in Atlanta. filed Emory v. Nash, which sought general public, must stand while I have been privileged during to overturn a state law that denied the second provision, limiting the my legal education and during my tax exemptions to integrated pri- tax exemption depending on the law practice to know both of these vate schools. As William B. Turner, race of the institution’s constituents, men. Ben Johnson was my tax law a visiting assistant professor must fall. The opinion makes no ref- professor at Emory and allowed at Emory Law in 2007 wrote in erence to the equal protection argu- me to earn a passing grade. Judge his paper The Racial Integration of ment, but Bowden and Johnson had Ward presided over my first trial Emory University: Ben F. Johnson Jr. achieved their goal. The Supreme within five months after I started and the Humanity of Law, the story Court of Georgia expressly held my own practice, and I was fortu- of Emory’s desegregation is very that ‘Emory, as a private school, nate to prevail in that trial. I can per- different from that of the public can accept colored students without sonally attest that Georgia is a better institutions in the South. jeopardizing its tax exemptions.’” place because of these two giants of “Emory’s leaders sought inte- Following the Supreme Court’s Georgia’s legal community. gration in 1962 while others fought action, Turner added, “Lesser men it,” Turner wrote. “Emory briefly might have rested on their laurels. Charles L. Ruffin is president found itself in the peculiar position Others might have revealed a mea- of the State Bar of Georgia and of being unable to admit African- sure of cynicism or ignorance in their can be reached at cruffin@ American students for fear of los- contributions to racial integration bakerdonelson.com. ing its tax exemption even after the by winning the suit to strike down state legislature had enacted leg- the segregation statute, then wait- islation desegregating the state’s ing idly for African-Americans to Correction public institutions.” matriculate. Johnson was just getting In the August edition of the Georgia Turner continued, “The obvious warmed up. He had high aspirations Bar Journal, my President’s Page difference between these institu- for Emory Law School and Emory article contained an erroneous tions and Emory is that they are University, and deliberately increas- reference to the Revolutionary War public, but Emory is private. It is, ing the number of African-American and “Gen. Cornwallis’s surrender therefore, less subject to the vagaries students was part of his plan.” at Yorktown, Pa.” We all know, of electoral politics and stands in an In 1965, more than two years after of course, that the surrender took importantly different relationship to the Emory v. Nash decision, Emory place in Virginia, not Pennsylvania. the applicable law. But the differ- Law admitted its first two full-time ence between integration at Emory African-American students: Marvin While you might think that was and integration at the [public insti- S. Arrington Sr., who would go on an uncaught typographical error, tutions] lay not only in the specific to serve for 16 years as president it was actually a contest to see statutes. It lay also in the posture of the Atlanta City Council and 10 which readers, if any, were paying of the universities’ administrators. years as a Fulton County Superior attention. The winner: my good In the suit to integrate [a public col- Court judge before his retirement friend, colleague and State Bar past lege], the university administrator last year, and Clarence Cooper, president, Jeff Bramlett. was the defendant. In Emory v. Nash, who has served as a judge for the

October 2013 7 From the YLD President

by Darrell L. Sutton

Great Lawyer: Scholar, Orator and Servant

hen we lawyers hear the word “pro- Georgia Past President Lester Tate once told me that to be a great lawyer you have to be all three of the follow- fessionalism,” we immediately think ing: scholar, orator and politician. You can be a lawyer by being just one of those three, and a good lawyer by about conflicts of interest; the lawyer- being two of the three. But to be a great lawyer, you W have to be all three. client relationship; duty; how we conduct ourselves with The first two of these three traits are self-explanatory, and lawyers are rarely confused about what they mean as judges and other lawyers; they are learned in law school “When you became a member and legal practice. But the third abusive litigation tactics; and of these three traits—politi- of the State Bar of Georgia, and cian—is often misunderstood. in general, being truthful. All When we think of a politician, we are generally led to of these are important things. thus the YLD, you passed through the contemporary caricature of the demagogue. One who Professionalism is more a proverbial gate of opportunity. is running for some elected than that, though. It is the office, and who in doing so, grander concept of a lawyer’s But with that opportunity comes is willing to tell others what- professional responsibility. ever they need to hear to be And lawyers, along with doc- the responsibility to be noble convinced to vote for him tors and the clergy, are mem- or her. But that is not what I bers of noble professions; and to serve.” mean by “politician.” professions set apart from all The politicians I am refer- others by their one shared ring to are the lawyers who characteristic: service, especially service to others. We make themselves available to others. The lawyers cannot, therefore, truly fulfill our professional respon- who are devoted not only to their practice, but also sibility unless we are serving others. to their profession and community. The lawyers who Service is not only a necessary ingredient to the don’t just consume what others have to offer, but who fulfillment of our professional responsibility, though; seek to produce what others who are similarly situ- it is the key to becoming a great lawyer. State Bar of ated—whether it be by geography, profession or oth-

8 Georgia Bar Journal erwise—can consume. The lawyers who, in other words, serve. Don’t get me wrong: doing this is neither natural, nor easy. It requires effort. It requires taking yourself out of your comfort zone and putting yourself into uncomfortable circumstances. It requires sacrifice—both of your time and your talents. It is a skill that the vast majority of us do not naturally possess but instead have to work BUILDING ON 50 YEARS to attain. It is for these reasons that the politician is the most elusive and most difficult trait OF SERVICE TO THE to achieve. The good news, though, is that not only can it LEGAL COMMUNITY. be achieved, but the means of achieving it are at your disposal as a member of the YLD. The YLD is the service arm of the Bar and has dedicated its 67-year existence to service, both to the profession and the public. It has 26 committees dedicated to service to the profession, including, business law, criminal law, elder law, family law, intellectual property law, judicial law clerk, juvenile law, labor and employment, litigation, real estate—and service to others, including minorities in the profession, women in the profession, community service projects, advocates for students with disabilities, aspiring youth, disaster legal assistance and law- related education. Perhaps your chosen path to becoming a great lawyer—the servant lawyer—is instead on the The ABA RETIREMENT FUNDS local level. There are 13 affiliate young lawyer divi- PROGRAM is proud to celebrate its sions spread throughout the state. From Albany 50th year of providing comprehensive to Blue Ridge, Augusta to Columbus, Atlanta to and affordable retirement plans Valdosta, Rome to Savannah, Gwinnett to Macon, exclusively to the legal community. and everywhere in between, there is a local YLD Your membership has made the near your home or office that will benefit from Program a success. Thank You. Find having you as part of it. Perhaps you see interacting with other young out what thousands of Program lawyers as the means by which to become a com- member firms already know about plete lawyer. The YLD holds five meetings each saving for retirement. year at various locations. So far this Bar year the YLD has held a meeting in Chicago, and will hold Call an ABA Retirement Funds meetings in Chattanooga, Atlanta, Charlotte and Program Regional Representative Amelia Island. Each meeting offers CLEs and today at (866) 812-1510. interaction with young lawyers from across the www.abaretirement.com state, not to mention a little fun here and there. [email protected] When you became a member of the State Bar of Georgia, and thus the YLD, you passed through a proverbial gate of opportunity. But with that opportunity comes the responsibility to be noble and to serve. How will you use the YLD to seize that opportunity? How will you become profes- The Program is available through the State Bar of Georgia as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a sionally responsible? How will you be noble? How request of the recipient to indicate an interest in, and is not a recommendation of any security. will you serve? Securities offered through ING Financial Advisers, LLC (Member SIPC). The ABA Retirement Funds Program and ING Financial Advisers, LLC, are separate, unaffiliated Darrell L. Sutton is the president of the Young companies and are not responsible for one another’s products and services. Lawyers Division of the State Bar of Georgia and CN0311-8581-0415 can be reached at [email protected].

October 2013 9

A Look at the Law

Live-In Lover Complaints: Think Twice Before You File by Deborah S. Ebel and Margaret E. Simpson

magine the following scenario: Hubert and a “live-in lover complaint” and losing are a bit drastic. O.C.G.A. § 19-6-19(b) provides for a mandatory award Winona decide to divorce after many years of of the reasonable attorney’s fees of the defendant if the plaintiff does not prevail. marriage during which Hubert has been the I Proving Your Case financial breadwinner. Hubert agrees to pay $5,000 per In order to win his live-in lover complaint, and thus not get stuck with Winona’s attorney’s fees, Hubert month in alimony to Winona for a period of five years. must prove by a preponderance of the evidence:

The parties enter into a written settlement agreement n an open and continuous cohabitation of Winona with Beau, and which is adopted by the court and made a part of their n either sexual intercourse between Winona and Beau or sharing of expenses of cohabitation between divorce decree. Winona and Beau.

After one year of consistently paying $5,000 each Georgia’s “live-in lover law,” O.C.G.A § 19-6- month to Winona, Hubert discovers that Winona has 19(b), provides in part: begun dating Beau. Hubert further learns that Beau has been spending the night at Winona’s home. Hubert is Subsequent to a final judgment of divorce award- overjoyed, thinking that his days of paying alimony to ing periodic payment of alimony for the support of Winona are over now that she has found someone new. a spouse, the voluntary cohabitation of such former If Hubert were to come to you seeking legal advice spouse with a third party in a meretricious relation- about this situation, however, then you may have to ship shall also be grounds to modify provisions give him some bad news. made for periodic payments of permanent alimony Georgia’s “live-in lover” statute would give Hubert for the support of the former spouse. As used in this grounds to modify his alimony payments downward subsection, the word “cohabitation” means dwelling or even terminate them, but only if he can meet a together continuously and openly in a meretricious pretty high burden of proof.1 Hubert will have to be relationship with another person, regardless of the able to show that Winona and Beau are living together sex of the other person. [emphasis added]. openly and continuously and that they are either having sex or sharing living expenses. You will also As in a typical modification based on changes in need to warn Hubert that the consequences of filing financial status or income, the evidence must be from a

October 2013 11 period of time after entry of the final of occasions; in these situations, the third party with whom he or she is judgment. In addition to proving a courts have held that having the openly and continuously cohabit- continuous and open cohabitation, same overnight guest even on mul- ing, or did the former spouse/ali- the claimant must also prove the tiple occasions is not the equivalent mony recipient share the expenses existence of a meretricious relation- of continuous cohabitation. of cohabitation with the third party ship. Although the word meretri- with whom he or she is cohabiting? cious connotes a cheap or vulgar Since the constitutionality of To terminate alimony based on relationship, that is not the mean- O.C.G.A. § 19-6-19(b) depends the sexual intercourse element, ing for this term of art as used in upon the meretricious relation- there must be actual proof of sexual this statute. Rather, Georgia courts ship being one similar to mar- intercourse by a preponderance of have held, that for the purposes of riage, it follows that the cohabi- the evidence. No reported Georgia this statute, a meretricious relation- tation must go beyond periodic, case has held that romantic involve- ship is simply one in which there is physical interludes. [emphasis ment, the opportunity to have sex either sexual intercourse or a shar- added].5 and/or expressions of love or lust ing of the expenses of cohabitation.2 are sufficient to prove that sexual As the cases cited above set intercourse has occurred. This is In Hathcock v. Hathcock, 249 forth, periodic physical interludes obviously difficult to prove with- Ga. 74, 76, 287 S.E.2d 19 (1982), are not proof of open and continu- out an admission by the alimony- we construed “meretricious” as used ous cohabitation. The ruling of the receiving spouse or his/her lover, in O.C.G.A. § 19-6-19(b) to define the trial court in Donaldson—that hav- or the rare case in which the couple two situations which would justify ing an unrelated male guest past in question videotapes themselves the trial court’s modification of ali- midnight for more than four nights in the act, or the even rarer case mony under that section: out of any 30-night period would in which a private investigator or be tantamount to being in a mer- other third party lawfully video- [U]pon proof of sexual intercourse etricious relationship—was consid- tapes sexual intercourse. between the former spouse and ered unreasonably intrusive and The Supreme Court of Georgia the third party although no proof against the holding in Hathcock. So, has also recognized that, with- is offered tending to establish even if Hubert has airtight evidence out proof of continuous cohabita- that the former spouse received that Beau has spent the night with tion, proof of sexual intercourse from, gave to, or shared with Winona on multiple occasions, that alone will not be sufficient to jus- the third party expenses of their alone will not be enough to meet tify termination of alimony under cohabitation. . . . [T]he statute also his burden of proof. O.C.G.A. § 19-6-19(b). In Daniels v. applies upon proof that the for- Receiving mail at a given address Daniels,8 the relationship in ques- mer spouse received from, gave is not the same as residing at the tion had resulted in the birth of a to, or shared with the third party address continuously.6 It takes far child. The Court held, however: expenses of their cohabitation more than a third party receiv- although no proof is offered tending mail at the former spouse’s [a]lthough the evidence supports a ing to establish sexual intercourse residence to prove that the third finding of periodic sexual encoun- between the former spouse and party continuously resided at that ters, there is no evidence that the the third party.3 address.7 So, even if Hubert can parties dwelled together continu- prove that Beau has spent the night ously or openly. Therefore, the Thus, one of these elements, with Winona on multiple occasions relationship fails to meet the namely sexual intercourse or shared and that Beau recieves mail at standard authorizing a modifica- living expenses, must be proven in Winona’s address, without further tion of permanent alimony under addition to the element of an open evidence, he will not prevail. O.C.G.A. § 19-6-19(b).9 and continuous cohabitation. Sexual Intercourse or Shared In the alternative, if sexual inter- Open and Continuous Expenses of Cohabitation course cannot be proven, a court Cohabitation If a former spouse who pays can terminate alimony if the alimo- Cohabitation must be open and alimony has sufficient evidence of ny payor can establish that the ali- continuous, not secret and hidden, an open and continuous cohabita- mony recipient shares the expenses and akin to the living arrange- tion by his or her former spouse of cohabitation (shared payments ments of married people.4 For the who receives the alimony, then the of rent, mortgage, utilities, yard purposes of a live-in lover claim, second prong of the test examines maintenance, food, etc.) with his or Georgia courts have considered whether the relationship is “mer- her co-inhabitant. Under Hathcock, situations in which there was proof etricious.” In other words, did the receiving from, giving to or sharing that a former spouse had had the former spouse/alimony recipient with the co-inhabitant the expenses same overnight guest on a number have sexual intercourse with the of cohabitation will be sufficient to

12 Georgia Bar Journal show the existence of a meretricious may become disabled and strug- ed, but before they were divorced, relationship. Coupled with proof of gle financially, whereas Hubert is Winona had been living with Beau open and continuous cohabitation, financially well heeled. Other fam- and was also having sex or shar- this would present a valid claim to ily members may be financially ing living expenses with Beau, this take before a court to seek termina- dependent on Winona. If these few would not be grounds to modify tion of the alimony. situations exist, Winona’s lawyer or terminate his alimony under Even if Hubert can prove that could make a compelling argument O.C.G.A. § 19-6-19. Winona and Beau are living togeth- for keeping the alimony in place, er openly and continuously and or merely reducing it, instead of No Recoupment of Alimony that they are having sex or shar- terminating it altogether.10 Already Paid ing living expenses, however, there In an action to terminate alimo- is still a chance that he may not Timing ny under the live-in lover statute, a prevail because the ultimate deci- O.C.G.A. § 19-6-19 plaintiff may not recoup any alimo- sion is, after all, in the court’s total ny already paid even if the court discretion. Below are some addi- (b) Subsequent to a final judgment finds that the defendant cohabited tional considerations to be taken of divorce awarding periodic pay- openly and continuously in a mer- into account. ment of alimony for the support etricious relationship. “Retroactive of a spouse, the voluntary cohab- modification of an alimony obliga- Other Considerations itation of such former spouse tion would vitiate the finality of the Even if you are able to establish with a third party in a meretri- judgment obtained as to each past both prongs of the live-in lover cious relationship shall also be due installment. . . . [A] judgment law, there are some other things to grounds to modify provisions modifying an alimony obligation is consider before bringing an action made for periodic payments of effective no earlier than the date of to modify or terminate alimony permanent alimony for the sup- the judgment.”11 under this statute. port of the former spouse. . . . In Hendrix v. Stone,12 the [emphasis added]. Supreme Court of Georgia held The Court Has Discretion that a trial court may not retro- Courts are not required to termi- Living in a meretricious relation- actively modify an alimony obli- nate alimony even if a party proves ship with another prior to entry gation, reversing a trial court’s all of the elements of the live-in of the final divorce decree will modification under O.C.G.A. § lover statute by a preponderance of not serve to prove the elements of 19-6-19(b) of alimony in which the evidence. A court may choose the live-in lover statute, unless of the modification was to be effec- not to modify a defendant’s ali- course one proves that the meretri- tive prior to the date of the judg- mony even if she/he is cohabit- cious cohabitation started before ment granting the modification.13 ing continuously and openly with entry of the divorce and contin- In Donaldson, the trial court held someone with whom she/he is ued after entry of the final divorce that the former wife had forfeited having sexual intercourse and/or decree. If Hubert were to find out alimony for four months while sharing living expenses. Winona that after he and Winona separat- she was living with another man.

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October 2013 13 The trial court found that she was Even if you can prove continu- Tips for Drafting Settlement not cohabitating openly, continuous cohabitation, unless you have Agreements ously and meretriciously at the an admission of sexual intercourse If you represent the alimony- time of the hearing, but imposed or a legally obtained video or pho- payor spouse, there is really no a self-executing termination of tographs, you will need to focus need to add a provision in your her alimony if at any time in the on proof of shared expenses of termination of alimony section of future she had male company past cohabitation. Do not bring an a settlement agreement (i.e., ali- midnight more than four times action under O.C.G.A. § 19-6-19(b) mony terminates on the death of per month. The Court of Appeals without adequate proof; the con- either spouse or the alimony recip- of Georgia reversed, holding that sequence is a mandatory award ient’s remarriage) to the effect that the trial court could not retro- to the former spouse of his or her alimony also terminates upon a actively terminate alimony dur- reasonable attorney’s fees, on top finding by a court of continuous ing the four months that the wife of the attorney’s fees already paid cohabitation in a meretricious was meretriciously cohabitating to the plaintiff’s own attorney. relationship. The law allows for with the third party. The Court such a claim to be filed anyway, held that the self-executing four- Constitutionality of the Live- regardless of whether the settle- night per month limit was unau- in Lover Statute ment agreement includes such thorized and not in accordance If you have proof of the nec- language. It doesn’t hurt, how- with prior holdings that require essary elements of an open and ever, to add this provision. If you that modification or termination continuous meretricious relation- represent the alimony recipient, under O.C.G.A. § 19-6-19(b) must ship, a constitutional challenge to you will want to make sure that be proven by showing open and the live-in lover law is not likely the settlement agreement provides continuous cohabitation and sex- to derail your case. You should that alimony may terminate only ual intercourse or shared living be prepared, however, to defend after a court of competent jurisdic- expenses. Having occasional over- against such a challenge. tion determines that the require- night guests is not sufficient proof In Sims v. Sims,15 the Supreme ments of 19-6-19(b) have been met of such a relationship. On remand, Court of Georgia held that O.C.G.A. and that the court, in its discre- the trial court in Donaldson was not § 19-6-19(b) survived a challenge on tion, finds that alimony should permitted to order disgorgement equal protection grounds, finding be either modified or terminated. by the former wife of alimony that the “classification of former The authors are not aware of any she had received while meretri- spouses who have elected volun- Georgia cases in which the court ciously cohabitating because that tarily to cohabit with a third party was faced with a live-in lover claim would be an impermissible retro- of a different sex16 in a meretricious involving a poorly drafted settle- active modification. Because the relationship is a rational classifica- ment agreement that provided that trial court found that the wife tion which furthers legitimate gov- “alimony ceases upon entry by was not currently in a relationship ernmental objectives.” Although the alimony-receiving spouse into within the meaning of O.C.G.A. Sims is the only known challenge a meretricious cohabitation with § 19-6-19(b) at the time of the hear- to the constitutionality of O.C.G.A. a third party.” Such a situation ing, it did not terminate her right § 19-6-19(b), cases in which a consti- violates the language and require- to future alimony either.14 tutional challenge has been made to ments of the live-in lover statute other mandatory fee award statutes in that it leaves the determination Mandatory Award have upheld their constitutionality. of meretricious cohabitation to the of Attorney’s Fees In Smith v. Baptiste,17 appellant’s alimony payor former spouse. In Attorney’s fee awards are not motion for attorney’s fees under our hypothetical, if Hubert simply discretionary in an action to termi- O.C.G.A. § 9-11-68(b)(1) was denied unilaterally stops paying alimony nate alimony under the live-in lover by the trial court on the grounds that to Winona, Winona would have statute in the event the plaintiff does the statute violated various articles a successful contempt action; oth- not prevail. O.C.G.A. § 19-6-19(b) of the Georgia Constitution. The erwise, the court would be vali- provides in pertinent part: statute mandated an award of rea- dating an illegal unenforceable sonable attorney’s fees and expens- settlement provision. So, even if In the event the petitioner does es if a settlement offer was rejected Hubert and Winona’s marital set- not prevail in the petition for and the judgment was only a certain tlement agreement provides that modification on the ground set percent less than the rejected settle- Hubert can stop paying alimony if forth in this subsection, the peti- ment offer, similar to the scheme in Winona is cohabiting in a meretri- tioner shall be liable for reason- O.C.G.A. § 19-6-19(b). The Supreme cious relationship, and does not able attorney’s fees incurred by Court of Georgia reversed the trial include language that this must the respondent for the defense court and held O.C.G.A. § 9-11- first be determined by a court of the action. [emphasis added]. 68(b) to be constitutional.18 of competent jurisdiction, Hubert

