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Send e-mail to [email protected]. All e-mail received will receive a response within 24 hours. 12 GBJ Features 34 12 Diversity Program’s Business Best Practices for Issuing Development Symposium Subpoenas: Depositions of by Marian Cover Dockery Georgia Residents in Cases Pending Out of State GBJ Fiction by Rebecca B. Phalen 36 Life for Sale 18 by Lisa Siegal Inadvertently Produced 18 Privileged Documents under the Departments New Federal Rules of Civil 6 From the President Procedure: You Ask for it Back, 8 From the Executive Director But Then What? 10 From the YLD President by David Hricik 46 Bench & Bar 22 52 Office of the General What is Reasonable Service? Counsel by Joseph G. Mitchell 54 Lawyer Discipline 26 56 Law Practice Management 26 58 Casemaker Good Leadership 60 Writing Matters Results in Successful 2007 General Assembly 62 Pro Bono Honor Roll by Mark Middleton 66 Section News 58 68 Professionalism Page 28 70 In Memoriam Georgian to Georgian 74 CLE Calendar by Jennifer R. Mason 78 Notices 30 83 Classified Resources Bar Foundation Holds 84 Advertisers Index Children at Risk Symposium by Len Horton

32 The National Bar Association Comes to Atlanta in August 60 by Keisha Lance Bottoms

Cover photo by Johanna B. Merrill and Avarita L. Hanson State Bar of Georgia We’re here for you! Law Practice Management Program The Law Practice Management Program is a member service to help all Georgia lawyers and their employees put together the pieces of the office management puzzle. Whether you need advice on new computers or copiers, personnel issues, compensation, workflow, file organization, tickler systems, library materials or software, we have the resources and training to assist you. Feel free to browse our online forms and article collections, check out a book or videotape from our library, or learn more about our on-site management consultations and training sessions, 404-527-8773. Consumer Assistance Program The Consumer Assistance Program has a dual purpose: assistance to the public and attorneys. CAP responds to inquiries from the public regarding State Bar members and assists the public through informal methods to resolve inquiries which may involve minor violations of disciplinary standards by attorneys. Assistance to attorneys is of equal is importance: CAP assists attorneys as much as possible with referrals, educational materials, sugges- help onlya tions, solutions, advice and preventive information to help the attorney with consumer matters. The program pledges its best efforts to assist attorneys in making the practice of law more efficient, ethical and professional in nature, 404-527-8759. Lawyer Assistance Program call, This free program provides confidential assistance to Bar members whose personal problems may be interfering with their ability to practice law. Such or problems include stress, chemical dependency, fam- click ily problems and mental or emotional impairment, 800-327-9631. Fee Arbitration The Fee Arbitration program is a service to the gen- e-mail eral public and lawyers of Georgia. It provides a convenient mechanism for the resolution of fee disputes between attorneys and clients. The actual arbitration is a hearing conducted by two experi- away. enced attorneys and one non-lawyer citizen. Like judges, they hear the arguments on both sides and decide the outcome of the dispute. Arbitration is impartial and usually less expensive than going to court, 404-527-8750.

(404) 527-88700 (800) 334-66865 www.gabar.org Editorial Board Quick Dial Marcus D. Liner Attorney Discipline 800-334-6865 Editor-in-Chief ext. 720 404-527-8720 Robert Henry Beer J. Kevin Moore Consumer Assistance Program 404-527-8759 Erika Clarke Birg Per Brage Normark Conference Room Reservations 404-527-8712 Donald P. Boyle Jr. E. Peyton Nunez Fee Arbitration 404-527-8750 Clayton Owen Carmack Cynthia B. Smith CLE Transcripts 404-527-8710 Diversity Program 404-527-8754 Charles Madden Cork III Mary E. Staley ETHICS Hotline 800-682-9806 Diane Lea DeShazo Robert R. Stubbs 404-527-8741 Bridgette Eckerson Martin Enrique Valbuena Georgia Bar Foundation/IOLTA 404-588-2240 Georgia Bar Journal 404-527-8736 John Michael Gross Kristin H. West Lawyer Assistance Program 800-327-9631 Jennifer Carpenter Kane Pamela Y. White-Colbert Lawyers Foundation of Georgia 404-659-6867 Ronald Arthur Lowry Law Practice Management 404-527-8773 Membership Records 404-527-8777 Executive Committee Liaison Meetings Information 404-527-8790 Damon E. Elmore Pro Bono Project 404-527-8763 Professionalism 404-225-5040 Advisor Sections 404-527-8774 Unauthorized Practice of Law 404-526-8603 Rebecca Ann Hoelting Young Lawyers Division 404-527-8778 Editors Emeritus Manuscript Submissions Rebecca Ann Hoelting, 02-04 Charles R. Adams III, 89-91 The Georgia Bar Journal welcomes the submission of Marisa Anne Pagnattaro, 01-02 L. Dale Owens, 87-89 unsolicited legal manuscripts on topics of interest to the State Bar of Georgia or written by members of the State D. Scott Murray, 00-01 Donna G. Barwick, 86-87 Bar of Georgia. Submissions should be 10 to 12 pages, William Wall Sapp, 99-00 James C. Gaulden Jr., 85-86 double-spaced (including endnotes) and on letter-size paper. Citations should conform to A UNIFORM SYSTEM Theodore H. Davis Jr., 97-99 Jerry B. Blackstock, 84-85 OF CITATION (18th ed. 2005). Please address unsolicited L. Brett Lockwood, 95-97 Steven M. Collins, 82-84 articles to: Marcus David Liner, State Bar of Georgia, Communications Department, 104 Marietta St. NW, Suite Stephanie B. Manis, 93-95 Walter M. Grant, 79-82 100, Atlanta, GA 30303. Authors will be notified of the William L. Bost Jr., 91-93 Stephen E. Raville, 77-79 Editorial Board’s decision regarding publication. The Georgia Bar Journal welcomes the submission of news about local and circuit bar association happenings, Bar Officers of the State Bar of Georgia members, law firms and topics of interest to attorneys in Jay Cook President Georgia. Please send news releases and other information to: Sarah I. Coole, Director of Communications, 104 Gerald M. Edenfield President-Elect Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: Robert D. Ingram Immediate Past President 404-527-8791; [email protected]. Bryan M. Cavan Treasurer Disabilities Jeffrey O. Bramlett Secretary If you have a disability which requires printed Jonathan A. Pope YLD President materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Elena Kaplan YLD President-Elect Damon E. Elmore YLD Past President Headquarters 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 Communications Committee 800-334-6865, 404-527-8700, FAX 404-527-8717 Visit us on the Internet at www.gabar.org. S. Lester Tate III Chairperson S. Kendall Butterworth Co-Vice Chairperson South Georgia Office 244 E. Second St. (31794) P.O. Box 1390 Nancy Jean Whaley Co-Vice Chairperson Tifton, GA 31793-1390 800-330-0446, 229-387-0446, FAX 229-382-7435 Communications Staff Publisher’s Statement Sarah I. Coole Director The Georgia Bar Journal (ISSN-1085-1437) is published six Jennifer R. Mason Assistant Director times per year (February, April, June, August, October, December) with a special issue in November by the State Johanna B. Merrill Section Liaison Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Stephanie J. Wilson Administrative Assistant Georgia 30303. ©State Bar of Georgia 2007. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia and additional mailing offices. Opinions and conclusions expressed The opinions expressed in the Georgia Bar Journal in articles herein are those of the authors and not necessarily those of the Editorial Board, Communications are those of the authors. The views expressed herein Committee, Officers or Board of Governors of the State Bar are not necessarily those of the State Bar of Georgia, of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement does not imply its Board of Governors or its Executive Committee. endorsement of any product or service offered. POSTMAS- TER: Send address changes to same address. From the President

by Jay Cook Photo by Hollis Ellison

The Time Has Come for Lawyers to Lead

homas Jefferson said, “I know of no safe These quotes leave no doubt that our founders believed a public educated about their rights was criti- depository of the ultimate powers of the soci- cal to preserving American democracy. So why is it that today, most Americans can’t name the three branches ety but the people themselves, and if we of government, can’t explain the meaning of “separa- T tion of powers,” and don’t know what the phrase think them not enlightened enough to exercise their “independent judiciary” means—let alone how it func- tions to protect our constitutional democracy? Who is control with a wholesome discretion, the remedy is not to blame for this rampant ignorance which, as the founders predicted, now to take it from them but to threatens our American “We must use every nexus where way of life? Is it the govern- inform their discretion.” ment? Is it the schools? Is it the apathetic public? How James Madison said, we touch the public to gain did we lose our way and, “Knowledge will forever more importantly, how do govern ignorance; and a confidence, approval and we get back on track? people who mean to be I began my term as Bar their own governors must respect—and to consistently president this year by quot- arm themselves with the ing former U.S. Supreme power which knowledge communicate this underlying Court Justice George gives.” Sutherland, who said, “The Benjamin Franklin said, message: the process works!” saddest epitaph which can “This will be the best secu- be carved in memory of a rity for maintaining our lib- vanished liberty is that it erties. A nation of well-informed men who have been was lost because its possessors failed to stretch forth a taught to know and prize the rights which God has saving hand while yet there was time.” given them cannot be enslaved. It is in the religion of You may recall that I followed the quote with this call ignorance that tyranny begins.” for action: If there is yet time, let us not waste a moment of it!

6 Georgia Bar Journal And you answered me—with ed curriculum standards. Teachers to our own. The time has come for unfailing support and courage. are given materials and teachers’ lawyers to take the lead! You became true believers in the guides to use in conjunction with power of values-based messaging. the visit. Jay Cook is the president of the State You admirably demonstrated This program is effective and Bar of Georgia and can be reached at your commitment to our duty— engaging, but is limited in its reach [email protected]. both as individual lawyers and because the schools must come to the organized Bar—to defend the us. So I have asked Linda T. Muir of Constitution, to remind the public the Saylor Law Firm to head a of our founding principles, and to Civics Education Committee, under Earn up to 6 CLE push back some of the attacks on the rubric of the Foundations of credits for authoring our state and federal judiciary. Freedom, to explore ways to make And we made a difference. the Bar’s civic education efforts legal articles Together, we presented a unified more ubiquitous. and having them voice in defense of the judiciary. Why, you may ask, should we Together, we raised the level of lawyers take this on? My answer: published. public discourse in Georgia about Why not? Lawyers are the only the role of the courts in preserving professional group (except for Submit articles to: and protecting our democracy. elected officials, of course) sworn Marcus D. Liner Together, we prevented outside to uphold the Constitution. But Georgia Bar Journal forces from tipping the balance of lawyers have never before taken our courts in favor of powerful the lead, in an integrated fashion, 104 Marietta St. NW, Suite 100 special interests. to instill in the body politic the Atlanta, GA 30303 But we must keep pressing on. knowledge our founders believed Contact [email protected] for We must be vigilant, as former essential for the Constitution’s more information or visit the U.S. Supreme Court Justice survival. Bar’s website, www.gabar.org. Sandra Day O’Connor has urged. Surely what is essential to the We must use every nexus where Constitution’s survival is essential we touch the public to gain confidence, approval and respect—and to consistently communicate this underlying message: the process works! We must look at these situations not as lawyers, but as trust- ed messengers. We must see them as opportunities, not insurmount- able problems. We must look for ways to reconnect our values and American values in the public mind. We must do everything possible to not only win the public’s hearts and minds, but to rekindle their love affair with founding principles, including an unshakeable belief in fair play, the Rule of Law and the right to be heard. And perhaps most importantly, we must make a full-court press to improve civics education in this state, inside and outside the classroom. We have made a good start with our Bar Center programs—the Law Museum, Mock Courtroom and Mini Law School—which provide school children with a day of hands-on learning and role playing that corresponds with mandat-

June 2007 7 From the Executive Director

by Cliff Brashier

Volunteers Are the Substance of the Bar

rom the calls and e-mails I receive, it appears arm in the disciplinary process are the special masters, one of whom is appointed to each case by the Supreme that there are some misconceptions about Court if the case goes to prosecution. The Investigative Panel is vested with the powers to the State Bar of Georgia’s disciplinary investigate members of the Bar for violations of the F Georgia Rules of Professional process. Some believe that the Conduct set forth in Bar Rule 4- 102. Half of the members of the Office of the General Counsel “Without the hard work Investigative Panel are appointed by the Bar president and the (OGC) has the power to disbar of these volunteers, who remaining members are appointed by the Supreme Court. The panel lawyers. This isn’t the case. consists of two members from are simply a regular group each of the 10 judicial districts; Instead, the Supreme Court of two members-at-large; six lay of practicing attorneys, members, all of whom are Georgia, assisted by the investi- appointed by the Supreme Court; we would not be the the president-elect of the Bar; and gation and recommendations of the president-elect of the Young State Bar of Georgia.” Lawyers Division (YLD). volunteer attorneys, is responsi- The Review Panel consists of three members from each the ble for all disbarments. northern district, the middle district and the southern district; four lay members, who The majority of the work that occurs during the dis- are also all appointed by the Supreme Court; the past ciplinary process rests in the hands of volunteers—Bar president of the Bar; and the past president of the YLD. members who make up both the Investigative Panel With exception to the past presidents, the members of and the Review Panel. In addition to the Investigative this panel are appointed by the Supreme Court on even Panel and the Review Panel, another active volunteer years and by the Bar president on odd years.

8 Georgia Bar Journal Between the Investigative Panel, superior product.” Without the the Review Panel, special masters, hard work of these volunteers, OGC attorneys and Supreme Court who are simply a regular group of justices, numerous people are practicing attorneys, we would not involved in each disciplinary case. be the State Bar of Georgia. Our Simply put, all the Bar does, with programs succeed because volun- the help of its volunteers, is make teers engage in the process, and recommendations to the Supreme they are vital to the day-to-day Court on disciplinary action. At decisions of the Bar. that point, the Supreme Court can I hope that this explanation accept, modify or outright reject sheds some light on the discipli- the Bar’s recommendations. The nary process, and the importance disciplinary process is designed so of our volunteers in general. Please that volunteers accomplish the join me in thanking them for their bulk of the work. service to our profession. As Save So in its disciplinary system and always, your thoughts and sugges- all other programs, the Bar is real- tions are welcome. My telephone Valuable ly you, the members. We are an numbers are 800-334-6865 (toll organization that runs on a count- free), 404-527-8755 (direct dial), Research less number of volunteers, from 404-527-8717 (fax) and 770-988- the Executive Committee and the 8080 (home). Board of Governors to all of our Time at committees and sections. “The use Cliff Brashier is the executive of volunteers in the disciplinary director of the State Bar of www.gabar.org process is essential,” General Georgia and can be reached at Counsel Bill Smith said. “They [email protected]. bring a diversity of experience that enables the panels to produce a

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June 2007 9 From the YLD President

by Jonathan A. Pope Happy 60th Birthday YLD

appy birthday, Young Lawyers Division! that I believe stand out. In 1968, the YLD initiated a study to address the need for legal services among the On May 31, the YLD celebrated 60 years poor in Georgia. The study concluded “there was a dis- tressing disproportion between the actual need for legal of service to the public and the Bar. The services by those who could not afford them and the H present supply of legal services available to them.” past 60 years have seen enormous growth in the mem- Ultimately, the YLD created the Georgia Legal Services Program (GLSP) in 1971. A fully bership and programs of the “The past 60 years have independent and thriving program, GLSP now provides legal YLD. With more than 8,800 services to Georgians who could seen enormous growth in not otherwise afford them. members and 27 committees, I In 1987, the YLD created the the membership and Georgia High School Mock Trial am glad to report the YLD is in Committee to coordinate mock programs of the YLD. With trial competitions among high very good health. schools throughout Georgia. more than 8,800 members This is by far the largest and One of the original goals of most active of all the current the YLD was to provide young and 27 committees, I am YLD committees. Furthermore, lawyers an “opportunity to this committee involves more have an impact on the profes- glad to report the YLD is in non-lawyers in the legal system sion and provide a training than any other committee of the ground for future leaders of State Bar of Georgia. the Bar.” Many past leaders of very good health.” Whether it is providing disas- the YLD have gone on to ter relief assistance to victims of become leaders in our profession and the Bar, includ- hurricanes or tornadoes, working on a re-write of the ing: Griffin Bell, Kirk McAlpin, Frank Jones, Chuck Georgia Juvenile Law code, helping the elderly under- Driebe, Matt Patton, Bob Brinson, Jim Elliot, Charlie stand their legal rights, focusing on the issues of minori- Lester, Jim Pannell, Bill Barwick, Donna Barwick, ties and women in the legal profession, or simply having Stan Brading, Rachel Iverson, Tina Shadix a really good party where young lawyers can socialize Roddenbery and many others. My father, Marion and get to know one another, the YLD is getting it done. Pope, was even a member of what was then known as The theme for the 2007-08 Bar year is “Celebrating the Younger Lawyers Section Executive Council 60 Years of Service.” The celebration starts at the 60th sometime in the 1950s. Anniversary of the YLD Gala Celebration, which will The YLD has accomplished many significant endeav- take place on June 15 during the State Bar of Georgia’s ors in its 60 years of existence. However, there are two 2007 Annual Meeting in Ponte Vedra Beach, Fla. At

10 Georgia Bar Journal the gala, we will honor the past YLD presidents and celebrate the YLD’s accomplishments over the past 60 years. On a final note, I have had a wonderful year as YLD president. I want to thank Deidra Sanderson, director of the YLD, for all of her support and assistance in making this a successful and memorable year. I want to also thank the YLD officers, directors and executive council members for all of their support, ideas and hard work. Finally, I want to thank my family—my wife Amy and my two children, Andrew and Caroline. Simply put, you can’t do this job well without the support of your family and I had it all the way. My past nine years of YLD involvement have resulted in many wonderful friendships and memories that I will always cherish. Counterclockwise from front row far left: Betsy Hodges (1992-93); Rachel Iverson (1993-94); Tina Shadix Roddenbery (1994-95); Bill Barwick (1984-85); Marcus Calhoun (1952-53); Donna Jonathan A. Pope is the president Barwick (1988-89); James Hyder (1997-98); Stan Brading (1990-91), James Pannell (1979-80); Richard deMayo (1982-83); Matt Patton (1970-71); John Sammon (1987-88); Felton Jenkins of the Young Lawyers Division of (1972-73); Leland Malchow (1991-92), W.G. Elliott (1964-65); Bob Brinson (1973-74), Chuck the State Bar of Georgia and can be Driebe (1963-64); Dana Miles (1989-90), Henry Walker (1996-97), Kirk McAlpin (1953-54) and Ross Adams (1998-99). Photo taken at the 50th Anniversary Gala at Capital City Grille in 1997. reached at [email protected].

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June 2007 11 GBJ Feature

Best Practices for Issuing Subpoenas Depositions of Georgia Residents in Cases Pending Out of State

by Rebecca B. Phalen

oday’s litigation, in which the facts of a case Georgia has adopted the Uniform Foreign Depositions Act (the “Act”),2 which allows Georgia see no geographical boundaries, requires a courts to issue subpoenas for cases pending out of state. Although the Act was meant to simplify the more expansive subpoena power to properly process of deposing a Georgia resident for an out-of- T state case, the courts have developed their own and cross those boundary lines to reach certain witnesses varied procedures for issuing subpoenas. The courts are within their rights to do so because the Act is “a and evidence. While this subpoena power has been statute of empowerment, not requirement.”3 easily extended in federal court,1 it remains a lumber- Preparing to Issue the Subpoena Before the court issues the subpoena, the Georgia ing process in state courts. attorney and out-of-state counsel need to lay some groundwork as follows. This article will set forth the best practices for issuing a subpoena in Georgia for a case pending in anoth- Run a conflict check. er state (the “foreign state”). Although this process has Run a conflict check on all parties to the case and the not been fleshed out in Georgia cases and remains driv- non-party deponent. Because the issuance of a subpoe- en by the clerk of court for each county, there are cer- na has the potential to result in a motion to quash or tain steps that will remain relatively constant. Because motion to compel, the Georgia attorney must be fully it is not settled law that only Georgia procedure would informed of who the parties are, particularly if the apply to a subpoena issued in Georgia, it is recom- attorney may be called upon to defend the issuance of mended that attorneys err on the side of caution and the subpoena in court. follow the more restrictive procedure as between Georgia and the foreign state. The degree to which an Determine whether out-of-state counsel attorney follows this more conservative approach will is seeking testimony, documents, or both. vary depending on cost, anticipated cooperation of the The Georgia Civil Practice Act, unlike the Federal deponent and opposing parties, and strategy in the Rules of Civil Procedure, only provides for subpoenas underlying case. to issue for deposition, and not for documents alone.4 A

12 Georgia Bar Journal subpoena for deposition can, how- challenged subpoena issued for an substantive law or to modify the ever, command the deponent to out-of-state case is limited to com- commission to reflect that the for- produce and permit inspection of pelling the deponent to attend and eign state’s law should apply. documents.5 If out-of-state counsel imposing sanctions for failure to Although a statement to that effect is only seeking documents, those attend. This position suggests that in the commission may not be documents may be obtained with these courts do not think that they binding, it can be persuasive to a signed authorizations or through have the power to rule on issues court should the subpoena be chal- the parties’ cooperation. Otherwise, that go to the heart of the subpoe- lenged. 13 the documents need to be obtained na.11 In playing such a limited role, through a subpoena for deposition the deponent’s state court may Comply with the with a request for documents. The defer to the ruling of the foreign more restrictive notice deposition can always be cancelled court on substantive issues.12 requirement governing if the documents are obtained With this background, because service of subpoenas. before the deposition. there is the possibility that the Although Georgia law does not Georgia court will examine the mandate a particular time period Review the specific substance of the subpoena for priv- in which a subpoena may be information sought in the ilege and relevancy issues, the sub- served, it does allow a deponent to subpoena to determine stance and breadth of information object to discovery for “good cause whether any privileged, sought in the subpoena should be shown,” including asking the confidential, or irrelevant examined by Georgia counsel. The court to allow the discovery only information is sought. Georgia counsel should advise the “on specified terms and condi- The goal is to serve a subpoena out-of-state counsel if there is any tions, including a designation of that will be able to withstand information sought that could be the time or place.”14 When giving scrutiny if enforcement is sought considered privileged, confidential notice of a deposition under in a Georgia court. However, the or irrelevant under Georgia law. O.C.G.A. § 9-11-30, the party level of scrutiny that courts give to This analysis will allow the out-of- requesting the deposition “shall subpoenas issued for out-of-state state attorney to either modify the give reasonable notice in writing cases varies; courts take different subpoena to comply with Georgia to every other party to the action.” positions on both the scope of their power to review substantive issues (such as privilege and relevancy) and which state’s law applies to any review.6 A court may apply its own substantive law and quash a subpoena that it determines is overbroad or seeks privileged material.7 A court may also apply the foreign state’s law in limiting the scope of discovery sought by the subpoena. In Barnes v. A Confidential Party,8 the deponent’s state court allowed the deponent to invoke a privilege of the foreign state in refusing to answer certain questions at a deposition finding that “the foreign state’s substantive law of privilege, as well as its procedural rules should be applied to depositions taken under commission in another state.”9 A deponent’s state court may even be willing to issue a ruling on the relevancy of the information sought by the subpoena if the party seeking discovery can establish the relevancy of the information.10 On the other hand, some courts have held that their review of a

June 2007 13 Once the deposition location is established, the appropriate Georgia clerk of court should be contacted regarding that court’s procedures for issuing an out-of-state subpoena. The importance of this communication cannot be overstated.

While not expressly applicable to Determine where the the subpoena and a certified copy serving subpoenas, “reasonable deponent can be compelled of a commission (also called a letter notice” is the guiding principle. to attend a deposition. rogatory).22 The commission is a Additionally, “the person to whom For a deposition in an out-of- request from the out-of-state court, a subpoena is directed may, within state case, the Georgia clerk of any signed by the foreign judge, 10 days after the service” serve a court of record where the deposi- requesting that the Georgia court written objection to the subpoe- tion is to be taken can issue the sub- issue the subpoena. The clerk of na.15 While this statute does not poena.19 However, there are only court may require that the commis- mandate a time period for service certain places where a deponent sion include certain specifics about of the subpoena, but rather a time can be compelled to attend a depo- the deposition (e.g., name of depon- for the objection,16 this 10-day sition: 1) in the county where he ent or time, date, and location of period serves as partial time- resides or is employed, 2) in the deposition).23 frame. Finally, if the foreign state county in which he was served The commission should not requires a subpoena to be served a with the subpoena, and 3) at any request the Georgia court to issue certain number of days before the place not more than 30 miles from an order compelling the production deposition, that requirement the county seat of the county where of documents or the appearance of should be observed since it is not the deponent resides or is the deponent. One Georgia court clear which state’s procedure employed.20 The deposition should has held that such a request from a would prevail on a motion to be arranged in a county where the foreign court is not entitled to full quash or motion to compel. deponent can be compelled to faith and credit because the foreign attend.21 court did not have personal juris- Provide notice of the Once the deposition location is diction over the Georgia non- deposition in accordance established, the appropriate Georgia party.24 The commission should with the Georgia ethical clerk of court should be contacted simply request that the Georgia requirements. regarding that court’s procedures court issue the subpoena. As dis- The Georgia State Disciplinary for issuing an out-of-state subpoe- cussed above, out-of-state counsel Board has advised that a subpoena na. The importance of this commu- may also wish to modify the com- should only be issued “for deposi- nication cannot be overstated. mission to reflect that the foreign tions which have been actually While some counties’ clerks are state’s law should apply. A sample scheduled by agreement between very familiar with this request, oth- commission and subpoena are parties or where a notice of deposi- ers may at first refuse the request to included at the end of this article. tion has been filed and served issue an out-of-state subpoena. To The out-of-state counsel should upon all parties, and should not be the extent that the clerk’s informa- determine the best method for issued when no deposition has tion differs from this article, follow obtaining a commission. The par- been scheduled.”17 This require- the clerk’s suggestions. If the clerk ties may submit a joint motion to ment is to prevent the misuse of is unfamiliar with the procedure, the foreign court or, if the opposing subpoenas by misleading non- the approach in this article can be party will not consent, a motion to party witnesses into releasing con- suggested. If the clerk’s require- request the commission could be fidential or privileged information ments are impractical, the location submitted. without the non-party’s having an of the deposition can be changed to opportunity to object to the pro- a different county—assuming there Serving the Subpoena duction of that material.18 To com- is another county where the depon- Georgia law permits a variety of ply with this requirement, the out- ent can be compelled to attend the methods to serve a subpoena; how- of-state counsel should either deposition. ever, the foreign state’s law may be schedule the deposition by agree- more restrictive. The parties should ment or serve the notice of deposi- Issuing the Subpoena follow the more restrictive rule to tion before having the subpoena In order to issue the subpoena, avoid any complaints of improper issued in Georgia. the clerk of court generally requires service that the deponent may

14 Georgia Bar Journal raise. For example, if the foreign specific considerations with which Whenever any mandate, writ, or commission is issued out of any state only allows personal service you are confronted, you should be court of record in any other state, of a subpoena, then the subpoena ready to send the subpoena to the territory, district, or foreign juris- should be personally served, even clerk to issue it, to serve the sub- diction, or whenever upon notice though Georgia law allows other poena, and then—finally—to take or agreement it is required to methods of service. the deposition. take the testimony of a witness Under Georgia law, once the sub- or witnesses in this state, wit- poena is issued, it may be served Rebecca B. Phalen is nesses may be compelled to anywhere in the state.25 Subpoenas an associate of Nelson appear and testify in the same can be served by personal service, Mullins Riley & manner and by the same process registered or certified mail or statu- Scarborough LLP who and proceeding as may be tory overnight delivery.26 practices in Atlanta in employed for the purpose of taking testimony in proceedings Witness and mileage fees are the areas of product pending in this state. liability and business litigation. also required in certain circum- 3. In re Deposition of Turvey, 2002 stances. If the deponent lives out- Admitted to practice in Georgia, WL 31455155 at *2 (Ohio Ct. App. side the county where the deposi- she earned a B.A. from the Nov. 5, 2002). There may also be tion is to be taken, service of the University of Virginia in 1996 and additional legislative attempts on subpoena must include the statuto- her J.D., magna cum laude, from the horizon to formulate a more ry witness fee of $25 per day and Georgia State University College detailed uniform approach to inter- the mileage fee of 20 cents per mile of Law in 2002, where she was a state depositions. Currently the (calculated from the deponent’s member of the Georgia State National Conference of residence and back).27 If counsel University Law Review. Phalen is Commissioners on Uniform State does not know where the deponent also a board member of Caminar Laws is drafting the Uniform Interstate Depositions and lives, it is better to err on the side of Latino, Inc. Discovery of Documents Act. For including the statutory witness fee more information on the Drafting and mileage fee (or any higher wit- Endnotes Committee and the latest versions ness or mileage fees required by 1. FED. R. CIV. PROC. 45(a)(3). of the draft, see the foreign state). 2. O.C.G.A. § 24-10-111 states: Taking the Deposition Depending on your involvement N D L in the out-of-state case, you may be Norwitch Document Laboratory asked to take the deposition. If you do so, inquire of the out-of-state Forgeries - Handwriting - Alterations - Typewriting attorney whether the foreign state Ink Exams - Medical Record Examinations - “Xerox” Forgeries requires you to be admitted pro hac F. Harley Norwitch - Government Examiner, Retired vice. If out-of-state counsel will be Court Qualified Scientist - 27 years. Expert testimony given in taking the deposition, there is no excess of three hundred times including Federal and Off-shore requirement under Georgia law that he be admitted pro hac vice.28 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 The out-of-state attorney should www.questioneddocuments.com also be informed that the Georgia Telephone: (561) 333-7804 Facsimile: (561) 795-3692 rules impose a time limit on depositions—“one day of seven hours.”29 Again, if the foreign state allows less time, then, unless the The deponent agrees otherwise, it is recommended that the parties fol- winning edge low the more restrictive rule. NLRG National Legal Research Group Conclusion for Georgia CHARLOTTESVILLE, VIRGINIA As discussed above, when assist- Put us to work helping you win today. 1-800-727-6574 or [email protected] ing out-of-state counsel with serv- attorneys ing a subpoena on a Georgia wit- Fast, Affordable, Specialized ness for an action pending out of since Research, Writing and Analysis state, there are many issues to con- For more information, and to see what your sider. After evaluating the issues 1969 peers are saying about us: www.nlrg.com raised in this article, and any case-

June 2007 15 Sample Commission [CASE CAPTION] COMMISSION TO TAKE OUT OF STATE DEPOSITION TO: THE CLERK OF THE SUPERIOR COURT OF [county name] COUNTY, STATE OF GEORGIA WHEREAS, there is an action in this, the [foreign court name and location], entitled as above, and this Court is of the opinion that complete justice in the action cannot be done without a subpoena issuing and being served on [deponent], within your jurisdiction, requiring the witness to produce certain documents, and WHEREAS, this Court has determined that good cause exists for the oral deposition of [deponent’s name] and for the production of certain documents in this case; THEREFORE, we request that, in the interest of justice, you issue a subpoena by your proper and usual process summoning the following witness: [deponent name and address] to appear before a duly appointed court reporter to give testimony and answer questions pertaining to documents to be produced in discovery of this case under oath.

