Gerald M. Edenffeld 45Th State Bar President

Gerald M. Edenﬁeld 45th State Bar President

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The Annual CLE Program and Luncheon presented by The Agricultural Law Section of the State Bar of Georgia, The Walter F. George School of Law of Mercer University and ICLE

Chaired by Nowell Berreth of Alston & Bird LLP, this seminar will focus on Georgia’s largest industry, agriculture. With the new corn-based ethanol plant in Camilla and the efforts to produce cellulosic ethanol from Georgia’s abundant pine trees, agriculture promises to be an even larger part of our state’s economy. Come be on the cutting edge and learn about these exciting developments from some of the country’s leading experts in agricultural law.

Allen Olson, Moore Clarke Duvall & Rodgers Jill Stuckey, Director of Alternative Fuels for the Georgia Environmental Facilities Authority Bill Boone, Georgia Agriculture Innovation Center Theodora Retsina, President of Georgia-based company American Process Inc., focused on cellulosic ethanol processes Tony Flagg, General Manager of the new corn-based ethanol plant in Camilla, Georgia Terry Centner, Professor at the University of Georgia Bob Reynolds, Alston & Bird Walter Kelley, Chapter 12 U.S. Bankruptcy Trustee for the Middle District of Georgia Susan Schneider, Professor of Agricultural Law at the University of Arkansas

SPEAKERS Mike Brown, Alston & Bird Jason Willcox, Moore Clarke Duvall & Rodgers With a luncheon address by Joe D. Whitley, Alston & Bird, former U.S. Attorney for the Northern and Middle Districts of Georgia and the first General Counsel of the U.S. Department of Homeland Security

TOPICS: Ethanol and other biofuels, immigration issues facing Georgia agribusinesses, the 2008 Farm Bill, biosecurity issues, food law and food safety, nuisance law and farm bankruptcies.

Those attending will receive 6 CLE hours Friday, September 21, 2007 (8:30 a.m.) Mercer University School of Law, Macon, Georgia Luncheon held at the Woodruff House on the Mercer campus

To register, contact ICLE at 1.800.422.0893 or online at www.iclega.org Questions? Contact Nowell Berreth at 404.881.4481 08-07gbj.qxp 7/25/2007 12:12 PM Page 3

14 August 2007 Volume 13 Number 1 GBJ Legals 60 14 Past President Receives 2007 Are We Witnessing Distinguished Service Award the Erosion of Georgia’s by Johanna B. Merrill Separate Property Distinction? 62 by Rachel A. Elovitz Bob Brinson Wins 22 James M. Collier Award The Next Generation by Len Horton of Child Advocacy 64 by Hon. Steven C. Teske LFG Enjoys Another Year and Melissa Dorris Carter at the Annual Meeting by Lauren Larmer Barrett GBJ Features 66 30 22 Young Lawyers Division A Brief Overview Celebrates 60 Years of the Proposed New Georgia by Deidra Sanderson 50 Rules of Evidence by Paul S. Milich introduction by Robert D. Ingram Departments Gerry and Kristie. 6 From the President 36 10 From the Executive Director Negotiating With (Back Row) a Road Map 12 From the YLD President by Douglas J. Witten 70 Bench & Bar 42 76 Office of the General Business, Pleasure Mix Counsel 78 Lawyer Discipline Sharon, Gerald and Sharri. at 2007 Annual Meeting by Jennifer R. Mason 80 Law Practice Management 82 Casemaker (Front Row) (Front 50 66 Cook Says: There is Hope 84 Writing Matters by Jay Cook 86 South Georgia Office 52 88 Section News Edenfield Plans 90 Professionalism Page for New Bar Year 92 In Memoriam by Gerald M. Edenfield 94 CLE Calendar 56 98 Notices Gerald M. Edenfield: 119 Classified Resources 76 A Reputation Built 120 Advertisers Index Pictured on the cover is the 2007-08 State Bar President Gerald M. Edenfield along with his wife and three children at their Pictured on the cover is 2007-08 State Bar President Plantation, located in Stilson, Ga. farm, Meldrim Woods cover photo by www.lorigrice.com on Service by Joel Alvarado 08-07gbj.qxp 7/25/2007 12:12 PM Page 4 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, 404-527-8772. 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.