14 Georgia Bar Journal risks being held in contempt if he and by Georgia Trend and James court’s order that alimony would be forfeited for “any thirty-day stops paying before a court has magazines for her leadership in the legal community. She is a period during which [former wife] determined that all of the requisite had an unrelated male companion factors have been proven. master in the Bleckley Inn of Court stay with her past midnight and a member of the Advisory for more than four nights” was Conclusion Board for the Emory Public “unreasonably intrusive,” and also Once you have taken your cli- Interest Committee. Ebel received “unauthorized, since it is not in ent through the divorce process her B.A. in American Intellectual accordance with [the standard] of Hathcock v. Hathcock.”). and obtained a final judgment History from the University of 6. Kean v. Marshall, 294 Ga. App. and decree of divorce, be aware Rochester, her Master’s in social of the relationships that your cli- 459, 669 S.E.2d 463 (2008); Johnson work from the University of ent and his or her former spouse v. Woodard, 208 Ga. App. 41, Michigan and her J.D. from Emory S.E.2d 701 (1993). have with others. Advise the cli- University School of Law. 7. See Dunlap v. Dunlap, 234 Ga. 304, ent of what activities are like- 215 S.E.2d 674 (1975); Rice v. Rice ly to result in a termination or 240 Ga. 272, 240 S.E.2d 29 (1977). reduction of alimony so that the Margaret E. Simpson 8. 258 Ga. 791, 374 S.E.2d 735 (1989). client can either govern himself joined Edwards & 9. Id. at 736. or herself accordingly to avoid Associates in July 10. Hurley v. Hurley, 249 Ga. 220, 290 a claim for alimony termination, 2011, and practices S.E.2d 70 (1982). or so that the client can be on the exclusively in family 11. Branham v. Branham, 290 Ga. 349, 720 S.E.2d 623 (2012). lookout for activities of his/her law. She attended 12. 261 Ga. 874, 412 S.E.2d 536 (1992). former spouse that would other- college at the University of wise unfairly result in alimony 13. Donaldson v. Donaldson, 416 Montevallo majoring in political S.E.2d 514, 262 Ga. 231 (1992). continuing to be received by an science with a minor in pre-law. 14. The appellate court does not ex-spouse who has the equivalent After graduating magna cum address whether the trial court of a new spouse, although not laude in 2005, Simpson pursued could have terminated future formally remarried. alimony based upon a previous If Hubert and Winona both her J.D. at the University of live-in lover relationship that know exactly what it would take Alabama School of Law. During was no longer ongoing, but the in order for Hubert’s alimony to law school, she worked as a law implication is that this would not be terminated under the live-in clerk in the areas of family law, have been permissible. lover statute, they could both be consumer protection and 15. 245 Ga. 680, 266 S.E.2d 493 (1980). 16. The live-in lover statute used spared some needless bickering employment discrimination. or harassment from one another to apply only to meretricious Simpson was admitted to the relationships between persons about the issue. Hubert could be Alabama State Bar in 2008. She of the opposite sex. Van Dyck spared having to pay Winona’s returned to her hometown where v. Van Dyck, 262 Ga. 720, 425 attorney fees for bringing a live-in she served as law clerk to the S.E.2d 853 (1993). The statute was lover complaint without the proof senior judge of Montgomery subsequently amended to apply he needs. to all meretricious relationships, County’s Family Court Division. regardless of the sex of the other Deborah S. Ebel Simpson was appointed as special person. began her legal career master and presided over 17. 287 Ga. 23, 694 S.E.2d 83 (2010). in 1975 at Atlanta preliminary hearings in domestic 18. The special concurrence by Justice relations cases, making written Nahmias in Smith v. Baptiste Legal Aid Society, rejected the notion that such a recommendations to the judge moving to what is statute impedes or chills litigants now known as regarding temporary custody, from filing and pursuing claims McKenna, Long & Aldridge in child support and alimony issues. out of fear that the litigants will 1985, where she practiced have to pay attorney’s fees if they Endnotes lose. Justice Nahmias went on to business litigation, became an 1. O.C.G.A. § 19-6-19(b). state that even with this statute equity partner and began and 2. Donaldson v. Donaldson, 262 Ga. on the books: “[t]hese appellees developed the firm’s family law 231, 416 S.E.2d 514 (1992). accessed the court by filing their practice. She started her family 3. Id. at 231 tort claims. They then pursued law practice, Ebel Family Law, in 4. Shapiro v. Shapiro, 259 Ga 405 those claims vigorously, ignoring 2012. Ebel has been recognized as (1989). a settlement offer, until the claims 5. Reiter v. Reiter, 365 S.E.2d 826, were fully resolved with a grant of a Super Lawyer; as one of the top 258 Ga. 101 (1988). See also summary judgment against them.” 50 women lawyers in Georgia; Donaldson, 262 Ga. 231, 416 Id. at 32. S.E.2d 514 (holding that trial

October 2013 15 A Look at the Law

A Primer on Heirs Property and Georgia’s New Uniform Partition of Heirs Property Act: Protecting Owners of Heirs Property

by Crystal Chastain Baker and Shunta Vincent McBride

“ eirs property” is land that has been infor-

mally passed down from one generation H to the next without a will or deed.1 The transfer of heirs property occurs by operation of law through a process known as intestate succession.2 In

Georgia, when a landowner dies without a will, title to the property automatically vests in the landowner’s next of kin at death, which is typically the surviving spouse and children, if any.3

As described in more detail below, the heirs property problem is best characterized by the inability of owners to fully realize the benefits of landownership and the risk of involuntary land loss due to partition sales. Historically, the heirs property problem has adversely affected rural and economically depressed communities in the South. The forced sale of heirs property that is “not otherwise for sale” has long impacted people of color in dispro- portionate numbers, especially African-American farmers.4 Today the heirs property problem continues to impact low to mid-income landowners and On April 16, 2012, Georgia became the second state communities of color traditionally disadvantaged in the United States and first state in the South to enact by this form of common ownership. However, the the Uniform Partition of Heirs Property Act (the Act).5 heirs property problem impacts Georgians of all Originally introduced as HB 744, the Act became effective socioeconomic backgrounds, and affects rural and on Jan. 1, 2013, and applies to partition actions involving metropolitan communities alike. heirs property commencing on or after Jan. 1, 2013.

16 Georgia Bar Journal Heirs Property wealth-creation potential becomes Partition Laws— As stated earlier, “heirs prop- “locked” and remains inaccessible Then and Now erty” is land that has been infor- to owners of heirs property.10 mally passed down from one The second half of the heirs The law of partition is centuries generation to the next without property problem is the right of old and dates back to English com- a will or deed. The creation of each co-tenant to partition the land. mon law. Early partition laws pro- heirs property through operation The right of partition is unique vided that partition among tenants of Georgia’s intestate succession to the form of ownership created in common could be achieved only laws results in the surviving kin by a tenancy in common. Each through a voluntary agreement.11 owning heirs property as “ten- co-tenant has the right to petition As tenancy in common laws ants in common.” The tenancy in a court to partition, and there are changed, so did partition laws, common form of ownership is a two types of partition: partition allowing for co-tenants to demand tenancy by two or more persons in kind and partition by sale. A partition without the consent of having equal or unequal undi- partition in kind results in a physi- other co-tenants.12 Early partition vided shares, with each person cal subdivision of the land so that law did not contemplate that land having an equal right to possess each co-tenant receives a convey- would be sold in its entirety, but the whole property without a right ance (via deed or court order) to instead included provisions for a of survivorship.6 Because each co- a separate, smaller parcel of land. sale of a small portion of land in tenant has an interest in the whole, Co-tenants may also request a par- order to defray litigants’ costs.13 each has the right to use, possess, tition by sale, in which case the Further, where urban or improved rent, mortgage and farm the prop- land is sold and the sale’s proceeds property was involved, partition erty, which rights are limited by are divided among the co-tenants by sale was permitted under early the right of fellow co-tenants to according to their ownership inter- English common law only where a do the same. Absent an ouster,7 ests. Real estate speculators who physical division and partition of co-tenants can be made liable to are strangers to the ancestral title the land could not be accomplished one another resulting at times in can purchase one family member’s without great prejudice to the land- one co-tenant bearing an unfair interest, become a co-tenant with owners.14 Additionally under early proportion of his share of the costs the remaining co-tenant heirs and English statutes, partition was to repair, insure and pay taxes on exercise a right to force a partition available only to “coparceners” or the property.8 Similarly, if one co- sale, which can often yield less co-tenants related by blood and tenant receives rental income in than the property’s true value. deriving their title from a common excess of his proportionate share, Heirs property is typically par- ancestor.15 Much of this English one can be made liable to share in titioned by sale, due to the over- doctrine permitting partition was the profits.9 whelming number of heirs and incorporated into American com- their highly fractionalized (i.e., mon law16 through the adoption The Heirs Property small) ownership interests. If the by the states of statutes permitting Problem subject property is small, as in the forced partition of co-tenan- the case of an in-town parcel, the cies.17 Each state has promulgated Because heirs property culmi- heirs small ownership interests can statutes giving courts the power nates from undocumented land make it difficult, if not impossible, of sale where partitioning in kind conveyances, title to heirs prop- to physically divide the land in would injure or inconvenience par- erty is often clouded and unmar- such a way that it could be put to ties and/or where property cannot ketable. Lack of clear title is the productive use. be easily divided.18 first half of the heirs property problem—the inability of heirs to fully realize the economic benefits N D L of land ownership. In the absence Norwitch Document Laboratory of clear title, heirs typically must Forgeries - Handwriting - Alterations - Typewriting “sign-off” on agreements in order Ink Exams - Medical Record Examinations - “Xerox” Forgeries to effectively participate in transactions to rent, improve, encum- F. Harley Norwitch - Government Examiner, Retired ber and sell the land. Because Court Qualified Scientist - 30+ years. Expert testimony given in heirs often disagree on how prop- excess of four hundred times including Federal and Offshore erty should be used, the opportunity to earn rental income or 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 obtain financing can be lost as a www.questioneddocuments.com result of this form of land owner- Telephone: (561) 333-7804 Facsimile: (561) 795-3692 ship. Essentially, the land and its

October 2013 17 Partition sale statutes have been The Act establishes protections relationship, “heirs property” had enacted in all 50 states.19 Many for heirs property owners in par- never before been defined in the states experienced significant tition actions. The safeguards are Georgia Code. Defining heirs prop- changes in courts’ application of designed to help those who own erty is the first step that must be partition laws in the 20th century. heirs property maintain ownership taken in determining the applica- During this time courts began to of their property when possible, or bility of the Act on partition actions favor partition sales over partitions to insure at the very least that any filed on or after Jan. 1, 2013. Once in kind, based on the oft-claimed court-ordered sale of the property an action has met the definition impracticality of physical divisions is conducted under commercially of heirs property, then the Act’s in kind. However, the practice of reasonable circumstances that will new partition rules will apply. The dividing by sale often contradicted protect the owners from losing sub- Act defines heirs property as land statutory preferences for divisions stantial wealth upon the sale of that is held in tenancy in common in kind and the common law and their property.25 which satisfies all of the following equitable principles on which such Introduced and unanimously requirements as of the date of filing statutory preferences were based.20 approved in 2012 by the Georgia of the partition action: Partition law in Georgia dates Legislature, the Uniform Partition back to the Act of 1767,21 and is of Heirs Property Act is codified 1. There is no agreement in a currently found in Title 44, Chapter in Title 44 of the Official Code of record binding all the co-ten- 6, Article 7, Part 2, of the Official Georgia Annotated. ants, which governs the parti- Code of Georgia Annotated.22 The tion of the property; history of partition law in Georgia Overview 2. One or more of the co-tenants suggests that though early case law The Act does not create a new acquired title from a relative, evidenced courts’ preferences to partition law. Rather, this Act adds whether living or deceased; and physically divide land in kind, sub- a subpart to the Georgia’s exist- 3. Any of the following applies: sequent Georgia courts followed ing equitable and statutory parti- a. Twenty percent or more of the trend in the majority of states tion statute in that it applies only to the interests are held by co- over the past century in favor of actions involving “heirs property” tenants who are relatives; court-ordered partition sales.23 as defined under the Act. Further, in b. Twenty percent or more As heirs property scholar Phylliss partition actions commencing on or of the interests are held by an Craig-Taylor noted, “the heart of after Jan. 1, 2013, the Act is control- individual who acquired title the problem is the inadequate pro- ling notwithstanding the pre-exist- from a relative, whether living tection given to property owners ing partition statutes. The Act does or deceased; or in the context of partition proceed- not displace existing partition law c. Twenty percent or more of ings,” and “the right of co-tenants for non-heirs property, nor does it the co-tenants are relatives.26 to partition does not yield to consid- prohibit a party from petitioning for erations of hardship, inconvenience a partition by sale. The Act estab- Through this definition, the Act or motivations of the petitioner.”24 lishes rules, which are designed sets forth three requirements for Georgia’s adoption of the Act seeks to provide additional protections tenancy in common property to to provide protections not previous- against the risk of forced sale and qualify for the new partition pro- ly afforded owners of heirs prop- involuntary loss of heirs property. cedures. First, the parties must not erty, and give credence to subjec- Overall, the Act affords owners of already have a binding co-tenancy tive factors traditionally ignored for heirs property certain beneficial stat- agreement in place. A co-tenancy purpose of assigning a fair market utory rights in partition proceed- agreement is an agreement among value to heirs property. Among the ings that are not otherwise given to tenants in common that governs many legislative purposes enumer- owners who hold land as tenants the various rights and obligations ated in the preamble to HB 744, in common, and generally provides of joint land ownership, including the drafters recite an intention to some of the protections normally payment of taxes and insurance provide partition alternatives. This afforded co-tenants where a private premiums; such agreements may may fairly be regarded as the draft- co-tenancy agreement is in place. also govern partition of the proper- ers’ attempt to craft a solution in ty. Because a co-tenancy agreement response to the inherent risk of land Definition of Heirs would typically include provisions loss associated with the ownership Property protecting co-tenants from parti- of heirs property. tion, the presence of such an agree- The Act originated from the For the first time in Georgia’s ment serves to disqualify property model Uniform Partition of Heirs history, the Georgia Code now that would otherwise qualify as Property Act, adopted by the defines the term “heirs property.” heirs property under the Act. Uniform Law Commission and the Despite the historical significance The second requirement is that American Bar Association in 2010. of this type of tenancy in common one or more of the co-tenants must

18 Georgia Bar Journal have acquired the land from a rela- one generation to another, this court to partition prior to filing, tive. As is typical in the case of heirs definition will apply. Lastly, the and the petitioner must provide all property, this requirement is satis- third option requires that at least interested parties notice of his/her fied through operation of Georgia’s 20 percent of co-tenants to be rel- intent to file, which constitutes suf- intestate succession laws, which set atives. Though similar to the first ficient process.28 Service of process forth a specific succession order for option, this third option speaks to by publication for parties residing determination of heirs, beginning the number of co-tenants and not out of state is at the discretion of with the spouse and children and the percentage of interest owned the court.29 continuing through the chain until in the land. Regardless of the size The Act adds an additional an heir is determined.27 of interest in the land, as long as requirement to the notice required Once the familial relationship a minimum of 20 percent of the under Georgia’s pre-existing parti- to the landowner is established, co-tenants are relatives, the defi- tion statute by requiring that the the third and final requirement nition will apply and the prop- plaintiff in an heirs property parti- is to establish the 20 percent rule. erty will qualify as heirs property tion action post a conspicuous sign Three options exist. First, at least under the Act. in the right of way adjacent to the 20 percent of the interests must be property that provides notice of the held by related co-tenants. This Required Posting partition action. Specifically, the Act option does not require any pass- of Notice at Property provides that if an order for service ing of time, rather, only a per- by publication is granted, then the centage of relatives who are own- The Act provides a major plaintiff “not later than 10 days ers. The second option requires change in the notice provisions as after the court’s determination that that at least 20 percent or more compared to previously existing the property may be heirs property, of the interests are held by an statutory and equitable partition shall post a sign in the right of way individual who acquired title statutes. In traditional partition adjacent to the property which is from a relative, whether living or actions, the Georgia Code requires the subject of the partition and the deceased, which speaks to multi- that the petition set forth the names plaintiff shall maintain such sign generational ownership. As long of all known interest holders and while the action is pending.”30 as a minimum of 20 percent of the their respective interests. Each co- The Act is very specific about interests were passed down from tenant has the right to petition a the information that must be set

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OctoberMaceyWilensky_Oct13.indd 2013 1 9/18/2013 3:08:3019 PM out in the posting. It requires the with respect to partitions by sale mine the fair market value.38 All plaintiff to include a statement that of non-heirs property, a court shall these possible valuation methods a partition action has commenced, appoint three appraisers who shall are departures from the existing the name and address of the court value the property and the court valuation system under Georgia’s in which the action is pending and shall take the average of all three existing partition statute, which the commonly known name of the appraisals and use such value for requires that the court use the aver- property. An optional element, purpose of selling the property in age of three appraisers’ valuations which is at the discretion of the a private sale among the co-tenants following a hearing. court, is the name of the plaintiff in the exercise of defendant co- and names of known defendants.31 tenant’s preferred buyout option.34 Modified Buyout It is generally thought that notice The Act modifies this procedure Option and Statutory by posting affords landowners by establishing a hierarchy of price greater protection in preserving setting methods for purpose of Preference for land interests than traditional noti- establishing the value of the prop- Divisions In Kind fication methods, specifically for erty. Specifically, the Act requires Georgia partition law has con- those owners who, although not that the court adopt a valuation of tained a buyout provision in favor living on the land, return to the the property determined by one of of co-tenant parties hauled into land on a regular basis. the following methods, in the fol- court to defend a partition action.39 lowing order: by private agreement Though considered a strong point Requirement of of the co-tenants; by determina- in Georgia partition law, the buyout Disinterested Partitioners tion of the court following an evi- provision has been modified by the dentiary hearing on the property’s Act in the context of heirs property. With respect to partitions in kind, value if the cost of the appraisal In the existing buyout provision a Georgia’s pre-existing partition stat- outweighs the value provided by petitioner40 may become a “party ute requires that following the deliv- an appraisal; and by determination in interest”41 and vice versa. Thus ery of the required notice and service of the court following an eviden- under Georgia’s existing partition of process, the court shall examine tiary hearing on the value of the framework, a third-party co-tenant the plaintiff’s title and issue an order property where the court orders unrelated to the heirs who peti- directing the clerk to issue a writ of a disinterested appraiser to con- tions for partition, can switch sides partition to five freeholders of the duct an appraisal of the property.35 and become a party in interest and county in which heirs property is The Act expressly requires that the later exercise the preferred pur- located. The freeholders shall serve as appraiser appointed by the court chase option to buy out other co- partitioners and are tasked with the be both disinterested and licensed tenants. Under the Act, a petitioner responsibility of developing a plan to in the state of Georgia and that the is the equivalent of “a co-tenant divide the land in kind according to appraiser, in arriving at a value, who requested partition by sale,” the parties’ varying ownership inter- assume fee simple ownership of and this person may not become a ests, within three months of appoint- the land when determining fair party in interest entitled to the pre- ment by the court.32 The Act adds market value.36 This requirement ferred buyout option, which will a requirement that each partitioner ensures a fair value of the land as prohibit the original partitioning be “a discreet person, disinterested, a whole rather than a value con- party from buying out the interests impartial and not a party to or a sidering disaggregated fractional of non-partitioning co-tenants.42 participant in the writ of partition.”33 interests. After the appraisal is filed Specifically, the buyout option This provision provides an added with the court, the court must send under the Act works as follows: layer of protection to landowners by notice to all known parties stating In partition actions involving heirs requiring that all partitioners be dis- the appraised value, and a hear- property, the court must provide interested. Historically, partitioners ing must be conducted to deter- notice to the defendant heirs that in partition actions have been associ- mine the fair market value and to they have the right to buy out ated with less than honest proceed- hear any objections to the value.37 all of the shares of the plaintiff ings, resulting in land loss for heirs As mentioned above, the court- that requested partition by sale. property owners. ordered appraisal process will be Following the court’s determina- employed by the court unless the tion of the fair market value of Requirements for co-tenants have agreed to the value the property, the court shall then Establishing Value of the property or the court deter- notify the parties that any co-tenant mines that the evidentiary value of other than the co-tenant request- The Act departs from the tradi- the appraisal is outweighed by the ing partition by sale may buy all tional partition valuation process cost of the appraisal. If the latter is of the interests of the co-tenant(s) in heirs property actions. Georgia’s the case, then the court will order that requested partition by sale (the existing partition law requires that an evidentiary hearing to deter- Buyout Notice). The defendant co-