Dated: ______Judge [foreign state]

Sample Subpoena

IN THE SUPERIOR COURT OF [ ] COUNTY STATE OF GEORGIA ) ) [CASE CAPTION FROM FOREIGN CASE] ) Pending in [FULL NAME OF COURT AND ) CIVIL ACTION NUMBER] ) ) ) ) SUBPOENA DUCES TECUM FOR DEPOSITION

TO: [DEPONENT NAME AND ADDRESS] GREETINGS: YOU ARE HEREBY COMMANDED that you be and appear at [LOCATION OF DEPOSITION] on [DATE AND TIME OF DEPOSITION], then and there to be examined on deposition for the purpose of discovery and for the preservation of testimony by the Defendant [NAME OF DEFENDANT]. in the above-referenced action, and to bring with you to said deposition the documents, objects, and things as detailed in Exhibit A attached hereto. FAIL NOT UNDER PENALTY OF THE LAW. This ______day of ______, 2007. Clerk, Superior Court of [ ] County, Georgia

16 Georgia Bar Journal http://www.nccusl.org/Update/C did not have the authority to included in the commission, use ommitteeSearchResults.aspx?com quash the foreign subpoena or language such as “or at such other mittee=246. grant protective orders on the date and time as shown in a notice 4. O.C.G.A. § 9-11-45(a)(1)(A) (2006). issues of attorney-client privilege, of deposition.” That additional Although the Evidence Code particularly when foreign court phrase may serve to prevent the allows subpoenas to issue for doc- had already ruled on the issues). out-of-state counsel from having to uments, see id. § 24-10-20(b), the 12. See In re Ayliffe & Cos., 564 obtain a new commission if the context of that code section indi- N.Y.S.2d 297 (App. Div. 1990) deposition is rescheduled. cates that it should be used for (deponent’s state court upheld 24. Carr v. Farmer, 213 Ga. App. 568, purposes of a hearing or trial. lower court’s refusal to quash a 569, 445 S.E.2d 350, 352 (1994). In Id. § 24-10-21. The Uniform subpoena based on deponent’s Carr, the order from the foreign Foreign Deposition Act would not argument that the subpoenas court requested that the Georgia authorize the use of O.C.G.A. § 9- sought unnecessary and duplica- court “issue an order to [the nonpar- 11-34(c) to request documents tive testimony, stating that those ty] compelling production of said from a nonparty in Georgia for use arguments should be addressed to documents.” Id. at 352. in a case pending out of state with- the foreign court). 25. O.C.G.A. § 9-11-45(a)(1)(C) (refer- out a subpoena. 13. See Barnes, 628 So. 2d at 287 (in ring to procedure found in 5. Id. § 9-11-45(a)(1)(C). applying foreign state’s law, noted O.C.G.A. § 24-10-21). O.C.G.A. § 9- 6. Although it is unclear what level of language in the commission that 10-12(b) defines “statutory review a court in Georgia might stated that the deposition was overnight delivery.” apply when faced with a challenge taken in accordance with the for- 26. See id. (referring to procedure to a subpoena for an out-of-state eign state’s civil practice act). found in O.C.G.A. § 24-10-23). case, one case suggests that a 14. O.C.G.A. § 9-11-26(c)(2) (2006). 27. Id. (referring to procedure found in Georgia court is willing to look at 15. Id. § 9-11-45(a)(2). O.C.G.A. § 24-10-24). the underlying proceedings in the 16. An objection may still be made if 28. See GA. UNIF. SUPER. CT. R. 4.4. foreign court to determine the the subpoena is served with less Rule 4.4 only speaks to an out-of- appropriateness of the subpoena. See than 10 days for compliance. Id. state attorney “seeking to appear Carr v. Farmer, 213 Ga. App. 568, 17. Ga. State Disciplinary Bd., in a proceeding pending in this 445 S.E.2d 350 (1994) (stating that Advisory Op. 40 (Sept. 21, 1984). state” and directs the attorney to the trial court erred in issuing a sub- 18. Id. “file a verified application with the poena to a Georgia healthcare facili- 19. O.C.G.A. § 9-11-45(a)(1). court where the litigation is filed.” ty when the underlying proceedings 20. Id. § 9-11-45(b). Therefore, because there is no in the out-of-state case did not com- 21. The United States Postal Service pending case in Georgia, this Rule ply with federal law regarding the has a useful website for determin- does not apply. However, if the procedure to obtain records from ing a county by the address: out-of-state attorney wishes to the Georgia healthcare facility). http://zip4.usps.com/zip4/wel argue in a subsequent motion to 7. See, e.g., Kirkland & Ellis v. come.jsp. compel or motion to quash filed in Chadbourne & Parke LLP, 670 22. Communication with the clerk is the Georgia court, this Rule would N.Y.S.2d 753, 756 (Sup. Ct. 1998) necessary because certain courts then apply. See also GA. R. PROF’L (deponent’s state court applied its may require additional informa- CONDUCT 5.5(c) (describing certain law in quashing subpoena that tion to be submitted, including legal services that may be provid- sought attorney work product). multiple copies of the commission, ed by a “Domestic Lawyer” 8. 628 So. 2d 283 (Miss. 1993). the order from the foreign court (defined generally as a lawyer 9. Id. at 288. In reaching this conclu- permitting the commission to from another United States juris- sion, the deponent’s state court issue, the notice of deposition, or a diction but not authorized to prac- also relied on 1) language in the motion to the court requesting the tice law in Georgia) on a tempo- subpoena stating that the foreign subpoena to be issued. rary basis). state’s civil practice act applied 23. If the clerk requires the specifics of 29. GA. UNIF. SUPER. CT. R. 5.3. and 2) its own choice of law princi- the deposition logistics to be ples that dictated applying the law of the foreign state. Id. at 289. 10. See Chatinksy v. Dubrow Elec. SAVE TIME AT Indus., 27 Pa. D. & C.2d 486, 488 (1962) (ruling that before certain documents are produced, the pro- www.gabar.org ponent of the discovery has the burden to establish the relevancy You can find the services you need for of the documents in the underly- your practice on the Online Vendor ing action). 11. See, e. g., Fischer Brewing Co. v. Directory. Be sure to look for special Flax, 740 N.E.2d 351, 355 (Ohio Ct. App. 2000) (deponent’s state court discounts offered to State Bar members. upheld finding that lower court

June 2007 17 GBJ Feature

Inadvertently Produced Privileged Documents Under the New Federal Rules of Civil Procedure You Ask for It Back, But Then What?

by David Hricik

mendments to the Federal Rules of Civil

Procedure went into effect in December 2006. A Among them were new rules designed to clar- ify and simplify the process for document production by

allowing a party who produces a privileged document to

“claw it back” from the recipient. These new rules also

encourage the use of agreements to reduce or eliminate

disputes over whether production of a privileged docu-

ment waived the privilege and, if so, to what extent. This

article describes the new rules and explains why, despite

the amendments, due care remains a critical aspect of doc-

ument production and why agreements between parties

are not always a satisfactory solution.

18 Georgia Bar Journal The Background promptly return, sequester, or or of protection as trial preparation to the Amendments destroy the specified informa- material.” tion and any copies it has and Despite implying that all is well, Litigators know that privilege may not use or disclose the the notes expressly state that the must be protected, or it can be lost. information until the claim is rules do not (and, for obvious rea- Most courts hold that privilege is resolved. A receiving party may sons, cannot) control “whether the waived where a document is dis- promptly present the informa- privilege or protection that is closed to an adversary intentional- tion to the court under seal for a asserted after production was ly or without taking due care. determination of the claim. If waived by the production.”2 Some courts even apply “subject the receiving party disclosed Instead of the rules, the substantive matter waiver” and hold that not the information before being law of privilege waiver controls. only is privilege waived concern- notified, it must take reasonable Although the rules create a proce- ing the actual communication dis- steps to retrieve it. The produc- dure for seeking return of docu- closed, but it is also waived as to ing party must preserve the ments and encourage parties to all communications on the same information until the claim is agree that production does not subject. resolved. waive privilege,3 they do not con- Taken together, those principles trol whether any agreement is mean that at all times, but particu- The rule thus allows a party enforceable. larly for document production dur- who believes that it has produced ing discovery, parties must be a document that is protected by Can Agreements extremely careful to avoid disclo- either privilege or work product Override the Common sure of privileged documents, lest protection to ask for it back. The privilege over the document itself recipient must not use the infor- Law of Waiver? and perhaps all communications mation until the “clawback” Does It Matter?4 on the “same subject matter” be request is resolved and must take Three distinct issues should be waived. reasonable steps to retrieve any addressed despite the comfort of The need to protect against distributed copies. the Advisory Committee Notes. waiver has led parties in docu- Another provision added to Rule The first has nothing to do with ment-intensive cases to engage in 26(f) encourages lawyers during whether privilege will be main- “privilege reviews,” which can be their conference to discuss “any tained, and may be a far more extremely expensive. In the past, issues relating to claims of privilege important question: “Does it mat- lawyers in such cases have often or of protection as trial preparation ter that privilege will remain when made “clawback” agreements material, including—if the parties client confidences have been dis- with opposing counsel that allow agree on a procedure to assert such closed?” The second: “Can a non- a party who produces a privileged claims after production—whether waiver agreement be enforced document during discovery to to ask the court to include their between the parties?” The third: obtain its return to avoid subject agreement in an order.”1 “Can an agreement prevent third matter waiver or to avoid entirely The Advisory Committee Notes parties from nonetheless claiming the contention that production not only encourage parties to agree that inadvertent production waived privilege. It is against this on privilege waiver, but also pro- waived privilege?” background that two new provi- vide possible terms. For example, sions were added to the rules. the notes suggest that parties can Does It Matter agree that production will not Whether Everyone Two New Rules waive any privilege. They even New Rule 26(b)(5)(B) provides a suggest that, to save money, par- Is Bound and Privilege process for “clawing back” a privi- ties may agree that documents can Is Protected? leged document produced during be made available for an initial Even though new Rule discovery: “quick peek” before making docu- 26(b)(5)(B) requires that the dis- ments available for inspection, and closed document be returned, and If information is produced in then review for privilege only the even assuming that an agreement discovery that is subject to a documents actually requested by will bind everyone (parties to the claim of privilege or of protec- the other party. The notes include agreement, and not), the fact is that tion as trial-preparation materi- this seemingly comforting state- damage can be done by disclosure al, the party making the claim ment: “In most circumstances, a of privileged information, whether may notify any party that party who receives information or not the information will be received the information of the under such an arrangement cannot admissible at trial later. The bell claim and the basis for it. After assert that production of the infor- cannot be unrung. The recipient being notified, a party must mation waived a claim of privilege will know the content of the docu-

June 2007 19 ment and that in and of itself could whether third parties will be pre- Endnotes harm the client. vented from doing so.9 Again, this 1. Fed. R. Civ. P. 26(f)(4). See also The basic obligation of lawyers demonstrates that the obligation to Rule 16(b)(6) (allowing district to take due care during document take due care persists, particularly courts to include any agreement in a scheduling order). production persists whether or not where documents are being pro- 2. 2006 Committee Note to Rule privilege will be preserved. But duced in litigation which is likely to 26(b)(5)(B). there remain significant questions be followed by related lawsuits. 3. See Hopson v. Mayor and City of as to whether it will be, particular- Baltimore, 232 F.R.D. 228, 234 (D. ly with respect to third-parties. Conclusion Md. 2005). The best protection against harm 4. The notes recognize that the “courts Does the Agreement to clients remains the exercise of have developed principles to determine whether, and under what cir- Preserve Privilege Even due care. Nonwaiver provisions cumstances, waiver results from Between the Parties? may provide some additional pro- inadvertent production of privi- tection, but it is not yet certain to leged or protected information.” Many courts have upheld and what extent they will be enforced. Advisory Committee Note to Rule encouraged nonwaiver agreements What, exactly, should such an 26(b)(5)(B). Unfortunately, that law between parties, and they have agreement say? Case law suggests is not uniform or well-settled. long been used.5 The Advisory that it should not be limited to Those jurisdictions that have addressed the issue (many have Committee Notes correctly suggest “inadvertent” production, since not) have adopted varieties of three that those courts that have that leads to litigation over what common approaches: strict waiver addressed them have approved was, or was not, “inadvertence.”10 (holding that no matter how great nonwaiver agreements. Not all Although the precise language the precautions against inadvertent courts have addressed them, how- will vary depending on the case production were, once disclosed ever, and a few courts that have and circumstances, consider this as privilege is waived); strict non- done so have denied their enforce- a model to improve from: waiver (holding that only intentional relinquishment can waive privi- ment in some circumstances. One lege, and that inadvertence is never court explained that their enforce- Production of any document sufficient to do so); and a middle- ment “could lead to sloppy attor- that, prior to production, was ground balancing test (which looks ney review and improper disclo- subject to work product immu- to all of the facts to determine sure which could jeopardize clients’ nity or the attorney client privi- whether the production was made cases.”6 Counsel may need to lege shall not constitute a waiv- despite the exercise of due care). See ensure that the particular court will er of the immunity or privilege, 8 Wright, Miller & Marcus, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § uphold nonwaiver agreements, provided that the producing 2016(2) (2005) (canvassing the vari- even as between parties, before put- party complies with Fed. R. Civ. ous approaches). ting too much trust in them. P. 26(b)(5)(B) by notifying the 5. See id. at 234-35 (citing cases dating party that received the informa- back to the 1950s that upheld non- Third Parties Likely tion of the claim and the basis waiver agreements between coun- Are Not Bound for it. The foregoing applies so sel or parties). long as the producing party in 6. Koch Materials Co. v. Shore Slurry Seal, Inc., 208 F.R.D. 109, 118 (D. Basic contract law suggests that its notice states that production N.J. 2002). an agreement between parties to a had not been an intentional and 7. See In re Chrysler Motors Corp., lawsuit that the production of privi- knowing relinquishment of the 860 F.2d 844 (8th Cir. 1989). leged information does not waive claim of privilege. 8. In re Columbia/HCA Healthcare privilege does not impact third par- Corp., 293 F.3d 289, 296 (6th Cir. ties. Accordingly, production of a David Hricik is an 2002) (collecting cases). privileged document in a case with associate professor of 9. See Hopson v. Mayor and City of Baltimore, 232 F.R.D. 228, 233-35 (D. a “clawback” agreement likely will law with Mercer Law Md. 2005) (engaging in a thorough not impact the ability of a non-party School. He litigated analysis of the uncertainty as to to claim that production waived complex commercial whether even parties to the nonwaiv- privilege.7 The majority view is that cases for 14 years er agreement will be bound by it). voluntary disclosure to an adver- before starting to teach full time 10. See In re Sulfuric Acid Antitrust sary waives privilege even if it is and just completed a book on civil Litig., 235 F.R.D. 407, 418 (N.D. Ill. accompanied by a nonwaiver agree- procedure. He earned a B.A. 2006) (litigating meaning of protective order); VLT, Inc. v. Lucent 8 magna cum laude ment. Even if the nonwaiver agree- from the Techs., Inc., 2003 WL 151399 (D. ment prevents a party to it from University of Arizona in 1984 and Mass. Jan. 21, 2003) (same); U.S. arguing that inadvertent produc- received his J.D. cum laude from Fid. & Guar. Co. v. Braspetro Oil tion by the other party to the agree- Northwestern University Law Serv. Co., 2000 WL 744369 ment waived privilege, it is unclear School in 1988. (S.D.N.Y. June 8, 2000) (same).

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What is Reasonable Service?

by Joseph G. Mitchell

hen you read a title like the one According to O.C.G.A. § 9-11-4(c), when serving a summons and complaint in Georgia, the process server above, your first thought is probably must do so within five days following his receipt of the summons and complaint (which usually occurs within related to the timeliness of service a day after the filing). However, the section also specif- W ically states that “failure to make service within the you receive while sitting for a meal. At a fast food five-day period will not invalidate a later service.”1 In certain situations, service of the summons and com- restaurant, for instance, your response may be that you plaint after the five-day period may “relate back” to the date of the original filing. So under what circumstances would want to receive your meal in five minutes or less could this happen? Like many issues that arise in the law, it depends. after ordering. At a nicer restaurant, it would probably Service of the Summons and be no more than 30 minutes after ordering. But what if Complaint After the Five-Day Period the question is related to the timeliness of service of a When service of a summons and complaint occurs after the five-day period prescribed in Section 9-11- summons and a complaint? What then would be con- 4(c), the correct test for determining if service will relate back to the time of filing is whether the plaintiff sidered reasonable? Specifically, if a summons and “‘acted reasonably and diligently to ensure that proper service was made as quickly as possible.’”2 The bur- complaint are filed prior to the running of the statute of den is on the plaintiff to show that he was not at fault in unreasonably delaying service and was not guilty of limitations but are served after such date, will the serv- laches.3 The trial court will analyze all the facts involved in perfecting the service of the summons and ice be considered reasonable, and therefore valid? complaint and ascertain whether the plaintiff failed to

22 Georgia Bar Journal exercise due diligence.4 The deter- Time to Serve mination as to whether the plain- Longest tiff was guilty of laches in failing Defendant to perfect service of the summons (after expiration of Period of and complaint after the expiration Case statute of limitations) Inactivity of the statute of limitations is an issue that is within the trial court’s Walker v. Bord, 225 Ga. 3 months 43 days; 10 days discretion and will not be over- App. 242 (1997) after notice turned on appeal in the absence of abuse of such discretion.5 *Jackson v. Nguyen, 225 Ga. 17 days (22 days 22 days Upon review of a litany of App. 599 (1997) after complaint filed) Georgia cases decided in the past decade regarding timeliness of Mitchell v. Hamilton, 228 3 months 22 days service (see the chart, right), it Ga. App. 850 (1997) becomes clear that if the statute of limitations has expired prior to service of the summons and com- Wilson v. Ortiz, 232 Ga. 5 months 4 months plaint and the plaintiff waits more App. 191 (1998) than a couple of weeks between his attempts to perfect service, he runs Wade v. Whalen, 232 Ga. 8 months 47 days a substantial risk of having the App. 765 (1998) summons and complaint dismissed by the court. Of these cases, Farahi v. Jordan, 238 Ga. 45 days 30 days in only a few did the court uphold App. 63 (1999) the plaintiff’s service of the summons and complaint outside the Zeigler v. Hambrick, 257 Ga. 21 days after refiling 21 days applicable statute of limitations App. 356 (2002) suit and allow such service to relate back to the time of filing the sum- Williams v. Bragg, 260 Ga. 36 days 30 days mons and complaint. App. 377 (2003) Jackson v. Nguyen6 and Lee v. Kim7 were cases decided on almost identical facts. In each case the Barabont v. Villanueva, 261 Never personally 51 days plaintiff sued the defendant less Ga. App. 839 (2003) served than a week prior to the running of the applicable statute of limita- *Feinour v. Ricker Co., 269 5 1/2 months 2 weeks tions. The summons, complaint Ga. App. 508 (2004) and return of service were deliv- ered to the sheriff within a day *Lee v. Kim, 275 Ga. App. 11 days (13 days 13 days thereafter, and the plaintiffs in 891 (2005) after complaint filed) each case provided the sheriff’s office with the defendant’s proper Harris v. Johns, 274 Ga. App. 45 days (2 months 41 days address. However, the sheriff’s 553 (2005) after filing) offices in Jackson and Lee did not serve the defendant until 22 and 13 Kelley v. Lymon, 279 Ga. Never served Never served days, respectively, after the plain- App. 849 (2006) tiff filed suit, and 17 and 11 days, respectively, after the statute of Patterson v. Lopez, 279 Ga. Never served 30 days limitations had run. Because the App. 840 (2006) plaintiffs in these cases reasonably relied on the sheriff to perform his duty to make service within five Duffy v. Lyles, 281 Ga. App. 6 months 3 months days of receiving the summons 377 (2006) and complaint, and because the sheriff (and not the plaintiffs) had Cohen v. Allstate Insur. Co., 2 years after filing 20 months caused the delay in service, the 277 Ga. App. 437 (2006) Court of Appeals ruled that the plaintiffs had acted with sufficient * Cases in which court allowed relation back to date of original filing.

June 2007 23 diligence and the service of the eral more attempts, each about 30 defendant’s forwarding address summons and complaint related days apart, and ultimately served (but you must make sure to back to the time the plaintiffs filed the defendant three months after check the box on the certified their suits. the running of the statute of limita- letter form—for an additional The Court of Appeals of Georgia tions. The Court of Appeals upheld fee—to receive the forwarding also upheld service after the five- the dismissal of the plaintiff’s law- address); (iii) telephoning day period in Feinour v. Ricker Co.8 suit, finding that her reliance on defendant’s family members or In Feinour, the plaintiff filed her stale information showed a lack of employer; (iv) serving inter- lawsuit five days prior to the run- diligence under the circumstances. rogatories on the defendant’s ning of the applicable statute of lim- In Zeigler the Court of Appeals employer requesting his current itations. Within four days of filing also upheld the dismissal of the address; and (v) using internet the lawsuit, the Cobb County sher- plaintiff’s lawsuit for lack of dili- search sites (e.g., www.any iff tried to serve the defendant at his gence. This is a scary case for a who.com). If you become aware home, but he had moved to Fulton plaintiff’s attorney. The plaintiff of any changes of address prior County. The Fulton County sheriff dismissed her case without preju- to service, inform the sheriff’s then attempted service nine days dice from Fulton County State office (or other process server) later and continued to attempt serv- Court and re-filed a timely renewal as soon as possible. ice over the next four weeks. When action in DeKalb County State 3. Follow up frequently (at least these attempts went unsuccessful, Court. The marshal served the once per week) with the sher- the plaintiff hired a private process defendant 21 days after the plain- iff’s office to ensure proper server and later had the court tiff filed her renewal complaint, service. appoint a process server, both of and in the meantime the statute of 4. If after one to two weeks the whom made numerous attempts to limitations expired. However, sheriff’s office has not perfected serve the defendant over the next since the plaintiff did not show by service, hire a private process two and a half months. Eventually, affidavit that the marshall’s office server and/or have a process the court-appointed process server was having trouble serving the server appointed by the trial succeeded in serving the defendant defendant or that she made any court to perfect service of the (who admittedly was attempting to inquiries of the marshall’s office summons and complaint. You evade service) at the same address during the 21 day period, the Court also may want to hire more than that the plaintiff had provided to of Appeals held that she had not one process server to perfect the Fulton County Sheriff’s Depart- acted “as quickly as possible” and service. ment. The court found that the upheld the dismissal of plaintiff’s 5. Document all activities and the plaintiff had done everything she complaint.12 specific dates in attempting to possibly could do and had exer- perfect service. Merely averring cised the “greatest possible dili- Practice Pointers that you have acted in a reason- gence in attempting to locate and These cases provide some key able and diligent manner is not serve” the defendant.9 Therefore, practice pointers to plaintiffs’ attor- enough.13 You need to have service, although perfected more neys concerned with making sure supporting affidavits that speci- than three months after the statute service of the summons and com- fy all actions that you took to of limitations had run, was held to plaint is held to be valid: perfect service. be valid and related back to the time of the plaintiff’s filing. 1. Always attempt to file the com- A Way to Fix Mitchell v. Hamilton10 and Zeigler plaint early enough so that the the Delay Issue v. Hambrick11 were cases in which sheriff’s office has plenty of service was held to be invalid due time to serve even an elusive If your client has filed a com- to the plaintiff’s lack of diligence. defendant prior to the expira- plaint but then you have not been In Mitchell, the plaintiff sued the tion of the statute of limitations. diligent in making sure the defen- defendant one month prior to the 2. Determine that the address pro- dant was served, and in the mean- running of the applicable statute of vided to the sheriff’s office is time the statute of limitations has limitations, but she did not verify the defendant’s actual current expired, all hope may not be lost the defendant’s current address address, not simply one tran- just yet. O.C.G.A. § 9-2-61(a) pro- prior to filing the lawsuit. Instead, scribed from the police report or vides: she directed the sheriff to serve elsewhere. Methods used to defendant at the address listed on locate the defendant’s current When any case has been com- the police report, which had been address may include: (i) hiring a menced in either a state or fed- prepared nearly two years earlier. private investigator; (ii) sending eral court within the applicable When it turned out the defendant a certified letter to defendant’s statute of limitations and the had moved, the plaintiff made sev- former address to determine the plaintiff discontinues or dis-

24 Georgia Bar Journal misses the same, it may be dismissing without prejudice. Once Joseph G. Mitchell is recommenced in a court of this re-filed, the defendant cannot take a senior attorney for state ... within the original advantage of your lack of diligence SAP America, Inc. He is applicable period of limitations in the first case as a defense. The key an adjunct professor or within six months after the point to remember is that you must at John Marshall Law discontinuance or dismissal, perfect service prior to dismissal, or School (JMLS) where whichever is later, ... provided, the first case will be deemed void he teaches Georgia Practice and however, if the dismissal or dis- instead of merely voidable. Procedure. He has taught at JMLS continuance occurs after the The biggest danger a plaintiff for more than 15 years. He expiration of the applicable must be aware of prior to dismissing received his B.S. in Engineering, period of limitation, this privi- the matter without prejudice is the with highest honors, from Georgia lege of renewal shall be exer- statute of repose. The renewal provi- Tech and his J.D., summa cum cised only once. sions of O.C.G.A. § 9-2-61 cannot be employed to defeat the statute of laude, from JMLS. In Hobbs v. Arthur,14 the repose.16 So if there is an applicable Supreme Court of Georgia applied statute of repose and the plaintiff’s Endnotes the statute to a case in which the renewed claim is outside that time 1. O.C.G.A. § 9-11-4(c) (2006). 2. Zeigler v. Hambrick, 257 Ga. App. plaintiff perfected service two period, the saving provisions pro- 356, 357 (2002) (quoting Douglas v. months after the statute of limita- vided in Hobbs cannot be used. Seidl, 251 Ga. App. 147, 148 (2001)). tions had run, dismissed the action, 3. Devoe v. Callis, 212 Ga. App. 618, and then re-filed the suit. The court Conclusion 619 (1994). The “doctrine of lach- held that such a renewal suit was Service of the summons and es” is defined as “neglect to assert permitted under the statute, but it complaint will relate back to the a right or claim which, taken clarified that the “‘privilege’ of dis- time of filing the lawsuit if the together with lapse of time and missal and renewal does not apply plaintiff acts with reasonable dili- other circumstances causing preju- to cases decided on their merits or gence in his efforts to perfect serv- dice to adverse party, operates as a bar in court of equity.” BLACK’S to void cases, but does allow ice. The plaintiff’s attorney, then, th renewal if the previous action was needs to act timely and document LAW DICTIONARY 875 (6 ed. 1990). 4. Patterson v. Lopez, No. A06A0297 merely voidable.”15 Because the each attempt to perfect service of (Ga. Ct. App. June 16, 2006). plaintiff perfected service, the suit the summons and complaint upon 5. Duffy v. Lyles, No. A06A1377 (Ga. was merely voidable and not void, the defendant. Cases have shown Ct. App. Aug. 30, 2006). and re-filing was therefore proper. that waiting more than 10 days 6. 225 Ga. App. 599 (1997). Hobbs can be a lifesaver for the between attempts to serve the 7. 275 Ga. App. 891 (2005). plaintiff. If your client has been lax defendant can cause a dismissal of 8. 269 Ga. App. 508 (2004). about serving the defendant in a the plaintiff’s case. In the event the 9. Id. at 511. case filed within the statute of limi- plaintiff is not reasonably diligent, 10. 228 Ga. App. 850 (1997). tations, you should still go ahead he should nevertheless still perfect 11. 257 Ga. App. 356 (2002). and serve the defendant. You can service, dismiss without prejudice 12. Id. at 357. See id then dismiss the case without preju- (as long as there is no statute of 13. . 14. Hobbs v. Arthur, 264 Ga. 359 (1994). dice and file within the six-month repose to worry about), and re-file 15. Id. at 360. renewal period, but it is better prac- the lawsuit, as provided in Hobbs v. 16. See Siler v. Block, 204 Ga. App. 672 tice to re-file the matter soon after Arthur. (1992).