404-5527-88700 800-3334-66865 www.gabar.org 08-07gbj.qxp 7/25/2007 12:12 PM Page 5

Editorial Board Quick Dial Donald P. Boyle Jr. Attorney Discipline 800-334-6865 Editor-in-Chief ext. 720 404-527-8720 Robert Henry Beer Felipe Manuel Nunez Consumer Assistance Program 404-527-8759 Erika Clarke Birg Olivia Orza Conference Room Reservations 404-527-8712 Clayton Owen Carmack Jason Pedigo Fee Arbitration 404-527-8750 Linda Gail Carpenter Susan Lee Rutherford CLE Transcripts 404-527-8710 Diversity Program 404-527-8754 Charles Madden Cork III Paul Gregory Sherman ETHICS Hotline 800-682-9806 Bridgette Eckerson Robert R. Stubbs 404-527-8741 John Michael Gross Martin Enrique Valbuena Georgia Bar Foundation/IOLTA 404-588-2240 Georgia Bar Journal 404-527-8736 Ann A. Hammenecker 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 Gerry Lee Williams Law Practice Management 404-527-8773 Membership Records 404-527-8777 Diane Marger Moore Meetings Information 404-527-8790 Executive Committee Liaison Pro Bono Project 404-527-8763 Professionalism 404-225-5040 Jonathan A. Pope Sections 404-527-8774 Advisor Unauthorized Practice of Law 404-526-8603 Young Lawyers Division 404-527-8778 Marcus D. Liner Manuscript Submissions Editors Emeritus The Georgia Bar Journal welcomes the submission of Marcus D. Liner, 04-07 Charles R. Adams III, 89-91 unsolicited legal manuscripts on topics of interest to the Rebecca Ann Hoelting, 02-04 L. Dale Owens, 87-89 State Bar of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 pages, Marisa Anne Pagnattaro, 01-02 Donna G. Barwick, 86-87 double-spaced (including endnotes) and on letter-size paper. Citations should conform to A UNIFORM SYSTEM D. Scott Murray, 00-01 James C. Gaulden Jr., 85-86 OF CITATION (18th ed. 2005). Please address unsolicited William Wall Sapp, 99-00 Jerry B. Blackstock, 84-85 articles to: Donald P. Boyle Jr., State Bar of Georgia, Communications Department, 104 Marietta St. NW, Suite Theodore H. Davis Jr., 97-99 Steven M. Collins, 82-84 100, Atlanta, GA 30303. Authors will be notified of the L. Brett Lockwood, 95-97 Walter M. Grant, 79-82 Editorial Board’s decision regarding publication. Stephanie B. Manis, 93-95 Stephen E. Raville, 77-79 The Georgia Bar Journal welcomes the submission of news about local and circuit bar association happenings, Bar William L. Bost Jr., 91-93 members, law firms and topics of interest to attorneys in Georgia. Please send news releases and other information to: Sarah I. Coole, Director of Communications, 104 Officers of the State Bar of Georgia Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: Gerald M. Edenfield President 404-527-8791; [email protected]. Jeffrey O. Bramlett President-Elect Disabilities Jay Cook Immediate Past President If you have a disability which requires printed S. Lester Tate III Treasurer materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Bryan M. Cavan Secretary Elena Kaplan YLD President Headquarters Josh Bell YLD President-Elect 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 800-334-6865, 404-527-8700, FAX 404-527-8717 Jonathan A. Pope YLD Past President Visit us on the Internet at www.gabar.org. South Georgia Office Communications Committee 244 E. Second St. (31794) P.O. Box 1390 Nancy Jean Whaley 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, Johanna B. Merrill Section Liaison December) with a special issue in November by the State 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. 08-07gbj.qxp 7/25/2007 12:12 PM Page 6