20 Georgia Bar Journal tenants that did not request parti- out the plaintiff. Upon payment of tion by sale are not purchased by tion by sale have 45 days follow- the buyout price, the court shall other co-tenants pursuant to the ing the Buyout Notice (the Buyout then issue an order reallocating all buyout provisions of the Act, or Election Period) to notify the court of the interests of the co-tenants if after conclusion of the buyout that they wish to buy all the inter- and disburse the amounts held by procedures, there remains a tenant ests of the co-tenant(s) requesting the court to the persons entitled to wishing to partition in kind, then partition by sale. The defendant co- receive the buyout funds.44 the court shall order partition in tenants also have 45 days from the As in the standard partition kind unless the court finds that it Buyout Notice to request the court code, the Act permits co-tenant will result in manifest prejudice to to authorize the sale of the interests heirs who are “parties in interest” the co-tenants as a group.45 of co-tenant defendants who were to buy out the petitioner; however, served but who did not appear in the Act does not alleviate the chal- Subjective the action.43 Where the defendant lenges heirs must overcome to pool Considerations heirs elect to buyout the plaintiff, resources sufficient to buy out all of and timely deliver notice to the the petitioner’s interests. Under the Much the same as friendship, court of their election to exercise existing partition statute, co-tenants loyalty or fidelity, historical or per- their buyout rights prior to expira- must complete the buyout within 90 sonal attachment to land may be tion of the Buyout Election Period, days, but under the Act, co-tenant inside of one’s “self-construction” or then the court shall notify the par- heirs are granted an additional 15 “self-identity.” Scholars have recog- ties that defendant co-tenant(s) days and so they must complete the nized the continuing cross-cultural have elected to buyout the plain- buyout within 105 days. importance of land to one’s sense of tiff. Where the court notifies the Following conclusion of the buy- self. The “homeplace” may be more parties that defendant co-tenants out procedures, the Act affords important to African-Americans have elected to buyout the plain- owners of heirs property a statu- because of their struggle to achieve tiff, the court shall set a date that tory preference for resolving the land ownership, and because of is not sooner than 60 days after partition action via partition in their need for refuge, solace and such notice by which the elect- kind, over a partition by sale. The self-determination in a persistently ing defendant co-tenants shall pay Act provides that if all interests of discriminatory social landscape. For their price into the court and buy- all co-tenants that requested parti- many African-Americans the home-

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61058 GA Bar Ad.indd 1 12/5/12 4:50 PM place is a place that can be created did not appear in court after tions against unexpected and often and controlled as a place of dignity, being served of notice of parti- devastating land loss. The Act will something so often denied African- tion action.50 This is significant assist heirs property owners, par- Americans in society at large. Thus, in that it permits heirs to buy- ticularly low- to moderate-income land is not fungible and defies val- out absent relatives and further heirs property land owners, with uation along one common metric consolidate title amongst family the ability to preserve the integ- (citations omitted).46 members so that the land stays rity and value of property that It is because of the history of within the family; has both economic and strong African-American land loss that n A statutory preference for parti- familial significance. the drafters of the Act wanted a tions in kind over partition by provision in place for subjective sale is established and requires Crystal Chastain Baker considerations when determining that the court partition the is the Heir Property whether land should be partitioned property in kind unless doing project manager at in kind or sold. The Act requires, so would result in manifest Georgia Appleseed. She for the first time in Georgia history, prejudice to the co-tenants as a has dedicated the past that courts engage in a subjective group;51 five years of her career analysis which encompasses non- n The court must consider both to finding a solution to the heirs economic factors prior to a court economic and non-economic ordering a partition in kind. The factors prior to ordering a par- property problem in Georgia. The following non-economic factors tition in kind, which non-eco- Heir Property Project began through are to be considered: whether the nomic factors include but are the University of Georgia School of land has ancestral or sentimental not limited to the following: Law Cousins Fellowship in 2008 and value to heirs; whether a co-tenant whether the land has ancestral has continued as a Georgia would be harmed if not allowed to or sentimental value to heirs; Appleseed initiative since that time. continue to use the property in the whether a co-tenant would be Baker is a graduate of Auburn same manner following the conclu- harmed if not continued to use University and the University of sion of the action; whether there the property the same follow- Georgia School of Law. She lives in is a collective duration of owner- ing the conclusion of the action; Coastal Georgia with her husband, ship among generations of heirs; whether there is a collective Stan, also a UGA law graduate and and the degree to which co-ten- duration of ownership among her two daughters, Anna Beth and ants have contributed their share generations of heirs; and the of taxes, maintenance and upkeep degree to which co-tenants have Bella Grace. of the property; and other factors contributed their share of taxes, relevant to the court.47 maintenance and upkeep of the Shunta Vincent In addition to the changes to property;52 McBride is an Georgia’s partition laws afforded n Following the buyout process, associate in the by the Act in the areas of codify- if the court does not order a commercial real estate ing “heirs property” notice, value partition in kind, and none of group in DLA Piper’s determination and the buyout the remaining co-owners have Atlanta office. Her option, the Act also provides addi- requested partition by sale, then practice focuses on representing tional benefits to not previously the Act requires that the court commercial investors and afforded to heirs under Georgia dismiss the action;53 developers acquire, develop, law. These additional protections n Sales of heirs property must be finance, sell and lease commercial include the following: open-market sales unless the court determines sale would be real property, for a variety of n The court must notify the heirs more advantageous for co-ten- uses, including office, hotel, of their right to buyout the co- ants by public sale or by sealed health care, senior living, tenant requesting partition by bids. Open market sales under apartment and mixed-use sale;48 the Act are those that are offered projects. She has volunteered for n Heirs at a minimum are given for sale by a broker at a price no Georgia Appleseed’s Heir Property an additional 15 days to gather lower than the fair market value Initiative and represented pro funds in efforts to buyout the as determined by the court.54 bono clients to resolve heir co-tenant requesting partition property issues since 2008. by sale;49 The Uniform Partition of Heirs n Heirs are given a statutory right Property Act is an important addi- Endnotes to give notice and authorize the tion to the partition law in Georgia. 1. Georgia Appleseed Center for Law court to sell interests of co-ten- The Act provides heirs property & Justice, Unlocking Heir Property ants who were noticed but who owners with significant protec- Ownership: Assessing the Impact on

22 Georgia Bar Journal Low and Mid-Income Georgians and 4 Thompson on Real Property spouse and children; if none, then Their Communities (2013), http:// § 32.08 (a)-(b), 88-89 (David A. to surviving parents; if none, then www.gaappleseed.org/heir/. Thomas ed., 1994)). to surviving siblings. The statute 2. Id. 12. Id. (citing 7 Patrick on Real then goes on to list by degrees of 3. For Georgia’s intestate succession Property (Richard R. Powell & kinship those that would inherit laws setting forth the rules on Patrick J. Rohen, eds., at ¶ 609) in the absence of any of these which family members acquire (1986). relatives. title to land when a landowner 13. Robert Ludlow Fowler, Novel 27. See O.C.G.A. § 44-6-160 (2013). dies without will, see O.C.G.A. Partition Procedure, 3 Colum L. 28. See O.C.G.A. § 44-6-162 (2013). § 53-2-1. Rev. 295, 301-302 (1903). 29. See O.C.G.A. § 44-6-162 (2013). 4. For an oft-cited and critical 14. Id. at 302. 30. O.C.G.A. § 44-6-182 (2013). discussion of the causes of black 15. Casagrande, supra note 4, at 789 n. 31. O.C.G.A. § 44-6-182 (2013). land loss in recent decades, 32. 32. O.C.G.A. § 44-6-143 (2013). see Thomas W. Mitchell, From 16. Id. at 760 n.44. 33. O.C.G.A. § 44-6-183 (2013). Reconstruction to Deconstruction: 17. Id. at 760. 34. O.C.G.A. § 44-6-166.1 (2013). Undermining Black Landownership, 18. Id. at 760 n.46. 35. O.C.G.A. § 44-6-184 (2013). Political Independence, and 19. Id. at 760. 36. O.C.G.A. § 4-6-184(d) (2013). Community Through Partition 20. Id. 37. O.C.G.A. § 44-6-184(f) (2013). Sales of Tenancies in Common, 95 21. Adams v. Lamar, 8 Ga. 83 (Ga. 38. O.C.G.A. § 44-6-184 (b), (c) (2013). Nw. U. L. Rev. 505, 507 (2001); 1850) (recognizing in dicta that the 39. O.C.G.A. § 44-6-166.1 (2013) was for figures on Black land loss in Georgia’s Act of 1767 prescribed enacted in 1983. U.S., see also John G. Casagrande, the method of partition actions in 40. O.C.G.A. § 44-6-166.1(a)(2) (2013) Acquiring Property Through Forced Georgia). defines “petitioner” as “any Partitioning Sales: Abuses and 22. O.C.G.A. § 44-6-140-174 (2013). person petitioning for partition of Remedies, 27 B.C. L. Rev. 755, 756 23. Lankford v. Milhollin, 200 Ga. property.” (1986) (citing U.S. Commission 512, 37 S.E.2d 197 (1946) (noting 41. O.C.G.A. § 44-6-166.1(a)(1) on Civil Rights data indicating an that the Court may direct a (2013) defines “party in interest” approximately 93 percent loss in partition by sale where it appears as “any person, other than a the amount of agricultural land that the common property cannot petitioner, having an interest in the holdings among blacks from 1920- be fairly and equitably divided property.” 1978, and describing generally the by metes and bounds division); 42. O.C.G.A. § 44-6-185 (2013). loss of heirs property as property see also Stone v. Benton, 258 43. O.C.G.A. § 44-6-185 (2013). that is “not otherwise for sale”). Ga. 539, 371 S.E.2d 864 (1988) 44. Id. 5. Nevada became the first state to (noting that a petitioner in a 45. O.C.G.A. § 44-6-186(a) (2013). adopt the Uniform Partition of partition action has two options 46. Phyliss Craig-Taylor, supra note 11, Heirs Property Act in 2011. The for seeking a remedy at law, at 767. three states that have adopted the under either O.C.G.A. §44-6- 47. O.C.G.A. § 44-6-186(a)(2)(A) (2013). Act so far are Nevada, Georgia and 160 (statutory partition in kind) 48. O.C.G.A. § 44-6-185(a) (2013). Montana. States with legislation or under O.C.G.A. §44-6-167 49. See O.C.G.A. § 44-6-185(b) (2013) introducing the Act for adoption (statutory partition by sale); in providing heirs with a 45 day include the following: Connecticut, the case of a partition by sale, period to notify the court of Hawaii, South Carolina and the petitioner must convince the election to exercise buyout rights, the District of Columbia. See court that a fair and equitable and O.C.G.A. § 44-6-185(e) (2013) Uniform Laws Commission, Acts, division of the property cannot providing heirs with no less than Partition of Heirs Property Act, be made by a metes and 60 days to tender purchase money http://www.uniformlaws.org/ bounds division because of into court registry following Act.aspx?title=Partition of heirs improvements on the property, court’s notice to parties of heirs property Act. because the premises are election to exercise buyout rights; 6. Black’s Law Dictionary (7th ed. valuable for mining purposes or contrast with O.C.G.A. § 44-6- 2009). for the erection of mills or other 166.1(e)(1) (2013) of Georgia’s 7. A division of a co-tenancy may machinery, or because the value statutory partition statute, which also occur on adverse possession of the entire property will be provides heirs with no more grounds where one co-tenant depreciated by partition applied than 90 days after the court’s effects an ouster of all other for). determination of fair market value co-tenants. O.C.G.A. § 44-6-123 24. Craig-Taylor, at supra, 741 and 752. to tender purchase money into (2013). 25. Uniform Law Commission court registry to buyout plaintiff. 8. O.C.G.A. § 44-6-122 (2013). Partition Legislative Fact Sheet, 50. O.C.G.A. § 44-6-185(g) (2013). 9. O.C.G.A. § 44-6-121 (2013). O.C.G.A. § 44-6-180(5) (2013) 51. O.C.G.A. § 44-6-186 (2013). 10. See supra, Note 1. http://www.uniformlaws. 52. O.C.G.A. § 44-6-186(a)(2)(A) (2013). 11. See Phyliss Craig-Taylor, Through org/LegislativeFactSheet. 53. O.C.G.A. § 44-6-186(b) (2013). a Colored Looking Glass: A View aspx?title=Partition%20of%20 54. O.C.G.A. § 44-6-187 (2013). of Judicial Partition, Family Land Heirs%20Property%20Act. Loss, and Rule Setting, 78 Wash. U. 26. See O.C.G.A. § 53-2-1 (2013). The L. Q. 737, 744 n.42 (2000) (citing order is generally as follows:

October 2013 23 GBJ Feature Georgia Bar Foundation Awards $435,822 in Grants by Len Horton

he Georgia Bar Foundation awarded a

total of $435,822 to two of the 24 appli- T cants: Atlanta Legal Aid and Georgia Legal Services at its July 19, grant decisions meeting.

“We were even more limited than last year and decided to focus on our primary purpose, which is civil legal services for the poor. So, we awarded $141,642 to Atlanta Legal Aid and $294,180 to Georgia Legal Services,” said Georgia Bar Foundation President Aasia Mustakeem. “It was a difficult meeting because all of our other applicants are worthy organizations that are well-managed. Deciding how to distribute our limited funds is far from easy.”

Some of the most poignant moments came as appeals Photo by Lisa Smith were made to fund specific organizations. Because he (Left to right) 2012-13 Georgia Bar Foundation President Aasia could not attend the meeting, Senior Superior Court Mustakeem presents the 2013 James M. Collier Award to Chief Justice Carol W. Hunstein. Judge Conley Ingram wrote a moving letter, which was read in its entirety to the Board of Trustees. As others $20,000 emergency grant to the Athens Justice Project joined in the following discussion, a vigorous debate (AJP) the previous month. That emergency award kept ensued. After several reluctant compromises, the end the organization alive. The Georgia Bar Foundation result was the decision to focus exclusively on civil felt a special need to help AJP since the it had actually indigent legal services by funding Georgia’s two major asked that the organization be created more than a civil legal services providers that receive funding from decade ago. Harvard, speaking on behalf of the entire the Legal Services Corporation. Board of the Athens Justice Project, wanted everyone “The IOLTA grants today reflect the work of the legal at the grants meeting to know how much the AJP’s profession, guided by the Supreme Court of Georgia, leadership appreciated the support. in supporting the charitable work of the Georgia Bar Foundation through IOLTA,” said Mustakeem. “And Chief Justice Carol Hunstein when this economy gets back on track, this revenue source Receives the James M. Collier Award will quickly push on toward its second hundred million dollars. The Supreme Court of Georgia, Georgia’s law- Each year, the Georgia Bar Foundation presents yers and Georgia’s bankers have become a partnership to the James M. Collier award to an individual who has make IOLTA a success in helping thousands of Georgians. done the most to assist the Georgia Bar Foundation It is a partnership of which we can all be proud.” with its mission of supporting primarily civil indigent legal services but also other law-related organizations Athens Justice Project throughout the state. Former Georgia Bar Foundation President William Mustakeem presented this year’s award to Chief Harvard thanked the Board for having awarded a Justice Carol W. Hunstein for her many years of ser-

24 Georgia Bar Journal vice to the Georgia Bar Foundation. Chief Justice Hunstein is the only justice of the Supreme Court of Georgia in the history of the Georgia Bar Foundation regularly to attend Board of Trustee meetings of the Georgia Bar Foundation. She was instrumental with former Chief Justice Leah Ward Sears in preserving IOLTA revenues for the support primarily of civil indigent legal services but also of some other law- related organizations throughout the state. Throughout her career, she has been devoted to the principles of ensuring civil legal assistance to those who cannot afford representation. Thank you, Chief Justice

Hunstein, and congratulations! Photo by Len Horton Former Georgia Bar Foundation President William Harvard presents the emergency grant check The Fellows Program to the Athens Justice Project. (Left to right) William Harvard, Athens Justice Project Secretary William Overend and Athens Justice Project Executive Director Jenni Olson. of the Georgia Bar Foundation Many Georgia lawyers still do not know that the Fellows Program is once again part of the Georgia Bar Foundation. This occurred at the unanimous request of the Board of Trustees of the Lawyers Foundation of Georgia, which has now been dissolved. From the 1980s until 1996, the Fellows Program was part of the Georgia Bar Foundation. In 1996, the State Bar requested a grant from the Georgia Bar Foundation in the amount of $500,000, the approx- imate present value at that time of the paid-in capital of the fellows of the Georgia Bar Foundation. That money was given to the Public Photo by Frank Fortune, Fortune Photography and Graphics Service Foundation, which eventu- A special fellows grant was presented to Safe Haven in Statesboro. (Left to right) Dan Snipes, ally changed its name to the Lawyers Gerald Edenfield, Laura Wheaton, Kim Wilson (on behalf of Safe Haven), Foundation President Jimmy Franklin, Susan Cox and Sharri Edenfield. Foundation of Georgia. The recent return of the Fellows Program to the the victims of domestic violence. est on lawyer trust accounts. To Georgia Bar Foundation is a coming It has served Bulloch, Candler, date, cumulative IOLTA reve- home of that program. Effingham, Jenkins, Screven and nues are approaching $100 mil- A new local fellows grants pro- Washington counties since 1989. lion. The offices of the Georgia Bar gram is being tested in Statesboro Near the end of the meeting, Foundation are located in the Bar under the leadership of Jimmy new officers were elected. Jimmy Center in downtown Atlanta. Franklin, the new president of the Franklin, president; Hon. Bobby Georgia Bar Foundation. As part Chasteen, vice president; Kitty Len Horton is the of that model project, the Georgia Cohen, treasurer; and Timothy executive director of Bar Foundation Board of Trustees Crim, secretary. the Georgia Bar decided to award Safe Haven a The Georgia Bar Foundation Foundation. He can be fellows grant in the amount of is the charitable arm of the reached at hortonl@ $2,500. Safe Haven is a Statesboro Supreme Court of Georgia. It bellsouth.net. charity that focuses on assisting is the named recipient of inter-

October 2013 25 GBJ Feature

State Bar of Georgia Election Overview by Judy Hill

ith the publication of this issue of

the Georgia Bar Journal, the annual W Bar election process begins. This issue contains a list of all Board of Governors posts that will be voted on in the 2014 election, the name of the member that currently represents that post and a schedule of important election dates (see page 28).

In the process of forming a unified Bar in 1963, it was determined that establishing a governing body was of the utmost importance. The Board of Governors was created to provide guidance and direction going forward. The State Bar Rules and Regulations begin with Part I, Creation and Organization. Chapter one speaks to the creation and organization of the Bar itself; chapter two establishes the membership of the Bar; and chapter three defines the Board of Governors, its purpose, composition and the election of its members. When the first Board of Governors election was held after the formation of the unified Bar, there were approximately 4,500 eligible voters; today there are 35,400. (Active members in good standing are eligible to vote in State Bar elections.) In circuits with multiple posts, all Board members, The Board of Governors controls and administers the regardless of post number, represent all members in affairs of the State Bar. As stated in the Bylaws, Article that circuit. A post within a circuit does not represent a III, Section 10. Power and Duties, “The Board . . . shall specific geographic region of the circuit. have the power to do all things and take all actions The number of Board members from each circuit which in its judgment may be necessary or desirable is determined by Article III, Section 6, of the Bylaws. to carry out the purposes of the State Bar in keeping Currently there are 151 seats on the Board of Governors, with the Rules and these Bylaws.” Therefore, a Board the maximum number allowed unless geographical member representing any particular circuit serves as changes are made to current judicial circuits, or new that circuit’s voice in the governance of the State Bar. judicial circuits are added. Two of the seats on the Board

26 Georgia Bar Journal are for all out-of-state members and In addition to the Board of and include your Bar number. It’s three of the seats are appointed by Governors races specific to a mem- that simple. You will also receive the president-elect of the Bar. The ber’s circuit, the ballot for the annual email notification when the voting appointed seats were expressly cre- Bar election includes the statewide site is open. ated to promote diversity within races of the office of president-elect, Paperless voting enables the the Board of Governors. Once an secretary and treasurer of the Bar, Bar to reduce the overall cost of appointed member’s two-year term in addition to the American Bar the election and to conserve Bar ends, the member is encouraged Association delegates. Those Bar resources, along with the added by the Executive Committee to run members who are also members of benefit of preserving one of our for a seat on the Board from their the Young Lawyers Division (YLD) natural resources. home circuit. will also have the president-elect, The Bar election is overseen by Any member of the State Bar secretary and treasurer of the YLD the Elections Committee, chaired by who is active and in good stand- on their ballot. All active mem- Thomas R. Burnside III of Augusta. ing is eligible to run for a post in bers who are eligible to vote may The staff liaison is Judy Hill. If you their circuit. The two-year term elect to receive a paper ballot and have questions about the election begins at the conclusion of the use it to vote by mail or online, or process or need information on how Annual Meeting following the elec- they may choose to participate in to become a candidate, please con- tion. There are approximately four paperless voting, an option that was tact Judy at [email protected]. Board meetings per year at various introduced during the 2013 election locations, usually in Georgia but cycle. If you are one of the mem- Judy Hill is the occasionally in a neighboring state. bers who utilized the paperless assistant director of Standing Board Policy 300 gov- option in 2013, you will automati- membership and erns attendance at these meetings cally receive voting instructions via serves as the staff by Board members. Travel to and email when the 2014 election opens. liaison to the Elections from the meetings and all accom- If you would like to sign up for Committee. She can panying expenses are each Board paperless voting, simply email your be reached at [email protected]. member’s responsibility. request to [email protected]

October 2013 27 GBJ Feature

Georgia Health Insurance Program Notice of Expiring BOG Terms Lawyers Administered By: Member Benefits Listed below are the members of the State Bar of Georgia Board of Governors whose terms will expire in June 2014. These incumbents and those interested in running for a specific post should refer to the election schedule (posted below) for important dates.