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June 2007 25 GBJ Feature

Good Leadership Results in Successful 2007 General Assembly

by Mark Middleton

elying once again on important leaders in

the House and Senate, and supported by R strong State Bar of Georgia leadership, the Bar once again enjoyed a productive and successful legislative session. Several important matters that the

Bar supported passed both legislative chambers and await action by Gov. Sonny Perdue. Equally important, other bills opposed by the Bar were either defeat- ed or deferred.

In the Senate, Sen. Preston Smith, R-Rome, again served as chairman of the Senate Judiciary Committee, and was also the Senate Appropriations Photo by Jake Walker subcommittee chair for the judicial budget. Sen. Michael Meyer Von Bremen, D-Albany, served as the cial pay and service that the Bar supported. Rep. chairman of the Senate Special Judiciary Committee, Chuck Martin, R-Alpharetta, filled a new role as the and provided leadership and support on a number of Appropriations subcommittee chair for judicial fund- Bar positions, including SB 234, the Business Law ing, and was supportive of Bar initiatives. Rep. Roger Section initiative. Sen. Bill Cowsert, R-Athens, a ris- Lane, R-Darien, authored HB 386 and carried SB 234 in ing star in the state Senate, authored SB 234, and car- the House, and was once again one of the Bar’s most ried HB 386, the Real Property Law Section bill, effective advocates. through the Senate. Many other legislators also supported positions of In the House of Representatives, Rep. Wendell the Bar, including Senate President Pro Tem Eric Willard, R-Dunwoody, and Rep. David Ralston, R- Johnson, R-Savannah, Appropriations Chairs Sen. Blue Ridge, again provided leadership as chairmen for Jack Hill, R-Reidsville, and Rep. Ben Harbin, R- the two House Judiciary Committees. Chairman Evans, Majority Leaders Sen. Tommie Williams, R- Willard authored HB 119 and HB 120, relating to judi- Lyons, and Rep. Jerry Keen, R-Saint Simons. Finally,

26 Georgia Bar Journal the Bar is grateful for the leader- and Senate and awaits the gov- the Bar exam. The bill did not ship of Lt. Gov. Casey Cagle and ernor’s signature. pass the House Judiciary com- Speaker of the House Glenn HB 386 was the Real Property mittee. Also, the Supreme Court Richardson. Law Section bill that creates an has established a committee to Bar leadership was also out- affirmative duty for the review the issues raised by standing. Section leaders such as Superior Court clerk to cross- alternative legal education. Patrise Perkins-Hooker (Real index real estate cancellations, SB 271 would shorten the peri- Property Law Section) and Cass and authorizes an additional fee od of time within which a tax Brewer (Business Law Section) for clerks that cross reference deed would ripen by prescrip- devoted numerous hours present- cancellations of security instru- tion. This bill remains in a ing their section’s bills to the leg- ments filed in real property House Ways and Means sub- islative committees. Advisory records. The bill passed the committee. Committee on Legislation (ACL) House and Senate, and awaits HB 89 was amended to elimi- Chair Tom Stubbs and Vice Chair the governor’s signature. nate the principle of vicarious Matt Patton skillfully managed the HB 120 was the result of the liability. The Bar opposed that ACL process and joined President Commission on Judicial Ser- amendment and the vicarious Jay Cook and President-Elect vice’s recommendations. This liability section was removed Gerald Edenfield in representing bill creates a travel allowance from HB 89. the Bar at various legislative func- for appellate judges that live SB 143 would expand the opt- tions during the session. outside the metropolitan area. out provisions of the Indigent This bill passed the House and Defense Act of 2003. The bill did State Bar Agenda Senate, and awaits the gover- not pass out of the Senate Each year, the Bar creates an nor’s signature. Judiciary committee. agenda of legislative and appropria- HB 119 is the judicial salary tions positions that are advocated at increase that passed the House Appropriations the General Assembly. These mat- and will be considered next The General Assembly support- ters are developed by the various year by the Senate. ed the Fiscal Year 2008 budget sections and presented to the ACL HB 221 was added to the agen- appropriations for programs whose for consideration to be recommend- da during the session by the requests were supported by the ed to the Board of Governors, which Executive Committee. This bill State Bar: must be approved by a super major- benefits practitioners by allow- ity vote. The Executive Committee ing for a professional affidavit Legal services for victims of determines whether an agenda posi- in a malpractice case to be filed domestic violence, $94,279 tion is required for bills that are within 45 days after filing of increase for 2008 introduced during the legislative the case under certain circum- Appellate Resource Center, session. This year, the following stances when the statute of lim- continuation of $800,000 matters comprised the agenda. itations has run. This bill appropriation passed the House and Senate, GPDSC, $35.4 million for 2008 Legislation and awaits the governor’s sig- CASA program, $225,000 The State Bar’s legislative agen- nature. increase for 2008 da included the following bills: HB 586 was also added to the Business Court pilot program, agenda during the session. This continuation of $100,000 SB 234 was the Business Law bill limits the obligation of the Section’s bill that provided Georgia Public Defender The General Assembly is expect- technical changes to the sec- Standards Council (GPDSC) in ed to re-convene in a special session tion’s initiative last year that providing attorneys and fees to address the governor’s veto of the permits the conversion of and specifies that the county supplemental budget. The Bar sup- Georgia corporations, Georgia must pay any additional costs. ports a $9.5 million appropriation in limited partnerships, and This bill passed the House and that budget for the GPDSC. Georgia limited liability compa- Senate, and awaits the gover- nies into foreign corporations, nor’s signature. The State Bar legislative represen- foreign limited partnerships, tatives are Tom Boller, Rusty and foreign limited liability The State Bar took a position Sewell, Wanda Segars and Mark companies. SB 234 provides a opposing the following bills. Middleton. Contact them at 404- means to alert the secretary of 872-2373 for further legislative state that a Georgia entity has HB 115 would allow persons information or visit the State Bar’s converted to a foreign entity. not graduating from an ABA- website at www.gabar.org. The bill passed both the House accredited law school to sit for

June 2007 27 GBJ Feature

Georgian to Georgian by Jennifer R. Mason

nce again, the doors of the State Bar of and information about their specific role in the Bar and related organizations. Georgia opened to the international com- The morning began with a look at the organization of the Bar and lawyer discipline. Leading the discus- munity as a delegation from the sion was Senior Assistant General Counsel Jenny O Mittelman. After giving an overview of the role of the Georgian Bar Association (GBA) of the Republic of Office of the General Counsel and the disciplinary process, Mittelman entertained a wide range of ques- Georgia visited the Bar Center as part of the Open tions from the delegates, including:

World Program, a citizen exchange program spon- Where do you get your funding? What should the function of our disciplinary com- sored by the National Peace Foundation and the Open mittee chair be? What does the Bar do to create confidence in the World Center for Leadership Development at the fairness of the disciplinary process? Do you use volunteers or paid staff in the process? Library of Congress. The program was established in What is the most common complaint/violation? What is the most serious violation? 1999 to increase U.S.-Russian understanding and to Mittleman said that she was impressed with the expose Russian leaders to American democratic and energy and optimism of the Georgian lawyers. “They’re determined to construct a unified bar associa- economic institutions. tion that will serve both lawyers and the public.” The portion of the morning dedicated to Bar admis- The distinguished group arrived March 5, accompa- sions was next on the agenda, and Sally Lockwood, nied by W. Scott Henwood, partner at Hall, Booth, director of the Office of Bar Admissions, was equal to Smith & Slover (hosting law firm for the delegation), the task. As with the Chinese delegation that visited the and included Kakhaber Aslanishvili, GBA chair; Bar in January, Lockwood made clear to the group that Vakhtang Mchedlishvili, coordinator of the Training bar admissions in the United States are handled state- Center for Advocates under the new GBA; Zvia by-state and jurisdiction-by-jurisdiction. Her discussion Gabisonia, member of the GBA executive committee; then focused on the Bar admissions process and the role and Giorgi Turazashvili, member of the GBA Ethics of the Supreme Court of Georgia in regulating the prac- Commission. With Ia Meurmishvili and Sophie tice of law. Lockwood spent the majority of her time Bzishvili interpreting, the delegation met with several reviewing the Bar exam and its structure, as well as key individuals, each of whom passed on knowledge speaking to the educational requirements for taking the

28 Georgia Bar Journal exam, the fitness application and process, and problem areas that are encountered and how the applicant can address those problems. She concluded her presentation by reviewing the requirements and processes of licensing foreign law consultants, which was of particular interest to the delegates. Following a well-deserved lunch break, the afternoon session began with Larry Jones, director of the Institute for Continuing Legal Education of Georgia (ICLE). His goal was to educate the Georgians about the purpose and processes of ICLE. Photo by Jennifer R. Mason With examples in hand, he navi- Back row: Mike Monahan, Phyllis Holman, Sharon Bryant, Ia Meurmishvili, W. Scott Henwood, Sophie Bzishvili, Larry Jones, Avarita Hanson, Jenny Mittelman. Front row: Giorgi Turazashvili, gated the delegates through the Zvia Gabisonia, Kakhaber Aslanishvili, Vakhtang Mchedlishvili. fast-paced world that brings continuing legal education (CLE) programming to thousands of attor- sized that professionalism is a GBA’s efforts to set up services for neys across the state of Georgia and higher standard of attorney behav- indigent criminal defendants. beyond. According to Jones, “The ior than ethics and includes compe- Prior to coming to the state of delegates were particularly inter- tence, civility, pro bono work and Georgia, each member of the dele- ested in the Beginning Lawyers community service, which led to a gation was asked, “What knowl- Program, which contains a mentor- discussion about some of the pro- edge and experience would you ing component and a CLE compo- grams that the CJCP sponsors, like to gain from your participation nent.” Some of the statistics he including administration of the in the program?” While each shared with the delegates included: CLE requirement and approval of answer differed slightly, the com- nearly 1,000 CLE programs annual- mon theme was a desire to increase ICLE conducts more than 160 ly. Specifically, she shared that the the efficiency of attorneys’ work original live programs each CJCP deals with different types of and to enrich and deepen their year in all areas of law; CLE, most notably in creating inno- knowledge of the U.S. legislative Most programs are done in con- vative types of programs. Hanson and court system. The combination junction with one of the Bar’s 39 also explained how the CJCP of speakers that shared their experi- sections; works with many other bar, court ences with this group was certainly Around 20 programs are sent and legal entities to foster profes- able to accomplish that mission. by satellite around the state sionalism throughout the profes- Only recently established in annually; sion. She ended her portion of the January 2006, the Georgian Bar ICLE is self supporting and does afternoon by providing the dele- Association is a unified bar that has not receive any Bar dues; and gates with a wealth of materials for more than 2,000 members. The del- Seminar tuition and book sales their use in instituting a profes- egation’s trip to Atlanta also are the sole revenue sources for sionalism program within their included time at Emory University, ICLE. organization. several Atlanta law firms, the Phyllis Holmen, Georgia Legal Court of Appeals of Georgia, the Shortly after Jones concluded his Services Program (GLSP) executive Supreme Court of Georgia and the remarks, Avarita Hanson, execu- director, and Mike Monahan, Atlanta Bar Association. tive director of the Chief Justice’s director of the Pro Bono Project, Commission on Professionalism closed out the afternoon with a Jennifer R. Mason is (CJCP), spoke to the delegates short discussion about the provi- the assistant director about the CJCP, highlighting its sion of free legal services for civil of communications for origin, mission and emphasis. legal problems of low-income per- the State Bar of Hanson began by stating that the sons by GLSP and also by pro bono Georgia. She can be CJCP was the first entity of its kind lawyers around the state. Holman reached at in the nation when the Supreme and Monahan received a bit of edu- [email protected]. Court of Georgia created the cation themselves as the delegates organization in 1989. She empha- shared information about the

June 2007 29 GBJ Feature

Bar Foundation Holds Second Children at Risk Symposium

by Len Horton

n March 21 the Georgia Bar Foundation major event in Forsyth. Held in the Georgia Forestry’s auditorium with the support of Steve McWilliams, this held a Children at Risk Symposium in event attracted people from most of Forsyth’s organizations already trying to solve the problems of children the Georgia Forestry Association build- at risk. O According to Georgia Bar Foundation President ing in Forsyth. A total of 39 people representing 35 dif- Rudolph Patterson, “I didn’t want this to be a typical meeting or a typical approach to helping children. ferent organizations in the Forsyth area were present. And I wanted it to reach more than just children already in trouble with the law. I wanted us to touch Former Chief Justice Harold Clarke was the moving children positively before bad influences touched them negatively.” force behind bringing the symposium to Forsyth after The Georgia Bar Foundation’s new approach to helping children at risk is Ed Menifee. Known for his he attended the Bar Foundation’s first Children at Risk successful BASICS program that prepares people inside transition and diversion centers for life outside Symposium, which occurred in Atlanta last December. confinement, Menifee actually began BASICS relying on his knowledge of how to help children at risk “I was impressed with Rudolph Patterson’s idea that derived from 33 years experience running SouthWest helping children at risk in a new way is one of the most Atlanta Youth Business Organization (SWAYBO). needed ideas in all Georgia,” said Justice Clarke. “After Teaching business principles has been his key ingredi- attending the first symposium and seeing the reaction ent in making SWAYBO the creative force behind hun- of the leaders of many organizations already helping dreds of youth who have gone on to stellar careers children, I volunteered Forsyth to be the first Georgia inspired by a blossoming entrepreneurial spirit. From community to try out these ideas.” Yale Law School graduates to entrepreneurs who created With the enthusiastic assistance of Monroe County successful businesses ranging from fine dining restau- Bank President Bill Bazemore, the Georgia Bar rants to maid services, “young people with the right ideas Foundation’s Children at Risk Symposium became a in their heads can accomplish great things.” Menifee went

30 Georgia Bar Journal on to captivate his audience of Forsyth professionals with his powerful motivational style. He explained how it is close to impossible for a youth or anyone else to consider starting a business if he or she has never heard of the idea before and knows no one who has ever started a business. Not one of Menifee’s almost 1,000 SWAYBO graduates has ever gotten in trouble with the law. The application of similar principles to help people about to be released from prison boasts a recidivism rate of approxi- The six leaders who made the Forsyth Symposium possible include (left to right) Joshua Menifee, mately 16 percent, which is less than who started a business based on what he learned participating in a similar children at risk pro- half the recidivism rate of prisoners gram; Bill Bazemore, president of Morris County Bank, the major sponsor of the event; Rudolph who do not go through BASICS. Patterson, president of the Georgia Bar Foundation and creator of the children at risk symposium Menifee is on to something, and concept; former Chief Justice Harold Clarke, who spearheaded the symposium in Forsyth; Ed Menifee, who created the concepts that are the basis of the symposium; and Terry Walsh, creator State Bar leaders know it. of the Truancy Intervention Project and supporter of programs to help children at risk. Terry Walsh, creator of the Truancy Intervention Project (TIP), drove from Atlanta to Forsyth to Pens and pencils were moving at risk in Georgia. One child in participate in the symposium, and rapidly as the attendees absorbed five lives below the poverty line; he brought along Jessica the ideas Menifee presented. What a large percentage of them drop Pennington, the director of TIP. if a child could make $150 a day out of high school. More than Walsh is widely known for getting reselling donuts? What if a child 20,000 children need drug abuse important things done efficiently could learn to see business oppor- treatment. Clearly anything that and without wasting time. He tunities everywhere and create a can be done to reduce those fig- attended the Bar Foundation’s first thriving business from an original ures will make a big difference in symposium last year. idea implemented with passion? their lives. Joshua Menifee told the atten- This is not impossible for a child to The Georgia Bar Foundation’s dees how he had applied what he do, so why don’t more children Children at Risk Symposium is a learned in SWAYBO to his bur- understand that hard work can first step in trying to stimulate geoning career in the management take them to a successful place in thinking to solve this multifaceted of musical groups. His confidence the world? Because, as Menifee problem. Judging from the reaction and effectiveness when speaking says, you cannot do what the mind of the Forsyth attendees, the ideas demonstrated how the principles has never been exposed to. His pro- introduced at the meeting have a of SWAYBO had prepared him for gram exposes the child to setting bright future. pretty much anything. The fact that goals and finding ways to achieve The symposium was made pos- he is Ed Menifee’s son ensured that those goals. With clear ideas about sible by Georgia’s lawyers and he is well educated and motivated what is possible, children not only bankers, who through Interest On in applying the entrepreneurial stay out of trouble but surprise par- Lawyers Trust Accounts (IOLTA) principles promoted during the ents, teachers, friends and some- under the direction of the Supreme children at risk symposium. times themselves at their accom- Court of Georgia generate signifi- “A number of nonprofits in the plishments. cant revenues to the Georgia Bar state are focusing on the problems These ideas aren’t just for chil- Foundation. Annually the Georgia of children and how to keep them dren at risk, but they are for all Bar Foundation provides grants to out of trouble with the judicial sys- Americans who want to take advan- Georgia organizations working to tem. I wondered if we needed to tage of the free enterprise system solve law-related problems start working with children even that is America. Soon it became throughout the state. earlier, when they are most vulner- apparent to attendees that this infor- able to peer pressure,” said mation should be taught some- Len Horton is the exec- Patterson. “My idea was to bring where whether in the schools, in utive director of the children’s organizations together, other nonprofit groups or in SWAY- Georgia Bar Foundation. Georgia Bar Foundation grantees BO-like organizations everywhere. He can be reached at and non-grantees, to share ideas The symposium reviewed the [email protected]. and do some brainstorming.” nature of the problem of children

June 2007 31 GBJ Feature

The National Bar Association Comes to Atlanta in August

by Keisha Lance Bottoms and Avarita L. Hanson he National Bar Association (NBA) returns to

Atlanta for its 82nd Annual Convention July T 28-Aug. 4. It has been 25 years since the nation’s largest and oldest association of predominant- ly African-American lawyers and judges convened in the city. It is expected that this year’s convention will be one of the most well attended in the history of the NBA.

The Gate City Bar Association will serve as the official host chapter of the convention. “As the official host of the National Bar Association Convention, Gate City will play a crucial role in planning and hosting numerous events and programs,” said Harold Franklin Jr., president of Gate City and King & Spalding LLP associate. These events will include more than 50 seminars, offering 110 continuing legal education hours, as well as numerous social activities. The NBA was founded in 1925 when there were less Photo by Johanna B. Merrill than 1,000 African-American lawyers in the nation. As the result of legal and de facto segregation, there were NBA. As the membership of the organization has few professional organizations in which African- grown, so has its scope and influence. While the origi- American lawyers could participate during that time. nal mission of the NBA was geared towards helping Today, there are more than 20,000 members of the structure the struggle of the African-American race in

32 Georgia Bar Journal America, today, according to the privileged to host the honorable lawyers in the bar and the out- NBA’s website, one of the objec- judges of the Judicial Council as standing contributions of one to his tives of the organization is to pro- we deliberate, fellowship and con- community, state and nation.” mote legislation that will improve duct enlightening educational Organizers anticipate that Atlan- the economic condition of all seminars, all to the end of ta’s reputation as a “mecca” for American citizens, regardless of strengthening of our judicial role African-American professionals race, sex or creed. in ensuring justice for all,” said will play a large part in making this Atlanta has long been consid- Judge Moore. year’s conference, not only one of ered a pivotal place for change in Fulton County State Court the most well attended, but one of America. This is due in large part Judge Myra Dixon, current chair of the most successful as well. Most of to its rich cultural and Civil the Judicial Section of the Gate the NBA activities will take place at Rights history, it being in the fore- City Bar Association, also thinks the Westin Peachtree Plaza. For front of establishing the “modern that the NBA Convention is an registration information, please go tradition” of African-American important gathering for African- to www.nationalbar.org. city leadership, as well as the American judges across the nation. presence of the historically black “The National Bar Association Keisha Lance Atlanta universities. For these Convention provides a unique Bottoms is an Atlanta reasons and more, the return of forum for judges throughout the attorney who serves as the convention to Atlanta is mon- nation to gauge what progress has a Fulton County umental. been accomplished in making Magistrate Judge. She Franklin said, “Atlanta played ‘Equal Justice Under Law’ a true also has worked as a a critical and pivotal role in galva- reality. It is anticipated that the journalist and legal analyst. nizing voting power, gaining bench and bar in the various access to public facilities and insti- forums will exchange ideas, net- Avarita L. Hanson is tutions, and increasing oppor- work and develop solutions in currently the executive tunities for African-Americans. their efforts to resolve relevant director of the Chief Gate City Bar members, such as issues.” Justice’s Commission the late Donald L. Hollowell and More than 140 African- on Professionalism. others, attended a National Bar American judges in Georgia will Association Meeting with President also play an important role in this Kennedy to discuss the nation’s year’s convention. “As one of the civil rights problems in 1963.” only statewide judicial sections in It was also in Atlanta in 1971 Georgia, we acutely understand that the Judicial Council of the that the NBA Convention presents NBA was founded. It was created a tremendous opportunity to gath- to give African-American judges er the best minds in both the legal across the country a forum by and African-American communi- which they could address their ties to discuss relevant and unique experiences as people of thought-provoking issues of our color serving on courts in America. day. We look forward to what will “At our founding, it was stated be an incredible week,” said Judge that black judges could have met in Penny Brown Reynolds, founding a telephone booth,” said Fulton chair of the Judicial Section of the County Superior Court Judge Gate City Bar Association. Thelma Wyatt Cummings Moore, Avarita L. Hanson, a past presi- chair of the Judicial Council dent of Gate City, said that history Convention Committee and a 30- is often made at the National Bar year member of the Judicial Association conventions. “In Council. “Upon our founding, it Atlanta during the summer of was proclaimed, ‘The eyes of 1982, the Hon. Dennis Archer was American justice can no longer be elected as president-elect. Archer blinded to the unequal treatment went on to sit on the Supreme accorded the poor and minorities Court of Michigan, serve as the under the law.’” mayor of Detroit, and as the first The Judicial Council currently African-American president of the represents approximately 1,600 American Bar Association. He black judges in the United States exemplifies the growth and devel- and foreign countries. “We are opment of African-American

June 2007 33 GBJ Feature

Diversity Program’s Business Development Symposium

by Marian Cover Dockery

n May 2, the State Bar of Georgia

Diversity Program launched its second O annual business development symposium. Participating companies and municipalities, including Cox Communications, City of Atlanta,

United Parcel Service, Genuine Parts and Fulton

County, greeted more than 30 minority and women attorneys who were selected by the particpants’ in- house counsels. During the symposium, held at the Bar Photos by Sarah I. Coole and Johanna B. Merrill Center, the attorneys, who were from both majority- Rick Rufolo, Vice President, Legal, UPS, greets Charlena Thorpe, patent attorney for Alston & Bird. Fulton County’s Willie Lovett (not pictured) and minority-owned firms, capitalized on this unique and City Attorney Beth Chandler and Deputy Counsel Jerry DeLoach (not pictured) also met with attorneys during the symposium. opportunity to market their skills to company repre- Program or not government municipalities paid a reg- sentatives for future business opportunities. istration fee to participate as well.

The registration was free for members of the State Program Objective Bar of Georgia Diversity Program, but all other attor- The objective of the program was to “level the neys’ firms were required to pay a fee, which was playing field” for women and minority attorneys by determined by the size of their firm. Participating com- affording them opportunities to meet in-house coun- panies who were not members of the Diversity sel. This was beneficial for all firms, since the selec-

34 Georgia Bar Journal tion process is not limited to attorneys who work only at minority firms. The program also afforded companies and municipalities opportunities to identify a population of attorneys who they want to meet, but cannot easily identify. Companies are now seeking more diverse outside counsel, and this is one way for these entities to achieve this goal. The Selection Process More than 50 attorneys regis- Chris Galla, Associate Counsel for Genuine Parts Company, poses with tered online this year, completing Kwame Brown, attorney with Seyfarth Shaw before their meeting at the Diversity Symposium. Attorneys also met with the City of Atlanta, Fulton applications that the company rep- County, UPS and Cox Communications. resentatives reviewed prior to making their selections. The executive director of the Diversity Program had no input into the selection process. In-house counsel chose attorneys from both minority and majority firms as well as from large firms and solo practices. Company representatives used their own selection criteria, which included an attorney’s area of practice, experience, and in some cases, familiarity with a candidate as well as their firms. These meetings offered no guar- antee for future business. Last year, attorneys did secure work as a result of the meetings and we expect the same results this year; Kwame Brown of Seyfarth Shaw greets Sherrod Dixon of Huff, Powell & Bailey while Eric however, attorneys did not apply Burroughs, 2007 law graduate of the University of Tennessee and Gerald Wells of DLJ Piper look with the expectation that they on before meeting with Cox’s in-house counsel, Marcus Delgado (not pictured). would be selected, nor did they expect to secure business immedi- tions relative to the selection and Judicial Reception, which ately. Instead, this was an opportu- process. This will enhance not only Kilpatrick Stockton will host in nity to develop a relationship with a the marketing of this new program, June (date to be decided). Also, on prospective business client who in but will also help prospective Sept. 26, the State Bar of Georgia the future may consider one of these applicants develop a better under- Diversity CLE and Luncheon, talented individuals when their standing of the program’s objec- attended by almost 300 attorneys skills are needed for legal work. tives. Be sure to visit our website at in 2006, will be held at the Bar www.gabar.org in November 2007 Center. Expansion of when we announce the details of Future Programs the 2008 program. Marian Cover Dockery is an attorney Next year, the Diversity Networking Reception with a background in Program will, previous to launch- Following the meetings, attor- employment discrimi- ing the online registration, present neys and representatives engaged nation and the execu- a panel of company representatives in casual conversation at a net- tive director of the at the State Bar offices, who will working reception. Steering State Bar of Georgia Diversity meet with attorneys outlining what Committee members of the Program. For more information on they look for when reviewing Diversity Program also joined the the Diversity Program, go to applications. This will also create a group to discuss upcoming events www.gabar.org/programs/geor forum for attorneys to ask ques- including the Summer Associates gia_diversity_program.

June 2007 35 GBJ Feature

Life for Sale 16th Annual Fiction Writing Competition Winner

by Lisa Siegel

twisted the handle open on the office door.

16th Annual Fiction Painted across the smoky pane glass were the Writing Competition words “Fraud Unit.” We occupied the corner at The Editorial Board of the Georgia Bar I Journal is proud to present “Life For Sale,” the end of the hallway on the first floor of the State by Lisa Siegel of Atlanta, as the winner of Judicial Building—Office of the State Attorney General. the 16th Annual Writing Competition. The purposes of the competition are to But behind the empowering titles were two belea- enhance interest in the Journal, to guered assistant attorneys. Ray “Hawk” Hawkins, a encourage excellence in writing by members of the Bar and to provide an innovative veteran of state government for 28 years (two shy of vehicle for the illustration of the life and vested retirement for anyone asking), commandeered work of lawyers. As in years past, this year’s entries reflected a wide range of topics and the window office with the overheating steam radiators. literary styles. In accordance with the competition’s rules, the Editorial Board My office served as both law library and copy room, but selected the winning story through a process it came with its own metal desk and swivel chair. I was of reading each story without knowledge of the author’s identity and then ranking each one year out of night law school, but first in my class. So entry. The story with the highest cumulative I didn’t expect much and tried to be grateful. Overhead ranking was selected as the winner. The Editorial Board congratulates Siegel and all ancient air ducts filled the confining interior space with of the other entrants for their participation and excellent writing. the odor of day old coffee grounds and reheated mack- erel that seeped in from the break room.