From the President

by Gerald M. Edenfield photo by www.lorigrice.com

The Opportunities For Service Are Plentiful

ords cannot describe how honored I To paraphrase the poet Tennyson, we are all part of that we have met. Thus, I hope you will indulge me for am to accept the gavel that symbol- a glimpse of who I am and what I believe we can accomplish this year to help strengthen the administration of izes the awesome responsibility of justice for the rich, the poor, the just and the unjust. W I was born and reared on a row crop farm in Bulloch serving as president of the State Bar of Georgia. But I County, near Statesboro. The summers were long and hot, the work backbreaking and arduous. My parents indeed accept it proudly and with much excitement had little regard for child labor laws, but they did have a high regard for hard work and rearing their children about the challenges and oppor- to be good citizens. The only lawyer I knew was tunities ahead of us these next “I challenge you my brother Avant. Although Judge Newell Edenfield was a 12 months. to become the rock where lawyer (and distant cousin), he lived in Atlanta and had First, I want to express my sin- escaped the farm about six cere congratulations and appre- liberty and justice can decades before I did. I became ciation to my predecessor, Jay an adult while selling Fuller Cook, for a job well done as our stand upon to gaze brushes during the summer and president for 2006-07. Jay blazed working at a wholesale beer quite a trail for us, and the State into the possibility of a warehouse loading trucks, linen Bar will benefit for many years trucks, selling patent medicine to come from his service. Jay’s better tomorrow.” from New Orleans to San passion for our profession and Juan—notwithstanding attend- our system of justice was evident ing the University of Georgia in every action he took during the past year. I am truly and Mercer University Law School. blessed to follow in his footsteps and in those of all who After law school, I began practicing at a medium-sized preceded him in this office. firm in Atlanta where I worked for approximately 10 Before I elaborate on what I see as our opportunities years. I then returned to Statesboro to practice general and challenges over the next 12 months, I want to law with an emphasis on trial practice. These experi- share with you some of the things I have learned as a ences have afforded me a diverse background. More Georgia lawyer. importantly, I have had the opportunity to observe and

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work with lawyers and courts from justice system that is the envy of Executive Committee all geographic areas and from all the world. Meetings types of practices. The study of law, according to So as Tennyson noted, these peo- the British statesman Edmund Second, your State Bar leadership ple and experiences have shaped Burke, “renders men acute, inquis- will be more accessible than ever me. All in all, I have enjoyed it and itive, dexterous, prompt in attack, this year. We plan to hold our prefer to be in the presence of ready in defense, full of resources Executive Committee meetings lawyers and judges because I . . . . No other profession is more where you are, so that no matter always learn a valuable lesson and closely connected with actual life what corner of our great state you enjoy myself while I am learning. as law.” live in, at least one of these meetings As a unified bar, we are blessed will be only a short drive away. I have reached a few conclusions: with more than 38,000 men and I encourage you to attend these women who have been rendered meetings to keep abreast of the I am PROUD to be a Georgia acute, inquisitive, dexterous, many issues the Executive Com- lawyer! prompt in attack, ready in defense mittee is addressing throughout Some of the best citizens in this and—collectively, at least—full of the year and communicate any state are lawyers, and I am resources. There is strength in these concerns you have or suggestions proud to have so many friends numbers, but there is far more for dealing with the issues that are who are lawyers and judges. strength when those numbers are important to your community, Overwhelmingly, most Georgia actively participating. The opportu- region or area of practice. lawyers and judges are hard- nities for service are plentiful. At a minimum, every local bar working, honest and conscien- In this article, I would like to association and Board of Gov- tious, and they value their pro- share with you five major areas of ernors member from that region of fession highly. service that I believe will go a long the state should be represented. Lawyers are never going to be way toward accomplishing our But I call on you to take it a step popular with the general pub- mission in the coming year. further: invite and bring your state lic, but we are generally held in representatives and state senators high esteem by our clients. Lawyer Advertising with you to these meetings. Judges are highly regarded by First, we will rededicate and This is only part of an intensified the great majority of citizens. intensify our efforts to protect the effort to reach out to our lawmak- I am proud to be in this posi- public and the justice system by ers before the 2008 session of the tion and to address you as enforcing disciplinary rules against General Assembly, which brings “Fellow members of the State false and misleading lawyer adver- me to the next area of emphasis. Bar of Georgia.” tising. While we cannot, and would not, violate the First Amendment Judicial Pay Raises Let’s take a moment to remind when it comes to the ads that many We plan to work with our state ourselves why the State Bar of of us find distasteful, we can and Legislature to hopefully secure Georgia exists: that is, to foster certainly will act on those that are adoption of the recommendations among our members the principles factually wrong or otherwise mis- made by the State Bar’s of duty and service to the public, inform the public. Commission on Judicial Service. to improve the administration of This effort will include revisions This commission, chaired by for- justice and to advance the science to the advertising rules, the estab- mer House Majority Leader Larry of law. lishment of local, three-member Walker, studied a number of issues And in case you are wondering committees in each judicial district related to judicial service in who is responsible for carrying out to report false or misleading ads, a Georgia, not the least of which is this mission, please join me in tak- new Bar staff investigator dedicat- that of the salary structure for ing the proverbial “look in the mir- ed solely to lawyer advertising judges who are paid by state funds. ror.” After all, if Georgia lawyers cases and a heightened emphasis Legislation for a modest pay do not step up to the plate and on enforcement by the State increase passed the House, but in remind citizens why judicial inde- Disciplinary Boards. the budget chaos of the final week pendence matters, who will? Reining in false and misleading of the 2007 session, it did not get It is not just in lawyers’ best lawyer advertising will also help out of the Senate Appropriations interest for the State Bar to promote protect and restore public confi- Committee. It remains there and public service, protect the judiciary dence in the justice system. I will be brought up for considera- and strengthen our profession. It is pledge to work hard on this tion during the 2008 session. in the best interest of our state and rededicated effort and believe you Our commitment is to continue nation. And it is absolutely essen- will see positive results in the to attract and retain our state’s best tial to the continued success of a coming year. and brightest to serve on the bench