Alapaha Circuit, Post 2 ...... Thomas C. Chambers III, Homerville Douglas Circuit ...... Kenneth Ray Bernard Jr., Douglasville Alcovy Circuit, Post 2 ...... Michael R. Jones Sr., Loganville Eastern Circuit, Post 1 ...... Sarah Brown Akins, Savannah Atlanta Circuit, Post 2 ...... Brian DeVoe Rogers, Atlanta Eastern Circuit, Post 3 ...... Patrick T. O’Connor, Savannah Atlanta Circuit, Post 4 ...... Jeffrey Ray Kuester, Atlanta Enotah Circuit ...... Steven Keith Leibel, Dahlonega Atlanta Circuit, Post 6 ...... Dwight L. Thomas, Atlanta Flint Circuit, Post 2 ...... John Philip Webb, Stockbridge Atlanta Circuit, Post 8 ...... Kenneth Bryant Hodges III, Atlanta Griffin Circuit, Post 1 ...... Janice Marie Wallace, Griffin Administered By: Member Benefits Atlanta Circuit, Post 10 ...... Myles E. Eastwood, Atlanta Gwinnett Circuit, Post 2 ...... Judy C. King, Lawrenceville Atlanta Circuit, Post 12 ...... Elena Kaplan, Atlanta Gwinnett Circuit, Post 4 ...... Gerald Davidson Jr., Lawrenceville Recommended Atlanta Circuit, Post 14 ...... Edward B. Krugman, Atlanta Houston Circuit ...... Carl A. Veline Jr., Warner Robins Atlanta Circuit, Post 16 ...... Dawn M. Jones, Atlanta Lookout Mountain Circuit, Post 1 ...... Archibald A. Farrar Jr., Summerville Broker of The: Atlanta Circuit, Post 18 ...... Foy R. Devine, Atlanta Lookout Mountain Circuit, Post 3 ...... Lawrence Alan Stagg, Ringgold Atlanta Circuit, Post 20 ...... William V. Custer IV, Atlanta Macon Circuit, Post 2 ...... Thomas W. Herman, Macon Atlanta Circuit, Post 22 ...... Frank B. Strickland, Atlanta Member-at-Large, Post 3* ...... Jeffery O’Neal Monroe, Macon Atlanta Circuit, Post 24 ...... Joseph Anthony Roseborough, Atlanta Middle Circuit, Post 1 ...... John Kendall Gross, Metter Atlanta Circuit, Post 26 ...... Anthony B. Askew, Atlanta Northeastern Circuit, Post 1 ...... Mark William Alexander, Gainesville Atlanta Circuit, Post 28 ...... J. Henry Walker IV, Atlanta Northern Circuit, Post 2 ...... R. Chris Phelps, Elberton Atlanta Circuit, Post 31 ...... Michael Brian Terry, Atlanta Ocmulgee Circuit, Post 1 ...... Green Berry Moore III, Gray Atlanta Circuit, Post 33 ...... S. Kendall Butterworth, Alpharetta Ocmulgee Circuit, Post 3 ...... Christopher Donald Huskins, Eatonton Atlanta Circuit, Post 35 ...... Terrence Lee Croft, Atlanta Oconee Circuit, Post 1 ...... Ashley Wedrell McLaughlin, McRae Atlanta Circuit, Post 37 ...... Samuel M. Matchett, Atlanta Ogeechee Circuit, Post 1 ...... Daniel Brent Snipes, Statesboro Atlanta Circuit, Post 38 ...... Michael Dickinson Hobbs Jr., Atlanta Out-of-State, Post 2 ...... Ralph John Caccia, Washington, DC Atlanta Circuit, Post 40 ...... Carol V. Clark, Atlanta Paulding Circuit ...... Martin Enrique Valbuena, Dallas Atlantic Circuit, Post 1 ...... H. Craig Stafford, Hinesville Rockdale Circuit ...... William Gilmore Gainer, Conyers Augusta Circuit, Post 2 ...... William James Keogh III, Augusta Rome Circuit, Post 2 ...... J. Anderson Davis, Rome Health | Dental | Vision | Disability | Long Term Care Augusta Circuit, Post 4 ...... William R. McCracken, Augusta South Georgia Circuit, Post 1 ...... Lawton Chad Heard Jr., Cairo Bell Forsyth Circuit ...... Philip C. Smith, Cumming Southern Circuit, Post 1 ...... James E. Hardy, Thomasville Individuals | Law Firms Blue Ridge Circuit, Post 1 ...... David Lee Cannon Jr., Canton Southern Circuit, Post 3 ...... Gregory Tyson Talley, Valdosta Brunswick Circuit, Post 2 ...... Jeffrey S. Ward, Brunswick Stone Mountain Circuit, Post 1 ...... Katherine K. Wood, Atlanta Chattahoochee Circuit, Post 1 ...... Gwyn P. Newsom, Columbus Stone Mountain Circuit, Post 3 ...... J. Antonio DelCampo, Atlanta Whether you’re a individual member searching for an on your health insurance premiums without sacrificing Chattahoochee Circuit, Post 3 ...... Thomas Frederick Gristina, Columbus Stone Mountain Circuit, Post 5 ...... Amy Viera Howell, Atlanta Cherokee Circuit, Post 1 ...... Randall H. Davis, Cartersville Stone Mountain Circuit, Post 7 ...... John G. Haubenreich, Atlanta affordable family health plan or a law firm working to the quality of your benefits. Clayton Circuit, Post 2 ...... Harold B. Watts, Jonesboro Stone Mountain Circuit, Post 9 ...... Sherry Boston, Decatur Cobb Circuit, Post 1 ...... Dennis C. O’Brien, Marietta Tallapoosa Circuit, Post 2 ...... Brad Joseph McFall, Cedartown manage costs, we are here to consult with you about Cobb Circuit, Post 3 ...... David P. Darden, Marietta Tifton Circuit ...... Render Max Heard Jr., Tifton your options. As a member of the State Bar of Georgia, We also understand the importance of offering flexible Cobb Circuit, Post 5 ...... J. Stephen Schuster, Marietta Waycross Circuit, Post 1 ...... Douglass Kirk Farrar, Douglas Cobb Circuit, Post 7 ...... William C. Gentry, Marietta Western Circuit, Post 2 ...... Edward Donald Tolley, Athens you have access to exclusive plans and pricing for benefits. Benefit choices affect employee morale and Conasauga Circuit, Post 1 ...... Terry Leighton Miller, Dalton *Post to be appointed by president-elect Coweta Circuit, Post 1 ...... Gerald P. Word, Carrollton health, dental, disability, and long term care insurance. help employers attract and retain quality employees. Dougherty Circuit, Post 1 ...... Joseph W. Dent, Albany That’s why we help firms develop comprehensive State Bar of Georgia 2014 Election Schedule Our innovative hybrid health plan package, Health benefit packages that balance benefit and cost, both to OCT Official Election Notice, October Issue Georgia Bar Journal MAR 14 Deadline for write-in candidates for officer to file a written Plan Advantage, was designed to help you save money employers and employees. DEC 2 Nominating petition package mailed to incumbent Board of statement (not less than 10 days prior to mailing of ballots Governors members and other members who request a (Article VII, Section 1 (c)) package MAR 14 Deadline for write-in candidates for Board of Governors to file JAN 9-11 Nomination of officers at Midyear Meeting, InterContinental a written statement (not less than 10 days prior to mailing of Visit our Website For Quotes: Buckhead, Atlanta ballots (Article VII, Section 2 (c)) JAN 30 Deadline for receipt of nominating petitions for incumbent MAR 28 Ballots mailed www.memberbenef its.com/SBOG Board members including incumbent nonresident (out-of-state) APR 29 11:59 p.m. Deadline for ballots to be cast in order to be valid or Call Us 1-800-282-8626 members MAY 5 Election service submits results to the Elections Committee FEB 28 Deadline for receipt of nominating petitions for new Board MAY 12 Election results reported and made available members including new nonresident (out-of-state) members

28 Georgia Bar Journal Products sold and serviced by the State Bar of Georgia’s recommended broker, Member Benefits. The State Bar of Georgia is not a licensed insurance entity and does not sell insurance. Georgia Health Insurance Program Lawyers Administered By: Member Benefits

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Whether you’re a individual member searching for an on your health insurance premiums without sacrificing affordable family health plan or a law firm working to the quality of your benefits. manage costs, we are here to consult with you about your options. As a member of the State Bar of Georgia, We also understand the importance of offering flexible you have access to exclusive plans and pricing for benefits. Benefit choices affect employee morale and health, dental, disability, and long term care insurance. help employers attract and retain quality employees. That’s why we help firms develop comprehensive Our innovative hybrid health plan package, Health benefit packages that balance benefit and cost, both to Plan Advantage, was designed to help you save money employers and employees.

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Crisp County Courthouse at Cordele: The Grand Old Courthouses of Georgia by Wilber W. Caldwell

ordele was the creation of The Americus fell on hard times and was leased to The SAM, giving Samuel Hawkins a vital link to Albany. By 1893, Investment Company, the holding com- Cordele was a city of almost 1,500. Ironically, just as Cordele began to surge towards real commercial pany which built The SAM (Savannah, power, The SAM and The Georgia Southern and C Florida both collapsed. Americus and Montgomery Railroad) and aggressively The story of the rise and fall of The Savannah, Americus and Montgomery Railroad and of Samuel exploited the commercial potential of the many towns Hawkins is surely one of the most compelling and romantic episodes of the era. Accounts of the fall of the new road created as it expanded across Georgia. Hawkins’ empire are all the more gripping when viewed against the backdrop of the commercial success In 1886, SAM Chairman Samuel Hawkins grasped the at Cordele. Samuel Hawkins died in 1905, just as Cordele opportunities presented by the collision course of The became the county seat of the newly created Crisp County. The collapse of The SAM may have ruined SAM as it pressed eastward from Americus and The Hawkins, but it had little long-term effect on Cordele’s growth. By the time Crisp County was born, The old Georgia Southern and Florida Railroad as it laid its SAM had become the main artery of the mighty Seaboard Air Line, and The Georgia Southern and rails southward from Macon. In 1887, it was clear that Florida had become part of J. P. Morgan’s sprawling Southern Railway. The Albany, Florida and Northern the two roads would cross somewhere, and Samuel was back on it feet as The Georgia Southwestern and Gulf, and the new and powerful Atlanta, Birmingham Hawkins intended to dictate the location of this cross- and Atlantic Railroad crossed all of these older roads at Cordele. Samuel Hawkins’ vision was being ing and to reap the financial rewards. called the “The Magic City,” “South Georgia’s Rising Star,” “The Gate City to Southern Georgia” and “The By early 1888, Cordele was a village of 300 people, Birmingham of the Pines.” Suddenly, Americus had “a few wooden shacks . . . and numerous pine trees.” a new rival. As that old city of 7,500 paid its final By 1890, the town had its third railroad, Nelson Tift’s respects to Samuel Hawkins, Cordele boasted more Albany, Florida and Northern. This line immediately than 6,500 residents, 128 retails stores, 4 hotels, a large

30 Georgia Bar Journal Cordele, would grasp at the most modern of symbols to speak for her meteoric success. Indeed, the streets of Cordele were lined with Beaux- Arts finery by 1910. Notable examples are James Golucke’s Carnegie Library and T. F. Lockwood’s grand Cordele Masonic Lodge both completed in 1907. Despite Lockwood’s rather lackluster neoclassical efforts at Albany and later at Monticello, here in Cordele his design answered to a higher muse. Perhaps it was the opulent $80,000 budget which allowed Lockwood to soar. Whatever the

Photo courtesy of the Georgia Department Archives and Records case, the addition of the attic The Crisp County Courthouse at Cordele built in 1907, T. F. Lockwood, architect. story allowed the grand Ionic porticos to reflect a lofty and foundry, two newspapers, electric use as a courthouse. While this may graceful verticality absent at lights, paved sidewalks, a steam have been true, as soon as the new Albany, and the addition of the laundry and a fine depot at the county of Crisp was created, the half basement afforded the oppor- junction of three of the most pow- citizens of Cordele, fueled by new tunity to set the great columns erful railroads in Georgia. zeal and unfettered aspirations, set atop monumental stairs. Perhaps The New County Movement about building a monument to their these were lessons gleaned from of 1905 brings the power of railroad driven success. The choice Frank Milburn’s skillful exam- Cordele’s railroads into focus. of T. F. Lockwood is not surprising. ples at nearby Abbeville and Four of the eight new counties With his brother, the New York Valdosta. Whatever the source, created in that year lay either trained architect, Frank Lockwood, they represent an advancement in on The Georgia Southern and T. F. Lockwood began his practice in Lockwood’s Classical education, Florida or on the old line of The Columbus in the late 1890s. In 1895, and his 1907 Crisp County house SAM. The citizens of Cordele Frank moved to Montgomery, Ala., was a fitting monument for both petitioned the state legislature and most of his best work is in that Cordele’s already substantial suc- with compelling arguments for state. Nonetheless, the Lockwood cesses and for her even more the creation of Crisp County, and Brothers’ 1903 Dougherty County ambitious aspirations. Sadly, this although the old rationales con- Courthouse at Albany was one building was demolished in the cerning the distance to be trav- of the state’s first court buildings early 1950s. eled by rural residents to the built in the emerging Neoclassical county seat were included, they Style, and in 1905 Cordele must Excerpted by Wilber W. Caldwell, were far down the list. Cordele’s have looked to the great success author of The Courthouse and the most convincing arguments were that was blossoming at Albany for Depot, The Architecture of Hope built on hard statistics: Cordele more than architectural models. in an Age of Despair, A Narrative was the largest city in Georgia Despite its importance in the early Guide to Railroad Expansion and that was not a county seat. It had Neoclassical Revival in Georgia, its Impact on Public Architecture four railways, 10 warehouses and Lockwood’s courthouse at Albany in Georgia, 1833-1910, (Macon: 128 retails stores. The proposed was inferior to many of the early Crisp County would contain Neoclassical court buildings that Mercer University Press, 2001). more wealth and population than began to cover the state in the early Hardback, 624 pages, 300 photos, any other proposed new county, years of the new century. Notable 33 maps, 3 appendices, complete and the new county would con- superior examples are just down index. This book is available for tain more railroad mileage than the rails from Cordele. At Abbeville $50 from book sellers or for $40 123 of Georgia’s 137 counties. ,Frank Milburn’s exceptional from the Mercer University Press Opposition in Dooly was vigor- Wilcox County Courthouse rose in at www.mupress.org or call the ous, but futile. 1903, and at Valdosta, that same Mercer Press at 800-342-0841 One of Cordele’s arguments for architect created his fine Lowndes inside Georgia or 800-637-2378 her new county was the fact that she County Courthouse in 1905. It is not outside Georgia. already had a building suitable for surprising that the brash upstart,

October 2013 31 Bench & Bar

Kudos including: promoting the professional development > Lyle & Levine, LLC, announced that of the South Asian legal community through net- partner Dawn R. Levine was awarded working, education advocacy and mentoring; ensur- the Richard L. Moore Volunteer of the ing the civil liberties of the South Asian community; Year Award. This award is given by the serving the legal interests of the South Asian com- Cobb Justice Foundation and Legal Aid munity and the community at large; encouraging of Cobb County for significant contribu- greater participation by the South Asian community tions to pro bono work in Cobb County. in the legal profession and the government. Partner David Stockton was named treasurer > Walker Hulbert Gray & Moore, LLP, of the Partnership Against Domestic Violence announced that the firm’s managing (PADV) Board of Directors. PADV works to end partner Kellye C. Moore was featured the crime of intimate partner violence and empower in the ABA Journal’s June cover story: its survivors. For 37 years, PADV, the largest non- “Meet Six Law Firm Leaders, Each with profit domestic violence organization in Georgia, a Different Story, Each at the Top of Her has provided professional, compassionate and Game.” The article showcased six female law firm empowering support to battered women and their leaders from various law firms nationwide, each children in metro-Atlanta. claiming a unique success story. Partner Susan Richardson was named chair- elect of the Board of Directors for the Institute for > Georgia Environmental Leadership (IGEL). IGEL is a leadership program dedicated to building and sustaining a diverse network of environmentally educated leaders who will help resolve Georgia’s environmental challenges. The IGEL program provides leadership and personal development with Spangenberg Zacks Kadaba Stockton the goals of fostering a deeper understanding of Kilpatrick Townsend & Georgia’s environmental issues. Stockton LLP announced Associate Cristin Burke finished her first full that partner Caroline Ironman Triathlon. Burke completed the Ironman Spangenberg was elected a Coeur d’ Alene in Coeur d’Alene, Idaho. A full member of the American Ironman entails a 2.4-mile swim, a 112-mile bike College of Coverage and ride and a 26.2-mile run which must be completed Richardson Burke Extracontractual Counsel in less than 17 hours. Burke and her teammates (ACCEC) by the ACCEC Board of Regents. Members raised more than $226,000 to support the Leukemia of the college are recognized authorities in a wide and Lymphoma Society in the battle to find a cure range of legal and insurance disciplines. The mis- for blood cancers. sion of the ACCEC is to educate all sectors involved Kilpatrick Townsend & Stockton LLP qualified for in insurance disputes on critical topics such as best the Women in Law Empowerment Forum’s Gold practices in policy formation and claims handling, Standard Certification. This prestigious designation developing trends in insurance law and bad faith. is given to firms that have integrated women equity Partner David Zacks was named to the Wake partners into top leadership positions. Forest Baptist Medical Center Board of Visitors. Zacks, a North Carolina native, has deep roots in the > Crawford & Company announced that Allen Wake Forest family. He earned his law degree from W. Nelson joined the Board of Trustees of the Wake Forest University School of Law, with honors, Woodruff Arts Center. Nelson chairs the Global in 1967 after completing his B.A., with honors, from Firms Committee of the Arts Center’s Annual Wake Forest University. Zacks is the recipient of Fund and was the recipient of the 2011-12 Charles the Wake Forest University Distinguished Alumni R. Yates Award for recognition of his outstanding Award. He also served as co-chair of the Law Board work as a volunteer for the organization. of Visitors for Wake Forest University School of Law. Partner Wab Kadaba received the North > Chaiken Klorfein, LLC, announced American South Asian Bar Association (NASABA) that Stephen R. Klorfein was elected Cornerstone Award. Recipients are those individu- president of the Atlanta Tax Forum, the als who best exemplify through their legal work the oldest professional organization for objectives of the NASABA and its local chapters tax practitioners serving the Atlanta

32 Georgia Bar Journal Bench & Bar

Metropolitan Area. Klorfein began his career with > Boyd Collar Nolen & Tuggle, LLC, the Chief Counsel’s Office of the Internal Revenue announced the appointment of partner Service and has represented businesses and indi- Kathleen B. “Katie” Connell to the board viduals in both federal and state tax controversies of directors of The Charles Longstreet for the past 30 years. Weltner Family Law American Inn of Court. In this role, she will work to > Dale M. Schwartz & Associates LLP uphold the mission of the organization, which pro- announced that partner Dale Schwartz motes professionalism, collegiality and continuing was elected chairman of the board of education among Atlanta’s family law community. the Hebrew Immigrant Aid Society (HIAS), the global Jewish nonprofit that > Fulcher Hagler LLP announced that protects refugees—including women partner James W. Purcell was elected to and children, and ethnic, religious and sexual serve on the President’s Advisory minorities—whose lives are in danger for being Council of the Children’s Organ who they are. HIAS offers international aid and Transplant Association (COTA). COTA immigration and refugee resettlement programs. is a national charity that provides fund- The organization’s advocacy work in Washington, raising assistance to transplant families. Since 1986, D.C., educates policy makers on issues impacting COTA’s priority is to assure that no child or young refugees and asylum seekers and promotes fair and adult is denied a transplant or excluded from a trans- comprehensive immigration reform. plant waiting list due to lack of funds. One hundred percent of all funds raised in honor of transplant > Baker, Donelson, Bearman, Caldwell & patients are used for transplant-related expenses. Berkowitz, PC, announced that shareholder Erica V. Mason was selected by > O’Dell & O’Neal Attorneys announced the Hispanic National Bar Association to that Leslie Dean O’Neal was selected serve as one of their 17 representatives to the Leadership Cobb Class of 2013- at the Collaborative Bar Leadership 14. O’Neal joins 44 other diverse and Academy which took place in June in Minneapolis, qualified individuals to participate in Minn. The academy is a joint initiative of the American, this leadership development program National, Hispanic National, National Asian Pacific sponsored by the Cobb Chamber of Commerce. and National Native American Bar Associations, coor- Through various programs and retreats, Leadership dinated to strengthen the pipeline of diverse bar asso- Cobb enhances personal and professional growth ciation leaders by providing leadership training and while participants gain awareness of current issues, professional development programs. community resources and the social, political and economic needs of the community. > McKenna Long & Aldridge LLP announced it earned a 2013 Gold Standard Certification from the > The Law Offices of Nathan M. Jolles, PC, Women in Law Empowerment Forum (WILEF), an announced that Nathan M. Jolles was recognized organization dedicated to assisting women in law at the State Bar of Georgia in June as the Small to assume leadership roles within their legal and Law Firm Division winner for the 2013 Georgia respective communities. The WILEF Certification Legal Food Frenzy. Jolles was awarded two presti- emphasizes the leadership roles achieved by equity gious gavels from Attorney General Sam Glens for women partners. collecting a total of 7,093 pounds as a firm, captur- ing both the per capita and total pounds awarded. > Balch & Bingham LLP announced that partner Richard E. Glaze Jr. co-authored > Carlock, Copeland & Stair, LLP, Practicing Law Institute EPA announced that William P. Jones was Compliance and Enforcement Answer appointed to Catholic Charities Book 2013. The book is designed to help Atlanta’s Leadership Class Advisory firms and individuals comply with the Board. This program works to empow- extensive array of federal environmental laws and er Catholic professionals who seek to regulations and deal effectively with the EPA by become servant leaders in the business community providing an overview of the main federal environ- through professional development, education and mental laws and analysis of the practical aspects of mentoring. Jones was also asked to serve on the compliance and enforcement. board of the South Dakota School of Mines