36 Georgia Bar Journal In the early morning hours, the squeaked from Metamucil over- office quiet soothed me. Hawk load. I could already hear the death arrived every day at the last stroke rattle. Scam artists preying on the eld- of 9 a.m. From what I could tell he erly again, I jotted on my yellow spent most of days chewing on the legal pad. She continued. butt end of an unlit cigar and doing “That nice man Billy Esposito crossword puzzles. In 28 years he’d came to see me after I sold my JOIN NOW! seen fraud coming every which house. Billy used to work at the way but Sunday. But now he bank. My late husband—may he admitted to “coasting.” He had a rest in peace—did business with We’re always clear case of burnout. If he had him. I moved into a small condo working for you! worked at a silk stocking firm, he’d after Mr. Moore died. Anyway, I be getting executive coaching and had a little money left over. life balance counseling. Instead he Nothing big, mind you. A few hun- refueled by playing the Friday dred thousand…” afternoon dart tournament with I whistled under my breath. I’d A-AA-AA the guys in Eminent Domain. heard this before. Billy Esposito ATTORNEY REFERRAL SERVICE We’d gone through five secre- knew just where to invest her taries and it was only March. Sema, money. We usually referred these Attention - New Attorneys! a native of Iran (“Persia” she insist- cases to the district attorney. But I Just went out on your own? New ed), came to us from Temp World. kept listening for patience sake. to Georgia? Let us jump start your She was a transient hire, looking for “He suggested I invest in his practice. We have helped many. a full-time position with benefits. brother’s business. Insurance And they will tell you. However, her lack of typing skills investments. The name was References available. and familiarity with the English lan- Southern Viatical.” (800) 733-55342 guage posed a small problem. She I stopped doodling on my legal 24-hhour paging: made a mean pot of tea in the after- pad. I hadn’t heard that term since (888) 669-44345 noon, though, so I’d endorsed her the bar exam. Buying death pay- [email protected] with Human Resources. Besides, I outs on life insurance policies. preferred typing my own plead- Legal, and to date, unregulated. I ings. It gave me a sense of control in wasn’t first in my class for nothing. an otherwise chaotic world. “Billy said not to put all my By the time the whole fraud unit money in the bank.” assembled for another grinding “Good bank employee that day, I was on my third cup of Joe. Billy,” I quipped. Supreme Court • Technology While I swirled the dry compound “Anyway, he said I should Practice Management that Purchasing referred to as invest it. Money should make “creamer” into my mug, Sema for- money. That sort of thing.” Verdicts Collection warded a call to me. “Make money for Billy and his Special Features • Marketing “Miranda. Caller on two claims brother rather,” I said. she’s has been vindlered.” She paused to hack up some con- Practice Areas • And More “Swindled,” Hawk corrected gestion while I waited, cringing. through his open door. “He showed me some paper- lawyersusaonline.com “You want I should give her num- work on Southern Viatical. Said I ber of Insurance Commissioner?” could buy the right to be the bene- Sema didn’t have English down, ficiary on someone else’s life insur- but she was a quick study on the ance policy. I could use my money inter-workings of state govern- to help those less fortunate. People ment. She played “pass the buck” that didn’t have long to live. with the bravado of a tenured They’d use the money to take a nice bureaucrat. vacation or make themselves more “Put her through,” I said. comfortable. In turn I’d buy their I heard Hawk flipping the pages right to receive the death benefits of his Daily Report as I took the call. when they died. Billy said there Sema announced Mrs. Hilda were only two sure things in life— Moore of Pinesville. death and taxes. Well, he was only “Honey I don’t know where to right about the taxes part. I haven’t turn,” Mrs. Moore’s ancient voice seen a dime on my investment.

June 2007 37 Billy doesn’t return my phone calls. Hawk boxed his ears and “Protease inhibitors.” Southern Viatical is registered as a squeezed his eyes shut. “The AIDS cure?” business, but they don’t answer After we hung up, I called out to “Not exactly. But death was fore- their phone either. Just some auto- Sema to open a new file under the stalled to the unforeseeable mated voice directing you to a lot heading “Southern Viaticals.” future.” of numbers, but none for people “Spell it,” she ordered. “And Southern Viatical still had with complaints. I’ve called every- Hawk did it for me. I shot him a to pay the premiums.” I scribbled one I can think of, but I just get the quizzical look. so fast I couldn’t read my own same story. They simply push me “Just because I don’t use it, does- handwriting. Hawk waited. onto someone else.” n’t mean I ain’t got it.” “So now how do they pay the I grimaced at that one. But who “Whatever,” I replied. premiums?” I asked. could help her? She’d been swin- He rose from his swivel chair “My guess is a Ponzi scheme. dled out of her life savings. The and came into my office where he They’re taking Mrs. Moore’s story had been around longer than plopped into a vacant armchair money and using it pay premiums I had; only the scams changed. with a ripped vinyl seat covering. instead of investing for a return.” “Can you help me, Miss “You may be the brains of this Suddenly, two interesting frauds Plotkins?” Mrs. Moore asked. operation, but I’ve been around appeared on the horizon. Today I hesitated. The Fraud Unit oper- longer.” He swung his stubby legs was starting to look promising. I’d ated on a shoestring as it was. My onto the end of my desk and just about exhausted all the fun redwell folders were bulging and crossed his feet. While I stared at the that could be had in chasing podia- tattered. Five days a week I juggled soles of his black lace-ups, he con- trists for trumped up Medicare 64 active investigations. Weekends tinued, “Viaticals were booming in reimbursed bunion exfoliations. I I did my own filing. The investiga- the late ‘80s. AIDS cases brought in shifted in my seat toward Hawk. tor assigned to our unit also han- a whole era of sudden and totally “Are you interested in looking dled wrongful deaths for Torts, expected death. Viaticals sold those into this?” prisoner abuse for Civil Rights and death policies faster than a greased He shook his bald head. “I got professional malfeasance for pig at the county fair. Problem was two years to retirement. I officially Licensing. He was so overworked some shysters got to the AIDS announced I was coasting last year. he kept a desk in Death Penalty patients and clean-sheeted the poli- Eminent Domain even threw me a Appeals where no staffers dared to cy applications. Had them fill out party celebrating. I ain’t got it in tread. Now old lady Moore from the application as if they’d had a me.” Pinesville thought I was her per- clean bill of health. Then before the I shrugged. In his day, he had sonal attorney. ink was dry the viaticals swooped pinched more white-collar crimi- “Mrs. Moore. I’m afraid I cannot in like the Angel of Death and nals than a combined staff of nine help you. You need to hire a per- bought the policies—especially the trial lawyers. But that was back sonal attorney.” phony ones.” when Fraud still had some glory “Honey, I can’t afford an attor- “What about contesting the days. Now that an insurance fund ney. Billy took every cent I have. claims?” I asked. had replaced governmental immu- I’m living on $650 a month in Social “Two year statute of limitations. nity, the tort lawyers were the Security. I’ve had two strokes. The By the time the insurance compa- office darlings. I was out of luck if I eye doctor says I have macular nies figured out what was going was ever going to see that side of degeneration. And I have very bad on, the statute had run,” he replied. Hawk Hawkins. He had the bitter feet.” “So who made the money?” look of a man who had swallowed “Perhaps a relative—” “The brokers paid 50 percent on something distasteful, and it still “I don’t have anyone left.” Her the policy to the real beneficiary. wasn’t sitting well with him. voice cracked as she paused, Then they sold the policy to people “Okay then. Just tell me what “Look, I know my money is gone. I like little old Mrs. Moore for anoth- happened to the clean-sheeted know you can’t get it back for me. er upcharge. All perfectly legal by applicants. Did anyone serve any But these people are crooks. You the way. Except for the clean sheet- time?” still stop crooks don’t you?” ed apps, of course. On those they “You think the state was going I glanced through the doorway paid 10 percent on the policy. to round up a bunch of AIDS at Hawk who was still penning the Guy’s dead of AIDS in a few patients that already had the Grim crossword in ink. Without looking months and the viatical collected Reaper knocking at their door? up, he shook his head. the whole benefit.” That’d make bad press for the “Yes, Mrs. Moore, we still stop I bit the end of a roller ball pen office. Would overwork the prison crooks.” Some of us do that is. “I’ll and started to make some notes. docs too, no doubt. Nah, we gave look into it, but I can’t promise you “So why’s Mrs. Moore out her our files to the insurance compa- anything.” investment?” nies. They had their own fraud

38 Georgia Bar Journal units. We let them sort it out. They screen door opened. A scowling “Where do I sign?” coughed just raised the premiums for the white man with salt and pepper Johnson. Billy smiled again. He’d rest of us schmucks.” chest hair poking through a sleeve- trained himself to be a smooth pro- “Don’t tell me it was the viaticals less undershirt stepped outside and fessional in all environments, and that made you a permanent spat tobacco juice off the steps. goodness knows he’d seen some cynic?” “Come in,” the man said to Billy. strange places. Still, he felt the “Yep,” he said, throwing his legs Billy wiped his feet on the tat- insincerity of his forced smile as he back to the floor and rising from tered mat and entered the dark clinched his jaws. The man’s surly his chair. “That and the boys in the room. The room stank of stale beer nature clung to him like a bad state legislature that let them do and vomit. Billy swallowed hard odor. I’ve got to get this signed and business every day. Well, good and tried to keep from gagging. He get out of here, thought Billy. luck to you is all’s I can say.” offered his hand. “You’re Mr. “Well first, Mr. Johnson, you I unraveled a paperclip absently. Johnson?” he asked, trying to seem have to answer a few questions.” “Luck’s about all I get around pleasant. Billy pointed to the row of num- here,” I said to myself. Johnson nodded, and then eyed bered questions at the top of the him with suspicion. After a insurance application. $ moment, Johnson motioned to two “This here?” questioned Johnson, filthy straight-back chairs in the pointing to the top of the row. Billy Esposito climbed the kitchen—the only room that offered “And all the way down.” cracked concrete steps of the tene- a single-bulb overhead light. Johnson read silently. Then he ment building in the west end. The After seating himself at the looked up. “How should I answer smell of burning trash wafted down Formica table, Billy pulled the these? I wouldn’t be doing this if I the alley corridor. A dog wailed paperwork and a Mont Blanc pen didn’t know I was a goner with from behind a chain link fence. Two out of his breast pocket. He slid the my liver.” thugs sped by in a juiced Impala papers across the table to Johnson, Billy nodded with serious concen- and flicked a spent cigarette at uncapped the pen, and handed it to tration. “I can only tell you if you’ve Billy’s heel as they passed. The him, cap first. given a good or bad answer.”

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June 2007 39 Johnson shrugged and moved to He had recently begun to fre- “How do you want me to take darken the “yes” circle under ques- quent the halfway houses and ten- care of it?” His voice notched an tion two. From experience Billy ement dwellings where the drug octave higher with irritation. knew it read, “Have you been diag- addicts and alcohol abusers main- “What do we owe her?” Tony nosed with any disorder?” tained a low residence. He paid $10 asked. Billy reached over and touched to a 12-year-old foster kid who “One hundred and seventy his arm. “That’d be a bad answer,” gave him the names of chronic five,” Billy replied. he said. abusers. Charity Hospital routinely “Geez Louise,” Tony whistled. Johnson squinted at him. His eye- took them in for a detox, a shave “No can do. What other ideas you lids were blue-tinged; and his eyes and a hot meal. He never imagined got? We don’t need lawyers asking when open were blood-shot and that this would get worse than the questions.” phlegmy. His voice had the harsh AIDS epidemic. But it was AIDS “What do you want me to do?” crackle of too many nights spent that made him greedy. “Get rid of the problem,” Tony swilling Tequila and smoking weed. He and his brother Antonio had said. “How do I know they won’t set up Southern Viatical in their Billy coughed. Tony always come here asking questions?” basement while juggling day jobs talked a big game, but he was use- Johnson asked. in banking and finance. The obit less on specifics. “How?” Billy crossed his arms against page of the Daily Report spawned “I think it’s her time that’s all.” his chest. “The death benefit here is the idea. Day after day, death “Time for what?” very low. Mutual Life doesn’t ask announcements of young men took “Time for Mrs. Moore to take a questions about $50,000.” up space in the column usually dirt nap,” Tony said. Johnson held the pen over the assigned to the elderly. Antonio paperwork. “You got my check?” understood how the viatical indus- $ Billy patted his breast pocket. try worked. He set up the account- “Five thousand,” he assured him. ing balance sheets while Billy made “You kid? Right?” asked Sema. Outside the dog howled and friends in the gay community. At She was gathering her coat for the pawed at its chain link fence. first it had been too easy. Mutual end of the day. I had it on good Johnson bent over the paperwork, Life, Benefits Inc., U.S. authority that Sema was trying to concentrating as he darkened a Indemnity—none of the big insur- get hired in Torts as a file clerk. But string of “no” circles. ers raised a head at the claims. He who could blame her for the chance After a few minutes, Johnson and Antonio got cocky. Billy traded of getting a benefit package against raised his head. “Whose the benefi- in his Honda Civic for a BMW being our temporary employee? ciary?” series. Antonio traded in his wife “Well, I’ve tried to call Mrs. “Your Aunt Gladys,” said Billy. for a younger model; then he got a Moore back to do a further intake He was parched, but would never Mercedes. They took west coast investigation, but she hasn’t drink a glass of water in this place. golf trips, bought tailored suits, answered the phone. Which is odd, “I don’t have an Aunt Gladys,” paid private school tuition, and because last week she called every he replied. relaxed with hot stone massages. day. I’m driving out to her house “Doesn’t matter. In a few weeks The wives had standing facial after work.” you are going to change it to appointments. The decorator was As we were putting on our coats, Southern Viatical.” on speed dial. They were living the Hawk entered the smoky glass “Why not put down Southern good life until the death rate start- pane door. He had returned from Viatical? Save me the paperwork.” ed to slow down. the dart tournament a little jazzed. “Red flag,” he answered. “We Outside Billy could barely catch I figured his pockets must be flush, just need this to get stamped his breath. The stench in the tene- and he was itching to get to ‘approved.’” Billy made air quotes ment room had nearly done him in. Manuel’s for a few brews and over his head. “Some other depart- His cell phone buzzed. another take at the dartboard. ment handles the change of benefi- “Billy, it’s me,” said his older “Hawk. You talk her. She crazy.” ciaries.” He pulled another docu- brother Tony. “Some broad from Sema grabbed him by the elbow ment from his breast pocket. “I the State Attorney General’s office and flailed at his chest with the brought the Change of Beneficiary is calling. Seems old Mrs. Moore’s other hand. She was melodramatic form for you to sign today as well. been complaining again. I thought given her nearly certain departure We’ll mail it in for you.” I told you to take care of that.” from our unit next week. As Johnson finished the paper- Billy hesitated. “I never returned He gave me an impatient look. work, Billy felt beads of sweat roll her phone calls. I thought she’d be “What’s the matter, Sema? You try- down the back of his starched white dead by now.” ing to stop First in Her Class from shirt. His head throbbed with an “Well she’s not dying of old age spending Friday night playing in oncoming tension headache. anytime soon.” an online chess match?”

40 Georgia Bar Journal While he chuckled to himself, the den. “Oh my God,” I called out. ing on the porch, a cell phone to his Sema blurted out, “She driving to “She’s on the floor!” ear. “Tell the police it’s a homi- old lady’s house. One who buys “I’m busting in!” Hawk hurled cide.” His mouth dropped as I the dead men.” his body against the door. It didn’t heard the dispatch on the other end Hawk’s face drained of color. budge. call out, “Sir. Sir?” I tossed a nonchalant shrug. “Move over!” I shouted to him “She won’t answer the phone.” as he nursed his shoulder. I took $ “Look here. You’re going too far.” out a hairpin from my purse and “You’d have done the same jimmied the lock. “Let’s hope she That Monday morning Attorney thing in your day.” wasn’t one for deadbolts.” The lock General McGarmon gave us sub- “Leave my days out of this.” gave and we let ourselves in. poena power over the viatical I walked past him with my brief- I raced to Mrs. Moore and felt for industry. By the way our unit’s case in hand. “I’m going.” a pulse. She was cold and stiff. phone rang off the hook I could tell As he followed me, I tried to Hawk put a hand to his mouth. the fraud unit was having a resur- keep from smiling. I didn’t actually “She’s been here a few days. I’ll call gence of its glory days. Even Sema know he’d come, but I’d always the police.” seemed unsure about finalizing her hoped he hadn’t entirely checked Something about her lying there transfer. But despite the office out and turned in his key. “I’m made me a shudder again. I had buzz, Hawk and I had hunkered coming with you then,” he said. never actually seen death before. I down in his back office for a game had only feared seeing death. plan. We compared notes from a $ Sometimes I would find one or morning’s worth of telephone calls. both of my parents flung across the “The coroner says a few more What frightened me were sofa in a state of intoxicated stupor, days and decomposition would moments when I didn’t know what fast asleep with their mouth hang- have set in. The marks on her neck was on the other side of the door. ing wide open. I imagined that was would have been impossible to My life had often been like that as a death; but later in the day they note in an autopsy,” Hawk child. One alcoholic parent. would rouse and struggle to the advised, not looking up from his Another battling mental illness. No bathroom to puke. Death never legal pad. one knew enough to call it bipolar took them; but he was frequently “Somebody knew she didn’t disorder back then. Closed doors invited to stay for dinner. have any next of kin to look in on frightened me. Too much silence Alone with Mrs. Moore while her, I bet.” frightened me. I longed for a world Hawk stepped outside to tele- “And they underestimated our of order over clutter; rules over phone the Pinesville Police, I bent Miss First in Her Class.” He anarchy; reason over emotion; and down to get a closer look. looked up at me, grinning finally. the straight narrow path of logical Something about her body dis- I hadn’t seen him smile in three reasoning. I didn’t even mind turbed me. I had the overwhelming days. We’d spent Friday night being alone so often in my ordered sensation that she had not expired knocking back beers at a tavern on life. It was being abandoned on the calmly of heart failure on her way the south end of the county. Both other side of a closed door that to the kitchen to reheat a can of of us gearing up for what looked could still make me shiver. soup. Her head was bent back- to be an ugly investigation. By My hands shook as I knocked on wards; and her gray hair lay about downing some liquid courage, I the door. “Mrs. Moore,” I called out. the sides of her wrinkled face. The guess we thought we could fortify “God, you’ve picked a bad time waddle of flesh under her chin was our own limited emotional to be timid.” Hawk came up beside purplish. I pulled back the collar of strength for the task. Not that we me and pounded on the door. her shirtdress. Peering closer, I saw admitted it to one another, much “State attorneys,” he bellowed markings on her neck from some less ourselves. from behind the wood. The lights type of coiled cord. Quickly, I Saturday morning we’d inside were dim. A brisk evening stood up and looked around the dropped a subpoena on the First wind rustled the elderberry bushes room. A black dial phone—with- Bank of Pinesville to get the by the front steps. out its cord—sat askew on a table records of Mrs. Moore. The sheriff He gave me a hard look. “Now it by the sofa. Mrs. Moore had been had driven the box of records up to ain’t like we’ve got any authority killed. And whoever had done it my office that morning. to go busting in. So I suggest you had used the one thing Mrs. Moore “Hawk,” I interrupted as he was get on the phone there and call the had left in this isolated world. The speed-dialing, “Check this out.” I local police.” telephone. Her last connection to a passed him the ledger sheets. He I was peering through the glass complicated world. studied it while I snapped a No. 2 side panes. Two orthopedic shoes “Hawk,” I called as I bolted out pencil. While he was reading, I pointed toward the low ceiling in the front door where he was stand- summed it up.

June 2007 41 “Last Tuesday she deposited a extended palm. “Now if you’ll see Rowland turned to the minions check for $5,000 in her checking us upstairs.” clustered around us. “I’ve got it account.” She stopped smiling immediate- from here,” he said. “Which had been overdrawn,” ly. “I’m sorry I can’t do that. You’ll “Let me see that subpoena.” He he said, flipping the pages. have to schedule an appointment.” took it from the Girl Friday, and “The payor on the check was our I intervened. “No. We don’t have she quickly scampered back friend, Southern Viatical.” to schedule an appointment. You upstairs. He dropped the ledger sheets on have to comply with a subpoena.” Rowland removed his reading his metal desk. “So Mrs. Moore fig- She blocked our path to the ele- glasses from his coat pocket and ured out how to get Southern vator bank. “I’ve been instructed scanned the document. Viatical to return her phone calls.” by Mr. Esposito to have you wait “Not enforceable,” he said. “The “Yep. She offered her life for on our lawyer. He’ll be arriving state has no jurisdiction over this sale.” shortly. You’ll be very comfortable private company. Licensed to do “Literally.” He leaned back in in the lobby.” business in the state, I might add.” his swivel chair and laced his fin- Hawk pushed past her, and as “Take it up with the court,” said gers behind his head. he did so, her high-pitched voice Hawk. “What do we do now?” I knew called out, “Security!” “Violation of the civil rights of we were on the cusp of a full-throt- Before I could plant my sensible the sole shareholders, as well.” tled explosion, but I hesitated to low-heeled shoes on a patch of tile “Cry me a river, Rowland. I’m call the first move. floor leading to the elevator bank, going upstairs.” “We drop in on Southern two security guards appeared with “Hawk Hawkins,” Rowland Viatical this afternoon. With a sub- whistles and bully clubs. “Hold called out, sauntering after him. poena.” up,” they called from behind. “You move to take any documents “Sema,” I called out from our Hawk and I stopped in our tracks. out of this building and I will have sanctuary, “Start typing.” Hawk flashed his government your job.” Then as an afterthought, credentials. Unfortunately, a lami- he turned to look at me. “Both of $ nated nametag does not convey the your jobs.” authority of a badge. Hawk turned to stare him down. Despite Southern Viatical’s doc- “We’re here on a subpoena,” I The two men faced one another in umented financial struggles, they said, “State attorney general. And the Grand Lobby. Hawk stood apparently still kept up their rental all of you are interfering with a slump-backed, his loose brown suit payment on prime real estate in the fraud investigation.” jacket hanging off his rounded business district of the city. Hawk A booming baritone hollered shoulders. Rowland, by contrast, in and I stood in the Grand Lobby of from the parking garage entrance. his tailored cashmere double- the 1300 Atlantic Plaza Building. “Stand aside gentlemen and breasted trench, had the erect pos- Curved oak staircases flowed ladies.” We all turned in unison as ture of a Citadel graduate. down to plush Oriental carpets. T. Reginald Rowland entered the Hawk leaned toward Rowland, Sconce lighting on the wood pan- Grand Lobby. He wore a black “You need to realize that taking my eled walls illuminated reprints of cashmere trench coat and a fedora job is not a threat.” With that he eighteenth century oil paintings hat. His hair was cotton white, and turned and motioned me to follow. from the Old Masters. Delicately he flashed a toothy smile. I had Rowland flipped his cell phone and hidden in the back, the elevator seen him before as a talking head held it to his ear. “I’m instructing banks trilled their passage to the on the cable legal shows that I was my clients not to comply,” he upper regions. Security kept us fond of watching in the evenings. yelled out to us. from going straight up. His antics as a criminal defense “Show me an order!” called “Someone will be down to meet attorney were legendary. From Hawk as entered the elevator. As you,” said the security guard. behind me, I heard Hawk let out a the doors closed, Hawk let out a Underneath his pressed blue uni- long sigh. tremendous sigh. Then he looked at form, he had the buff arms of a Rowland moved toward Hawk me and winked. “What’s the worst nightclub bouncer. and extended his gloved hand. that could happen? Fancy Pants An attractive young woman “And I was sure they’d retired goes to the legislature and keeps wearing a smartly tailored pantsuit you by now, ole chap. How’s it Appropriations from raising our and carrying a clipboard greeted us going?” salaries for 20 years.” He laughed. as she crossed the Oriental carpet. Hawk didn’t budge with a smile, “Oh, I forgot. They’ve done that “Susan Devlin. Southern Viatical,” but he did offer a firm grip to the already.” I hadn’t heard him laugh she said, extending her hand. outstretched hand. “I’d be doing since I started at the department. “Ray Hawkins. Here’s a subpoe- better if I could do my job today,” For the first time in a long while, I na.” He shoved the paper into her he said. broke into a genuine smile.

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“Helping You, Help Your Clients.” Member of the Encore Financial Services Group, Inc. www.NewCashOption.org | www.GeorgiaWinners.com Southern Viatical had a long history of clean- their payout to Southern Viatical would be stalled in the court sys- sheeting AIDS patients. But true to form, as tem indefinitely. I tried to explain the legal ramifications, but the protease inhibitors extended their life span, adjustor interrupted me. “But Southern Viatical is not the named beneficiary, Miss Plotkins.” the Espositos moved into new territory. I stopped my train of thought for a minute. “Well, there is no Aunt Drunks and drug users. Gladys either, I’m afraid.” “You don’t understand, ma’am.” new territory. Drunks and drug “I know it’s complicated. Just $ users. When that segment of the send us the paperwork.” I started population proved less than com- to hang up when she said, “You’re On the 19th floor of the Atlantic pliant, they started using new the beneficiary.” Plaza building, we waited behind investments to pay the premiums “Excuse me?” My voice did a the locked office lobby doors of on the death policies. People like double take. Southern Viatical. With our ears Mrs. Moore handed their money The woman on the other end pressed to the polished wood dou- over, and it went to pay off old continued. “Mrs. Moore did ble doors, we could hear the paper debts in a standard Ponzi opera- change the beneficiary to Southern shredder ripping it up. Footsteps tion. With the good press generat- Viatical. But the very next day she scrambled back and forth. The ed by that Daily Report photo, the signed another change of benefici- Esposito brothers shouted to their attorney general put pressure on ary form. Our lawyers have underlings. The office telephone the legislature to place viaticals reviewed it; and the handwriting line rang repeatedly and no one under the regulatory arm of the matches Mrs. Moore. She named answered. Insurance Commission. Hawk you ma’am. You are Miranda When our GBI back up appeared, petitioned for a pay raise for the Plotkins, assistant state attorney Attorney General McGarmon came staff as well, but the Speaker of the general?” with them. He’d pulled a Death House said we were all “getting a After I coughed out a “yes,” she Penalty lawyer off a Supreme Court little too big for our britches.” Of asked me where I wanted the check appeal to handle the emergency course, upon the advice of T. for $200,000 deposited. motion to quash our subpoena. Reginald Rowland the Espositos The thing was—people rarely Plus, some of the guys in Eminent weren’t talking. But a secretary surprise me. I don’t like to think Domain had stayed up all night to they’d hired from Temp World I’m an old cynic like Hawk and review the Mutual Benefits docu- had some interesting testimony the guys in Eminent Domain, but ments—which according to the about a conversation she’d over- unselfish good gestures were not attorney general were rampant with head. Something about “Mrs. acts I’d had a great deal of expo- clean-sheeting fraud. That alone Moore taking a dirt nap.” sure to in my relatively young life. was enough to bust the Espositos I’d carved out a careful existence even without their blatant docu- $ for myself. A nice law practice ment shredding. As we entered the that served my sense of justice. A office suite, Attorney General I was in my office sorting quiet life undisturbed by the emo- McGarmon personally slapped the through the detritus of our final tional upheavals of husband and cuffs on the Esposito brothers. He’d investigation when Sema (who was children. I lived as a solitary crea- brought along a Daily Report pho- now a permanent hire of the Fraud ture; happiest at home with my tographer and a reporter to docu- Unit) called out from her desk. books, my Irish setter and the ment the moment. Hawk and I “Miranda. Virtual Benefits. remote control. Lonely had stood to the side like a couple of Something about a tuna fishery.” always been preferable to opening rubber-neckers at a traffic accident. I took the call. It was Mutual that door and finding the wrench- Benefits calling about a beneficiary. ing havoc on the other side. That $ “Yes, I know Mrs. Moore,” I one might open that door just a said. “She filed a citizen complaint tad and find the kind heart of In the end, we got what we with our department a few months another lonely soul had not needed. Southern Viatical had a ago. I understand she’d recently occurred to me. long history of clean-sheeting changed the beneficiary of a life When I entered Hawk’s office, AIDS patients. But true to form, as insurance policy she had with he was on his hands and knees protease inhibitors extended their Mutual Benefits.” I figured Mutual sorting through the paperwork in a life span, the Espositos moved into Benefits would be glad to know backlog of Medicaid fraud cases.