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for the benefit of all Georgians. To to be useful to himself, his neigh- must be nothing in its action that do that, judicial compensation bors and to the public”—remind us savors of prejudice or favor or even must be competitive with opportu- that lawyers’ responsibilities to our arbitrary whim or fitfulness.” nities in the private sector. communities exist inside and out- More than 80 years later, Justice This is just one issue the State side the courtroom. Anthony Kennedy concurred, “The Bar is working on, however. And I law makes a promise—neutrality. am sure there will be others, as Foundations If the promise gets broken, the law always, that will require us to of Freedom as we know it ceases to exist.” “play defense.” That’s why it is so The question is, whose job is it to important that we constantly work Finally, this is the third full year respond to these attacks and pro- to cultivate positive relationships of our renewed emphasis on the tect our courts from any and all with our legislators. Foundations of Freedom program threats to neutrality in our courts It is essential that each of you and the Bar’s efforts to keep the and our judges’ ability to decide contact or, better yet, meet with public informed and educated on cases fairly and impartially, based your representatives and senators the importance of maintaining the solely on the rule of law and not before next year’s legislative ses- Founding Fathers’ vision of a outside influences or pressure from sion. Offer to help them with strong, independent and impartial politics, the media or even public understanding and dealing with judicial branch of government. opinion? complicated issues when they need In his State of the Union address Well, I can only speak for to call on you, and make sure they in January of this year, President Georgia, but your State Bar has are aware of your position on bills Bush declared, “A future of hope taken up this challenge in a big they are considering that affect the and opportunity requires a fair, way since the renewed commit- justice system one way or the other. impartial system of justice.” Yet ment to our Foundations of The important thing—no, the every day, it seems, judges and Freedom program three years absolutely essential thing—is lawyers come under one type of ago. We have stepped up our establishing and maintaining those attack or another—not always of a efforts to meet our responsibility relationships. violent nature, although they are to remind our fellow citizens how the most publicized . . . . important a fair and impartial Pro Bono When an elected official lam- court system is. Fourth, I want you to join me in bastes “activist judges” for partisan The State Bar has enhanced and making ourselves available to do political gain, then that is an attack increased these types of public more pro bono work, and making on justice . . . . education efforts during the past it known that lawyers do give back When special interest groups year under Jay Cook, with a major to the community in many ways, pour millions of dollars into judi- broadcast advertising component not the least of which is donating cial campaigns in a blatant attempt planned for this year. our time and legal services to those to tilt the balance in their favor, Every member of the State Bar in need. then that is an attack on justice . . . . has much to offer. We need not For example, local lawyers could When the American people only your expertise but also the schedule regular Saturday morning repeatedly hear sound bites in the perspective you bring from your gatherings at your county’s court- media about frivolous lawsuits . . . area of the state. This is a sincere house, publicize those events and runaway juries . . . criminals put on request for you to become involved. take turns being available to answer the streets—and, yes, judicial I want you to feel free to contact questions and assist those who can’t activism—with little or no me with any advice and counsel as afford legal services when they response, then that is an attack on to how the State Bar can do a better need help. I’ll be contacting you justice . . . . job of serving the public and the soon to ask for your help in expand- There is no doubt these attacks justice system, upholding the con- ing our pro bono work. have sharply escalated throughout stitutional promise of justice for Pro bono work and supporting our nation the past several years. all. Again, there are many unique our communities through public Unless this trend is reversed, the perspectives represented in this service are the kinds of activities strong and independent judiciary organization from which the rest that will help strengthen people’s that our Founding Fathers envi- of us can benefit as we undertake faith in the legal profession and, sioned more than 200 years ago these efforts. more importantly, restore whatev- will disappear before our eyes. Likewise, you are encouraged to er confidence they had in the jus- As former U.S. Supreme Court use the State Bar as a resource in tice system that might have eroded Justice Benjamin Cardozo wrote in any way that will benefit you, your over time. 1921, “One of the most fundamen- clients and your community. Thomas Jefferson’s words— tal social interests is that law shall For the past couple of years, we “The study of law qualifies a man be uniform and impartial. There have had much success in placing