October 2013 33 Bench & Bar

Alumni Association. The Alumni Association pro- > Boyd Collar Nolen & Tuggle, LLC, announced the motes communication and interaction among alum- promotion of Brooke M. French to senior associ- ni, students, faculty and administration at the ate, and the addition of Kimberli C. Withrow as of School of Mines with the objective of strengthening counsel and Amy B. Saul as an associate. French the school’s academic, research and service roles. represents clients in all aspects of domestic relations litigation. Withrow serves clients with a range > Stout Kaiser & Hendrick, LLC, of family law issues, including divorce, custody announced that Carter L. Stout was arrangements, child support and alimony issues. awarded the Member of Distinction Saul previously served as staff attorney to Cobb Award by the Real Estate Section of the County Superior Court Judge J. Stephen Schuster. Atlanta Bar Association. This award is The firm is located at 100 City View, Suite 999, 3330 given to a member who has given out- Cumberland Blvd., Atlanta, GA 30339; 770-953- standing service to the section. Stout practices 4300; Fax 770-953-4700; www.bcntlaw.com. almost exclusively in the commercial real estate field, including representation of buyers, sellers and > lenders and dealing with complex title issues. > The Judicial Council for the U.S. 5th Judicial Circuit appointed Paul Benjamin Anderson Jr. as

the circuit executive for the 5th Judicial Circuit. Justice Hall Keller Walker The circuit executive exercises administrative powers and performs duties delegated by the Hall Booth Smith, P.C., announced council, under the general supervision of the chief that Paul Justice joined the firm as a judge. The 5th Circuit is composed of the states of partner. With more than a decade of Texas, Louisiana and Mississippi and represents service to Emory Healthcare and Saint the second largest circuit—both in case filings and Joseph’s Health System, Justice’s exten-

authorized personnel—in the federal system. Winks sive experience will allow the firm to provide a greater level of service to its > U.S. Circuit Judge Ed Carnes assumed the duties health care clients. The firm also welcomed five of chief judge of the U.S. Court of Appeals for new associates: Pamela Coleman, Laura E. Hall, the 11th Circuit and chairman of the 11th Circuit Michael Keller, Brent Walker and Tiffany Winks. Judicial Council in August. In fulfilling the duties Coleman’s practice areas include long term care of the office, Carnes becomes the highest-ranking and senior housing industry law, health care law, judicial officer in the 11th Circuit and fills one of business litigation, construction law, transactional the 11th Circuit’s two positions on the Judicial law and wills, trusts & estates. Hall is a member of Conference of the United States, the principal policy the education and professional malpractice/non- making organization for the U.S. courts. medical and fiduciary practice groups. Keller’s practice areas include professional negligence/ On the Move medical malpractice and long term care and senior In Atlanta housing industry law. Walker has experience and > Miller & Martin PLLC expertise in the areas of personal injury, medical announced that Edward M. malpractice, workers’ compensation and construc- Newsom joined the firm as a tion litigation. Winks practices in the areas of con- member, Kelly L. Whitehart struction law, insurance coverage and general lia- as of counsel and Elisabeth bility. The firm is located at 191 Peachtree St., Suite as an 2900, Atlanta, GA 30303; 404-954-4000; Fax 404- Newsom Whitehart M. Koehnemann associate in the Atlanta office. 954-5020; www.hallboothsmith.com. Newsom continues his practice in products liability and toxic torts. Whitehart continues her practice in > Barnes & Thornburg LLP announced technology and intellectual property. Koehnemann that Stephen Weizenecker joined the is a member of the firm’s intellectual property prac- firm as a partner in the entertainment tice group. The firm is located at 1170 Peachtree St. and music practice group. Weizenecker NE, Suite 800, Atlanta, GA 30309; 404-962-6100; Fax works with companies in the entertain- 404-962-6300; www.millermartin.com. ment and technology industries, with a focus on film and television, on branding and mar-

34 Georgia Bar Journal Bench & Bar

keting endeavors. The firm is located at 3475 > Carlton Fields Piedmont Road NE, Suite 1700, Atlanta, GA 30305; announced the 404-846-1693; Fax 404-264-4033; www.btlaw.com. addition of David J. Forestner as > Nelson Mullins Riley & Scarborough shareholder and LLP announced that W. Drake Blackmon Justan C. Bounds Forestner Bounds Lemery joined its Atlanta office as of counsel, and Samantha T. where he practices business litigation, Lemery as associates to its Atlanta office. Forestner product liability, pharmaceutical and and Bounds practice in the firm’s business litigation medical device litigation, class actions and trade regulation practice group. Lemery’s prac- and consumer finance litigation. The firm is located at tice areas including insurance, product liability and 201 17th St. NW, Suite 1700, Atlanta, GA 30363; 404- professional liability, including defense of claims 322-6000; Fax 404-322-6050; www.nelsonmullins.com. against medical and other professionals. The firm is located at 1201 W. Peachtree St. NW, Suite 3000, > Krevolin & Horst, LLC, announced that Atlanta, GA 30309; 404-815-3400; Fax 404-815-3415; Jonathan E. Hawkins joined the firm as a www.carltonfields.com. partner. While he focuses his practice on business divorces and shareholder and > Swift, Currie, McGhee & partnership disputes, Hawkins also han- Hiers, LLP, announced the dles business fraud and commercial tort addition of Roger E. Harris cases, contract disputes and real estate disputes. The to the firm’s partnership. firm is located at One Atlantic Center, 1201 W. Additionally, the firm wel- Peachtree St. NW, Suite 3250, Atlanta, GA 30309; 404- comed new associate, Harris Hinson 888-9700; Fax 404-888-9577; www.khlawfirm.com. Shannon S. Hinson. Harris practices primarily in the fields of professional liabil- > Smith Moore Leatherwood attorney Bob Wedge ity, commercial litigation, and trucking and trans- was elected to the firm’s Management Committee portation litigation. Hinson’s practice is focused pri- and will serve as the partner in charge of the Atlanta marily in general civil litigation, including medical office. Wedge is an experienced trial lawyer who professional liability, trucking litigation and general engages in commercial contract and lease litigation, insurance defense. The firm is located at 1355 insurance coverage litigation, construction litigation Peachtree St. NE, Suite 300, Atlanta, GA 30309; 404- and professional liability litigation involving attor- 874-8800; Fax 404-888-6199; www.swiftcurrie.com. neys, architects and engineers. He is also an experienced appellate lawyer and has acted as a mediator > Jackson Lewis LLP announced that of large commercial and construction cases for more Evan Rosen joined the firm’s Atlanta than 20 years. The firm is located at 1180 W. Peachtree office as a partner. Rosen represents St. NW, Suite 2300, Atlanta, GA 30309; 404-962-1000; employers in a variety of labor and Fax 404-962-1200; www.smithmoorelaw.com. employment matters arising under federal and state law, including Title VII of > Constangy, Brooks & Smith, LLP, the Civil Rights Act of 1964, the Age Discrimination announced the addition of Hon. Stephen in Employment Act, the Americans with Disabilities J. Simko Jr. as of counsel to its Atlanta Act, the Family and Medical Leave Act, the Fair office. Simko began his career in the U.S. Labor Standards Act, Section 1981 and restrictive Department of Labor as a trial attorney in covenants. The firm is located at 1155 Peachtree St. the Solicitor’s Office, before becoming NE, Suite 1000, Atlanta, GA 30309; 404-525-8200; counsel for safety and health in that office. He was a Fax 404-525-1173; www.jacksonlewis.com. judge for the Occupational Safety and Health Review Commission for 15 years, where he presided over > Stites & Harbison, PLLC, welcomed cases as a trial judge. The firm is located at 230 Christopher Gant to the firm’s Atlanta Peachtree St. NW, Suite 2400, Atlanta, GA 30303; 404- office as a member of the creditors’ 525-8622; Fax 404-525-6955; www.constangy.com. rights and bankruptcy service group. Gant’s practice focuses on bankruptcy and creditors’ rights matters, loan work- outs and restructuring, lender liability matters, commercial and residential foreclosures, and commercial

October 2013 35 Bench & Bar

litigation. The firm is located at 2800 SunTrust Plaza, > Burr & Forman LLP announced the addition of 303 Peachtree St. NE, Atlanta, GA 30308; 404-739- Chester J. “Chet” Hosch as partner in the firm’s 8800; Fax 404-739-8870; www.stites.com. corporate and tax practice group. Hosch brings extensive experience serving clients in the areas of > Kilpatrick Townsend & Stockton LLP mergers and acquisitions, corporate finance and announced the addition of Jonathan taxation. The firm is located at 171 17th St. NW, Olinger to the firm’s Atlanta office as Suite 1100, Atlanta, GA 30363; 404-815-3000; Fax an associate. Olinger joined the firm’s 404-817-3244; www.burr.com. patent litigation team in the intellectual property department. The firm is > S. Megan Klein announced the opening located at 1100 Peachtree St. NE, Suite 2800, of Two Roads Mediation, LLC, a media- Atlanta, GA 30309; 404-815-6500; Fax 404-815-6555; tion practice focusing on civil and domes- www.kilpatricktownsend.com. tic matters. The firm can be contacted at P.O. Box 566873, Atlanta, GA 31156; 678- > Greenberg Traurig LLP 609-3901; www.tworoadsmediation.com. announced that Andrew R. Hough joined the firm as a In Alpharetta shareholder in the firm’s > Lueder, Larkin corporate and securities & Hunter, LLC, practice, and David F. announced the Hough Norden Norden joined the firm as addition of an associate in the firm’s pharmaceutical, medical Kevin T. Shires device and health care litigation practice. Hough and Hillary Shires Shawkat Gowder was previously with McGuireWoods, LLP, where Shawkat as he served as a partner. Norden was previously with partner and Ashley Gowder as an associate. Shires King & Spalding, LLP, where he was a senior asso- brings 17 years of experience in civil litigation defense. ciate. The firm is located at Terminus 200, 3333 Shawkat’s litigation practice focuses mainly on the Piedmont Road NE, Suite 2500, Atlanta, GA 30305; defense of premises liability, automobile liability and 678-553-2100; Fax 678-553-2212; www.gtlaw.com. commercial vehicle claims. Gowder’s areas of practice include general insurance defense, automobile > Caldwell & Watson, LLP, negligence, commercial vehicle negligence, common announced that Donald B. carrier liability, construction defect litigation, cover- DeLoach joined the firm as a age and declaratory judgment actions, premises lia- partner and Peter A. Rivner bility, uninsured motorist claims, first and third joined the firm as an associ- party casualty claims, and vertical transportation ate. DeLoach continues his defense. The firm is located at 5900 Windward DeLoach Rivner estate planning and corpo- Parkway, Suite 390, Alpharetta, GA 30005; 770-685- rate practice, and Rivner continues his focus on fam- 7000; Fax 770-685-7002; www.luederlaw.com. ily law and domestic litigation. The firm is located at Two Ravinia Drive, Suite 1600, Atlanta, GA 30346; In Athens 404-843-1956; Fax 404-843-2737; www.cwlaw.org. > Hall Booth Smith, P.C., announced that Andrea L. Jolliffe was named partner. > MendenFreiman LLP wel- Jolliffe devotes the majority of her prac- comed Nathan T. Johns as tice to the defense and representation of a senior associate in the educational institutions. The firm is firm’s business and estate located at 440 College Ave. N, Suite 120, planning practice areas. In Athens, GA 30601; 706-316-0231; Fax 706-316-0111; addition, the firm promot- www.hallboothsmith.com. Johns Richards ed Megan L. Richards to senior associate in the firm’s business, estate plan- In Augusta ning and estate administration practice areas. The > Hull Barrett, PC, announced that Mary firm is located at Two Ravinia Drive, Suite 1200, Runkle Smith joined the firm’s Augusta Atlanta, GA 30346; 770-379-1450; Fax 770-379-1455; office as an associate. Her practice www.mendenfreiman.com. focuses on commercial litigation. The firm is located at 801 Broad St., 7th

36 Georgia Bar Journal Bench & Bar

Floor, Augusta, GA 30901; 706-722-4481; Fax 706- In Savannah 722-9779; www.hullbarrett.com. > W. Joseph Turner and Emily M. Usry announced the creation of their new law firm, The Turner Firm, In Decatur LLC. The firm specializes in claimant’s workers’ > Hadeel N. compensation law, as well as criminal defense. The Masseoud, firm is located in the historic Manger Building at 7 Cherish A. E. Congress St., Suite 611-B, Savannah, GA 31401; Dela Cruz and 912-226-7662; www.turnerfirmattorneys.com. Karissa Ayala announced the In Jacksonville, Fla. Masseoud Cruz Ayala opening of > Nelson Mullins Riley & Scarborough, LLP, Masseoud, Dela Cruz and Ayala, LLC, a practice announced the opening of a new office located at 50 dedicated to corporate and small business matters, N. Laura St., Suite 2800, Jacksonville, FL 32202; 904- immigration, family law, real estate and wills, trusts 665-3600; Fax 904-665-3699; www.nelsonmullins.com. and estates. The firm is located at 315 W. Ponce de Leon Ave., Suite 1067, Decatur, GA 30030; 678-781- In Los Angeles, Calif. 0390; www.mda-law.com. > Gregory L. Young joined the Haney Law Group where he continues his In Hartwell practice focusing on the areas of enter- > Tash J. Van Dora is proud to tainment law, intellectual property law, announce the formation of business law and litigation. Young also The Van Dora Law Firm, serves as an adjunct professor of busi- LLC. His primary areas of ness law at California State University, Northridge. practice are workers’ com- The firm is located at 1055 W. Seventh St., Suite

T. Van Dora J. Van Dora pensation insurance defense, 1950, Los Angeles, CA 90017; 213-228-6500; Fax 213- employment law, EEOC mat- 228-6501; www.haneylawgroup.com. ters, agriculture law and immigration matters with a focus on self-insured group funds. He was joined by In Raleigh, N.C. associate Jeremiah T. Van Dora, whose practice > Smith, Currie & Hancock LLP an- focuses on workers’ compensation, personal injury nounced that Sarah E. Carson was pro- and other civil and criminal matters. The firm is moted to lead counsel for the located at 21 Vickery St., Hartwell, GA 30643; 706-377- firm’s Raleigh office. Carson represents 4044; Fax 678-623-3859; www.vandoralawfirm.com. national and international clients in the construction of data centers, pharma- In Macon ceutical manufacturing plants, commercial proper- > Smith, Hawkins, Hollingsworth & ties, mixed-use developments, energy retrofits, casi- Reeves, LLP, announced that G. Boone nos, hotels and golf courses. The firm is located at Smith IV was named a partner of the 410 N. Boylan Ave., Raleigh, NC 27603; 919-256- firm. Smith specializes in the areas of 3696; Fax 919-256-3739; www.smithcurrie.com. estate planning, estate and corporate taxation, business transactions, tax In Tuscaloosa, Ala. exempt organizations and income tax conflicts. > Herbert E. “Chip” Browder LLC an- The firm is located at 688 Walnut St., Suite 100, nounced that David B. Welborn joined Macon, GA 31201; 478-743-4436; Fax 478-746-8722; the firm. His practice focuses primarily on www.shhrlawfirm.com. estate planning, elder law, business planning and tax law. The firm is located at In Marietta 2216 14th St., Tuscaloosa, AL 35401; 205- > Lyle & Levine, LLC, announced that 349-1910; Fax 205-349-1552; www.chipbrowder.com. Alan J. Levine joined the firm. He handles the firm’s trust and estate litigation In Winter Park, Fla. and contested guardianship and conser- > Page, Scrantom, Sprouse, Tucker & Ford, P.C., vatorship cases. The firm is located at 274 announced the opening of its Winter Park office. Washington Ave., Marietta, GA 30060; The office is located in 631 W. Morse Blvd., Suite 770-795-4992; www.lylelevine.com. 202, Winter Park, FL 32789; 321-304-6030; Fax 321- 304-6034; www.psstf.com.

October 2013 37 Office of the General Counsel

But That’s Not a Secret! by Paula Frederick

“ hanks for letting the whole world know that

I’m now a millionaire,” your former client T says sarcastically. “I bet I’ll have everyone from my long-lost cousins to my ex-husband asking for a handout!”

“What are you talking about?” you ask, taken aback. “I haven’t told anybody anything about you! I can’t; the ethics rules forbid it!” “Do you ever look at your own website, Jimmy? I just googled myself and the first thing that pops up is you bragging about how much money you recovered from BigPockets in my lawsuit!” “But . . . the trial was public! The outcome is public The rule covers information that is technically with- information!” you sputter. in the public realm but is not generally known, such as “That may be, but no one knew about it until you the content of public documents or court pleadings. It put it on your website,” your former client grumbles. covers both information the client has given the lawyer You head to your partner’s office for a reality check. and information that the lawyer has learned from other “Any 12-year-old with an internet connection could sources. Even posting case citations with the amount find out about that lawsuit,” you whine. “And I’m recovered for each client can violate the rule. proud of winning that case! What’s wrong with featur- Around the country lawyers are testing the limits ing it on the firm website?” of Rule 1.6. The Virginia Bar is involved in litigation “Nothing!” your partner agrees. “I just wish you’d over the ability of a lawyer to blog about his own cases gotten the client’s permission first. . . .” using actual client’s names and truthful descriptions of Must a lawyer treat all information about a client as their cases; that case is ongoing. In the meantime, the confidential, even when it is publicly available? safest course of action is to get the client’s permission Pretty much. before publishing any information about current or Lawyers know that they have to keep client secrets— former client matters. particularly information that would be detrimental if disclosed, or information that the client has asked Paula Frederick is the general counsel for the lawyer not to reveal. But Georgia’s Rule 1.6, the State Bar of Georgia and can be “Confidentiality of Information,” covers far more than reached at [email protected]. just secrets. The rule requires a lawyer to “maintain in confidence all information gained in the professional relationship with a client.”

38 Georgia Bar Journal Don’t let nanny taxes trip you up.

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careGAbar.indd 11 8/16/13 1:14 PM Lawyer Discipline

Discipline Summaries (June 15, 2013 - September 11, 2013)

by Connie P. Henry Disbarments/Voluntary Surrenders Donald O. Nelson Townsend, Ga. Admitted to Bar in 1969 On Sept. 9, 2013, the Supreme Court of Georgia disbarred attorney Donald O. Nelson (State Bar No. 537800). Nelson improperly witnessed a quitclaim deed after a real estate closing and made false statements in connection therewith to the State Bar. In aggravation of discipline, the Special Master found that Nelson had two prior disciplinary offenses: a lengthy suspension following his 1995 guilty plea to one count of money laundering and an Investigative Panel reprimand. In addition, Nelson obstructed the disciplinary proceeding, submitted false and misleading statements during the disciplinary proceeding, refused to acknowledge the wrongful nature of his conduct and had substantial experience in the practice of law.

Robert B. Lipman Atlanta, Ga. Admitted to Bar in 1977 On Sept. 9, 2013, the Supreme Court of Georgia accepted the voluntary surrender of license of attorney Robert B. Lipman (State Bar No. 453550). Lipman was hired to represent a client who was injured in an automobile accident. The opposing party’s insurance carrier issued a check for the settlement amount ments regarding the nature of the disbursements payable to the client and his wife. Lipman signed his from the client’s proceeds to his client and the State client’s and wife’s name on the release and had the Bar. Lipman also failed to accurately account for signatures notarized. He made inconsistent state- and deliver all of the funds to which his client was

40 Georgia Bar Journal entitled, and he commingled trust sion on Feb. 28, 2011, to disbar account funds with his own funds. attorney Brooks E. Blitch III (State Bar No. 063400). Respondent’s fel- Reinstatements ony conviction was vacated by the Robbie M. Levin U.S. District Court for the Middle Atlanta, Ga. District of Georgia. Admitted to Bar in 1996 On June 17, 2013, the Supreme Interim Suspensions Court of Georgia reinstated attor- Under State Bar Disciplinary ney Robbie M. Levin (State Bar Rule 4-204.3(d), a lawyer who No. 448280) to the practice of law receives a Notice of Investigation in Georgia. and fails to file an adequate response with the Investigative Brenden Miller Panel may be suspended from the Jonesboro, Ga. practice of law until an adequate Admitted to Bar in 2000 response is filed. Since June 15, On June 17, 2013, the Supreme 2013, two lawyers have been sus- Court of Georgia reinstated attor- pended for violating this Rule and ney Brenden Miller (State Bar one lawyer has been reinstated. No. 506214) to the practice of law in Georgia. Connie P. Henry is the clerk of the State Brooks E. Blitch III Disciplinary Board and Homerville, Ga. can be reached at Admitted to Bar 1961 [email protected]. On July 1, 2013, the Supreme Court of Georgia vacated its deci-

22nd Annual Fiction Writing Competition Deadline Jan. 17, 2014 The editorial board of the Georgia Bar Journal is pleased to announce that they are now accepting entries in the Annual Fiction Writing Competition. The purposes of this competition are to enhance interest in the Journal, to encourage excellence in writing by members of the Bar and to provide an innovative vehicle for the illustration of the life and work of lawyers. See page 54 for further information, or contact Sarah I. Coole, Director of Communications, at 404-527-8791; [email protected].

October 2013 41 Law Practice Management

Law Firm Bling: Seven Ways to Polish Your Marketing and Make Sure Your Firm Shines by Natalie R. Kelly

awyers and law firms market to get new

business and develop relationships that may L create opportunities for future business. So, how does one “shine” or stand out when marketing?