44 Georgia Bar Journal He did a once over when he saw “But you did take her call. You I left his office and shut the door the look on my face. take all the calls.” behind me. For the first time, I felt “What’s up First in Your Class? I sat down in one of his broken that the path of my own life might Some silk stocking firm offer you armchairs. “I just can’t believe she not be such a narrow bridge after ninety gees?” left me that money.” all—with a cliff of hazards on both “More surprising. I’ve come into “You can’t believe that there are sides. Maybe my life’s path was a some money.” good people still out there in this meandering trail sheltered by live He looked genuinely pleased. heartless world. You’re all but- oak trees and the overgrowth of “Well no one deserves that more toned up, First in Your Class. scented vines. I only had to accept than you. Where from?” That’s not the worst thing in the a different view. If there’s anything “Mrs. Moore. Seems she sold her world for old-timers like me. But this viatical investigation had life insurance to Southern Viatical. you—you’re young—you ought shown me, it’s that all lives have a Took their $5,000 and executed a not give up just yet.” He rose price tag. And the value on mine change of beneficiary form to unsteadily from the floor and took was going up. them.” He nodded, waiting. a seat behind his desk. “None of “Then the next day she mailed my business. But your life’s been Lisa Siegel is a former out another form. Naming me as on hold. Here’s your shot. Go do assistant attorney gen- the beneficiary.” something. Believe in yourself.” eral for the Georgia He whistled low. “She scammed I laughed. “Hang out my shin- Department of Law. the scammers.” gle. Miranda Plotkins, Attorney at She is currently in pri- “Why me, Hawk?” Law. Something like that?” vate practice in He studied me carefully. “She “Not the most daring proposal I Atlanta where she does contract knew you were the sort of good ever heard, but it’s a thought.” legal writing for attorneys. Her person who’d come looking for her “Or I could just stay here. Thirty short stories have been published if anything ever happened.” years as state fraud lawyer isn’t the in Carve Magazine, the GSU “But I’m not. I didn’t want to worst thing.” Review, the Emrys Journal, the even take her call.” “Well, it’s your life,” he said. pacificReview, and the Pig Iron Press.

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June 2007 45 Bench & Bar

Kudos > James P. Kelly III was appointed by > Constangy, Brooks & Smith, LLC, presented its Gov. Sonny Purdue to represent the second annual Diversity Scholars Award for the Sixth Congressional District on the State state of Georgia to Emory University School of Law Board of Juvenile Justice. Kelly is the student Andrea V. Arias. Constangy initiated the founder and president of the Georgia award in order to recognize the achievements of Community Foundation, Inc., and direc- deserving law students and help defray the consid- tor of international affairs for the Federalist Society erable expense of law school, while promoting for Law and Public Policy Studies. diversity in the legal profession. > Rich Kaye has been named chair of the Atlanta Bar > Franklin & Hubbard announced that Brooks Association International Law Section. As a leader Franklin was elected president of the Board of within the international law practice at Smith Moore Directors of the Georgia Innocence Project, which LLP and the Atlanta Bar Association, Kaye has been exonerates people who have previously been con- instrumental in international outreach to China. victed of crimes. The Georgia Innocence Project is a recipient of a grant from the Georgia Bar Foundation. > Kilpatrick Stockton LLP was recognized by the 2007 PLC Which Lawyer? Yearbook as a leading law > Susan H. Colussy, program director for firm in intellectual property and labor and employ- immigration services at Catholic ee benefits. The firm also received recognition for its Charities of the Archdiocese of Atlanta, leadership in corporate real estate; corporate/merg- was presented an Inspiration Award ers and acquisitions; dispute resolution; finance: for “Unsung Devotion to Those Most in banking and debt finance; restructuring and insol- Need” by the Emory School of Law vency; and tax. The following Kilpatrick Stockton Public Interest Committee in February. Colussy has attorneys achieved special recognition as leaders in served Catholic Charities for 21 years. their field: Miles Alexander, Joe Beck, Bill Brewster, John Pratt and Jerre Swann (intellectual > The Atlanta Business League named E. property); Bill Boice and Susan Cahoon (dispute Jewelle Johnson to “Atlanta’s Top 100 resolution); Richard Boisseau, James Coil and Black Women of Influence.” Johnson is William Vesely (labor and employee benefits); Tim a partner at Fish & Phillips LLP special- Carssow (corporate real estate); Hilary Jordan izing in employment litigation defense. (finance: banking and debt finance); Alfred Lurey and Joel Piassick (restructuring and insolvency).

> Kilpatrick Stockton LLP > Sutherland Asbill & Brennan LLP attorney David announced that Intellectual W. Adams is one of just 40 young lawyers statewide Property partners Jim chosen to participate in The Leadership Academy, a Ewing and Mitch Stockwell new mentorship program developed by the Young have been named to the Lawyers Division of the State Bar of Georgia. The prestigious International new initiative will match each young lawyer with Ewing Stockwell Who’s Who of Patent experienced lawyers and judges throughout Georgia, Lawyers 2007. Ewing focuses his practice on intellec- who will provide them with specialized mentoring in tual property strategy, patent litigation and patent areas that are vital to them becoming effective leaders portfolio prosecution and management. Stockwell’s of the Bar and the state. These areas include Bar activ- practice focuses on intellectual property dispute res- ities, the judiciary, professionalism, community and olution, with special emphasis on patent infringe- public service, and lawyers as elected officials. ment, trade secret and related intellectual property litigation and licensing transactions. > Kilpatrick Stockton LLP Intellectual Property partner Joe Beck was selected > Fish & Richardson P.C. was recently ranked No. 1 by The Hollywood Reporter, Esq., as one of in IP Law360’s survey of the most sought-after the nation’s top mediation specialists for patent litigation law practices in the United States. entertainment disputes. The publica- This is the second year that IP Law 360 has con- tion’s inaugural list of power mediators ducted its survey and the second time that Fish & serves as a referral guide to the most influential medi- Richardson has topped the list. ation professionals for entertainment cases based on recommendations by neutral industry professionals.

46 Georgia Bar Journal Bench & Bar

> Nelson Mullins Riley & Scarborough Georgia Bar Foundation Awards honored Atlanta associate Matthew Lerner with the Renaissance Associate $400,000 Emergency Grant to the Award for outstanding achievement in Georgia Legal Services Program six categories. The award is given to an attorney who demonstrates achieve- by Len Horton ment in client service, training, pro bono, market- On April 11, at the ing, recruiting and productivity. Lerner was cited Board of Governors for his work for clients in litigation, product liabili- meeting of the State ty and commercial cases. He also was commended Bar of Georgia, for his pro bono work. Georgia Bar Foundation President > Kilpatrick Stockton LLP was recognized by the Rudolph Patterson prestigious Legal 500 US Volume II and Managing presented a check for Georgia Bar Foundation President IP Magazine. The firm’s intellectual property depart- $400,000 to Phyllis Rudolph Patterson presents a check ment was recognized by Legal 500 in copyright and Holmen, executive for $400,000 to Phyllis Holmen, trademarks/litigation and dispute resolution cate- director of the executive director of the Georgia Legal Services Program. gories. Managing IP Magazine World IP Survey (U.S. Georgia Legal firms) ranked Kilpatrick Stockton’s trademark pros- Services Program. ecution practice among the top 16 firms nationally, “The Georgia Bar Foundation has always tried to be and the firm’s trademark/copyright contentious there for our grantees when they have an emergency,” practice ranked among the top 10 nationally. said Patterson. “I am pleased that we could provide The firm also announced that Thomson Financial urgent funding in time to prevent the loss of additional ranked its mergers and acquisitions practice among legal talent so badly needed to serve the legal needs of the top 20 nationally as published in the Corporate Georgia citizens outside the Atlanta area.” The money Scorecard of the April 2007 issue of The American will be used to retain lawyer positions either laid off or Lawyer. The firm ranked 14th for the value of deals scheduled to be laid off. completed in 2006, which totaled over $90 billion. In accepting the award, Holmen said, “This major sum will make a significant difference in our ability to serve > The City of Johns Creek appointed Georgia’s poor who reside outside the Atlanta area. We William F. Riley as city attorney. Riley, will put the money to good use.” a founding partner in the Marietta law The award followed a suggestion by Patterson, newly firm of Riley Lewis & McLendon, appointed member of the State Bar of Georgia’s GLSP helped draft the Johns Creek incorpora- Funding Task Force, chaired by Lamar Sizemore. In a tion legislation and represented the comment to the committee, Patterson said that, if GLSP’s Governor’s Commission for the city of Johns Creek. need for funding is so urgent that it can be convincingly documented as an emergency, then Holmen should > Kilpatrick Stockton LLP partner apply for an emergency grant award from the Georgia Rupert Barkoff was once again named a Bar Foundation in accordance with the Bar Foundation’s Legal Eagle by the leading publication emergency grant application procedure. Holmen was Franchise Times. Barkoff was chosen as also asked to discuss this matter with Steve Gottlieb, one of the franchise attorneys consid- executive director of Atlanta Legal Aid, to make sure that ered “the rainmakers; the go-to-lawyers; he had no objection to it. Gottlieb had no objection, and the ethical problem solvers who are respected by both Gottlieb and Holmen agreed that this is a one-time their peers, adversaries and clients alike.” possible grant award and that any future funding awards from the Georgia Bar Foundation will continue to be On the Move divided as in the past between the two programs in accordance with the poverty population in each service In Atlanta area. The vote on the grant application was unanimous. > James K. Creasy and Lucian Gillis Jr. announced The Georgia Bar Foundation is the named recipient of the formation of Gillis & Creasy, LLC. The firm will Interest On Lawyer Trust Account (IOLTA) funds by order concentrate on business, tort and insurance litiga- of the Supreme Court of Georgia. Interest from IOLTA tion and real estate transactions. The firm is located accounts supports a number of law-related programs at 2 Ravinia Drive, Suite 270, Atlanta, GA 30346; 770- throughout the state of Georgia. 394-3127; Fax 770-394-3117; www.gilliscreasy.com.

June 2007 47 Bench & Bar

> Schiff Hardin LLP added Robert E. Lesser and The firm’s office is located at 1355 Peachtree St., Preston C. Delashmit as partners and Randolph Suite 2000, Atlanta, GA 30309; 404-892-4022; Fax R. Smith Jr. and Danielle R. Doerhoff as associ- 404-892-4033; www.huffpowellbailey.com. ates in the employee benefits and executive compensation group and corporate securities group. > Antavius M. Weems announced the The four join the firm from Epstein Becker & formation of The Weems Firm, P.C. The Green, PC, where Lesser and Delashmit were part- new firm will focus on civil litigation ners and Smith and Doerhoff were associates. and trial practice, construction law, Lesser has a general corporate focus with an family law and real estate. Weems emphasis on the design and implementation of served as a prosecutor for the city of employee stock ownership plans (ESOPs). Atlanta, and most recently sat as a child advocate Delashmit focuses on corporate, securities and attorney for nearly four years at Fulton County venture financing, with an emphasis in mergers Juvenile Court. The office is located at 260 Peachtree and acquisitions. Smith focuses on corporate and St., Suite 2200, Atlanta, GA 30303; 770-621-7755; Fax securities, mergers and acquisitions, and interna- 770-621-7760; www.theweemsfirm.com. tional business transactions. Doerhoff focuses on corporate and securities with an emphasis on > Schulten, Ward & Turner ESOP-related transactions and financings. The added an environmental firm’s Atlanta office is located at One Atlantic law section headed by Center, Suite 2300, 1201 W. Peachtree St. NW, Martin A. Shelton and Atlanta, GA 30309; 404-437-7000; Fax 404-437-7100; aided by Holly P. Cole. www.schiffhardin.com. Shelton’s practice areas pri- Shelton Cole marily focus on environ- > Buckley & Klein LLP announced that mental litigation as well as environmental compli- John F. Beasley Jr. is now of counsel to ance concerns. He also aids clients who need assis- the firm. Beasley specializes in the rep- tance with compliance and enforcement issues con- resentation of employees in both the nected with governmental agencies such as state public and private sectors. Buckley & and federal environmental protection agencies. Klein is located at Atlantic Center Plaza, Since 2000, Cole has practiced environmental and 1180 W. Peachtree St., Suite 1100, Atlanta, GA land use law in private practice, as well as at the 30309; 404-781-1100; Fax 404-781-1101; www.buck Southern Environmental Law Center and the Henry leyklein.com. County State Court Office. The firm is located at 260 Peachtree St. NW, Suite 2700, Atlanta, GA 30303; > Parker, Hudson, Rainer & Dobbs LLP 404-688-6800; Fax 404-688-6840; www.swtlaw.com. announced that Arnold C. Moore Jr. has joined the firm’s commercial real > Robert J. Muething joined Schiff Hardin LLP as a estate team as of counsel. Moore’s prac- partner in the tax group. Prior to joining Schiff tice focuses on the development and Hardin, he was a partner at Hunton & Williams. financing of office, retail, hotel and Muething focuses on federal income taxation mat- mixed-use projects. The firm’s Atlanta office is ters. The firm’s Atlanta office is located at One located at 285 Peachtree Center Ave., 1500 Marquis Atlantic Center, Suite 2300, 1201 W. Peachtree St., Two Tower, Atlanta, GA 30303; 404-523-5300; Fax Atlanta, GA 30309; 404-437-7000; Fax 404-437-7100; 404-522-8409; www.phrd.com. www.schiffhardin.com.

> Julye Johns and Rod Dixon > Hall Booth Smith & Slover, P.C., announced that were named partners of State Representative Michael J. Jacobs, D-Atlanta, Huff, Powell & Bailey, joined the firm’s business transactions and litigation LLC. Johns focuses her prac- practice group. Jacobs was recently re-elected for his tice on healthcare litigation second term in the General Assembly. Prior to join- and the defense of profes- ing HBSS, he worked as a litigator with the firms of Johns Dixon sional liability lawsuits. Alston & Bird and Krevolin & Horst. The firm’s Dixon focuses his practice on civil litigation, with Atlanta office is located at 1180 W. Peachtree St. NW, particular emphases in the areas of medical mal- Atlantic Center Plaza, Suite 900, Atlanta, GA 30309; practice defense, general tort and personal injury lit- 404-954-5000; Fax 404-954-5020; www.hbss.net. igation, employment litigation and products liability.

48 Georgia Bar Journal Bench & Bar

> Government in Action Bar Association Hosts the Court of Appeals

Haunson Jones Roth

Howell Haunson, Jackson Jones and Keri Mason Roth were named partners of Morris Hardwick Schneider. Haunson joined the firm in 1986. In addition to his new role as partner, he will continue serving as vice president of LandCastle Title and director of education. Jones joined the firm in 2004 and has extensive experience handling residential real estate closings, with an emphasis on investment transactions. Prior to his promotion, he served as managing attorney for the firm’s Buckhead office. Roth joined the firm in 2001. She focuses her practice on residential real estate transactions and REO work. The firm’s support services office is located at (Left to right, standing): Judge Bob Ruppenthal, Judge Fletcher 7000 Central Parkway, Suite 1220, Atlanta, GA Sams, District Attorney Scott Ballard, Sheriff Randall Johnson, County Clerk Shelia Studdard, Judge Johnnie Caldwell, 30328; 678-298-2100; Fax 770-804-9643; www.clos- Commissioner Jack Smith, Judge Chris Edwards, Judge Charles S. ingsource.net. Murray, Jason B. Thompson (President, Fayette County Bar Association), Christy Dunkelberger (Fayette County Bar Richard W. Bell joined the tax depart- Association), Judge Martha Stephenson. (Left to right, sitting): > Judge Herbert Phipps, Judge Ed Johnson, Judge Charles Mikell ment of Baker, Donelson, Bearman, (Georgia Court of Appeals). Caldwell & Berkowitz, PC, as of counsel. Formerly, Bell was senior tax coun- On April 18, the Fayette County Bar Association sel for BellSouth Corporation. The firm’s hosted the Court of Appeals for a session of court in Atlanta office is located at Six Concourse front of 750 local students, judges, attorneys and Parkway, Suite 3100, Atlanta, GA 30328; 678-406- members of the Fayette County community. 8700; Fax 678-406-8701; www.bakerdonelson.com. This program was born from an idea presented by > Needle & Rosenberg P.C. announced the promo- Chief Judge Anne Barnes at a local bar association tion of Kean J. DeCarlo to shareholder. DeCarlo, meeting in 2006. When the Fayette County Bar who was previously an officer at the firm, leads the Association learned that the Court of Appeals has firm’s mechanical patent and medical device prac- been known to hold sessions of court outside, the tice groups. The firm’s Atlanta office is located at 999 local bar leadership decided to create an educational Peachtree St., Suite 1000, Atlanta, GA 30309; 678-420- environment so that the local students could see 9300; Fax 678-420-9301; www.needlerosenberg.com. “government in action,” according to Jason B. > Clark Sullivan joined Arnall Golden Thompson, president of the Fayette County Bar Gregory LLP as a partner in the firm’s Association. healthcare/life sciences practice. Sullivan Partnered with the Fayette County Board of is a patent lawyer and primarily repre- Education, the local bar association hosted over 600 sents pharmaceutical and life sciences high school government students to witness the court companies. The firm is located at 171 17th St., Suite 2100, Atlanta, GA 30363; 404-873-8500; Fax session. Prior to attending, the students and their teach- 404-873-8501; www.agg.com. ers reviewed the briefs that were to be argued. After the court session, the Fayette County Bar Association > Alembik, Fine & Callner, P.A., announced that hosted a luncheon for Judges Ed Johnson, Herbert Seth A. Litman and Charla E. Stawser have been Phipps and Charles Mikell of the Court of Appeals. made stockholders and Leslie J. Suson and Kynna M. Duncil have been made associates with the

June 2007 49 Bench & Bar

firm. The firm is located at 303 Peachtree St. NE, 2007 Solo and Small Firm SunTrust Plaza, 37th Floor, Atlanta, GA 30308; 404- 688-8800; Fax 404-420-7191; www.afclaw.com. Lifetime Achievement Award The American Bar Association > Littler Mendelson announc- General Practice, Solo & Small ed that former associates Firm Division awarded Charles J. Charlotte McClusky and Jack Lambremont were “Chuck” Driebe the 2007 Solo named shareholders to the and Small Firm Lifetime firm. McClusky’s practice McClusky Lambremont Achievement Award during its focuses primarily on federal Spring meeting in Washington, employment discrimination litigation. Lambremont represents and counsels management clients in con- D.C. The award recognizes nection with all types of labor and employment mat- exceptional achievement by a solo practitioner who ters arising under federal and state law. The firm’s has consistently achieved distinction. Atlanta office is located at 3348 Peachtree Road NE, Driebe was president of the Younger Lawyers Suite 1100, Atlanta, GA 30326; 404-233-0330; Fax 404- 233-2361; www.littler.com. Section when the State Bar of Georgia was unified in 1964. In 50 years as a member of the Bar, Driebe has > Lord, Bissell & Brook LLP announced served as the conscience of the solo/small firm practi- that Philip A. Cooper joined the firm as tioner on a variety of committees, including the Board a partner. Cooper, formerly with of Governors, the Georgia Bar Foundation, the McKenna Long & Aldridge, concen- Disciplinary Rules & Procedures Committee, the trates his practice on general corporate counseling, mergers and acquisitions, Judiciary Committee and the Formal Advisory joint ventures and commercial financings. The firm’s Opinion Board. Atlanta office is located at The Proscenium, Suite 1900, 1170 Peachtree St. NE, Atlanta, GA 30309; 404- 870-4600; Fax 404-872-5547; www.lordbissell.com. In Camilla > Patrick N. Millsaps announced the opening of The In Alpharetta Millsaps Law Firm. Millsaps will continue to oper- > Meriwether & Tharp LLP ate a general practice country law firm and serves as announced that Sarah L. local counsel in the South Georgia region for many Kass and Rena K. Seidler Atlanta based lawyers. The firm is located at 76 E. joined the firm as associ- Broad St., Camilla, GA 31730; 229-336-7425; Fax 229- ates. The office is located at 336-9587; www.camillalaw.com. 3560 Old Milton Parkway, Kass Seidler Alpharetta, GA 30005; 678- In Conyers 879-9000; Fax 678-879-9001; www.mtlawoffice.com. > David A. Wood and Maureen E. Wood announ- In Brunswick ced the opening of the Law > Gilbert, Harrell, Sumerford & Martin, P.C., named Offices of Wood & Wood, Chase LeRoux and Jay Roberts as new partners of LLP. The firm specializes in the firm, and Deborah Pond as of counsel. LeRoux commercial and residential D. Wood M. Wood focuses on residential real estate closings and com- real estate closing transac- mercial real estate transactions. Roberts is a mem- tions, foreclosures, landlord/tenant law, family law, ber of the firm’s litigation and governmental prac- estate planning, contracts and general civil litiga- tice groups. Pond is in the firm’s corporate practice tion. The firm is located at 1080 Iris Drive SW, Suite group. Before joining the firm, she was an associate 201, Conyers, GA 30094; 678-509-1191; Fax 678-509- in the litigation group at Troutman Sanders in 1192; www.woodandwoodllp.com. Atlanta. The firm’s Brunswick office is located at Bank of America Plaza, 777 Gloucester St., Suite 200, In Decatur Brunswick, GA 31520; 912-265-6700; Fax 912-264- > Laurel E. Henderson, formerly of Laurel E. 3917; www.gilbertharrelllaw.com. Henderson, P.C., in Decatur, and Kelly Michael Hundley, formerly a partner with Elarbee,

50 Georgia Bar Journal Bench & Bar

Thompson, Sapp & Wilson, LLP, in Atlanta, 2007 Georgia Super Lawyers announced the formation of Henderson & Hundley, Georgia Super Lawyers is published in Atlanta Magazine, which has P.C. The firm focuses on representing government a readership of 255,000, and Georgia Super Lawyers, which is entities on all facets of liability issues as well as rep- mailed to Georgia attorneys, the lead corporate counsel of the resenting private parties on labor and employment Russell 3000 companies and the ABA-approved law school libraries, for a total readership of 29,000. Super Lawyers names Georgia’s matters and commercial litigation. The firm is locat- top lawyers as chosen by their peers and through the independent ed at 315 W. Ponce de Leon Ave., Suite 912, Decatur, research of Law & Politics. 2007 Georgia Super Lawyers is based on GA 30030; 404-378-7417; Fax 404-378-7778. the survey of more than 23,000 attorneys across the state.*

> Mawuli Mel Davis and Robert O. Bozeman have Chamberlain Hrdlicka formed The Davis Bozeman Law Firm, focusing on David D. Aughtry James M. Kane personal injury, criminal defense and wrongful death Gary S. Freed William D. Montgomery Thomas E. Jones Jr. Jimmy L. Paul claims. The firm is located at 4153 Flat Shoals Parkway, Building B, Suite 204, Decatur, GA 30034; 404-244- Fisher & Phillips LLP 2004; Fax 404-244-2020; www.mawulidavis.com. D. Albert Brannen Ann Margaret Pointer F. Kyrtle Frye III Roger Quillen In Lawrenceville Christine E. Howard Thomas P. Rebel > Jammie Taire announced the opening of the Law David R. Kresser John E. Thompson Office of Jammie Taire, LLC. The firm’s practice areas include family law, wills and probate, collec- Kilpatrick Stockton LLP tion and landlord/tenant. The office is located at Miles Alexander Joseph Henner 600 S. Perry St., Lawrenceville, GA 30045; 770-682- William Barkley Richard Horder Rupert Barkoff Hilary Jordan 3066; Fax 770-682-3065; www.tairelaw.com. Joseph Beck M. Andrew Kauss Stanley Blackburn Larry Ledbetter In Saint Marys James Bogan III Alfred Lurey > Charlie Smith and Jan Mallory, formerly of Smith William Boice Suzanne Mason Richard Boisseau Dennis Meir & Floyd, P.A., have joined Gilbert, Harrell, William Brewster Todd Meyers Sumerford & Martin, P.C., as of counsel. Smith Susan Cahoon George Murphy Jr. concentrates his practice in commercial and residen- Tim Carssow Matthew Patton tial real estate, business law and estates. Mallory is a Richard Cheatham Mindy Planer Steve Clay William Poplin Jr. member of the real estate practice group. The firm’s James Coil III John Pratt Saint Marys office is located at 1815 Osborne Road, Brian Corgan Diane Prucino Saint Marys, GA 31558; 912-882-5678; Fax 912-882- Kimbrough Davis Susan Richardson 3758; www.gilbertharrelllaw.com. Theodore Davis Jr. Paul Rosennblatt Scott Dayan Debra Segal Randy Eaddy George A. Smith In Chattanooga, Tenn. James Ewing IV David Stockton > Clifton R. Henry joined Miller & Lynn Fowler Neal Sweeney Martin PLLC as an associate. He previ- Peter Glass Earle R. Taylor III Jamie Greene Virginia Taylor ously worked with Gilbert, Harrell, Randall Hafer William Vesely Jr. Sumerford & Martin, P.C., in Richard Hankins David Zacks Brunswick. Henry concentrates his law practice in the areas of real estate devel- Needle & Rosenberg P.C. opment, commercial lending and environmental Jeffrey H. Brickman Lawrence K. Nodine law. The firm’s Chattanooga office is located at Gregory J. Kirsch David G. Perryman Suite 1000, Volunteer Building, 832 Georgia Ave., William H. Needle Sumner C. Rosenberg Chattanooga, TN 37402; 423-756-6600; Fax 423-785- 8480; www.millermartin.com. Nelson Mullins Riley & Scarborough Richard B. Herzog Kamyar Molavi Stanley S. Jones Jr. Daniel M. Shea Caroline C. Kresky Anita W. Thomas Wade S. Malone Charles D. Vaughn Kenneth L. Millwood

*This is not a complete list of all State Bar of Georgia members included in the publication. The information was complied from Bench & Bar submissions from the law firms above for the Georgia Bar Journal.

June 2007 51 Office of the General Counsel

Not Grounds for Discipline Filing a Claim That Turns Out to Be Unfounded

by Paula Frederick

“ udge Morefield will never trust me again,”

you moan, cringing at the memory of your lat- J est in-court debacle. “I can’t believe I fell for that ‘poor abused little me’ performance by Mr. Jones!

Everything in my petition for TPO turned out to be a lie. He pretty much admitted it after the hearing.”

“Well, Jones did seem terrified when he came in this morning,” your partner reminds you. “And how were you to know those scratches on his face were from a bad shaving job and not from an abusive ex?” “Yeah, but imagine how I felt at the hearing when his ex-wife’s lawyer introduced the records from the previous cases! He’s got multiple stalking convictions, and there’s already a protective order in place against Formal Advisory Opinion 87-1, “ethical propriety of him. I could tell by the way Judge Morefield was look- filing a lawsuit in order to be within the statute of lim- ing at me that he thought I was trying to put something itations, but before sufficient information is acquired to over on him. When I think about all the misstatements determine if a legitimate cause of action exists,” pro- in the petition that I signed—the judge will probably vides guidance for these situations. report me to the Bar for lying to the court.” The opinion clarifies that the mere act of filing a “I’m pretty sure you haven’t done anything wrong,” claim that later turns out to be unfounded is not your partner reassures you. “You really thought you grounds for disciplinary action. Once the lawyer deter- were dealing with an emergency! All of us fell for it! mines that the lawsuit has no merit, the opinion sug- We thought we were ensuring Jones’ safety by getting gests that the lawyer should dismiss the lawsuit with him a TPO.” the client’s permission. If the client refuses to permit Bar Rule 3.1 prohibits a lawyer from filing a claim the dismissal, the lawyer must withdraw from the rep- that is unwarranted, or that would serve merely to resentation in order to avoid a possible violation of harass another. Because the ethics rules prohibit a Rule 3.1. lawyer from filing a pleading that she knows contains false information, a lawyer’s signature on a pleading is Paula Frederick is the deputy general generally considered a representation that the con- counsel for the State Bar of Georgia and tents of the document are true, so far as the lawyer can can be reached at [email protected]. determine. What should a lawyer do when there isn’t time to verify the client’s claim?

52 Georgia Bar Journal “And Justice for All” 2007 State Bar Campaign for the Georgia Legal Services Program, Inc.

Because of You…

HOPEexists in their lives. Your gift can help low-income Georgians find justice against wrongful evictions, abuse, consumer fraud, loss of benefits, and many other life impending problems. Many are retired citizens who once served your communities as teachers, firefighters, and laborers. When they need a lawyer, Georgia Legal Services is there to help. Please give so that every Georgian can have access to justice.

Georgia Legal Services Program, Inc.

YES, I support the State Bar of Georgia Campaign for the Georgia Legal Services Program, Inc. Please Include Me in the Following Giving Circle: Benefactor’s Circle $2,500 or more Sustainer’s Circle $250-$499 NOW,NOW you can makek your President’s Circle $1,500 - $2,499 Donor’s Circle $200-$249 Executive’s Circle $750-$1,499 or, Bill me on (date)______for $______contribution by credit card Leadership Circle $500-$749 on the web at either Donor Name: I am a New Donor www.glsp.org -OR- www.gabar.org Business Address: Thank You - Every Gift Counts! City/State/Zip: Pledge payments are due by December 31st. Pledges of $500 or more Pleas check one: Personal Gift Firm Gift GLSP is a non-profit law firm recognized as a 501(c)(3) by the IRS. may be paid in installments with the final installment fulfilling the pledge Please make your check to: State Bar of Georgia Campaign for Georgia Legal Services to be paid by December 31st. Significant gifts will be included in the 104 Marietta Street, Suite 250 • Atlanta, GA 30303 Honor Roll of Contributors in the Georgia Bar Journal. Lawyer Discipline

Discipline Summaries (Feb. 15, 2007 through April 12, 2007) by Connie P. Henry

Suspensions days with conditions and be administered two public Femi Gbaja reprimands. Surulere, Lagos, Nigeria In March 2005 Johnson was working as an assistant Admitted to Bar in 2001 public defender in DeKalb County, but represented On Feb. 26, 2007, the Supreme Court of Georgia two clients in separate criminal matters in DeKalb ordered that Femi Gbaja (State Bar No. 288330) be sus- Recorders Court and accepted payments from both. He pended from the practice of law for 36 months. In his failed to inform either client that she might be eligible Petition for Voluntary Discipline, Gbaja requested the for a court-appointed public defender or inform the imposition of a 24-month suspension but would accept judges hearing the matter that he was appearing in a a suspension of up to 36 months. Gbaja accepted pay- private capacity rather than as public defender. He also ment of $25,000 as settlement of a client’s personal failed to inform his superiors of the representations, injury claims, deposited those funds in his attorney and was terminated from his employment because of trust account in January 2003, failed to promptly dis- these actions. The Court ordered that Johnson be sus- burse those funds to his client, withdrew those funds pended for 30 days, receive a public reprimand, and for his own use, closed his practice and moved out of that his reinstatement be conditioned upon providing the country. Gbaja ultimately paid the $25,000 to his proof that he has refunded to both clients the fees client in 2006. In mitation of discipline Gbaja cooperat- received. ed fully with disciplinary authorities, repaid his client In a separate case, the Court ordered that Johnson be and is extremely remorseful. administered a public reprimand because he took no remedial measures after learning that a client had testi- Robert N. Wilson Jr. fied falsely. Ayer, Mass. Admitted to Bar in 1994 Public Reprimand On March 26, 2007, the Supreme Court of Georgia James Franklin Taylor ordered that Robert N. Wilson Jr. (State Bar No. Mt. Carmel, Tenn. 768995) be suspended from the practice of law in Admitted to Bar in 1997 Georgia until he has been reinstated to the practice of On March 26, 2007, the Supreme Court of Georgia law in Massachusetts. Wilson assented to the suspen- ordered that James Franklin Taylor, (State Bar No. sion of his law license in the Commonwealth of 700241) be administered a public reprimand as recipro- Massachusetts for unspecified conduct. Wilson cal discipline based on his receiving a public censure in acknowledged service of the Notice of Reciprocal Tennessee. Taylor acknowledged service of the Notice Discipline but did not object in any way. of Reciprocal Discipline, but did not object in any way. Taylor was paid $3,700 to represent a client on aggra- Suspension and Public Reprimand vated assault charges. The fee contract provided that if Eric Robert Johnson II the “services of the attorney are terminated or dis- Atlanta, Ga. pensed with for any cause other than the attorney’s Admitted to Bar in 2003 inability to perform the fee paid remains deemed On Feb. 26, 2007, the Supreme Court of Georgia earned and no part returned. If some unforeseen event ordered that Eric Robert Johnson II, (State Bar No. should develop which prevents the attorney from con- 393410) be suspended from the practice of law for 30 tinuing to represent the client, such portion of the fee

54 Georgia Bar Journal paid that exceeds services rendered shall be returned. . .” Taylor appeared at a bond reduction hearing, filed a motion for discovery, arranged for a transcript, secured a plea deadline date, and negotiated a plea offer. The client rejected the plea and insisted upon going to trial. Taylor withdrew and did not refund any fees. Taylor stated his reason for withdrawal was the client’s dissatisfaction with his services and claimed he was entitled to keep the entire fee. The client claimed that Taylor did not respond to his letters or calls. The Tennessee Board of Professional Responsibility concluded that Taylor was obligated to allow the matter to proceed to trial, even if that was against his advice. Interim Suspensions Under State Bar Disciplinary Rule 4-204.3(d), a lawyer who receives a Notice of Investigation and fails to file an adequate response with the Investigative Panel may be suspended from the practice of law until an adequate response is filed. Since Feb. 14, 2007, one lawyer has been suspended for violating this Rule, and three lawyers have been reinstated. The Lawyer Assistance Program

Connie P. Henry is the clerk of the State of the State Bar of Georgia Disciplinary Board and can be reached Stress? at [email protected]. Chemical dependency? Family Problems? Mental or Emotional Impairment? If you have any questions, or would like The Lawyer Assistance Program is a free information about an program providing confidential assistance to attorney’s public Bar members whose personal problems may be disciplinary history, interfering with their ability to practice law. please contact the Office of the For more information, General Counsel at please call the confidential hotline number at 404-527-8720. 800-327-9631

June 2007 55 Law Practice Management

20 “Secret” Services Offered by Law Practice Management by Natalie Thornwell Kelly

ven though the Law Practice Management Online Law Practice Management Discussion Board (LPM) Program has been around for more This is probably the number one underutilized service of our department. Under the Members Only than 12 years, some members don’t know area of the Bar’s website there is a discussion board E for law practice management issues and concerns. much about many of the services LPM offers. I hope You can visit to see discussion threads and subscribe to e-mail notifications of new posts to the board. If this article will pull back the curtain to expose some of you are interested in leading certain topics, or just have a quick question, make use of our online discus- the most underutilized and interesting things our sion board. members can take advantage of right now. Management Issue Research Ever wonder what the appropriate ratio of lawyers Free Online Practice Management Forms to staff should be or what percentage of your budget Practice management forms for case review and should be allocated for training or even how to set up management, as well as operational forms for financial a budget for your office? Our staff can research these management and the like are all available under the and any other issues you have and give you some LPM Program area of the Bar’s website. Just look for assistance. While the research is focused on practice the Sample Forms listing area under Programs/Law management concerns (we do not provide legal Practice Management at www.gabar.org/programs. advice), we can usually point you in the right direction if we do not have specific answers for you. Give us a Online Tip and Website of the Week call or send us a fax or e-mail with any of your man- We are always hearing about or finding interesting agement issues. websites and tips. Like www.technorati.com or Edit/ Paste Special for word processing. We offer tips and Discounted Products sites like these weekly online. Go to the Law Practice and Services Through the ABA Management area of the Bar’s website for these at Many State Bar of Georgia members are not www.gabar.org/programs. American Bar Association (ABA) members. However, our Bar members can get discounts via the ABA on eNewsletter many products and services as if they were ABA mem- LPM offers eSource, our online newsletter. Published bers. For instance, IBM and Dell are both ABA Member quarterly, it contains detailed articles on topics of inter- Advantage members and the discounts that they offer est in law practice management and you can even dis- are for the full legal community, not just ABA mem- cover what the department is accomplishing and the bers. Georgia is also usually signed up as a Program resources we have acquired or reviewed. Look for our e- Promoter for ABA Techshow. Members can use a spe- newsletter online under Law Practice Management at cial code for discounted registration to this nationally www.gabar.org/programs. recognized conference.

56 Georgia Bar Journal Discounted ABA Books the guidance of a staff consultant. make arrangements. (We can even The LPM Program participates This free service is helpful for mem- make special arrangements for law in an ABA Book Distributorship bers looking to make a decision firms and legal departments.) Program that allows State Bar of about purchasing software. Georgia members to purchase ABA Casemaker books and online resources at a dis- Discounted Legal Casemaker is free for all Bar count. Members can go onto the Specific Software members, and LPM offers guidance ABA Webstore and order discount- For those products that we have with any questions you have about ed materials with the Georgia code: a certified consultant, we offer dis- this online legal research tool. The PAB5EGAB. counted pricing direct from the Casemaker helpline and training vendor to members who are choos- are also offered to you free of charge Quote/Proposal Review ing to utilize our onsite technical at the Bar Center by our staff. If your firm gets a quote for consulting services. So if you have hardware or services, you can send seen a demonstration of a product Online Vendor Directory us a copy. We can review it for or service for which you plan to Our staff maintains the Bar’s completeness and competitiveness both purchase and receive training, online vendor directory who offer in terms of pricing and service. you can use this discount. products and services in the legal arena. Many of these vendors pro- Hands-on Computer Training Computer Training vide discounts to all members. If Courses at the Bar Center in Your Office you are using a service or product On a regular basis, our staff con- Technical consultations are set that you think should be in the ducts training at the Bar Center on up for Bar members who pay a dis- directory, please let us know. specific legal practice manage- counted fee to the LPM Program ment, time billing and legal for training on several legal specif- Resource Library research products. You can cur- ic programs. The LPM staff uses a Books, videos, CDs and DVDs are rently sign up for training on certified consultant for the prod- available for a two-week check-out TimeMatters, Amicus Attorney ucts on which it trains. period by Bar members and their and Casemaker. The full schedule staff. These practice-management- and registration information is Review/Audit of Your Office focused materials run the gamut available on the Bar’s website. General consultations are onsite from marketing to how to get the visits that result in a written report most out of your practice. You can Free Office Start Up of ways to enhance and improve see the full list of materials and Advice and Resources your practice. Consultations are make a check-out request on the Members can get a free office available by member request and Law Practice Management area of start-up kit and make an appoint- are confidential. The general topics the Bar’s website. Postage is billed, ment with our staff to review their covered are office operations, mar- but materials can be picked up and business plan. Even members look- keting, financial management and dropped off free of charge. There are ing to go into partnership can take any other self-identified concerns. also reference materials that can be advantage of this free assistance. used while visiting our office. Trust Accounting Booklet LPM’s services are confidential, Technology Plan Review We publish a booklet on how to and with the exception of onsite If you are wondering whether or set up and maintain trust accounts. consulting and some of the hands- not to upgrade, what software you This complimentary booklet is on training, most of our services should be using or how to go paper- available by request, and is also are free of charge. Additionally, less, we can work with you in ana- included in the office start-up kit. most of the services are available to lyzing your technology needs. From The booklet also includes a copy of you, the member, and your staff. looking at the appropriate infra- the Notice to Financial Institution So, give us a call and we won’t be a structure to getting assistance with form that is needed by your bank secret any longer. website design to purchasing soft- to set up the trust account. Contact ware, we can help with every aspect us for copies. Natalie Thornwell of your technology planning. Kelly is the director of Local CLE/General Programs the State Bar of Software Demonstrations We will work with all of the local Georgia’s Law Practice The LPM software library is a and specialty bars and groups to Management Program collection of programs that are provide both CLE and non-CLE and can be reached at available for review in our offices. programming. We can visit and [email protected]. Members can set an appointment to participate in any educational pro- review many of the programs with grams you provide. Contact us to

June 2007 57 Casemaker

Announcing a New Look and Expanded Search Abilities by Jodi McKenzie

t the end of November 2006, Casemaker

began to expand its library to contain legal A libraries for all 50 states. Casemaker is still enlarging its current selection of State Libraries to include all appellate case law, state constitutions, rules of court, current statutes, as well as other selected items.

Casemaker’s state appellate decisional case law content will equal the content found in either Westlaw or LexisNexis back to 1950. And it will far exceed the state appellate case law content of any of the other legal simultaneously. This feature produces expanded publishers, worldwide. These developments make results in an economical amount of time. Casemaker the fastest growing online legal research Last year, Technolawyer.com conducted a poll service in the country. among its members to determine the popularity of on- Casemaker will also enhance its Federal Library to line legal research libraries. Casemaker received more include Federal Appellate decisional law, which will votes in its 20 member states than did any other service. contain all decisions from the U.S. Supreme Court. The In the final nationwide vote tally, Casemaker finished U.S. Circuit Court libraries will include all decisions second to Lexis even though the lawyers in the remain- post-1949. ing 30 states did not have access to Casemaker. And Casemaker will also soon be sporting a new look since the time of this poll, an additional five state bar with a site redesign, which will present a “cleaner” associations have joined the Casemaker Consortium to appearance. However, there are more important provide the services to each of their members. changes ahead than the look of the site. Casemaker remains committed to members of the Casemaker users will find expanded and simpler State Bar of Georgia by moving ever forward. These search capabilities that will be even more user-friendly. enhancements are just another example of Casemaker’s Users will continue to search using Boolean operators commitment to you. as well as natural language. Searching in Casemaker Free Casemaker training is offered every month at will continue to be as easy as typing a question. the Bar Center. Please check www.gabar.org for Casemaker will also maintain its unique Thesaurus upcoming training sessions. function, which allows users to search for words that are similar or otherwise related to the object word. Please contact Jodi McKenzie, Casemaker Users will continue to be able to search using prefix Coordinator at 404-526-8618 or and suffix expansions, another feature unique to [email protected] if you need further assis- Casemaker. tance with Casemaker. The newest search enhancement will allow users to be able to search in multiple state and federal libraries

58 Georgia Bar Journal

Writing Matters

Reducing Citation Clutter

by Karen J. Sneddon and David Hricik

eading legal documents is hard work.

Particularly where the subject matter is R complex, lawyers should strive to make reading easier and, therefore, more informative and persuasive.

Cases and statutes are the principal form of legal authority. The rule of law is provided by the common law or by a statute, and obviously it is necessary in legal writing to cite these sources. Though it might be easy to read, a brief without citation to any authority would not only be odd, but also fail to per- suade a court. Commenting on the lack of citation in briefing, one federal district court remarked that the drafting attorneys: sary citation information. This installment of Writing Matters tackles part one of this two-part challenge: obviously entered into a secret pact—complete with avoiding clutter. The next installment will address how hats, handshakes and cryptic words—to draft their to effectively use citations. pleadings entirely in crayon on the back sides of The most direct way to avoid citation clutter is to gravy-stained paper place mats, in the hope that the avoid using case names or statutes as the subject of sen- Court would be so charmed by their child-like tences. Here is an example of a case, and then a statute, efforts that their utter dearth of legal authorities in used as the subject of a sentence: their briefing would go unnoticed. The Supreme Court of Georgia in Critser v. Bradshaw v. Unity Marine Corp. 147 F. Supp. 2d 668, 670 McFadden, 593 S.E.2d 330, 333 (Ga. 2004), held that a (S.D. Tex. 2001). jury charge in a negligence case “should clearly inform the jury that it is their duty to determine not Though necessary, citations can clutter a brief and only whether the act or acts were committed, but distract the reader from the merits of the argument. also, if committed, whether the same amounted to Even when presented in a clear, non-distracting (and negligence, and if so, whether such negligent act or properly formatted) fashion, citations may be present- acts proximately caused plaintiff’s injuries.” ed in a way that takes up space but yet does not further an argument. Lawyers should strive to avoid citation Under Texas Government Code § 3101.010(a)(1) clutter while still providing the reader with the neces- (Vernon 2001), it is a crime for a person to cause

60 Georgia Bar Journal “pecans to fall from a pecan tree the subjects of sentences. For the ambiguity of a prepositional by any means, including by example, one would expect a brief phrase to determine whether a thrashing, unless the tree is about the scope of Roe v. Wade to candidate was eligible to run located on… land owned by the mention that case in the text of a for the state supreme court. person causing the pecans to sentence, but that is because the Sears v. Bayoud, 786 S.W.2d 248, fall.”1 message of that brief would be 250-53 (Tex. 1990).” about Roe’s meaning. More com- In each sentence, the use of the monly, if the writing is actively 2. In Georgia, Christmas trees are citation as the subject of the sen- comparing the facts of two cases, an emerging crop. Ga. Code tence emphasizes the case name or is comparing the facts of a prior Ann. § 2-8A-4 (11) (2000 & 2006 and statutory provision and forces decision to the facts of the case at Supp.). the reader to wade through them to bar, then using the citation in a get to the substance. (Did you read sentence would be efficient. But, 3. The 11th Circuit has interpreted the actual citations?) By putting the absent a reason to do so, cases and Fed. R. Civ. P. 12(c) to mean citation at the end of the sentence, statutes should not be the subject that “the mere presentation of the message, not the messenger, is of sentences. Considering whether evidence outside of the plead- emphasized, and each sentence is the case or statute should be the ings, absent the district court’s also shortened: subject of the sentence helps avoid rejection of such evidence, is citation clutter. sufficient to trigger the conver- A jury charge in a negligence sion of a Rule 12(c) motion to a case “should clearly inform the Practice Problems motion for summary judg- jury that it is their duty to deter- 1. In Sears v. Bayoud, 786 S.W.2d ment.” Max Arnold & Sons, LLC mine not only whether the act or 248, 250-53 (Tex. 1990), the v. W.L. Haley & Co., 452 F.3d acts were committed, but also, if Texas Supreme Court analyzed 494, 503 (6th Cir. 2006). committed, whether the same the ambiguity of a prepositional amounted to negligence, and if phrase to determine whether a Karen J. Sneddon is so, whether such negligent act or candidate was eligible to run an assistant professor acts proximately caused plain- for the state supreme court. at Mercer Law School tiff’s injuries.” Critser v. and teaches in the McFadden, 593 S.E.2d 330, 333 2. Georgia Code Annotated § 2- Legal Writing Program. (Ga. 2004). 8A-4 (11) (2000 & 2006 Supp.) classifies Christmas trees as an It is a crime in Texas for a per- emerging crop. David Hricik is an son to cause “pecans to fall from associate professor at a pecan tree by any means, 3. Under Fed. R. Civ. P. 12(c), as Mercer Law School including by thrashing, unless interpreted by the 11th Circuit who has written sever- the tree is located on… land in Max Arnold & Sons, LLC v. al books and more owned by the person causing the W.L. Haley & Co., 452 F.3d 494 than a dozen articles. pecans to fall.” Tex. Gov’t Code (6th Cir. 2006), “the mere pres- Mercer’s Legal Writing Program is § 3101.010(a)(1) (Vernon 2001). entation of evidence outside of the pleadings, absent the dis- consistently rated as one of the Footnotes do not solve the cita- trict court’s rejection of such top two legal writing programs in tion dilemma. There is an argu- evidence, is sufficient to trigger the country by U.S. News & World ment in legal writing circles about the conversion of a Rule 12(c) Report. whether citations should always be motion to a motion for summa- in footnotes.2 We personally think ry judgment.” Endnotes that citations generally belong in 1. This is a real statute. It does have the text, because forcing the read- Suggested Answers other exceptions, so there is more er’s eyes to jump down from the freedom to thrash pecans in Texas to Practice Problems than we portray to be the case here. text to the footnotes (or, worse, to But, be careful when doing so. endnotes at the back of a docu- 1. Although this is a close 2. See generally, Helen A. Anderson, ment), and then back up again is one—what if the sentence Are Citations on the Way Down? The both distracting and, if citations are before it was “Courts have Case Against Footnotes, 2001 Wash. generally not used as the subjects sometimes had to analyze B. J. (Dec. 2001), available at of sentences, largely unnecessary prepositional phrases in con- http://www.wsba.org/media/pu to avoid clutter. struing statutes”—but probably blications/barnews/archives/2001 Obviously, cases and statutes a better way to write it is: “The /dec-01-citations.htm. may sometimes need to serve as Texas Supreme Court analyzed

June 2007 61 The Pro Bono Project of the GEORGIA LEGAL Richard T. Pacheco Michael Eddings SERVICES PROGRAM Alice W. Padgett Altovise Filmore State Bar of Georgia salutes the Evita A. Paschall Cecelia Howard Hailes Abbeville William B. Hardegree following attorneys, who David G. Morgan Bainbridge Morton Harris Josh Bell Paul Kilpatrick demonstrated their commitment Ailey Jensen M. Mast to equal access to justice by Thomas Everett Bear, Del. Nancy Miller Latosha N. Higgins William Nash volunteering their time to Albany John H. Nix III (Sponsored by Brunswick Ben Richardson represent the indigent in civil The Albany Bar Doree Avera William Rumer Association) Robert Cunningham Joseph A. Sillitto pro bono programs during 2006. Valerie Brown-Williams Carlton Gibson Shevon S. Thomas Gregory Clark Eugene Highsmith Raymond Evan Tillery Jr. Cawthon Custer Ellen M. Mayoue Alonza Whittaker Gail Drake Richard H. Taylor Dorothy Williams B. Samuel Engram Jr. Susan Thornton Joseph Wiley William Erwin Holle Weiss-Friedman Robert Wilson James Finkelstein William Wright Gregory Fullerton Calhoun William H. Gregory II Barry Benton Conyers Kevin Hall Rex Wallace Garner (Sponsored by Walter Kelley The Rockdale County Rudolph Patterson Carrollton Bar Association) Randolph Phillips William E. Brewer John J. Martin Rita D. Carroll Garland C. Moore Alma T. Michael Flinn Albert A. Myers III William J. Edgar Thomas E. Parmer Paul J. Oeland IV Frank Gonzalez Christopher B. Scott Miessha N. Thomas Nathaniel L. Smith Calvin M. Walker Alpharetta Paulette Adams-Bradham Cartersville Cornelia Daniel Mitnick Michael S. Goode Susan Campbell Mary Faye McCord Ashburn Jane McElreath Covington Stephen L. Ivie Leslie V. Simmons Felita Y. Cornog Anthony Thomasson John D. Degonia Athens Mario S. Ninfo Arthur Archibald Cedartown William M. Waters Thomas A. Camp James S. Astin Brian Carney Brad J. McFall Cumming Jeff DeLoach Kathy Hedden Donarell Green Chattanooga, Tenn. Thomas P. Knox Kent Silver Charles G. Wright John Reuter