How does one “bling”—in a good way, of course? Here are seven tips that might help. Market Ethically and Professionally

There’s a lawyer advertising piece everywhere you look and listen. Do you ever wonder if this is accept- able regardless of what you may think of the advertising medium and message? Did you see a lawyer do something you know they won’t be able to live down professionally; or do something great that doesn’t get mentioned anywhere? If you want your firm to truly shine when it comes to marketing you must do your homework and make sure what you are representing about your practice, lawyers, results, etc., is proper from an ethical standpoint. You also need to make sure your marketing passes muster when it comes to showing off your marquee, the firm website, even your own shoes— firm’s professionalism. Did you think about the audi- everything! Does the information need updating? Can ence? Did you portray a true picture of what your firm you be cleaner or clearer in your design? Is the firm can do or has already done? Did you get appropriate tagline displayed throughout your marketing/adver- permissions? Did you vet your strategy with the Office tising? Is your brand recognized by your existing and of the General Counsel’s Ethics Helpline? (That num- former clients? Do other lawyers and law firms know ber is 404-527-8741, if you need to do that now.) you by your brand? Have you put it out there in a new Take the time to make sure your efforts—whether format lately? Try stepping up your efforts to make advertising, networking or some other form of mar- your brand known by re-working the format or layout keting—remains above board when it comes to fol- or simply making sure to put it out there in ways you lowing the rules for advertising and the highest stan- haven’t thought of before. dards of professionalism. Say Thanks Revamp Your Branding Want to be noticed? Show how polite you are Take a look at everything that represents your firm; and what professional manners you have by saying the business cards, the reception area, the building thanks all the time. The genuine gesture of passing

42 Georgia Bar Journal along appreciation for someone ing what I do!) Staff should have know they know how to effec- else’s deeds or acts almost always business cards, easy access to basic tively use technology to not only comes back to you in a positive intake materials and knowledge manage their legal matters through way. When you genuinely thank about the firm for dissemination to online portals and efficient prac- people, you create a positive, out- the public, if asked. tice and document management ward vibe that can transcend the programs and the like, but also to moment of being appreciated and Update Firm Policies use technology to make their deliv- can show up in referral business and Procedures ery of services more efficient and much later. While it’s not guaran- cost effective. Marketing through teed to generate revenue (nothing Marketing plans should be writ- the use of technology is here to in marketing is), it is sure to pay ten down. Not only should the stay, and whether it’s a new social you back in the future. Plus, it’s plan be written as a separate part media campaign for the practice, just plain nice. of a lawyer’s individual and firm or simply sharing cost-savings on business plans, but it should also legal work for a client by using a Reach Out be incorporated into the overall new technology, the goal should be and Give Back policies and procedures of the to stay on top of technology to not practice. Make sure that you have only make the client happy, but the Don’t let your good deeds stop addressed the goals of market- firm, too. at saying thank you. Build up an ing in the policies and procedures Marketing can be a chore to some exemplary practice of managing of the practice. Is there a new lawyers but a natural and easy pro- a key pro bono matter or two policy for employees on their use cess for others. Still, the underlying each year. This process is made of social media while at work? goal of developing new business and simpler by working with the State Who handles the firm website and cultivating relationships that lead Bar’s Pro Bono Project. The vast what can or should be placed on to helping answer legal concerns number of resources available at the site? What’s the process for and problems is one of the neces- www.georgiaadvocates.org and dealing with law office visitors sary parts of practicing law. Having the Pro Bono Project, www.gabar. and callers? your firm shine is often a simple org/publicservice, can help you matter of focusing on some of the get noticed from your efforts in Stay on Top tips outlined above. If you need helping others. If you are not plan- of Technology assistance with developing your law ning a pro bono undertaking, be firm’s “bling,” then please contact sure to involve yourself and your Marketing online is inching our office for more useful marketing firm in a community service event closer to the top of the list of the resources and assistance. or program that truly gives back. best way to get business. While it This exposure alone helps you may still come second to word-of- Natalie R. Kelly is the keep your firm’s name, brand and mouth referrals, keep in mind that director of the State purpose on the mind of others as even many of those referrals are Bar of Georgia’s Law you serve the public. now managed online as well. This Practice Management digital age of marketing is requir- Program and can be Keep Staff Involved ing lawyers to speak the technol- reached at nataliek@ ogy language. And lawyers should in Marketing gabar.org. let their clients and potential clients The good name of your law office and its work should not stop with the lawyer. Staff should also participate in marketing the practice. Take time to script out a short and descriptive answer for the question, “What does your law firm do?” Make sure staffers don’t make negative comments or reveal information unbecoming to the practice. (I’ve had a law office staff person reveal that their lawyer doesn’t know what they’re doing, and that they don’t like their workplace— outside the confines of my position with the State Bar and their know-

October 2013 43 Section News

Expanding Your Practice by Derrick W. Stanley

he ups and downs in the economy are a true

test of time for attorneys and their practices. T Long gone is the time when practicing law secured your future until retirement. The fact is that every year thousands of new attorneys are entering the workforce, and to be successful you must differentiate yourself from the competition.

The State Bar has 46 sections you can join in order to learn about different areas of practice. Sections offer you the ability to network with peers, providing resources to grow your practice. Educational opportunities are offered through CLE programs and institutes, and several offer newsletters that provide updated case law and court decisions. You may also want to hone your leadership skills by volunteering in a section and working your way up through the ranks. Officer positions provide you with a chance to shape the direction of the section, all while developing bonds with fellow attorneys. You can join a section by logging into your account at gabar.org and selecting “Join a Section.” Once a member, you can contact the section chair and volunteer on a committee, or provide input on topics you

44 Georgia Bar Journal would like to see addressed in upcoming newsletters and educational events. You may even want to help by planning a social event. Sections are only as strong as their members. By volunteering and networking, you will learn who to contact when you need help and what trends are developing in the law. Below is a list of current State Bar Sections. Review the descriptions and then join those that pique your interest, or reinforce the skills you have been honing. Administrative Law Provides a forum for attorneys to become better acquainted with the Georgia Administrative Procedures Act and the numerous administrative agencies of the state government. Agriculture Law Seeks to increase the awareness and further the knowledge of members of the State Bar and general public in agricultural law issues. Animal Law Provides networking and educational opportunities to its members in addition to providing a forum for members to exchange ideas, study and understand laws, regulations and case law pertaining to all areas of animal law. Antitrust Law Facilitates awareness and compliance with federal antitrust laws. It does so primarily through meetings and programs that alert section members to recent antitrust developments and allows them to get together with other antitrust practitioners in the private bar and government enforcement agencies. Appellate Practice Fosters professionalism and excellence in appellate advocacy and to encourage improvements in the appellate process. The work of the section involves sponsoring programs and seminars, encouraging appellate pro bono representation, providing a forum for dialogue between the appellate bench and bar of this state and, when appropriate, advocating improvements in appellate practice and procedure through legislation. Aviation Law Offers opportunities to members of the Bar to acquire and share knowledge of aviation-related topics in order to foster a better understanding of the issues that are unique to aviation law. Bankruptcy Law Serves all members of the Bar whose practice involves debt or creditor issues in the consumer or commercial law areas by its sponsorship of seminars, publications and networking opportunities throughout the state.

October 2013 45 Business Law Creditors’ Rights eral and state government, public Hosts standing committees on Seeks to provide learning oppor- interest organizations and private the Corporate Code, the UCC, tunities for its members and to law firms who practice environ- Securities, Partnerships, Legal serve the needs of attorneys prac- mental law on a day-to-day basis. Opinions and Publications and ticing in the area of collections and Membership in the section also continues to consider legislative commercial litigation. enables members to stay informed proposals and monitor legislative on current environmental subjects, developments in their respective Criminal Law including legislative and regula- areas. Conducts activities to help keep tory developments. members updated on the finer Child Protection points of criminal law and dis- Equine Law & Advocacy seminates information on matters Provides opportunities for mem- affecting criminal practice. bers to develop their knowledge Provides a forum for dissemina- and professional abilities in equine tion of information on aspects of Dispute Resolution matters of law in order to render juvenile law practice related to chil- Facilitates the methods for better service to their clients and dren: prosecution and agency rep- resolving legal disputes other than the general public. resentation, parent representation, through litigation and plans con- child representation and guardian tinuing education seminars. Family Law ad litem work in deprivation or Promotes continuing legal edu- dependency and termination of Elder Law cation by annually sponsoring the parental rights proceedings in juve- Promotes the development of Family Law Institute in May and nile and probate courts; defense substantive skills of attorneys work- Nuts and Bolts of Family Law in and prosecution of delinquency ing with older clients by offering the fall with ICLE; monitors legisla- and status offender or CHINS continuing education programs. tion and assists in drafting legisla- (Children in Need of Services) tion in the area of family law; and cases; miscellaneous juvenile court Eminent Domain publishes a quarterly newsletter advocacy regarding competency, Promotes education relating to which includes articles on emerg- emancipation and parental noti- the law of eminent domain in the ing areas of the practice, interviews fication issues; and handling of state of Georgia. with members of the judiciary, sum- adoption proceedings. maries of new appellate cases and Employee Benefits Law updates on the latest legislation and Constitutional Law Seeks to promote knowledge changes to superior court rules. Promotes the objectives of the and understanding of laws regu- State Bar of Georgia within the lating employer sponsored ben- Fiduciary Law field of constitutional law (state efit plans through continuing Seeks to improve the skills of law- and federal); to actively sponsor legal education opportunities in yers who practice in the fiduciary the continuing education of the the field of executive compensa- area by sponsoring seminars such as members of the State Bar in this tion, pensions, health and welfare the Fiduciary Law Seminar, the Estate field; and to make appropriate and ERISA litigation and develops Planning Institute in Athens, the Basic recommendations in this field to collegiality among practitioners Estate Planning Seminar and other the State Bar. within the employee benefits area programs. It also monitors legisla- of practice. tion in the fiduciary area and helps in Consumer Law drafting fiduciary legislation. Fosters professionalism and Entertainment excellence in consumer law advo- & Sports Law Franchise & cacy, both through individual Distribution Law and class actions, and to promote Educates and promote network- improvements in laws governing ing among section members and Promotes the education and best consumer transactions and fair or guests. Varied programs include practices of franchise and distribu- deceptive business practices. a monthly luncheon lecture series tion law among section members. with CLE credits as well as local Corporate Counsel Law and international seminars. General Practice Engages Bar members who prac- & Trial Law tice corporate law with corpora- Environmental Law tions, associations and law firms, Provides its members with a Provides benefits that include the section annually sponsors a two- unique opportunity to get to know Calendar Call, luncheons, liaison to day Corporate Counsel Institute. other lawyers from industry, fed- other sections and the American

46 Georgia Bar Journal Bar Association and a web pres- Department of Homeland Security, related to representation of domes- ence. Section seminars focus on U.S. and state Department of tic or foreign clients in connection trial practice, law staff training, Labor, etc., to its members in the with matters involving more than office technology, mediation and area of U.S. immigration law. one national jurisdiction. The sec- basic corporate practice. tion keeps its members informed Individual Rights Law of the latest developments in the Government Attorneys Serves the Bar through educa- areas of international law and prac- Provides a forum for govern- tional activities intended to pro- tice through an annual continuing ment attorneys and promotes their tect and promote the rights of legal education seminar, luncheon interests before and participation individuals. During the legisla- study groups and periodic presen- in the Bar. tive session it monitors legislation tations by experts in their field. likely to have a significant impact Health Law on members. The section sponsors Judicial Deals with a variety of health community service projects and Fosters professionalism and care law issues relevant to attor- hosts informal gatherings for its excellence in the judiciary, encour- neys for hospitals, physicians, members and guests. ages improvements in judicial pro- insurers, employers, patients and cess and court operations, solicits government agencies. The sec- Intellectual Property Law input from non-judicial bar mem- tion conducts education seminars Provides networking and educa- bers upon judicial procedures and throughout the year, as well as tional opportunities to its members. court operations and encourages sponsoring health law projects The section also fosters network- interaction between bench and bar. among the Georgia law schools. ing and education for intellectual property attorneys and profession- Labor & Employment Immigration Law als nationwide, including co-spon- Law Provides education and advice soring the annual IP Institute. and disseminates information Focuses attention on all areas regarding current conditions relat- International Law of labor/management-employee/ ing to the practice before various Provides a forum for members employer relationships through government agencies including the to exchange ideas and experiences continuing legal education.

Share Ideas! Join a Section Online. Log in to your account at www.gabar.org and select “Join a Section.”

October 2013 47 Legal Economics Law or veterinary professions, includ- the Internal Revenue Service, the Provides information and assis- ing but not limited to: architects; State Department of Revenue and tance on the administrative, busi- attorneys; certified public accoun- the Georgia State University Tax ness and practical aspects of the tants; land surveyors; profession- Clinic; monitors state legislation practice of law. The section pro- al engineers. The purposes shall affecting taxation; and makes rec- duces a newsletter with the Law be to provide a medium through ommendations concerning legisla- Practice Management Program of which practitioners in the fields of tive and administrative rules. the State Bar of Georgia and co- professional liability can organize, sponsors seminars. concentrate and coordinate their Technology Law activities to enhance the practice Provides a forum for lawyers Local Government Law and understanding of professional to discuss legal issues related Provides a forum for attorneys liability law. to technology. representing local governments to exchange ideas and experience Real Property Law Tort & Insurance and hosts the Local Government Promotes continuing legal Practice Institute for city and county attor- education by co-sponsoring with neys annually in Athens. ICLE annually, a commercial real Functions to: (1) further the edu- property law seminar in the fall, cation of its members by providing Military/Veterans Law a basic real estate practice semi- seminars on insurance-related legal Sponsors two continuing legal nar in the winter and a Real topics; (2) keep its members abreast education programs each year pro- Property Law Institute in May. of current developments in insur- moting awareness and training The section monitors legislation ance law, such as case law, legisla- among Bar members of legal issues at the state and federal level that tion or regulations; (3) provide a particular to military service. The impacts its members, publishes a forum for the exchange of views section annually conducts training newsletter and maintains a sec- on the insurance-related aspects of for attorneys seeking approval to tion website. It also maintains the practice of law; (4) influence for practice before the VA. a listserv for members to post the better, when appropriate, those questions and receive real time activities which relate to insurance Nonprofit Law responses, with helpful guidance and affect lawyers; and (5) devel- Establishes and maintains, as from other practitioners. op a relationship with the State an integrated group, members Insurance Commissioner’s Office of the Bar who are legal advi- School & College Law that will enhance the interests of sors in the field of nonprofit law; Provides members with oppor- the members of the section. to provide an opportunity for tunities to interact with those the exchange of information and actively engaged in practicing Workers’ ideas; to improve the profession- school and college law. The sec- Compensation Law al responsibility with respect to tion co-sponsors annually, with the the practice of nonprofit law; to ICLE, a seminar on school and col- Seeks through its work to keep provide, serve and act as a cen- lege law issues. its members fully informed in the tral association and forum for area of workers’ compensation. The the study, discussion, resolution, Senior Lawyers section works closely with the State collection and dissemination of Informs lawyers of retirement Board of Workers’ Compensation ideas, information, data, conclu- opportunities, options and benefits, to convey information regarding sions and solutions with respect support and assistance to senior new rules changes and statutes to to, and common problems created lawyers in continuing their careers, its members. It actively participates by, the field of nonprofit law. improved representation for the in and supports workers’ compen- disadvantaged, increased pro bono sation seminars and continuing Product Liability Law work, encouraging the develop- legal education. Co-sponsors two seminars annu- ment of alternate provisions of dis- ally and provides current case law pute resolution, advancement of Derrick W. Stanley is updates when available. substantive elderly law and profes- the section liaison for sional collegiality. the State Bar of Professional Liability Georgia and can be Promotes the objectives of the Taxation Law reached at derricks@ Bar within the fields of profession- Pursues the continuing educa- gabar.org. al liability and malpractice. The tion of the members of the Bar section’s emphasis shall be upon in the field of federal and state liability in fields other than medical taxation; maintains liaison with

48 Georgia Bar Journal “and justice for all”

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GLSP Sept 2013 Bar Journal Ad.indd 1 8/15/13 9:41 AM Member Benefits

Anatomy of a Search

by Shelia Baldwin

t’s hard to keep up with all the ways Fastcase Code. Notice that 9-9-17 deals with fees and expenses of arbitrators (see fig. 1). It might be good to read this makes legal research easier. In case you haven’t section and use some of the language in the statute when you conduct your case search. Look up any other made use of this great member benefit, offered statutes that may govern the particulars of your case. I Choose “Search Cases” from the navigation tool at no extra charge as a part of your Bar dues, perhaps bar under Search. Using Georgia as the jurisdiction, enter 9-9-* in the search box to see more than 230 this article will convince you to jump on board and try results. Using the wildcard (asterisk) instead of the specific subsection “17” opens up your search slight- it out. When you log in to your member account on the ly by encompassing anything within the arbitration code while ensuring relevant results. To narrow those State Bar of Georgia’s website, you are able to access all results, use a few key words such as attorney* fee* or counsel* fee*; the wildcard operator will catch any form federal and all state case law (back at least to 1950) and of the word and return more than 70 results. Using the “search within” tool at the top of the page, add the all state statutes through the Fastcase link. Members phrase “arbitration proceedings” within quotations and narrow to 23 cases. In summary, we searched using enjoy a premium account and will incur no “out-of- Georgia as the jurisdiction and (9-9-* and (attorney* fee* or counsel* fee*)) and “arbitration proceedings” and can network” charges, so don’t be afraid to explore. In this now explore the best of our 23 results. One technique to pinpoint the top cases is to reorder article, I’ll run a basic search to highlight how it works the results by clicking on the column entitled “these results” at the top of the second column from the right. using some of the most recent features. This finds the most highly cited cases within your search criteria. The No. 1 case in our list is now Hope Consider a case where an appellant argues that as & Associates, Inc. v. Marvin M. Black Co., which is also a matter of law, attorney’s fees cannot be awarded in ranked as one of the most relevant cases. Click on the arbitration proceedings. One approach would be to blue underlined 3 to see the Authority Check Report that view the statutes to find which code applies. Go to gives you a nice summary of later citing cases to Hope & the browse mode of the statutes and find that under Associates, which can be printed or saved for later view- Title 9, Civil Code, you will see that Chapter 9 gov- ing (see fig. 2.) A quick read of the relevant paragraphs erns Arbitration with Part I containing the Arbitration of these cases indicates no negative treatment and con-

50 Georgia Bar Journal firm that this is a good case. Make over a bubble that represents a For more ideas on how to make sure that you have the “show most case to preview information about the most of this valuable member relevant paragraph” selected under the case (see fig. 4). benefit, sign up for a free webinar the Results dropdown menu (see By now you should have a pretty hosted by Fastcase. The schedule fig. 3). Continue reading over cases good idea what the law says about and form are posted on the State from the list of 22 cases in the results your issue; can attorney’s fees be Bar of Georgia calendar at the top list to find other authoritative cases. awarded in arbitration proceed- right side of our website. As always, Don’t forget to view the cases ings? Hope & Associates specifically contact [email protected] or 404- at the top of the list under the states that “there is no statutory 526-8618 for Fastcase help, or call “Forecite” banner which lists sev- prohibition on the right to contract Fastcase toll free at 866-773-2782. eral highly cited cases that may not for the recovery of attorney’s fees have come up in your list because in arbitration proceedings. If the Sheila Baldwin is the they are outside of your search parties contract for attorney’s fees, member benefits criteria but may be on point. The that agreement will be enforced. coordinator of the interactive timeline view is helpful If the parties do not contract for State Bar of Georgia as it highlights all 22 cases with attorney’s fees, each party will be and can be reached at the option to filter by several crite- responsible for the payment of his [email protected]. ria at one time. Hold your mouse own attorney’s fees.”

1 2

3 4 Writing Matters

Common Ground: Five Essential Writing Skills for Litigators and Contract Drafters

by Sue Payne and Jennifer Murphy Romig

ttorney Carmen Contracts is drafting a

contract. In the office next door, Lawrence A Litigator is writing a brief. They share a quick lunch and end up in a heated conversation about legal writing, of all things. Mr. Litigator says that his writing is creative, persuasive and difficult to craft—compared with the “cut and paste” work of the contract drafter. Ms. Contracts says that she is creating a private law between the parties1 while he is merely writing around and about the law.

These attorneys should not need a mediator to help them recognize that they have more in common than they think. Just what are some of the essential writing skills that highly effective litigators and contract drafters share?

Judicious Use of Samples And both litigators and contract drafters must know Both litigators and contract drafters need to under- when to move away from samples and start from stand when and how to use samples. Senior attorneys scratch. For litigators, a sample may not be a good often advise junior attorneys not to “reinvent the model if it emphasizes a different aspect of the law or wheel,” but this advice does not mean “please mind- the wrong type of legal argument altogether. It may lessly cut and paste from the first sample you find.” not even be good for a formatting model, if the court For example, the litigator drafting a motion may be rules have changed. When the litigator realizes that more efficient if he works from a sample. But he must following a sample would waste time and generate an use the sample strategically, tailoring the text to the ineffective argument, the litigator should open up a situation at hand and discarding portions that do not new document and start from scratch. fit. Likewise, the contract drafter may work from a con- Similarly, contract drafters must know how to draft tract used in another similar deal, but she must be very from scratch because they may not always have appli- careful not to copy fully negotiated provisions tailored cable samples in hand. They must master what Tina just for that other, similar deal. L. Stark calls “translating the business deal into con-

52 Georgia Bar Journal tract concepts.”2 Then, after talk- out risking offense to the court in page limit by eliminating “redun- ing to a client about a deal, the saying what the court “must” do.3 dancy, verbosity, and legalism.”5 contract drafter can translate the Highly effective contract draft- Similar critiques regarding con- deal terms into covenants, repre- ers remember to consider multiple tracts abound because some contract sentations and warranties, condi- audiences as well. Besides the cli- drafters remain wedded to “sound- tions, etc. Additionally, when an ent, the other side and the other ing like a lawyer” as opposed to applicable sample contract is avail- side’s attorney, contract drafters communicating clearly and concise- able, the drafter trained to draft must think about any adjudicator ly. As chronicled in the Steve Jobs from scratch knows to ask: Why is who may one day have to inter- biography by Walter Isaacson, Jobs it drafted this way? Does it achieve pret or enforce the document. once received a proposed contract my client’s objectives? Can it be Also, from a practical standpoint, from IBM spanning 125 pages. Jobs drafted more effectively? the contract drafter’s audience threw it down and ranted, “You includes the business people who don’t get it.” As Isaacson reports: Appropriate Attention will have to implement or follow “He demanded a simpler contract to Audience the contract. If the contract contains of only a few pages, which he got a complex formula for calculating within a week.”6 The importance of audience is royalties, for example, the business But both litigators and contract another area of common ground. people responsible for performing drafters have to avoid taking con- Writing to your audience can be the calculation have to be able to cision too far. The scourge of the difficult to do when the audience understand it. first-year legal writing student, comprises many groups, present “skipping analytical steps,” can and future, some with different The Right Amount infect experienced lawyers’ briefs competing interests. of Concision as well, owing to their familiarity Litigators write not only to with their own case. Great brief judges and their law clerks, but Both litigators and contract writers achieve the perfect balance: also to the client, opposing counsel drafters need to know how to they include everything they need and the opposing party. What they write concisely. Judges and cli- to fully support a point in appro- write may affect future arguments ents alike frequently complain priate language for the audience— to judges on appeal. Thus, the best that lawyers use more words but nothing more. litigators can artfully address dif- than necessary to communicate. In a contract, some attorneys take ferent audiences without neglect- Upon receiving a party’s motion concision too far by losing sight of ing others. For example, a great to extend a brief’s page limit, their multiple audiences and draft- brief can use precedent and other one federal judge responded by ing as if everyone is familiar with arguments to suggest that the court editing part of the motion from the terms of the deal. They begin to “will” and “must” do something, 125 words down to 47 words.4 use a kind of shorthand that only thereby affecting opposing coun- The judge denied the motion and the parties to the deal understand. sel’s view of settlement—but with- instructed the lawyer to meet the Nevertheless, although contract

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October 2013 53 Annual Fiction Writing Competition Deadline January 17, 2014

The editorial board of the Georgia Bar Journal is pleased to announce that it will sponsor its Annual Fiction Writing Contest in accordance with the rules set forth below. The purposes of this competition are to enhance interest in the Journal, to encourage excellence in writing by members of the Bar and to provide an innovative vehicle for the illustration of the life and work of lawyers. For further information, contact Sarah I. Coole, Director of Communications, State Bar of Georgia, 404-527-8791 or [email protected].

Rules for Annual Fiction Writing Competition The following rules will govern the Annual Fiction 4. Articles should not be more than 7,500 words in Writing Competition sponsored by the Editorial length and should be submitted electronically. Board of the Georgia Bar Journal: 5. Articles will be judged without knowledge of the 1. The competition is open to any member in good author’s identity. The author’s name and State standing of the State Bar of Georgia, except Bar ID number should be placed on a separate current members of the Editorial Board. Authors cover sheet with the name of the story. may collaborate, but only one submission from 6. All submissions must be received at State each member will be considered. Bar headquarters in proper form prior to the 2. Subject to the following criteria, the article may close of business on a date specified by the be on any fictional topic and may be in any form Board. Submissions received after that date (humorous, anecdotal, mystery, science fiction, and time will not be considered. Please direct etc.). Among the criteria the Board will consider all submissions to: Sarah I. Coole, Director of in judging the articles submitted are: quality of Communications, by email to sarahc@gabar. writing; creativity; degree of interest to lawyers org. If you do not receive confirmation that and relevance to their life and work; extent to your entry has been received, please call 404- which the article comports with the established 827-8791. reputation of the Journal; and adherence to 7. Depending on the number of submissions, the specified limitations on length and other com- Board may elect to solicit outside assistance in petition requirements. The Board will not con- reviewing the articles. The final decision, how- sider any article that, in the sole judgment of the ever, will be made by majority vote of the Board. Board, contains matter that is libelous or that Contestants will be advised of the results of the violates accepted community standards of good competition by letter. Honorable mentions may taste and decency. be announced. 3. All articles submitted to the competition 8. The winning article, if any, will be published. become the property of the State Bar of The Board reserves the right to edit articles Georgia and, by submitting the article, the and to select no winner and to publish no author warrants that all persons and events article from among those submitted if the sub- contained in the article are fictitious, that any missions are deemed by the Board not to be of similarity to actual persons or events is purely notable quality. coincidental and that the article has not been previously published. drafters sometimes have to spell analogy may also be applicable to Jennifer Murphy things out methodically, they do contract drafting. A contract must Romig has taught not have to use lengthy, convolut- have certain essential parts; within Legal Writing, ed sentences. Moreover, they can this structure established by cus- Research and make use of headings and tabula- tom, the contract drafter strives to Advocacy at Emory tion to shorten sentences and make capture the unique terms of the University School of provisions more readable. particular deal. Law since 2001. She recently While exercising their creativ- founded the blog “Listen Like a The Right Amount ity within certain structures, both Lawyer,” www.listenlikealawyer. of Clarity kinds of writers must advocate com, to explore listening skills for strategically. A litigator must zeal- lawyers and legal professionals as Highly effective litigators and ously advocate for her client with- well as law students and professors. contract drafters know how and out alienating the judge by being when to be vague or abstract for overly aggressive. There is written Endnotes a strategic reason. In litigation, advocacy in contract drafting, too. 1. See Mary Beth Beazley, E-mail a classic example is selectively One reason for taking the labor- to LRW-Prof Listserv re: “Legal using passive voice to strategically ing oar on the first draft is that the Writing—What Is it?” (April 11, 2013) emphasize the object of the action drafter gets to have the first word (on file with Jennifer Murphy Romig). or to de-emphasize the action itself. on provisions that the parties may 2. Tina L. Stark, Drafting Contracts: In a copyright-infringement case, not have discussed yet. Of course, How and Why Lawyers Do What the defendant might want to con- the contract drafter who makes the They Do 11 (2007). sider the occasional use of passive first draft too one-sided can lose 3. See, e.g., Linda H. Edwards, Legal voice to describe how images “were credibility with the other side, mak- Writing: Process, Analysis, and reproduced” rather than continual- ing continued negotiations difficult. Organization 361-362 (5th ed., ly emphasizing that the defendant Aspen 2010). 4. Judith D. Fisher, A Federal actively reproduced them. Conclusion Judge Demonstrates the Value of With the exception of some rep- Ms. Contracts and Mr. Litigator Editing, Legal Writing Prof Blog, resentations and warranties and should amicably end their lunch November 15, 2012, http:// some standard boilerplate, contract by acknowledging that they share lawprofessors.typepad.com/ drafters generally use active voice common ground. They both need legalwriting/2012/11/a-federal- because they want to assign respon- to know how to use samples judi- judge-demonstrates-the-value- sibility to a particular party. But ciously, pay appropriate atten- of-editing.html (linking to Belli contract drafters may choose to be tion to multiple audiences, write v. Hedden Enterprises, Inc., No. intentionally vague in other ways. clearly and concisely, and be 8:12-cv-1001-T-23MAP (August 7, For example, a contract drafter may creative advocates within formal 2012), https://docs.google.com/ fail to define a key term such as structures. These attorneys would file//0B88bY5UGykqoclZra0thaE N1M3c/edit?pli=1). “reasonable” or “material” because do well to acknowledge that, even 5. Belli, at 2 (citing Bryan Garner, it is to the client’s advantage to though one is drafting a contract The Elements of Legal Style (2d. ed. leave the term vague or because it and the other is drafting a brief, 2002)). would take the parties too much they are both engaged in the act 6. Walter Isaacson, Steve Jobs 232 (2011). time to hammer out a mutually of writing. 7. E.g., Joseph Rosenberg, Confronting agreeable definition. The authors would like to thank Clichés in Online Instruction: Using attorneys Bard Brockman and Lou a Hybrid Model to Teach Lawyering Creativity and Spelios for their feedback on earlier Skills, 12 SMU Sci. & Tech. L. Advocacy Within drafts of this article. Rev. 19, 50 n. 67 (2008) (“Similar to any endeavor that operates Formal Structures within a particular structural Sue Payne is the framework, for example a Haiku Both litigators and contract executive director of poem, a legal brief must have drafters must write creatively and the Center for certain components that are woven advocate for their clients within Transactional Law and together in ways that integrate certain formal structures. Some Practice at Emory fact and law, and synthesize legal legal writing experts analogize University School of authority, usually in the form writing for litigation to a sonnet of legal rules and cases.”); Peter or a haiku: it is creative, within a Law, where she teaches Contract Suber, Legal Reasoning after Post- structure established by custom.7 Drafting and Deal Skills. She is the Modern Critiques of Reason, 3 Legal The creativity comes from what author of Basic Contract Drafting Writing: J. Leg. Writ. Inst. 21, 38 the lawyer does within that form Assignments: A Narrative (1997) (analogizing legal reasoning to advocate for the client. This Approach (2011). to sonnet-writing).

October 2013 55 Professionalism Page

2013 Law School Orientation Program by Avarita L. Hanson

oy Lampley Fortson, chair of the State Bar

of Georgia’s Committee on Professionalism, J provided an overview of the 2013 Law School Orientation Program:

“This year marks another season of successful law school orientations throughout Georgia. From Mercer to Atlanta’s John Marshall Law School, the students took a deep dive into the material and really engaged in the orientation experience. Just days before they begin law school and embark upon one of the most challenging experiences of their lives, we challenge the students to analyze real-life ethics and professionalism issues, and they always rise to the occasion. Each year I continue to be impressed with the students’ intellect and moral compass.”

Fifty years ago, Dr. Martin Luther King Jr. went to our nation’s capital and told a hopeful crowd of more than 250,000 people about his dream for a better America. His dream was the American Dream—life, Photo by Terie Latala Photo by Terie liberty, justice, jobs, education and housing—not just Hon. Tammy M. Stokes administers the Law Student’s Oath of for some, but for all. As the bells rang out this year to Professionalism at Savannah Law School. commemorate the anniversary of the Aug. 28, 1963, March on Washington, the elements of Dr. King’s Twenty-five years ago, a small group of Georgia dream reverberated through the nation. The call for lawyers were encouraged by the dream of another theo- justice tolls perhaps even louder for those of us drawn logian, Dr. James Laney, who spoke about the moral to the legal profession. Much of King’s dream has come authority of the legal profession. In the midst of grow- to fruition; but much is left to be done to make freedom ing incivility and the legal profession becoming more ring for all. businesslike and less of a noble profession, five leaders, Fifty years ago, the State Bar of Georgia was cre- Dr. Laney; then State Bar President A. James Elliott; and ated, unifying Georgia lawyers under one governing Supreme Court of Georgia Justices Thomas Marshall, authority. All lawyers would become members of Harold Clarke and Charles Weltner, sought a solution. the State Bar of Georgia as the sun set on the Georgia Consequently, the Supreme Court of Georgia created Bar Association. The unified State Bar of Georgia was the Chief Justice’s Commission on Professionalism (the racially integrated and welcoming to women. Commission). Over the years, the Commission has been

56 Georgia Bar Journal the catalyst for programs that have addressed the primary aspects of professionalism: competence, civility, community and public service and ensuring access to justice. Twenty-one years ago, the State Bar’s Committee on Professionalism started the Law School Orientation on Professionalism Program, in partnership with the Commission on Professionalism—another first. All entering students in Georgia’s six law schools—Atlanta’s John Marshall, Emory, Georgia State, Mercer, Savannah and the University of Georgia—participate in the program, which is now conducted at 40 additional law schools across the country. After hearing Photo by Billie Brooks Frys YLD President Darrell Sutton delivers the keynote address to Mercer University law students. from a keynote speaker, students spend time with volunteer attorneys who engage them in small group discussions centered on hypothetical situations present- ing professionalism and ethical challenges. Some of the situations are based on law school experiences; others situations are law practice scenarios. Thousands of law students and attorneys have participated in this program since its inception. Keynote Speakers Keynote speakers focus the students’ attention on the meaning and elements of professionalism. Speakers for the 2013 Program included: Hon. William S. Duffey Jr., U.S. District Court, Northern District of Georgia, at the University of Georgia; Chief Latala Photo by Terie Judge Herbert E. Phipps, Court Chief Judge Herbert E. Phipps addresses law students at Emory. of Appeals of Georgia at Emory University; and Hon. Shawn E. fessionalism in three words: “char- Committee Vice Chair Elizabeth LaGrua, Fulton County Superior acter, competence and civility.” Fite returned to her law school Court at Georgia State University. At Atlanta’s John Marshall Law and participated as a group lead- Darrell Sutton, president of the School, Hon. Robert D. Leonard II er. “I was truly impressed by the Young Lawyers Division of the State advised students to improve the student discussions during the Bar, delivered the keynote address profession’s reputation as a whole Professionalism Orientation held at Mercer and strongly focused on by improving their reputations. at Emory University School of Law the service aspect of professional- on Aug. 16. The students had obvi- ism. Sutton’s well-taken point: Group Leaders ously given serious consideration “How you serve matters not; that Group leaders not only guided to the hypotheticals, which was you serve matters the most.” discussions with the students for evidenced by their lively debate. At Savannah Law School, its sec- the students’ learning experiences, The Professionalism Orientation is ond incoming class heard from Hon. but reflected on the evolution of an excellent start to the students’ Tammy M. Stokes who defined pro- their own professional identity. legal careers, and I always enjoy

October 2013 57 to dissect and consider as a professional.” n “It awakened me to the fact that I will be exposed to situations that will require the best that I have to give. Before, I had almost assumed that if I did things the right or correct way then I would be fine.” n “I thought the discussion of some of the moral and honesty issues we discussed reflected realistic situations.” n “The program raised issues that I hadn’t considered and was excellent in terms of interacting with practicing attorneys.” n “The program has provided me Photo by A.J. Doucett with a good understanding of Hon. Robert D. Leonard II speaks to John Marshall law students. what is expected of lawyers with my time as a group leader. I look Teresa Aitkens added: “As a respect to professionalism.” forward to meeting with the stu- practicing attorney, I believe that n “This program clarified differ- dents again in January to see how these students should be intro- ent approaches/viewpoints and they’ve progressed.” duced to professionalism in law helped enlighten the core values Another group leader, Bryan school so that they are aware of the through effective examples.” Babcock, says about his experience: rules of conduct and ethical consid- n “It was thought provoking and “I enjoyed myself with the orien- erations. We as a group have the I enjoyed engaging in conver- tation. I remembered my 1L year opportunity to really take advan- sation with the group leaders doing this same orientation, and tage of others in the legal system and my fellow students about I still remembered talking about and society in general if we are not potential ethical situations I these hypotheticals. It was a great grounded in rules of conduct and may encounter as an attorney chance to impart wisdom on the ethical behavior. So, the oppor- and as a student.” incoming class the same way it was tunity to introduce the concept n “I loved the interaction and dis- imparted on me when I first began early and often can only result in cussion we were able to have in my legal education. The students (at least) more educated attorneys the format of the session. It was were excited to talk about profes- entering the work force that will also nice to discuss these issues sionalism, and stayed engaged in hopefully result in more ethical with practicing professionals.” the conversation the entire time. I practicing attorneys.” n “The scenarios are very practi- loved hearing their gut reactions to These statements are a clear indi- cal and pragmatic and make the hypotheticals because it reas- cator that the volunteer attorneys you think like a lawyer.” sured me that the students have find their efforts at orientations what it takes to face these chal- with incoming law students well- The effectiveness of this program lenges in their careers.” spent. All want to see this program may ultimately rest in the actions, Paula Kapiloff reflected: “So continued, and some want to see character and demeanor of every glad that the State Bar endorses law schools present another forum Georgia lawyer. For more than two the Supreme Court decision to addressing professionalism for sec- decades, this program has contrib- expand professionalism from the ond- or third-year students. uted to helping Georgia law school very beginning. I’ve been working graduates define their professional with the professionalism program The Student Experience identity and develop their char- for a number of years and each Students often find the orientation acter and fitness for the legal pro- year it reminds me that each of on professionalism the highlight of fession at the outset of their legal us needs to refresh our goals in their law school orientation period. education. Many thanks to all those professionalism as well. . . . Justice Their comments demonstrate the who work to make this program Clarke said years ago that ethics is effectiveness of the program: possible: the State Bar of Georgia a requirement and professionalism staff and particularly its Committee is what is to be expected. This is n “It was very beneficial for me on Professionalism, Chair Joy what I expect from my profession to be given the different (and Lampley Fortson and Vice Chair and from these students.” at times complicated) scenarios Elizabeth L. Fite; the hundreds of

58 Georgia Bar Journal 2013 Law School Orientation on Professionalism Volunteers

Atlanta’s John Marshall Mindy Goldstein Nathan W. Kotas Thomas G. Traylor III Law School Hon. Reuben M. Green John W. Kraus Richard A. Waller Jr. Ebony Ameen Hon. Timothy G. Hagan Hon. Shawn E. LaGrua Randolph E. Wynn Roy P. Ames Gregory R. Hanthorn Thomas E. Lavender III Savannah Law School Frederick V. Bauerlein Michelle M. Henkel Kelly A. C. McMichael Frederick V. Bauerlein George E. Bradford Jr. Joseph A. Homans Brett A. Miller Charles E. Dorr Robert D. Brooks Prof. James B. Hughes Jr. Ellwood F. Oakley Avarita L. Hanson John C. Bush Aaron R. Kirk Charles C. Olson William H. McAbee II David S. Crawford Deborah G. Krotenberg Bharath Parthasarathy William H. Pinson Jr. Willie G. Davis Jr. David N. Krugler Patricia L. Pearlberg Amanda R. Roberts Hon. Donald R. Donovan Paige F. Laine Lara P. Percifield James B. Smith Hon. Gregory T. Douds Emily Liu Tashwanda C. Pinchback Katie A. Smith Hon. James E. Drane Hon. Dax E. Lopez Michael N. Rubin Hon. Tammy M. Stokes Randall W. Duncan T. David Lyles Martin A. Shelton Wayne D. Toth Hassan H. Elkhalil Jennifer W. Mathews Deana M. Spencer Cheryl L. Weaver Irwin M. Ellerin Kevin A. Maxim Margaret E. Strickler C. Joy Lampley Fortson Hon. Christopher J. McFadden Prof. Emily F. Suski University of Georgia Patricia A. Hall Ruth L. R. McMullin Michael J. Tempel Teresa T. Aitkens Duncan M. Harle Justice David E. Nahmias S. James Tuggle William D. Barwick Simone N. Hylton Robert E. Norman Kathleen A. Wasch David B. Bell Charis L. Johnson Prof. Sue Payne Robert G. Wellon Jessica I. Benjamin John W. Kraus Hon. Herbert E. Phipps Jocelyn R. Whitfield Hon. Stephen E. Boswell Hon. Robert D. Leonard II Jonathan B. Pierce Roderick B. Wilkerson Carolina D. Bryant Corey B. Martin Prof. Polly J. Price Delores A. Young Dean C. Bucci Robert E. Norman Hon. William M. Ray Jerry W. Cain Jr. Mercer University Craig S. Oakes Richelle Reid Albert Caproni III Bryan O. Babcock Joseph H. Oczkowski Dean Gregory L. Riggs James E. Carlson John H. Baker Shalamar J. Parham Jennifer M. Romig James W. Cobb James W. P. Barnes Irvan A. Pearlberg Ethan Rosenzweig Walter N. Cohen C. Joyce Baumgarner Tashwanda C. Pinchback John C. Sammon Hon. David P. Darden Rebekah S. Betsill Timothy J. Santelli Dean Robert A. Schapiro C. Wilson DuBose Stephanie D. Burton Janet C. Scott Prof. Sarah M. Shalf Hon. William S. Duffey Jr. Valerie E. Cochran Toronda M. Silas Thomas Sneed Pamela L. Hendrix Lisa R. Coody Evelyn Y. Teague Hon. Wesley B. Tailor Emily M. Hetherington Cory P. DeBord Derick Villanueva Prof. Johan D. Van der Vyver T. Tucker Hobgood James M. Donley Randee Waldman Kenneth B. Hodges III Emory University James E. Elliott Jr. James M. Walters Eric T. Johnson Prof. Frank S. Alexander Terry T. Everett Kirsten Widner Charles A. Jones Jr. Prof. Thomas C. Arthur Deron R. Hicks Laura E. Yearout Raegan M. King Hon. Larry A. Baldwin II Stephen J. Hodges David A. Kleber Sarah S. Bennah Georgia State University April R. Holloway John K. Larkins Jr. Hon. Diane E. Bessen Patricia G. Abbott Michael E. Hooper Morgan R. Luddeke B. Phillip Bettis Natalie Ashman Michael G. Horner Alexander S. Lurey Scott L. Bonder Prof. Lisa R. Bliss Paula E. Kapiloff Tiffany M. Mallory Lauren G. Brown Prof. Cass Brewer John F. Kennedy Christopher A. McGraw Jay D. Brownstein Jacqueline F. Bunn Tangela S. King John A. Nix Mark G. Burnette Margaret Butler Kevin Kwashnak Benjamin A. Pearlman Melissa D. Carter Ann M. Byrd Donald L. Lamberth Granville L. Powers Benjamin J. Chapman Prof. Sylvia B. Caley Pamela N. Lee James A. Reed Elizabeth D. Christian Kendall W. Carter John R. B. Long B. Shawn Rhodes Darryl B. Cohen Rory S. Chumley Prof. Patrick E. Longan Tracy Rhodes Hon. Brenda S. Hill Cole Lindsey G. Churchill Ronald A. Lowry Sara D. Sibley Theodore H. Davis Jr. Constancia E. Davis L. Scott Mayfield Mary Jane Stewart Hon. J. Antonio DelCampo Isaiah D. Delmar Amanda M. Morris Sharon D. Stokes Hon. Donald R. Donovan Lawrence Dietrich Prof. Mary Helen Moses Donald C. Suessmith Jr. Hon. Sara L. Doyle Hassan H. Elkhalil Steven A. Moulds Ryan J. Swingle Gregory M. Eells Prof. Jessica D. Gabel Hon. Samuel D. Ozburn Hon. Edward J. Tarver Dean A. James Elliott David H. Glass Kevin C. Patrick Henry C. Tharpe Jr. Prof. Mark Engsberg Dan R. Gresham W. Warren Plowden Jr. Thomas L. Walker Jennifer G. Fernandez Thomas E. Griner Sarah E. Smith Amelia M. Willis Elizabeth L. Fite Prof. Nicole G. Iannarone Darrell L. Sutton C. Knox Withers Amy M. Flick Hon. Phillip Jackson A. Robert Tawse Jr. Hon. John E. Girardeau Kendall L. Kerew Mary Beth Tolle volunteer judges, attorneys and # of # of law professors who serve as group Law School Group Keynote Speaker Students Leaders leaders; and the law school deans, professors and administrators who Hon. Robert D. Leonard II, schedule and plan the program Atlanta’s John Marshall 193 32 Judge, Superior Court, Cobb logistics. Thanks also to the staff County of the Chief Justice’s Commission Hon. Herbert E. Phipps, on Professionalism for their efforts: Emory 340 64 Chief Judge, Court Avarita L. Hanson, executive direc- of Appeals of Georgia tor; Terie Latala, assistant director; and Nneka Harris-Daniel, Hon. Shawn E. LaGrua, administrative assistant. Georgia State 204 45 Judge, Fulton County In closing, I would like to Superior Court share with you a letter we received from Judge Samuel D. Ozburn, Darrell L. Sutton, YLD Superior Court, Alcovy Judicial Mercer 187 39 President, Sutton Law Circuit, Covington: Group