Atlanta Clarkesville Dallas David M. Bessho Douglas L. Henry Wayne D. Keaton Robert G. Brazier Martin E. Valbuena John L. Choate Clayton Troy R. Covington Janet A. Sossomon Dalton Albert G. Dugan (Sponsored by Dean R. Fuchs Cohutta The Conasauga Bar Jennifer A. Kennedy- Cynthia N. Johnson Association) Coggins Todd Johnson Lyle Vincent Anderson Timothy L. Kimble Susan W. Bisson Ira M. Leff Colquitt Michael E. Corbin Petrise M. Perkins-Hooker Danny C. Griffin C. Lee Daniel Anthony B. Sandberg Tommy D. Goddard Davene D. Swinson Columbus James Allen Hammontree William Woods White (Sponsored by David L. McCurry The Columbus Bar David L. McGuffey Augusta Association) Joel P. Thames Benjamin Allen Ed L. Albright Matthew D. Thames J. Patrick Claiborne James Archie Elizabeth Wheeler DeWitt R Dent William Arey Frank W. Hicks Jacob Beil Darien Pro Bono Jennie M. Hyatt Richard Childs Adam S. Poppell III David S. Klein Leslie Cohn Leon Larke Marc D’Antonio Decatur William J. Marcum Pete Daughtery John C. Bennett Honor Roll Angela C. McElroy Darrell Dowdell James M. Feagle Lauminnia F. Nivens Jennifer Dunlap Stephanie R. Lindsey Alycya O. Link Douglasville Jonesboro Doris C. Orleck Donald B. Lowe III Waycross Scott K. Camp Gloria F. Atkins Lisa R. Roberts Malcolm Mackenzie III Willis H. Blacknall III Robert A. Chambers Thomas Mahoney Jr. Jeffrey D. Garmon Lois W. Gerstenberger LaGrange Pooler Zena McClain Huey W. Spearman Tara P. Kinney W. Luther Jones Charles C. Grile Diane M. McLeod J. Floyd Thomas Amy B. MacEwen Richard C. Metz Andrea R. Moldovan Lawrenceville Quitman Burton F. Metzger Woodstock Jerry A. Daniels Gerald Spencer Kelly Miller Steven Campbell Dublin Shari S. Mitiades James B. Hilburn Lexington Rincon Carl S. Pedigo ATLANTA VOLUNTEER Daniel M. King Jr. Susanne F. Burton Craig Bonnell Janice Powell LAWYERS FOUNDATION Joe Rossman John Raymond Dickey R. Krannert Riddle Lincolnton William Godlove Michael G. Schiavone Alpharetta Evans Michelle Harrison Scott Vaughn Elyse Aussenberg L. Daniel Butler Rome Gwendolyn Fortson Waring Josie A. Gregory-Siemon Susan M. Reimer Macon (Sponsored by The Grant Washington Samuel Siemon Joyce F. Sims (Sponsored by Rome Bar Association) Willie T. Yancey Jr. The Macon Bar Larry J. Barkley Atlanta Fayetteville Association) Deborah D. Devitt St. Marys Nigamnarayan Acharya Philip S. Coe Nancy Atkinson James R. McKay Garnett Harrison Jennifer C. Adair Patrick J. Fox Pamela Boylan-Hill Andy Owens John Myers Mauricia Allen Lawrence E. Harrington Veronica Brinson W. Gene Richardson Jessie Robertson Altman Ceasar D. Richbow Josephine Bryant Jones David C. Smith Statesboro A. James Anderson David Gregory Rogers Brian Causey Robert W. Steinbruegge Keith Barber Rick Andre Kathleen Hall Mark Webb Matthew K. Hube Phillip Armstrong Forest Park Selinda Handsford Stephen P. Woodard James K. Kidd Linda Aronson Tina G. Sandford Jeffrey B. Hanson Lorenzo C. Merritt Paola Arzu Jon R. Hawk Rossville Daniel B. Snipes Dana Azar Fort Oglethorpe Thomas Jarriel Christopher Townley Emily C. Baker Robert L. Stultz Jane Jordan Stone Mountain Kelly J. Baker Richard Katz Roswell Gail S. Baylor Elizabeth Ballard Gainesville A. G. Knowles Cam S. Head N. Wallace Kelleman Jon Barash Thomas D. Calkins Robert Mason Maria Baratta Raymond L. Crowell Renay Montreuil Savannah Sugar Hill Louis Barbieri Charles N. Kelley Stacey Nestor (Sponsored by John V. Hogan Rita Barker Ann Parman The Savannah Bar Robert Barnaby Gordon James Patterson Association) Sylvania Joseph Bartlett Keri Foster-Thompson Carmel Sanders Kathleen Aderhold Evelyn S. Hubbard Brooke Barylick Joy Webster Solomon A. Amusan Sara Bass Gray Karen Dove Barr Thomaston Leslie Bassett Allen Lawson Madison Thomas Langston Bass Jr. Donald Snow Bryan Bates Lynne D. Perkins-Brown Thomas R. Bateski Nancy Baughan Griffin Charles W. Bell Thomson Nancy E. Baumgarten John M. Cogburn Jr. Marietta William Bell Robert H. Cofer R. Daniel Beale G. Alan Dodson Kenneth A. Clark Steven Beauvais Suzanne H. Green J. Stephen Berry Griffin E. Howell III Kris K. Skaar Joseph Bergen Suzanne Bertolett John P. Berlon Tifton David Bessho Hartwell McDonough Audrey Biloon Render M. Heard Christy Bigelow Daniel Parker Marchanon D. Bunn James B. Blackburn Jr. Melinda Phillips Jennifer A. Blackburn LeAnne P. Cooper Elizabeth Branch Candice Blain Hawkinsville Pandora E. Hunt Dana F. Braun Toccoa Daniel A. Bloom David Venable E. Suzanne Whitaker Birney Bull Russell Smith Bridget Bobick Melissa Calhoun Willie J. Woodruff Jr. Andrea Booher Hazelhurst Monroe Kristin Ruzicka-Cerbone Josh Bosin John B. Brewer III Charles E. Day Dolly Chisholm Trenton Louann Bronstein Melanie R. Metcalf Will Claiborne Michael Sneckenberger Greg Brow Hinesville Stephen Noel Neil Creasy Laura J. Broward JoeLyn Pir Brian Daly Valdosta Robert L. Brown John Pirkle Montezuma Richard Darden Jason Von Berman Bruce P. Brown Shari Lee Smith G. Leonard Liggin Esther DeCambra Latesha Bradley Phil Bubb Jennifer Dickenson Vernita Lee Robert A. Burnett Hiram Monticello Robert Erb Paul Felser Robert A. Plumb Jeremy Burnette Dean C. Bucci Tim Lam Dwight T. Femster Carol Sherwood R. Ross Burris Donald R. Donovan Joseph M. Gannam Guyton O. Terry Kaye W. Burwell Moultrie Julianne Glisson William “Al” Turner Nora Kalb Bushfield Jackson Robert D. Jewell Stephen H. Harris Jennifer Butler Wilson H. Bush Dorothy Kirbo McCrainie Stanley Harris Jr. Warner Robins Marla R. Butler William F. Hinesley III William J. Camp Clark Russell Calhoun Jesup Newnan Kathleen Horne Rodney Davis Elizabeth Joy Campbell William Jefferson Hires Delia T. Crouch William T. Hudson Danielle Hynes Sally Cobb Cannon Michael A. Gorove Daniel C. Jenkins Angela Sammons Margaret Cantrell Walter S. Haugen James Krembs Randy Wynn MaryLyn Carabello Ike A. Hudson Charles V. Loncon Steven F. Carley Raymond Carpenter Charles D. Gabriel Tavis Knighten Erin Penn Nwabundo Ume-nwqgbo Jeffrey S. Cashdan Kimberly C. Gaddis Keith Kodosky Adria Perez Anthony Ventry Shiriki Cavitt Jon Gallant Ajay Koduri Misty Peterson Ben Vitale Douglas A. S. Chalmers Tom Gallo Lee Kolber Timothy Phillips Hoang M. Vo Susan Chiapetta Sara E. Galloway Amy Kolczak Kim T. Phipps Thuy Vu Julie Childs Jason Gardner Jennifer Pia Koslow Allyson Pitts Melissa Prien Walker James Chin Melissa Garrett Noelle Lagueux-Alvarez Mindy Planer Jolie Walker Sean D. Christy Adam R. Gaslowitz Katherine Lahnestein Leah Poynter Kristi Wallace Lindsey Churchill Geoffrey Gavin Jennifer Lambert Spencer Preis Scott Andrew Wandstrat Emory Clark Raquel Gayle Teresa Lazzaroni Steve Press James Joseph Ward Brett E. Coburn Bruce H. Gaynes Cheryl B. Legare Elizabeth Price Jane Elizabeth Warring Peter D. Coffman Karen H. Geiger Alyson Lembeck G. Scott Rafshoon David L. Watson Ellen Cohen Carol Geiger Elizabeth Lester Carmen Rojas Rafter Brian Watt Caryl Cohen Catherine Gibson Bertram L. Levy J. Marbury Rainer Charles Hansell Watt H. Joseph Colette Brent Gilfedder Blaine Lindsey Michelle B. Rapoport John F. Weeks Katrenia Collins Jasa Gitomer Kevin Little Kaveh Rashidi-Yazd Donald Weissman Jonathan Cook James A. Gober Andrew Litvak Toni J. Read Robert G. Wellon Jennifer G. Cooper Brenda Godfrey Frank LoMonte Hadley Michele Recor Elizabeth Wharton Matthew T. Covell Matt Gomes Mary Long Samantha M. Rein Brian Avery White D. Brooks Cowles Jessica Gordon James Johnston Long William M. Rich Larry Joe White Matt Crawford Bonnie Grant Kenan Loomis Nicole A. Richardson Christopher Wiech Robert Crea Noah Graubart Russell Love Eric Allen Richardson Laura Williams Daniel Crook Jonathan E. Green Melissa Lu Monica Richey Todd Williams Rebecca Crumrine Ralph H. Greil Deborah Lubin Sally Ridenour Rebecca Lyn Williams Thomas A. Cullinan Michael D. Grider Tiffany Lunn Christopher Ring John Williamson Kelly Elaine Culpin Rebecca Olson Gupta Audrey Lustgarten Joseph Rockers Matthew V. Wilson Jason Curles Sarah Hall Daniel Malino Patricia Rogers Debbie Ann Wilson John J. Dalton Tim Halligan S. Wade Malone Jonathan Rotenberg Amanda Wilson Teresa Dau Walter Hamberg Alice Limehouse Mason William Rountree Melanie Winskie-Crowe Karyl Davis John Hamrick Ashley Loren Massengale Jessica Ryan Joseph M. Winter Chandra C. Davis Monica Hanrahan Jason Mattox Stacy Allison Sax Erin Witkow Althea DeBarr-Johnson John W. Harbin Sara Maurer Stephen M. Schaetzel Tamera Woodard Joanna Deering Ryan Harden Jason Maxwell Anita Lynn Schick Kevin Woolf Patrick Deering Allen Harris Joshua Mays Kelly K. Schiffer Key Wynn Susie Derrickson Peter Hasbrouck John McCaffery Haley Schwartz Renee Xiong Janis Dickman Kimberly Haynes Brendan McCarthy Joseph L. Scibilia Matthew Yungwirth Catherine Diffley Jeff Hayward Beth McCluskey Margaret W. Scott Wilhelm Johann Ziegler Nikola R. Djuric Mary E. Hebert Jefferson C. McConnaughey Andrea Seeney James Zito Roslyn Dodell Ramsey Henderson Darrick McDuffie Michael Sheridan Jeffery M. Zitron Merlyn Butler Dodson Suzanne Henrickson Robert Sean McEvoy Scott N. Sherman Scott Zweigel Sheri Donaldson Jolanda Herring Jamala S. McFadden Heather A. Shirley Jodi Zyske Sisera M. Dowdy Joseph Hession Joseph McGhee Randie Siegel Alexander de Souza Jeff Hester Carroll Wade McGuffey Toronda Silas Canton Drummond Taylor B. Higgins Jessica McKinney Timothy M. Silvis Mollie Neal Michael Dunn Michael Holbein Laurin M. McSwain William N. Sinclair Jason W. Eakes Gwenn Dorb Holland Charles Medlin Ian Edward Smith Decatur Sterling P. Eaves William Jemes Holley Taylor Mehrtens-Griffin Alvah O. Smith Collen Beard Deborah Ebel Kay D. Hopkins Laura Mendelson Robert B. Smith Greg Blazer Michael Eckard Ashley Hurst Adriana Renae Midence Marvin L. Solomiany Frank Derrickson Jason Edgecombe Stefanie Jackman William Miles Lisa Sowers Stephen M. Gibbs Susan Edlein Julia James Ethan Millar Avital Stadler M. Debra Gold Regina Edwards Mary B. James Megan Miller Florian Stamm Laurel E. Henderson Kedrick Eily Alan R. Jenkins Samantha Ashley Miller Bruce R. Steinfeld Rebecca Hoelting William P. Eiselstein Julye Johns Jennifer M. Francis Miller Kevin A. Stine Lee Pruett Jeffrey Brian Ellman Katherine Johnson Denise Millon Tonya Stokes Angela Joyce Riccetti John D. Elrod Ashley Johnson David Mobley Robert D. Stone John Robinson Charles Elrod Michael Johnson D’Asia Morris Charles Strawser Katrina V. Shoemaker Ben Erwin Stephanie Michelle Jones Alycen Moss Meredith W. Struby John Wesley Spears Michael Scott Evans Dawn Michele Jones Betsy Cooke Neal Natalie Suhl Denise Danielle VanLanduyt Stacey Evans Megan E. Jones Anne Nees Daniel Swaja Denise Marie Warner Joe Farrell Andrea Jones Jason Nochimson Anthony Tatum Lewis Sandford Fine Janelle Jones Mary Ann B. Oakley Gregory Taube Douglasville Robert Wayne Fisher Michelle Jordan Judith A. O’Brien Ellen M. Taylor Tara Kinney Andrew B. Flake E. J. Joswick Ashley A. Palermo Gilbert M. Taylor Ernest Dewitt Napier Clinton Fletcher Michelle Kahoiwai Robert Pannell Annette Teichert Jonathon A. Fligg Brent J. Kaplan Elena C. Parent Jamie L. Theriot Duluth Sean Flynn Victoria Kealy Seam Park Lynn Thesing Tracey Caswell Sean P. Fogarty John Killeen Phaedra Parks Eileen Thomas Ian Rapaport Stanley Foster Amy Killoran Cynthia Parks Terry Thomas Paula J. Frederick Rachel King-Powell Juanita Passyn James R. Thompson Lawrenceville Michael K. Freedman Francis Patrick Kinson Amber Patterson Courtney Thompson Uche Egemonye Jonathan Friedman Seth F. Kirby Erin Lynn Payne Trishanda L. Treadwell Karen D. Fultz Roger Kirschenbaum Craig K. Pendergrast Andrew Tripp Marietta Robert L Mack Jr. Ross M. Goddard Jr. Sue Colussy Regina Edwards Blake Halberg Terance Madden Alan C. Harvey Jason Edgecombe Glen Fagan Jacqueline L. Payne Robert Oliver Justin Hayes Martin Ellin Ronald Fontenot Stephen M. Worrall Vincent C. Otuonye Adella D. Hill Gary Flack J. Christopher Fox Jerry L. Patrick Timothy W. Hoffman Lora Greene Ray Fuerst Norcross Darrell B. Reynolds William T. Hudson Jr. Monica Hanrahan Stephen Fusco Richard A. Campbell Shana M. Rooks Mereda Johnson Martha Henley Tina Galbraith Mary B. Galardi Avery T. Salter Jr. Bette Elaine Rosenzvieg Sandra Herron Tifanie Gardner Denise Holmes Julian Sanders Jason Uchitel Erica Jansen Adwoa Ghartey-Tagoe Frances E. Smith Mary Walton Whiteman Weyman Johnson Jr. Fannie Gilliam Roswell David J. Studdard Dawn Jones Lisa Golan Martin Charlton James W. Studdard Lilburn Peter Law Salena Gordon Patricia Sue Charlton David J. Walter Sr. David L. Holbrook Charlie Lester Jamila Hall Tara McNaull Harold B. Watts William Long Becky Hall Jan Watts Lithonia Audrey Lustgarten Jeff Handler Stone Mountain Andrew Williams E. Noreen Banks-Ware Jenniver Malinovsky M. Derek Harris Deena Charisse Miller C. Keith Wood Thomas J. Mazziotti Rene Hawkins Murble A. Wright Norcross Michael McConnell Gloria Hawkins-Wynn Tucker Fred Allen Zimmerman Sharmila Nambiar James McGuire Sam Hill RuthAnn P. Lacey Judy O’Brien Oni Holley Heather Nadler Marietta Stone Mountain Debbie Palay Trinh Huynh Tonya Boga Horatio Edmundson David Pollan Jessica Jacobs Villa Rica Donald A. Hillsman Theodore E. G. Pound Telka Johnson Dana Evie Frye McDonough Warren W. Hoffman Page Powell Rose Jones Emmettt J. Arnold IV N. Wallace Kelleman Hedy Rubinger Colin Kelly CLAYTON COUNTY PRO Clay Davis Debbie Segal Marissa Key BONO PROJECT Fay W. Hayes Tucker Shelly Senterfitt Skip Lockhart Pandora Hunt William H. Arroyo Kathryn Shipe James Long Atlanta William H. Turner James Russell Gray Robert Strang Kelli Lott Allen E. Alberga William J. White Amy Thom Catherine McClellan Sam O. Laguda Morrow Francesca Townsend Akila McConnell Milton D. Jones GWINNETT COUNTY Elaine Walsh Melissa McDaniel College Park PRO BONO PROJECT Laurance Warco Jennifer Meyerowitz Valrie Y. Abrahams Rex Sarah Whalen Paul Moore Stephanie Jones Atlanta Sara Kay Wheeler Heather Munday Decatur Clark and Washington Betty Nguyen Yvonne Hawks Stockbridge Franklin D. Hughes Decatur Barry Noeltner Betty Williams-Kirby Joseph Chad Brannen Marsha K. Klevikus Kathleen Flynn Erik Olson Willliam W. West Mitchell G. Stockwell Michael Raeber East Point Marietta Leigh Rhoads Glen Ashman DEKALB VOLUNTEER Buford Michel Phillips III John Rogers Kaaren Robinson LAWYERS FOUNDATION Diane M. Frix Timothy Santelli (Sponsored by Nelle M. Funderburk TRUANCY INTERVENTION LaMia Saxby Fayetteville The DeKalb Bar Association) PROJECT Angelo Spinola Muriel B. Montia Duluth (Sponsored by the Atlanta Alicia Starkman Atlanta Kathryn Schrader Bar Association) Richard Storrs Forest Park Jeffrey A. Bashuk Joshua Swiger Emily George Beverly Bates Lawrenceville Alpharetta John Tyler Tina Stanford Ivory R. Brown Jerry A. Daniels Neera Bahl Ryan Walsh R. Peter Catlin Steven M. Reilly Sho Watson Jonesboro Melvin Drukman Macklyn A. Smith Atlanta Joy White James Bradley Richard Farnsworth Nelson H. Turner Kim Anderson Natalie Whiteman George Brown Joseph P. Farrell Suzanne Arpin Charles Whitney Johnny F. Castaneda Jeff Flynn Norcross Adwoa Awotwi Nikki Williams Johnny R. Castaneda Charles F. Hicks Glenn E. Cooper Brooke Baires-Irvin Rebecca Williams Hugh G. Cooper H. Martin Huddleston Sheila Baran Recia Wilson Constance Manigo Daise Robert Katz Snellville Leslie Bassett Lauren Zeldin James J. Dalton II James D. McGuire Charles P. Giallanza Karen Baynes Jodi Zysek Willie G. Davis Gregory R. Miller Stephen Belan Charles Driebe Stephen J. Sasine Chip Benton Duluth Bobby Farmer Randie Siegel Stone Mountain Mary Benton Son Young Pak Monroe Ferguson Richard Taylor N. Wallace Kelleman Nowell Berreth Steve M. Frey Anthony Zezima Andrea Bowman Forest Park Richard Genirberg Suwanee James Brantley Fred Bryant Ethenia King Grant Decatur Dorothy Rosenberger Mario Breedlove Leslie Gresham Katherine Adams-Carter Will Brumbach Jonesboro Loletha D. Hale Herman Baker HEALTH LAW Vickie Carlton Robert Mack Scott Holt Griffin Bell III PARTNERSHIP Hilliard Castilla Rolf Jones Prince Brumfield Jr. Mariángela Corales Norcross Randall Keen Mark G. Burnette Atlanta John Crenshaw Bill Fletcher Susan M. Kirby Kathleen Flynn Armando Basarrate II Anna Curry Arlene LeBrew-Sanders Henry Frantz Jennifer Bensman Richard Deane Jr. Chris Leopold Stephen Gibbs Margaret Camtrell Sisera Dowdy Section News

Sections Host Events for Members by Johanna B. Merrill n May 1 the Environmental Law Section

hosted a brown bag discussion luncheon O at the Environmental Protection Agency’s (EPA) offices in the Sam Nunn Federal

Center in Atlanta. The topic of discussion was

“Environmental Defense et. al. v. Duke Energy Corp et. al.:

What Will it Mean for Georgia Air?” Blan Holman, senior attorney at the Southern Environmental Law Photo by Johanna B. Merrill

Center, and Alan Dion, acting branch chief, Air, Toxics On May 16, Andrew Crain of Thomas, Kayden, Horstemeyer & Risley, Jeffrey Morgan of Troutman Sanders and Stephen Schaetzel of King & and General Law, region 4, EPA, spoke during the Spalding spoke at an Intellectual Property Law Section luncheon sponsored by the section’s Litigation Committee. The trio discussed patent litigation in light of the Supreme Court’s decision in the case of luncheon. The event was well-attended with more than Microsoft v. AT&T.

30 guests; attorneys in attendance received one CLE “Patents with Borders: The Supreme Court’s Microsoft v. AT&T Decision.” Jeffrey Morgan of Troutman credit hour. Sanders, Stephen Scheatzel of King & Spalding and Andrew Crain of Thomas, Kayden, Hortsemeyer & The Technology Law Section hosted two events this Risley served as panelists for the discussion. spring: a quarterly CLE luncheon at the offices of Reminder: As most sections move toward electronic- Arnall Golden Gregory LLP on the topic of “Antitrust only delivery of meeting announcements, section vs. Proprietary Rights: Ripe for Supreme Court events and newsletters, it’s important to keep the Bar Review?” with guest speaker Ross Wofford of updated with your current e-mail address. You may Kilpatrick Stockton LLP; the second was a happy hour update your profile at www.gabar.org. open house at Gordon Biersch Brewery on May 15, where section members, and prospective members, Johanna B. Merrill is the section liaison had the opportunity to learn more about the section, its for the State Bar of Georgia and can be activities and how to get involved. reached at [email protected]. On May 16 the Litigation Committee, chaired by Tina McKeon, of the Intellectual Property Law Section hosted a lecture luncheon at the Bar Center on the topic of

66 Georgia Bar Journal Congratulations! Jonesboro High School earned Georgia’s third national mock trial title at the National High School Mock Trial Championship in Dallas, Texas! Team Members Brian Cunningham, Lindley Curtis, Kayla Delgado, Matthew Mitchell, Braeden Orr, Laura Parkhouse, Kyle Skinner, Britt Walden timekeeper, Jayda Hazell, Joe Strickland, Lindsay Hargis, Jurod James, Sandra Hagans and Tabias Kelly. Teacher coaches: Anna Cox and Andrew Cox; Attorney coaches: Hon. John Carbo, Hon. Deborah Benefield and Tasha Mosley; Student coach: Katie Powers, Mercer Law School Special Thanks A special thanks to all those financial donors for the 2007 season, including the Georgia Bar Foundation Council of State Court Judges Georgia Civil Justice Foundation Lawyers Foundation of Georgia Criminal Law Section

A full list of donors will be published in our 2007 Annual Report. Visit our website at www.georgiamocktrial.org for more information about the program.

June 2007 67 Professionalism Page

Diversifying Georgia’s Legal Profession A Professionalism Cause to Appreciate

by Jennifer N. Ide

The following article was adapted from remarks at the State Bar of Georgia Women and Minorities in the Profession Committee’s Commitment to Equality Awards Program, Jan. 23, 2007.

hree trailblazers in the movement to diversi-

fy Georgia’s legal community are honored T tonight by the State Bar’s Women and Minorities in the Profession Committee. The late Ben F.

Johnson Jr., who served as dean of the Emory Photo by Stephanie Wilson (Left to right) Allegra Lawrence-Hardy, chair, WMPC; Hon. Orinda D. University School of Law and Georgia State University Evans, judge, U.S. District Court (N.D.GA); and Hon. M. Yvette Miller and Hon. Herbert Phipps of the Court of Appeals of Georgia enjoy each other’s company at the reception following the Awards Program. College of Law, Supreme Court of Georgia Chief Justice

Leah Ward Sears, and Ralph B. Levy, former managing Last year’s American Bar Association survey, which quantified women’s status in various settings of the legal partner of King & Spalding LLC, are the recipients of profession,1 showed that women make up 30 percent of lawyers in the United States. Over 20 percent of U.S. the 2007 Commitment to Equality Awards. District Court judges are female. Nearly 30 percent of the judges on the state courts of last resort are women, and Honoring these individuals is a truly inspirational nearly a third of chief justices are women. Women now event. As the co-chair of the event and as a lawyer and hold a slight majority over men in law school entrance. a mother of three preschool-age children, I thank Chief These are things we should all be proud of and grateful Justice Sears and Mr. Levy for all they have done, and to the forerunners in our profession, such as the individ- continue to do, to make the legal profession more wel- uals recognized tonight for making them possible. coming and fulfilling for women like me who are walk- We all know there is much work left to do. Women ing the tightrope of trying to excel as a lawyer and at still make up less than 20 percent of partners at major the same time, wanting to be present and engaged as a firms and general counsels at Fortune 500 companies. mother, wife and caregiver. It is people like the late Ben Another recent ABA study addresses minority represen- Johnson Jr., our Randolph Thrower Lifetime tation in the profession.2 As to racial and ethnic diversi- Achievement Award recipient, who have made it pos- ty, total minority representation among lawyers is less sible for me to even be standing here tonight and for than 10 percent, compared to 20 percent for accountants, women and minorities to have made the great strides 25 percent for doctors, and 18 percent for university pro- they have in the legal profession. fessors. Minorities make up less than 5 percent of part-

68 Georgia Bar Journal ners at major law firms and general What my generation does find itself up against counsels of Fortune 1000 companies. The numbers are even worse for is conduct and attitudes that are less obvious minority women. The fight for equality today is and less iniquitous on the surface, but still taking place, for the most part, on a subtler battlefield. Yes, women and result in holding women and minorities back minority lawyers are unfortunately still subject to racist and sexist from full participation in the legal workplace. remarks and overt discrimination in hiring and promotions. Thank- practices are not intended to mar- particular focus on energy litiga- fully, my generation experiences ginalize women and minorities, tion, tax controversies and com- less of this than the female and and some would even question plex commercial matters. minority pioneers in our field. whether they have that effect. What my generation does find Rather, they would say that “the Endnotes itself up against is conduct and atti- practice of law today is a business, 1. American Bar Association, tudes that are less obvious and less and to succeed in the business, Commission on Women in the iniquitous on the surface, but still you’ve got to ‘fit in.’ You can’t Profession, A Current Glance at result in holding women and expect the business to accommo- Women in the Law 2006, available at minorities back from full participa- date everyone’s personal needs http://www.abanet.org/women/ CurrentGlanceStatistics2006.pdf. tion in the legal workplace. and differences.” (last visited April 12, 2007). It is the exclusion from a client I, for one, don’t buy it. I won’t 2. American Bar Association, golf outing because the male pretend that I am not a mother as Commission on Racial and Ethnic lawyers assumed that you did not well as a lawyer. In fact, I would go Diversity in the Profession, play and did not think to organize so far as to say that being a mother Executive Summary of Miles to Go a more inclusive client develop- makes me a better lawyer. 2000: The Progress of Minorities in ment event. It is being left off a trial Fortunately, there are people the Legal Profession, available at team because the partner assumed like Mr. Johnson, Mr. Levy and http://www.abanet.org/minori that you wouldn’t want to travel or Justice Sears who recognize that ties/publications/milessummary. would be distracted by being away the practice of law is not a business. html (last visited April 12, 2007). from family. It is the inclusion on It is a profession, and a noble one at teams, committees or client events that. As part of this profession, we to boost the numbers of women are called to identify injustice and and minorities for reporting pur- inequality and do what we can to poses, but not for substantive fight against them. In answering input. It is the assumption that this call, we need to not only look lawyers who work a reduced-hour outward to our community and schedule are less committed to the our clients, but also inward to our firm even if they are meeting all the places of practice, and our profes- requirements of their arrangement. sion as a whole. We are thankful to It is women being told not to put have these three trailblazers to too many family pictures in the honor for their demonstrated com- office because they won’t be per- mitment to equality in Georgia’s ceived as being serious about their legal community. careers. It is the consideration that men have a family to support, but Jennifer N. Ide, an women are the family’s second associate with (and thus less important) income Atlanta’s Sutherland earner in making promotion deci- Asbill & Brennan LLP, is sions. It is derogatory comments a member of the State made about women lawyers who Bar’s Women and are assertive where the same con- Minorities in the Profession duct in their male counterparts would be applauded as hard-hit- Committee. She received her J.D. ting and aggressive. with highest honors from Emory Unfortunately, these are deep- University School of Law, 1999. rooted attitudes and behaviors. Her practice encompasses a broad Many lawyers would say these range of civil litigation, with a

June 2007 69 In Memoriam

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

Leonard A. Baldwin Karen M. Cross R. Thomas Jarrard Savannah, Ga. Miami, Fla. Gainesville, Ga. Admitted 1965 Admitted 2002 Admitted 1966 Died February 2007 Died October 2006 Died March 2007

John Sammons Bell Julia Boyd Davidson Thomas M. Johnson Jr. Amelia Island, Fla. Atlanta, Ga. Atlanta, Ga. Admitted 1947 Admitted 1951 Admitted 1950 Died December 2006 Died January 2007 Died February 2007

Thad E. Boggs Ronald L. Davis Carolyn J. Kennedy Dalton, Ga. Cartersville, Ga. Atlanta, Ga. Admitted 1951 Admitted 1965 Admitted 1974 Died April 2006 Died January 2007 Died October 2006

Jack E. Boone Jr. Ogden Doremus L. B. Kent Augusta, Ga. Metter, Ga. Columbus, Ga. Admitted 1979 Admitted 1947 Admitted 1954 Died March 2007 Died April 2007 Died July 2006

Leeza Rhee Cherniak Carl P. Fredericks Harold E. Martin Atlanta, Ga. Marietta, Ga. Barnesville, Ga. Admitted 1987 Admitted 1961 Admitted 1971 Died April 2007 Died March 2007 Died January 2007

David Lee Coker Sam J. Gardner Jr. Clifford Oxford Atlanta, Ga. Moultrie, Ga. Atlanta, Ga. Admitted 1964 Admitted 1947 Admitted 1941 Died October 2006 Died March 2007 Died February 2007

George E. Cone Hiram J. Grogan Danny Ray Page Somers, N.Y. Smyrna, Ga. Suwanee, Ga. Admitted 1971 Admitted 1958 Admitted 2004 Died October 2006 Died November 2006 Died March 2007

James Douglas Cooper Jr. Pauline Irma Hatcher George B. Rushing Stone Mountain, Ga. Greensboro, N.C. Augusta, Ga. Admitted 1990 Admitted 1990 Admitted 1950 Died March 2007 Died March 2007 Died December 2006

Benjamin A. Cox Dewey Hayes Sr. Robert Lee Scoggin Dunwoody, Ga. Douglas, Ga. Jekyll Island, Ga. Admitted 1976 Admitted 1949 Admitted 1947 Died September 2006 Died March 2007 Died February 2006

70 Georgia Bar Journal John F. Sheehy Judge John Sammons Bell died in Cincinnati, Ohio December 2006. Bell had a distin- Admitted 1974 guished record of service to his SOUTH Died November 2006 country and his state. He graduated from Gordon Military College GEORGIA Linwood R. Slayton Jr. in 1932, where he was senior rank- Atlanta, Ga. ing cadet officer. He then secured MEDMAL Admitted 1977 his undergraduate degree from Died March 2007 Mercer University in 1937. In June ADR of that year, he married Evelyn Todd Kirk Stien Dame of Macon. Bell served brave- Because Medical Atlanta, Ga. ly as a Major in the U.S. Army dur- Admitted 2001 ing WWII, earning many honors Malpractice is a specialty, Died April 2007 and commendation medals includ- South Georgia ADR Service ing a Bronze Star and a Purple has established a separate Albert Franklin Taylor Jr. Heart for his bravery during com- Cleveland, Ga. bat in the Northern and Southern panel of neutrals with the Admitted 1984 Solomon Campaigns. experience and expertise in Died December 2006 Wounded in action, he returned Medical Malpractice to Georgia and graduated with Walter E. Van Heiningen honors from Emory University litigation. Let us help you Thomasville, Ga. School of Law. He passed the bar resolve your case at Admitted 1977 after a single year at Emory and reasonable rates. Died March 2007 began his law practice in 1946. He was elected chairman of the Nancy Van Sant Georgia State Democratic Party in THOMAS C. ALEXANDER Miami, Fla. 1954, a position he held for six – Macon Admitted 1975 years. In 1960 Bell was appointed RICHARD Y. “BO” BRADLEY – Columbus Died December 2006 to the Georgia Court of Appeals MANLEY F. BROWN – Macon by Gov. Ernest Vandiver; he JERRY A. BUCHANAN – Columbus Frank C. Vann became presiding judge in 1963, THOMAS S. CHAMBLESS Camilla, Ga. and served as chief judge from – Albany Admitted 1951 1969 until his retirement in 1979. WADE H. COLEMAN – Valdosta Died April 2007 An avid scholar, Bell devoted ROBERT E. FALLIGANT, JR. – Savannah much of his time to the study of JAMES B. FRANKLIN – Statesboro Clarence R. Vaughn Jr. Southern history, particularly the ROBERT R. GUNN, II Conyers, Ga. Civil War. – Macon Admitted 1946 Bell was preceded in death by his JANE M. JORDAN – Macon Died March 2007 wife, Evelyn Dame and is survived WILLIAM J. MORTON, M.D. – Atlanta by his daughter Julee Fleming; WILLIAM USHER NORWOOD – Atlanta Trammell E. Vickery granddaughter Carrol Fleming and R. CLAY RATTERREE Atlanta, Ga. grandson Dr. Frank Bell. – Savannah Admitted 1955 PHILIP R. TAYLOR – St. Simons Island Died February 2007 Judge Ogden Doremus died in THOMAS W. TUCKER – Augusta April 2007. An Atlanta native, he Andrew J. Whalen Jr. was born in 1921 to Estes Doremus Griffin, Ga. and Mary (Dolly) McAdory ROBERT R. GUNN, II, Admitted 1949 Doremus. In 1960, he moved to MANAGING PARTNER Died April 2007 Savannah from Atlanta and estab- Rachel D. McDaniel, lished the law firm Doremus and Scheduling Coordinator William J. Wiggins Karsman. He and his wife Carol 240 THIRD STREET Carrollton, Ga. moved to Metter in 1972, where he P.O. Box 1606 Admitted 1948 was a partner in the Metter law Died October 2006 firm of Doremus, Jones and Smith. MACON, GEORGIA 31201 He was Candler County State (800) 863-99873 or Court judge for four terms ending (478) 746-44524 in 2004. He received his J.D. from FAX (478) 745-22026 Emory University in 1949.

June 2007 71 Doremus, a World War II veteran, practice. It was thought that he was nephews Vincent and Chase Carter; served in the U.S. Army Air Corps generous with his time and his love and many aunts, uncles and cousins. from 1942-46. Called “Georgia’s for the people of that area. He was Hero” by the state’s environmental privileged to serve in the Georgia Frank C. Vann died in April 2007. community, he was one of the first State Senate in 1961-62, represent- Vann received his B.A. from the trustees of the Georgia Conservancy ing the citizens of Colquitt, Tift and Virginia Military Institute. He and was instrumental in legislation Cook counties. His interest in peo- began law school at the University declaring marshes to be state prop- ple and the ease with which he met of Florida, then transferred to the erty resulting in the Marshland them seemed to make him friends University of Georgia where he Protection Act. He spoke at wherever he went. earned his J.D. Upon finishing law Georgia’s first Earth Day event and He was preceded in death by his school, he returned to Camilla to served as executive committee wife, Julia Florence Gardner; his open his law practice. Two years member of the Georgia chapter of daughter, Ann Gardner; and his later, he attended JAG training at the Sierra Club. grandson, Kirk Blackburn Oliver Jr. the University of Virginia and Doremus co-founded the Survivors include a son, Samuel J. served in the Korean War. Upon Georgia Center for Law in the Gardner III of Charlotte, N.C.; two returning, Vann reopened his law Public Interest. He was appreciated daughters, Florence Gardner practice in Camilla. for his tireless work in the environ- Calhoun of Jacksonville, Fla., and In addition to practicing law, mental community and was a men- Caroline Gardner Oliver of Athens; Vann farmed for many years, tor to the current leadership of three grandchildren; sisters and including partnering with his son, these organizations. Doremus was brothers-in-law; and many nieces, Scott. Vann was active in his com- a member of Metter United nephews and cousins. munity and state. Positions held Methodist Church and included: District Governor of the Doremus was preceded in death Naiyareh Karimimanesh died in Lions Club, president of the by his wife, Carol, and he is sur- April 2007. A native of California, Mitchell County Bar Association, vived by a son and daughter-in- she attended Tulane University founding chair of the International law, Frank and Lisa Doremus of and Emory University, graduating Section of the State Bar of Georgia, Westport, Mass.; two daughters, from Emory with a B.A. in History. and executive secretary of the Celia J. Doremus of Arlington, Karimimanesh earned her J.D. Mitchell County Democratic party. Mass.; Dale M. Doremus of Santa from Georgia State University Vann also served one term as State Fe, N.M.; and a granddaughter, College of Law in 2005. While pur- Senator for the 10th District of Carolyn Dixie Doremus of suing her law degree, she received Georgia, where he received the Westport, Mass. Honor’s Designation in Litigation, honor of Most Outstanding was a finalist in the Lonestar Freshman Senator. Vann was a Samuel Johnson Gardner Jr. died Classic Mock Trial Tournament in member of Camilla Methodist in March 2007. Gardner was born Texas, was involved in the Student Church, where he taught Sunday in Albany in 1920. His parents Trial Lawyers Association, was school. He was an avid orchid moved to Savannah one year later, active in the Jessup International grower and gardener. where he lived until beginning his Moot Court, and was president of Vann is survived by his wife, law career in Moultrie in 1947. He the International and Comparative Janie Cagle Vann; two sons, Frank was a graduate of Armstrong State Law Society. Cochran Vann Jr. of Camilla, and University in Savannah, Emory She worked at the Prosecuting Scott Emory Vann and his wife University and the University of Attorneys’ Council of Georgia as a Staci of Baconton; two daughters, Georgia Law School. He also stud- research assistant while studying Elizabeth Janie Vann of El Paso, ied at Harvard Business School. for the bar exam, and continued to Texas, and Mary Georgia Vann Throughout his life, he was be involved with the Student Trial Hamilton and her husband, George active in all lay activities of the Lawyers Association at Georgia of Atlanta; three grandchildren and United Methodist Church. At First State. Karimimanesh took a staff numerous nieces, nephews and United Methodist Church he attorney position with the Council cousins. served as Sunday school teacher, after passing the bar, and most member of the Board of Stewards recently accepted a position with Judge Clarence Roland Vaughn and on the “sidewalk committee.” Sharon Ware and Associates. Jr., died in March 2007. Vaughn He was a member of Kiwanis Karimimanesh was active in the was a lifelong resident of Rockdale International, serving the Moultrie Bahá’í community in Atlanta. County. In June 1942, after gradu- chapter as president on several She is survived by her parents, ating from North Georgia College occasions. He enjoyed working Carelle and Mahmood, of San he married the late Doris Henson with the citizens of Moultrie and Mateo, Calif.; maternal grandmoth- Vaughn. He entered the armed Colquitt County through his law er Elcyne; sister Alexis Carter; forces as a second lieutenant and

72 Georgia Bar Journal was promoted to the rank of cap- Griffin Judicial Circuit, died in tain. He served four years during April 2007. Whalen served as World War II; including 26 Superior Court judge of the months overseas in the European Circuit from 1969 until taking sen- Theater, 6th Calvary; third Army ior judge status in 1999. When the under the command of General circuit grew from a single judge to George Patton. He received the four judges, Whalen became its bronze star for meritorious serv- chief judge. He was known for his ice. Upon his return, he graduated strict policies in the courtroom from the University of Georgia and stiff, but fair, sentences for the Law School and began practicing guilty. with his father, Clarence R. Prior to his appointment to the Vaughn Sr. bench, Whalen served from 1954- Memorial Gifts He served in the Georgia 69 as solicitor general. Born in The Lawyers Foundation of General Assembly as state senator Albany in 1923 to Andrew J. Georgia furnishes the Georgia for one term in 1959. In 1960, he Whalen Sr. and Katie Wells Bar Journal with memorials to was elected to the House of Whalen, the family moved to honor deceased members of the Representative and served for 22 Griffin in 1928. Whalen graduated years. During his tenure as repre- from Griffin High School in 1940, State Bar of Georgia. sentative, he was floor leader for attending North Georgia College A meaningful way to honor a the governor, and served as from 1940-42. At the outset of Majority Leader of the House of WWII, Whalen joined the Army, loved one or to commemorate a Representatives from 1974-82. serving briefly in the cavalry special occasion is through a Vaughn was elected the first before volunteering for the Army tribute and memorial gift to the Superior Court judge of the newly Air Corps, with assignment in Lawyers Foundation of Georgia. formed Rockdale Judicial Circuit Hawaii. Returning to civilian life in and began service January 1982. 1946, Whalen entered the An expression of sympathy or a He served the circuit as chief judge. University of Georgia, graduating celebration of a family event that Vaughn was a lifelong member with a degree in Business takes the form of a gift to the of the Conyers First United Administration. He then entered Lawyers Foundation of Georgia Methodist Church, where he Emory University School of Law, served on the board and as super- from which he graduated in 1950. provides a lasting remembrance. intendent of Sunday school for 18 He immediately began practicing Once a gift is received, a written years. He was a trustee and chair- law in Griffin with former acknowledgement is sent to the man of the Vaughn-Jordon Congressman John J. Flynt Jr. contributor, the surviving spouse Foundation, a member of the In addition to his service on the Rotary Club, VFW, American bench, Whalen served as adminis- or other family member, and the Legion, and a 32nd degree trative judge to the Sixth Judicial Georgia Bar Journal. Mason. He will be remembered Administrative District and served for his generous gifts to the com- the bar and judiciary in many Information munity, including the Conyers capacities, including the Judicial For information regarding the Rockdale Council for the Arts, the Council of Georgia, and the ICJE; Rockdale County Historical both of which he chaired. He was placement of a memorial, please Society, and the Rockdale influential in legal circles and contact the Lawyers Foundation Medical Center. In addition to his helped guide the profession as a of Georgia at (404) 659-6867 or love of his family, law, and com- mentor to many new judges. 104 Marietta St. NW, Suite 630, munity, Vaughn was known for Whalen was a lifelong member of his love of flowers. the First United Methodist Church Atlanta, GA 30303. He is survived by sons, Alvin H. of Griffin. Vaughn, C. Roland Vaughn III; He is survived by his wife, Lawyers Foundation daughters-in-law, Paula Vaughn Jacqueline Williams Whalen; sons, of Georgia Inc. and Susan Vaughn III; and niece, Andrew J. Whalen III and his wife, 104 Marietta St. NW, Suite 630 Harriet R. Powell. Other survivors Jan; Timothy J. Whalen and his Atlanta, GA 30303 include grandchildren and great- wife, Jean; and a daughter, Susie grandchildren. and her husband, Rick Blackshear, P: (404) 659-6867 all of Griffin. He had six grand- F: (404) 225-5041 Andrew J. Whalen Jr., senior children and two great-grandchil- judge of the Superior Courts of the dren.

June 2007 73 CLE Calendar

June-August JUN 5 NBI, Inc. JUN 12 NBI, Inc. Child Custody and Shared Parenting Practical Guide to Zoning and Atlanta, Ga. Land Use Law 5 CLE Hours Atlanta, Ga. 6 CLE Hours JUN 5 Lorman Education Services The 8 Greatest Estate Planning JUN 13 Lorman Education Services Techniques Accounting and Auditing Standards Atlanta, Ga. Update—2007 6.7 CLE Hours Atlanta, Ga. 6.7 CLE Hours JUN 5 Atlanta Bar Association Judicial Elections JUN 14 Ali-Aba Atlanta, Ga. Occupational Exposures Associated with 1 CLE Hours Petroleum—Derival Products Atlanta, Ga. JUN 6 Ct Corporation System 1 CLE Hours Merger Filings in the 21st Century Atlanta, Ga. JUN 15 NBI, Inc. 2.8 CLE Hours Building Your Civil Trial Skills Atlanta, Ga. JUN 6-7 Georgia Society of Certified 6 CLE Hours Public Accountants Georgia Federal Tax Conference JUN 15 Lorman Education Services Atlanta, Ga. Document Retention and Destruction 14 CLE Hours Atlanta, Ga. 6.7 CLE Hours JUN 7 NBI, Inc. Estate Administration Procedures— JUN 19 NBI, Inc. Why Each Step Is Important Your Guide to Georgia LLC Atlanta, Ga. Atlanta, Ga. 6.7 CLE Hours 6.7 CLE Hours

JUN 8-9 Georgia Defense Lawyers Association JUN 20 Lorman Education Services GDLA Summer CLE Fundamentals of Real Estate Closings Atlanta, Ga. Atlanta, Ga. 6 CLE Hours 6 CLE Hours

JUN 11 Institute of Continuing Judicial JUN 21 State Bar of Georgia Education of Georgia Casemaker Training 20 Hour Office Software Application for Atlanta, Ga. Beginners 2 CLE Hours Athens, Ga. 4 CLE Hours

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

74 Georgia Bar Journal CLE Calendar

JUN 21-24 ICLE JUN 22-23 ICLE Georgia Trial Skills Clinic Southeastern Admiralty Law Institute Athens, Ga. Amelia Island, Fla. See www.iclega.org for locations See www.iclega.org for locations 24 CLE Hours 10 CLE Hours

JUN 22 ICLE JUN 23-29 Prosecuting Attorneys’ Council DUI Trial Practice Update Video Replay of Georgia Tifton, Ga. 2007 Basic Litigation Course See www.iclega.org for locations Forsyth, Ga. 6 CLE Hours 29 CLE Hours

JUN 22 ICLE JUN 27 Lorman Education Services Defending Drug Cases Real Estate Development From Atlanta, Ga. Beginning to End See www.iclega.org for locations Savannah, Ga. 6 CLE Hours 6 CLE Hours

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June 2007 75 CLE Calendar

November-December JUN 28 State Bar of Georgia JUL 24 NBI, Inc. Casemaker Training Rules and Procedures for Federal Atlanta, Ga. Court Success 2 CLE Hours Atlanta, Ga. 6 CLE Hours JUL 12-14 ICLE Fiduciary Law Institute JUL 27 State Bar of Georgia St. Simons Island, Ga. Casemaker Training See www.iclega.org for locations Atlanta, Ga. 12 CLE Hours 2 CLE Hours

JUL 11 Institute of Continuing Judicial JUL 27-28 ICLE Education of Georgia Environmental Law Institute Magistrate Court Clerks and Amelia Island, Fla. Secretaries Seminar See www.iclega.org for locations Brasstown Valley, Ga. 8 CLE Hours 10 CLE Hours AUG 9-10 Institute of Continuing Judicial JUL 12 NBI, Inc. Education of Georgia Protecting Residential Landlords From 20 Hour Domestic Violence Retreat Civil Liability Braselton, Ga. Atlanta, Ga. 8 CLE Hours 5 CLE Hours AUG 8-9 ICLE JUL 13 Lorman Education Services Real Property Law Institute Video Replay Legal Ethics Atlanta, Ga. Atlanta, Ga. See www.iclega.org for locations 6 CLE Hours 12 CLE Hours

JUL 17 NBI, Inc. AUG 10 ICLE Road and Access Law—Researching and Franchising Resolving Common Disputes Atlanta, Ga. Atlanta, Ga. See www.iclega.org for locations 6 CLE Hours 6 CLE Hours

JUL 18 Lorman Education Services AUG 16 NBI, Inc. Litigation Skills for Legal Staff Drafting Commercial Real Estate Leases Atlanta, Ga. Atlanta, Ga. 6 CLE Hours 6 CLE Hours

JUL 20 State Bar of Georgia AUG 24 ICLE Casemaker Training Contract Litigation Atlanta, Ga. Atlanta, Ga. 2 CLE Hours See www.iclega.org for locations 6 CLE Hours

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

76 Georgia Bar Journal CLE Calendar

AUG 24 ICLE Atlanta, Ga. Nuts & Bolts of Family Law See www.iclega.org for locations Savannah, Ga. 6 CLE Hours See www.iclega.org for locations AUG 30 ICLE 6 CLE Hours Future Practice of Law—Video Replay Atlanta, Ga. AUG 24 NBI, Inc. See www.iclega.org for locations Deposition A-Z 3 CLE Hours Atlanta, Ga. 6.1 CLE Hours AUG 31-SEP 1 ICLE Urgent Legal Matters AUG 30 ICLE St. Simons, Ga. Residential Real Estate—Video Replay See www.iclega.org for locations

Earn up to 6 CLE The Lawyer Assistance Program credits for authoring of the State Bar of Georgia legal articles and Stress? having them published. Chemical dependency? Submit articles to: Marcus D. Liner Family Problems? Georgia Bar Journal Mental or Emotional Impairment? 104 Marietta St. NW, Suite 100 Atlanta, GA 30303 The Lawyer Assistance Program Contact [email protected] is a free program providing for more information confidential assistance to Bar or visit the Bar’s website, members whose personal www.gabar.org. problems may be interfering with their ability to practice law.

For more information, please call the confidential hotline number at 800-327-9631

June 2007 77 Notices

Supreme Court Issues Formal Advisory Opinion No. 05-4 Pursuant to Rule 4-403(d)

The second publication of this opinion appeared in Georgia Rule of Professional Conduct 5.4, the pay- the October 2005 issue of the Georgia Bar Journal, ment of a monthly bonus by a lawyer to nonlawyer which was mailed to the members of the State Bar of employees based on the gross receipts of his or her Georgia on or about October 5, 2005. The opinion was law office in addition to the nonlawyer employees’ filed with the Supreme Court of Georgia on October 18, regular monthly salary is permissible; and that it is 2005. The State Bar of Georgia filed a request for dis- ethically proper to compensate nonlawyer employees cretionary review with the Supreme Court of Georgia pursuant to a plan that is based in whole or in part on on October 18, 2005, pursuant to Rule 4-403(d). On a profit-sharing arrangement. March 19, 2007, the Supreme Court of Georgia issued an Order, with comment, granting the State Bar’s In 1990 this Court issued FAO 91-3 addressing the request for discretionary review and adopting Formal same issue under former Standard 26 of Bar Rule 4-102 Advisory Opinion No. 05-4, pursuant to Rule 4-403(d), (and identical Directory Rule 3-102), which, in perti- retracting Formal Advisory Opinion No. 91-3. nent part, prohibited a lawyer from sharing fees with a Following is the full text of the Supreme Court Order nonlawyer except that “a lawyer or law firm may and Formal Advisory Opinion No. 05-4. In accordance include nonlawyer employees in a retirement plan, with Bar Rule 4-403(e), this opinion is binding upon all even though the plan is based in whole or in part on a members of the State Bar of Georgia, and the Supreme profit-sharing agreement.” Former Standard 26(c). In Court shall accord this opinion the same precedential 2000 the Court issued the Georgia Rules of Professional authority given to the regularly published judicial Conduct, effective January 1, 2001, to replace the for- opinions of the Court. mer Standards of Conduct. Rule of Professional Conduct 5.4 supercedes Standard 26(c) and enlarges STATE BAR OF GEORGIA the circumstances under which a lawyer or law firm FORMAL ADVISORY OPINION NO. 05-4 may share legal fees with a nonlawyer.1 In pertinent Approved And Issued On March 19, part, Rule 5.4(a)(3) provides: 2007 Pursuant to Bar Rule 4-403 (a) A lawyer or law firm shall not share legal fees By Order Of The Supreme Court Of with a nonlawyer, except that . . . .

Georgia With Comments (3) a lawyer or law firm may include nonlawyer Supreme Court Docket No. S06U0797 employees in a compensation or retirement plan, even though the plan is based in whole or in part COMPLETE TEXT FROM THE ORDER on a profit-sharing arrangement. OF THE SUPREME COURT OF GEORGIA The board reviewed FAO 91-3 to determine what We granted a petition for discretionary review impact, if any, application of the Rules of brought by the State Bar of Georgia asking the Court Professional Conduct would have on the opinion and to adopt an opinion of the Formal Advisory Opinion concluded that the substance and conclusions Board (“Board”). At issue is Formal Advisory reached in FAO 91-3 are no longer in compliance Opinion (“FAO”) 05-4, which is a redrafted version of with current ethical considerations. As a result, the FAO 91-3. Although both FAO 91-3 and FAO 05-4 board drafted FAO 05-4. That opinion was published address the ethical propriety of a lawyer paying non- in the April and October 2005 issues of the Georgia lawyer employees a monthly bonus from the gross Bar Journal; no comments were received in response proceeds of the lawyer’s firm, the board reached con- to the publications, see Rule of Professional Conduct trary conclusions in these opinions based on ethical 4-403(c); and the State Bar sought and was granted rules in place at the time. For the reasons which fol- discretionary review by this Court. Rule of low, we agree with the board that under current Professional Conduct 4-403(d).

78 Georgia Bar Journal The distinction between Rule 5.4(a)(3) and Standard payment of money, over a reasonable period of 26(c) is that the former permits a nonlawyer employee time after his death, to the lawyer’s estate or to one to participate in both a compensation and retirement plan, or more specified persons; whereas the latter permitted nonlawyer compensation only in the context of a retirement plan. We agree with (2) a lawyer or law firm who purchases the prac- the board that the support for FAO 91-3 has changed tice of a deceased, disabled, or disappeared lawyer due to the adoption of the Rules of Professional may, pursuant to the provisions of Rule 1.17, pay Conduct and that FAO 91-3 no longer provides an accu- to the estate or other representative of that lawyer rate interpretation of the applicable rules of ethics. In the agreed-upon purchase price; contrast, FAO 05-4 is consistent with current Rule of Professional Conduct 5.4(a)(3) in that it allows compen- (3) a lawyer or law firm may include nonlawyer sation to a nonlawyer employee in the form of a month- employees in a compensation or retirement plan, ly bonus paid from the gross receipts of the law firm even though the plan is based in whole or in part under the rule that a nonlawyer employee may partici- on a profit-sharing arrangement; and pate in a compensation plan, even though based in whole or in part on a profit-sharing arrangement. (4) a lawyer who undertakes to complete unfin- Accordingly, we adopt proposed FAO 05-4 and retract ished business of a deceased lawyer may pay to FAO 91-3.2 the estate of the deceased lawyer that proportion of the total compensation which fairly represents Formal Advisory Opinion 05-4 approved. All the the services rendered by the deceased lawyer. Justices concur. Georgia’s Rule of Professional Conduct 5.4 is analo- FORMAL ADVISORY OPINION NO. 05-4 gous to its counterpart in the ABA Code of Professional Responsibility. In 1980, the ABA amend- QUESTION PRESENTED: ed DR 3-102(A) to add an additional exception regarding the sharing of fees with nonlawyer employees: “A Ethical propriety of a lawyer paying his nonlawyer lawyer or law firm may include nonlawyer employees employees a monthly bonus from the gross receipts of in a compensation or retirement plan even though the his law office. plan is based in whole or in part on a profit sharing arrangement.” (emphasis added). ABA DR 3- SUMMARY ANSWER: 102(A)(3). The Georgia Rules of Professional Conduct are consistent with the ABA’s principles of fee sharing The payment of a monthly bonus by a lawyer to his with non-attorneys. nonlawyer employees based on the gross receipts of his law office in addition to their regular monthly salary is As the Comment to the Model Rule 5.4 of the ABA permissible under Georgia Rule of Professional Model Rules of Professional Conduct states, the policy Conduct 5.4. It is ethically proper for a lawyer to com- underlying the limitation on the sharing of fees between pensate his nonlawyer employees based upon a plan lawyer and layperson seeks to protect the lawyer’s inde- that is based in whole or in part on a profit-sharing pendent professional judgment. The Comment cautions arrangement. that if a layperson, not guided by professional obliga- tions, shares an interest in the outcome of the represen- OPINION: tation of a client, the possibility exists that he or she may influence the attorney’s judgment. Correspondent asks whether a lawyer may pay nonlawyer employees a monthly bonus which is a percent- In light of all of the foregoing, we conclude that the age of gross receipts of the law office. payment of a monthly bonus payable to nonlawyer employees based upon a plan that is in whole or in part Georgia Rule of Professional Conduct 5.4 necessitates on a profit-sharing arrangement does not constitutes a the modification of Formal Advisory Opinion No. 91-3, sharing of legal fees in violation of Georgia Rule of which was based largely on Standard No. 26 of Georgia Professional Conduct 5.4. Bar Rule 4-102. Georgia Rule of Professional Conduct 5.4 ______replaces the former standard and provides as follows: 1. Rule 5.4 is now analogous to its counterpart in the American Bar Association Code of Professional (a) A lawyer or law firm shall not share legal fees Responsibility. ABA DR 3-102 (A) (3). with a nonlawyer, except that: 2. By our approval of FAO 05-4, it becomes “binding on all members of the State Bar [of Georgia].” Rules of Professional Conduct 4-403 (e). (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the

June 2007 79 First Publication of Proposed Formal Advisory Opinion Request No. 05-R6

Pursuant to Rule 4-403(c) of the Rules and the funds. If the claim is reasonably disputed, the Regulations of the State Bar of Georgia, the Formal lawyer may pay out any undisputed funds and must Advisory Opinion Board has made a preliminary deter- separate and safeguard the disputed funds. If the third mination that the following proposed opinion should person and client cannot reach an agreement, the be issued. State Bar members are invited to file com- lawyer should interplead the funds in a court of proper ments to this proposed opinion with the Formal jurisdiction. Advisory Opinion Board at the following address: OPINION: State Bar of Georgia 104 Marietta Street, N.W. This issue is governed by Georgia Rule of Suite 100 Professional Conduct 1.15(I)(b), which provides: Atlanta, Georgia 30303 Attention: John J. Shiptenko Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall An original and twenty copies of any comment to the promptly notify the client or third person. Except proposed opinion must be filed with the Formal as stated in this rule or otherwise permitted by law Advisory Opinion Board by July 15, 2007, in order for the or by agreement with the client, a lawyer shall comment to be considered by the Board. Any comment to promptly deliver to the client or third person any a proposed opinion should make reference to the request funds or other property that the client or third per- number of the proposed opinion. After consideration of son is entitled to receive and, upon request by the comments, the Formal Advisory Opinion Board will client or third person, shall promptly render a full make a final determination of whether the opinion accounting regarding such property. should be issued. If the Formal Advisory Opinion Board determines that an opinion should be issued, final drafts Comment 3 to Rule 1.15 gives further guidance: of the opinion will be published, and the opinion will be filed with the Supreme Court of Georgia. Third parties, such as a client’s creditors, may have just claims against funds or other property in a PROPOSED FORMAL ADVISORY lawyer’s custody. A lawyer may have a duty OPINION REQUEST NO. 05-R6 under applicable law to protect such third-party claims against wrongful interference by the client, QUESTIONS PRESENTED: and accordingly may refuse to surrender the property to the client. However, a lawyer should not Is a lawyer obligated to notify a client’s creditors or unilaterally assume to arbitrate a dispute between other third persons when the lawyer receives the pro- the client and the third party. . . ceeds of the client’s settlement or judgment? If the lawyer is obligated to notify a third person, is the Regarding third persons,1 the Rule identifies the fol- lawyer then obligated to pay that third person, even lowing two relevant separate duties:2 (i) the duty to over the client’s objection? notify a third person who has an interest in the funds or property; and (ii) the duty to pay a third person the SUMMARY ANSWER: funds that person is entitled to receive.

A lawyer has a duty to notify those third persons A lawyer does not have a duty to notify every possi- who have an interest in the funds or property when the ble creditor of a client when the lawyer receives the pro- lawyer receives the funds or property. The lawyer must ceeds of a client’s settlement or judgment. The duty to notify the third person only if: (1) the lawyer has actual notify applies to third persons who have an interest3 in knowledge of the claim; (2) the claim arises out of, or the funds or property and is limited by three factors. relates to, the subject matter of the lawyer’s representa- First, the lawyer must have actual knowledge of the tion of the client; and (3) the claim is prima facie valid. A claim.4 Second, the claim must arise out of, or at least lawyer has a subsequent duty to pay a third person relate to, the subject matter of the lawyer’s representa- only if the claim is actually valid and the person is enti- tion of the client.5 Third, the claim must be prima facie tled to receive the funds. If so, the lawyer shall pay the valid.6 If all three factors are met, the lawyer has a duty funds. If the claim is invalid, the lawyer should not pay to notify the third person that the lawyer has received

80 Georgia Bar Journal the funds or other property in which the third person in the lawyer’s trust account for a reasonable peri- has an interest. od of time while endeavoring to resolve the dispute. If a resolution cannot be reached, it would be Notifying a third person whom a lawyer believes has appropriate for a lawyer to interplead such dis- a prima facie valid claim arising out of, or related to, the puted funds into a court of competent jurisdiction. subject matter of the representation does not violate the ______duty of confidentiality owed to the client. Such disclo- 1. Usually a third person with an interest is a creditor, such sure is authorized under Georgia Rule of Professional as a medical facility that has provided medical services to Conduct 1.6(a) which excepts from confidentiality “dis- the client, an insurance company, or a lawyer who has closures that are impliedly authorized in order to carry provided legal services to the client. out the representation, or are required by these rules or 2. Actually, the attorney also has a duty to render a “full accounting.” We express no opinion herein on the scope other law, or by order of the Court.” Furthermore, the of any such duty. lawyer’s duty of confidentiality may not be used to 3. The term “interest” is not defined by the Rules of “assist the client to conceal the property from the third Professional Conduct. For the purposes of the notification person.”7 aspect of this opinion, a third person with a presumptive- ly enforceable claim has an “interest.” The duty to pay differs from the duty to notify in that 4. Actual knowledge may be inferred from the circum- the duty to pay extends only to claims that are actually stances. See Terminology, Rules of Professional Conduct. valid and to which the third person is legally entitled. In some instances, a creditor’s compliance with filing For example, such legal entitlement may result from a requirements provides the requisite legal notice to all perfected lien or court order.8 affected persons. See, e.g., O.C.G.A. §44-14-471 where “the filing of the claim or lien shall be notice thereof to all persons, firms, or corporations liable for the damages, If the lawyer determines that the claim is actually whether or not they received the written notice provided valid and the person is legally entitled to receive the for in this Code section.” funds, the lawyer shall disburse them to the third per- 5. Alaska Bar Ass’n Ethics Comm., Op. 92-3 (1992) (There son. If the lawyer determines the claim is invalid or the may be other claims unrelated to the subject matter of the third person is not entitled to payment thereon, the representation; for instance child support, alimony, resti- lawyer does not have a duty to pay the third person. If tution for criminal conduct and so on. A client is capable the lawyer reasonably questions the validity of the of and responsible for payment of his or her own obliga- claim or reasonably believes the client’s objections have tions. Unless the claim in question has been reduced to a merit, the lawyer should not disburse any disputed valid assignment or perfected lien, a creditor has no more funds. The lawyer may disburse any undisputed funds special “entitlement” to those funds than does the client.) to the client and third person but must segregate and D.C. Bar Legal Ethics Comm., Op. 293 (1999). (In general, a “just claim” that the lawyer must honor pursuant to safeguard any disputed funds. The lawyer may then Rule 1.15 is one that relates to the particular funds in the attempt to resolve the dispute between the client and lawyer’s possession, as opposed to merely being (or the third person, but if unsuccessful, the lawyer should alleged to be) a general unsecured obligation of the client.) interplead the funds in a court of proper jurisdiction. 6. A lawyer may treat a writing evidencing such a claim as This course of action follows Formal Advisory Opinion prima facie evidence of the claim’s existence and validity. No. 94-2 (1994) which states: 7. Restatement of the Law Third, The Law Governing Lawyers, §44(h) (2000). In those cases where it is not possible to ascertain 8. Certain private agreements may also be included. See who is entitled to disputed funds held by the Colo. Bar Ass’n Ethics Comm., Op. 94-94 (1994); Utah lawyer, the lawyer may hold such disputed funds Ethics Advisory Op. Comm., Op. 00-04 (2000).

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June 2007 81 Directory Errata

Following is a listing of corrections for the 2006-07 State Bar Directory.

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82 Georgia Bar Journal Classified Resources

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June 2007 83 Classified Resources

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