Dear Ms. Hanson, Hon. Tammy M. Stokes, Savannah 49 10 Chief Judge, Chatham Last week I had the honor of par- County Recorders Court ticipating in the professionalism orientation for incoming law students Hon. William S. Duffey Jr., at my alma mater, Mercer University University of Georgia 201 43 Judge, U.S. District Court, School of Law. I want to thank you and Northern District of Georgia commend you and the Chief Justice’s Commission on Professionalism for working with the State Bar to make Justice Robert Benham Awards these programs possible. There is an ever-growing need to emphasize the for Community Service importance of professionalism in this noble profession and I just wanted to Nominations are now being accepted for the 15th annual Justice thank you. God bless. Robert Benham Awards for Community Service. Awards will be presented at a special ceremony on Feb. 25, 2014, at the Bar Center. Sammy Ozburn Judges and lawyers meet the criteria for these awards if they Professionalism is really about lawyers living their career dreams, have combined a professional career with outstanding service and as shaped by the American Dream dedication to their communities through voluntary participation of liberty and justice for all. It is in community organizations, government-sponsored activities also about helping—through the or humanitarian work outside of their professional practice. laws of this nation—to make oth- Contributions may be made in any field, including but not limited ers’ dreams a reality, particularly clients. Professionalism is compe- to: social service, education, faith-based efforts, sports, youth and tency, civility and ensuring access to mentoring, recreation, the arts or politics. justice and service. Ultimately, what counts is not what we do for a living Eligibility: Nominees must: 1) be a member in good standing of the but what we do for the living. State Bar of Georgia; 2) have a record of outstanding community service and continuous service over a period of time to one or more Avarita L. Hanson is cause, organization or activity; 3) not be a member of the Selection the executive director Committee, staff of the State Bar of Georgia or Chief Justice’s of the Chief Justice’s Commission on Professionalism; and 4) not be in a judicial or political Commission on Professionalism and race for 2013 and 2014. can be reached at Please go to www.gabar.org for a nomination form. [email protected].

60 Georgia Bar Journal Find people worthy of the name on the door. That was my mentor’s advice. But the landscape has changed over the last few years. Proﬁts are harder earned and have to be more wisely spent. So I’m getting help to keep our practice healthy enough to attract and retain top talent. After all, it might as well be my name on the door. WE SHINE WHEN WE HOLD OURSELVES TO A HIGHER STANDARD.

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Legal AD 8.75X 11.375 RCANAVAN In Memoriam

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

A. Dale Albritton Daniel P. Camp Henry Allen Flanders Jr. Macon, Ga. Carrollton, Ga. Millen, Ga. Mercer University Walter F. Mercer University Walter F. Woodrow Wilson College of Law George School of Law (1959) George School of Law (1970) (1951) Admitted 1960 Admitted 1970 Admitted 1951 Died June 2013 Died July 2013 Died September 2013

R. Lee Aston Edward E. Carriere Jr. William P. Gaffney Elberton, Ga. Decatur, Ga. Marietta, Ga. Woodrow Wilson College of Law Loyola University New Orleans University of Wisconsin Law (1984) College of Law (1967) School (1968) Admitted 1987 Admitted 1971 Admitted 1972 Died September 2013 Died June 2013 Died August 2013

Upshaw C. Bentley Jr. Larry Cohran William D. Harris Athens, Ga. McDonough, Ga. Greensboro, N.C. University of Georgia School Woodrow Wilson College of Law Atlanta’s John Marshall Law of Law (1949) (1958) School (1974) Admitted 1949 Admitted 1963 Admitted 1975 Died August 2013 Died May 2013 Died March 2013

R. Lamar Brannon Marlene R. Duwell-Capouya Herbert E. Heitman Decatur, Ga. Lawrenceville, Ga. Conyers, Ga. Emory University School of Law University of Georgia School Glendale University College (1965) of Law (1993) of Law (1977) Admitted 1965 Admitted 1993 Admitted 1979 Died August 2013 Died July 2013 Died July 2013

Otis A. Brumby Jr. Jerry B. Dye Maureen Katherine Keating Marietta, Ga. Augusta, Ga. Dunkirk, Md. University of Georgia School Mercer University Walter F. Thomas M. Cooley Law School of Law (1965) George School of Law (1962) (1990) Admitted 1964 Admitted 1961 Admitted 1993 Died September 2013 Died August 2013 Died July 2013

Reuel B. Buttram Gary F. Eubanks H. W. Lott Atlanta, Ga. Marietta, Ga. Lenox, Ga. Woodrow Wilson College of Law University of Georgia School Mercer University Walter F. (1948) of Law (1971) George School of Law (1951) Admitted 1948 Admitted 1971 Admitted 1951 Died August 2013 Died August 2013 Died August 2013

62 Georgia Bar Journal John E. Simpson as an associate judge in DeKalb Sarah L. Manning Savannah, Ga. County Recorders Court for nine Lexington, Ky. Yale University Law School (1947) years and as a municipal judge for Samfod University Cumberland Admitted 1948 the City of Decatur for 24 years. School of Law (1983) Died July 2013 Carriere was a member of the Admitted 1983 State Bar of Louisiana and an Died October 2012 Gordon B. Smith active member of the State Bar of Savannah, Ga. Georgia. He served on the Board John O. McCoy Samfod University Cumberland of Governors for 20 years and on Atlanta, Ga. School of Law (1969) the Council of State Court Judges, Duke University School of Law Admitted 1970 serving as president of the Council (1948) Died August 2013 in 2003 and 2004. Admitted 1950 An avid storyteller, teacher, Died July 2013 Cheryl Paulette Smith reader and sailor, Carriere enjoyed Atlanta, Ga. spending time on the water, enter- Glover McGhee Duke University School of Law taining a crowd, engaging in lively Darien, Ga. (1975) philosophical discussions and deliv- Emory University School of Law Admitted 1975 ering corny puns. He savored a good (1949) Died September 2013 book, an engaging conversation and Admitted 1949 time spent watching his grandchil- Died July 2013 John W. Sognier dren grow and mature. Among his Savannah, Ga. many passions was his volunteer Eugene A. Medori Jr. Catholic University of America work with the State Bar of Georgia Atlanta, Ga. Columbus School of Law High School Mock Trial competition, Emory University School of Law Admitted 1946 where he served as an evaluator and (1967) Died September 2013 judge at regional, state and national Admitted 1967 competitions, and teaching semi- Died August 2013 John M. Yarborough nars with the Institute of Continuing Annapolis, Md. Judicial Education. Harry Mixon Vanderbilt University Law School Ocilla, Ga. (1982) University of Georgia School Admitted 1982 of Law (1959) Died April 2013 Admitted 1964 Died July 2013 Hon. Edward E. Carriere Jr. passed Charles C. Pritchard away at his home in Atlanta, Ga. June 2013 of complica- Emory University School of Law tions from throat can- (1953) cer. Born Dec. 7, 1941, in Admitted 1953 Brooklyn, N.Y., to Edward Etienne Died July 2013 and Ursula Meyers Carriere of New Orleans, “Eddie” grew up in Dallas, Barbara Doster Pruitt Texas, graduated Jesuit High in Columbus, Ga. 1960 and Loyola University of New Mercer University Walter F. Orleans College of Law in 1967. He George School of Law (1986) served in the U.S. Army, 1st Lt., Admitted 1986 Military Police Corps, 1967-69. In Join the State Bar on Died July 2013 1998 Gov. Zell Miller appointed Carriere as judge of the State Court James Scott Sibold of DeKalb County where he served facebook! Dunwoody, Ga. until his 2010 retirement. University of Georgia School Carriere began his legal career www.facebook.com/ of Law (1982) with HUD, then worked as an assis- statebarofgeorgia Admitted 1982 tant district attorney in DeKalb Died July 2013 County before settling into the private practice of law in Decatur, Ga. While in private practice, he served

October 2013 63 CLE Calendar

October-November OCT 10 ICLE OCT 18 ICLE Trial of the Plaintiff’s Employment Case Expert Testimony in Georgia Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

OCT 11 ICLE OCT 18 ICLE Premises Liability 9th Family Law Seminar Atlanta, Ga. Augusta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

OCT 16 ICLE OCT 24 ICLE VA Accreditation Seminar U.S. Supreme Court Update Atlanta, Savannah & Tifton, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6.5 CLE 6 CLE

OCT 16 ICLE OCT 25 ICLE What Every Family Lawyer Needs 28th Technology Law Institute to Know Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE OCT 25 ICLE OCT 17 ICLE Securities Litigation Deposing the Artful Dodger Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE OCT 25 ICLE OCT 17 ICLE Georgia Auto Insurance Claims Law Beginning Lawyers (video replay) Atlanta, Ga. Statewide Rebroadcast See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE OCT 28 ICLE OCT 18 ICLE IP Boot Camp Basic Fiduciary Practice Atlanta, Ga. Macon, Ga. See www.iclega.org for location See www.iclega.org for location 3 CLE 6 CLE

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

64 Georgia Bar Journal CLE Calendar

OCT 30-31 ICLE NOV 7-9 ICLE 32nd Business Law Institute 25th North American Entertainment, Atlanta, Ga. Sports & Intellectual Property Law See www.iclega.org for location Conference 12 CLE Montego Bay, Jamaica See www.iclega.org for location OCT 31 ICLE 12 CLE Solo & Small Firm Fall Seminar Atlanta, Ga. NOV 7-9 ICLE See www.iclega.org for location 29th Medical Malpractice Liability 6 CLE Amelia Island, Fla. See www.iclega.org for location OCT 31 ICLE 12 CLE Nuts & Bolts of Labor & Employment Law NOV 7 ICLE Savannah, Ga. Buying & Selling Privately Held See www.iclega.org for location Businesses 3 CLE Atlanta, Ga. See www.iclega.org for locations NOV 1 (Tent.) ICLE 6 CLE LLCs Atlanta, Ga. NOV 7 ICLE See www.iclega.org for location RICO 3 CLE Atlanta, Ga. See www.iclega.org for location NOV 1 ICLE 6 CLE E-Discovery Atlanta, Ga. NOV 7 ICLE See www.iclega.org for location Real Property Foreclosure 6 CLE (video replay) Statewide Rebroadcast NOV 1 ICLE See www.iclega.org for location Real Property Foreclosure (video replay) 6 CLE Statewide Broadcast See www.iclega.org for location NOV 8 ICLE 6 CLE Advanced Health Care Law Atlanta, Ga. NOV 6 ICLE See www.iclega.org for locations Commercial Real Estate 6 CLE Atlanta, Savannah & Tifton, Ga. See www.iclega.org for location NOV 8 ICLE 6 CLE Advanced Adoption Law Atlanta, Ga. See www.iclega.org for location 6 CLE

October 2013 65 CLE Calendar

October-November NOV 8 ICLE NOV 15 ICLE Advanced Topics in Guardianships Keep It Short & Simple Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

NOV 8 ICLE NOV 15 ICLE Trial Advocacy Recent Developments in Georgia Law Statewide Broadcast Statewide Broadcast See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

NOV 9-17 ICLE NOV 20 ICLE Advanced Urgent Legal Matters How to Maximize the Revenues & Sale at Sea Value of Your Practice Caribbean Cruise Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 12.5 CLE 3 CLE

NOV 13 ICLE NOV 21 ICLE 10 Commandments of Cross Examination Secrets to Staying Successful & Ethical Atlanta, Ga. in the New Economy See www.iclega.org for locations Atlanta, Ga. 6 CLE See www.iclega.org for location 6 CLE NOV 14 ICLE Litigation Under 42 USC 1983 NOV 21 ICLE Atlanta, Ga. Recent Developments in Georgia Law See www.iclega.org for location Statewide Rebroadcast 6 CLE See www.iclega.org for location 6 CLE NOV 14 ICLE Trial Advocacy (video replay) NOV 22 ICLE Statewide Rebroadcast Nuts & Bolts of Family Law See www.iclega.org for location Statewide Broadcast 6 CLE See www.iclega.org for locations 6 CLE NOV 14 ICLE Georgia’s New Juvenile Code NOV 22 ICLE Atlanta, Ga. Enhancing Your People Skills As An See www.iclega.org for location Attorney 6 CLE Atlanta, Savannah & Tifton, Ga. See www.iclega.org for location 6 CLE

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

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MT_Oct13.indd 1 9/23/2013 9:50:57 AM October 2013 67 Notices

Supreme Court Approves Amendment to Bar Rule 1-208

The Court having considered Motion 2013-2 to (c) A petition for leave to resign from membership Amend the Rules and Regulations for the Organization with the State Bar shall comply with the following: and Government of the State Bar of Georgia, it is ordered that the State Bar’s motion to amend Rule 1-208— (1) the petition shall be filed under oath with the Resignation from Membership is hereby approved, Executive Director of the State Bar and shall contain effective September 4, 2013 to read as follows: a statement that there are no disciplinary actions or criminal proceedings pending against the peti- Rule 1-208. Resignation from Membership tioner; and (2) the petition shall contain a statement as to (a) Resignation while in good standing. A member whether the petition is being filed under part (a) of the State Bar in good standing may, under oath, or part (b) of this Rule. If the petition is being filed petition the Executive Committee for leave to resign under part (b), the petition shall state the term of the from the State Bar. Upon acceptance of such peti- delinquency and/or suspension for failure to pay tion by the Executive Committee by majority vote, dues or to comply with continuing legal education such person shall not practice law in this state nor requirements. be entitled to any privileges and benefits accorded to active members of the State Bar in good standing (d) No petition for leave to resign shall be accepted if unless such person complies with part (f) or part (g) there are disciplinary proceedings or criminal charges of this Rule. pending against the member, or if the member is not in good standing for failure to pay child support obliga- (b) Resignation while delinquent or suspended for tions under Bar Rule 1-209. failure to pay dues or for failure to comply with continuing legal education requirements. Resignation (e) A petition filed under this Rule shall constitute while delinquent or suspended for failure to pay dues a waiver of the confidentiality provisions of Rule or for failure to comply with continuing legal educa- 4-221(d) as to any pending disciplinary proceedings. tion requirements: A member of the State Bar who is delinquent or suspended (but not terminated) for fail- (f) Readmission within five years after resignation. ure to pay dues or failure to comply with continuing For a period of five years after the effective date of legal education requirements may, under oath, peti- a voluntary resignation, the member of the State Bar tion the Executive Committee for leave to resign from who has resigned pursuant to this Rule may apply for the State Bar. Upon acceptance of such petition by the readmission to the State Bar upon completion of the Executive Committee by majority vote, such person following terms and conditions: shall not practice law in this state nor be entitled to any privileges and benefits accorded to active members of (1) payment in full of any delinquent dues, late fees the State Bar unless such person complies with part (f) and penalties owing at the time the petition for or part (g) of this Rule. leave to resign was accepted, and payment in full of

68 Georgia Bar Journal the current dues for the year in which readmission the Board to Determine Fitness of Bar Applicants. is sought; Provided the former member seeking readmission (2) payment of a readmission fee to the State Bar has applied to the Board to Determine Fitness of equal to the amount the member seeking readmis- Bar Applicants before the expiration of the five sion would have paid during the period of resigna- year period after his or her resignation, the former tion if he or she had instead elected inactive status; member shall be readmitted upon submitting a (3) for resignations while suspended for failure to determination of fitness even if the five year period comply with continuing legal education require- has expired. ments under part (b) of this Rule, submission of a cer- tificate from the Commission on Continuing Lawyer (g) Readmission after five years. After the expira- Competency declaring that the suspended member tion of five years from the effective date of a volun- is current on all requirements for continuing legal tary resignation, the former member must comply education; and with the Rules governing admission to the practice (4) submission to the membership department of of law in Georgia as adopted by the Supreme Court the State Bar of a determination of fitness from of Georgia. Proposed Amendments to Uniform Superior Court Rules 4, 5, 6, 15 and 24

At its business meeting on July 24, 2013, the Council Should you have any comments on the proposed of Superior Court Judges approved for first reading changes, please submit them in writing to the Council proposed amendments to Uniform Superior Court of Superior Court Judges at 18 Capitol Square, Suite Rules 4, 5, 6, 15 and 24. 104, Atlanta, Georgia 30334, or fax them to 404-651- A copy of the proposed amendments may be found at 8626. To be considered, comments must be received by the Council’s websites at www.georgiasuperiorcourts. Monday, Jan. 6, 2014. org and www.cscj.org. Postage Statement

October 2013 69 GET PUBLISHED

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

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

*Not all submitted articles are deemed appropriate for the Journal. The Editorial Board will review all submissions and decide on publication. Classified Resources

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Office closing. Ga. Digest (updated); Ga. Jurisprudence (not updated); phone system with 10 phones; misc. fur- nishings; original art. Contact Laurel @ 404-695-1421.

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Prime Buckhead Peachtree Offices for Rent—Brand new, award-winning, high tech Class A office on glass http://probono.mymobisite.us in new Peachtree Tower. Client wow factor Peachtree views. Concierge service, valet parking, three restaurants, across from Phipps Plaza. Support staff. Share Use your smartphone with other former big firm lawyers. Referral work opportunities. Contact: [email protected]. to learn about Offices available, Ponce de Leon Ave, rent from $700-$1,200. Conference room, law library, central pro bono in Georgia. receptionist, central scanner/printer/copier. Building and street parking available. On a major thoroughfare, Access available cases. easy to find, high visibility. Near DeKalb and Fulton Courthouses. DSL, all-inclusive utilities, and insur- Find training and resource materials. ance. Call Terp or Brandee, 404-872-7086. Read news about Pro Bono.

October 2013 71 Classified Resources

Practice Assistance Dear Judges and Attorneys, Are you using a Korean Appeals, Briefs–Motions, Appellate & Trial Courts, interpreter in any of your cases right now? If so, that State, Civil & Criminal Cases, Post Sentence person is not a licensed court interpreter. Save yourself Remedies. Georgia brief writer and law researcher. time, money and trouble by using the only Licensed Over 35 years experience. Reasonable rates. First con- Korean Court interpreter in GA today (as of October sultation free. Curtis R. Richardson, attorney; 404- 2013). Call me, Jason Lee, at 770-827-8821. 377-7760 or 404-643-4554; Fax 404-377-7220. Email to [email protected]. Position Wanted Personal Injury Attorney—Well-established, success- Handwriting Expert/Forensic Document Examiner. ful Atlanta plaintiff’s firm seeking personal injury Certified by the American Board of Forensic Document attorney. Excellent financial opportunity. Collegial, Examiners. Former Chief, Questioned Documents, U.S. professional environment. Great support. Send resume Army Crime Laboratory. Member, American Society to: GBJ at [email protected]. of Questioned Document Examiners and American Academy of Forensic Sciences. Farrell Shiver, Shiver & General Nelson Document Investigation Laboratory, 1903 Lilac Afraid to admit your P.I. practice doesn’t bring the joy, Ridge Drive, Woodstock, GA 30189, 770-517-6008. freedom or money you’d hoped? Feel trapped and need clients without a mega-firm budget? Another lawyer Forensic Accounting & Litigation Support. CPA since transforms your law firm—you’ll love it or remotely 1982. Analysis of financial information for commercial run it. FREE Ebook “7 Painless Practice Changes. . .” insurance claims, owner disputes, business litigation, PLUS 20 minutes Coaching before Halloween; www. fraud examinations, bankruptcy and nonprofits. Greg LawFirmRescue.com 770-333-3301. DeFoor, CPA, CFE—Cobb County—678-644-5983— [email protected].

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72 Georgia Bar Journal

Trial By Jury: What’s the Big Deal?

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

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

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

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

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