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articles, editorials and letters in newspapers around the state—large and small. We have placed messages on public radio stations and made civic club presentations. We are expanding the initiative this year with a significant statewide campaign of television commer- cials. Watch for them on a local station or cable chan- more billable-time nel near you. In opinion polls, the public responds favorably to time- honored concepts unique to American government—sep- less travel-time aration of powers, trial by jury, equal in the eyes of the law, innocent until proven guilty, checks and balances, and holding the powerful accountable. It is alarming however to learn how few people really know what those terms mean. I would ask that you assist us in this public education effort in your own communities. Whether it is with a presentation to a civic club or school group, an article in the local newspaper or even a conversation on the side- walk, don’t pass up an opportunity to inform your neigh- bors and friends about our justice system and why we need to protect it. We are working on prepared remarks including PowerPoint presentations, available for you to deliver to civic clubs. Also, I’d like to continue one of Jay’s successful public education programs and ask you to keep me informed about what is going on in your communities. When a lawyer receives some kind of award, or an appointment to a judgeship or a position of leadership in the community, this is an opportunity for me, as president of the State Bar, to write a letter to your local newspaper and offer congratulations to that individual, or the local bar association, or whomever is being recognized. Even upon the death of a well-known and respected Bar member, I would like to write a letter of condolence and appreciation for their service. Not only is this an appropriate means of recognition, it gives the State Bar Flex-scheduling between Atlanta and another opportunity to publicize the important role of law and judicial independence. Please keep me posted. I am calling upon each member of the State Bar of Asheville • Charleston • Destin • Knoxville Georgia to serve in whatever capacity you can to ensure the law is upheld, respected and available to those who Nashville • St. Simons Island require it. I truly believe, as Oliver Wendell Holmes attested, that “man is born a predestined idealist, for he is born to act. To act is to affirm the worth of an end, and to persist in affirming the worth of an end is to make an ideal.” 1– 877– SKIP – ATL I challenge you to become the rock where liberty and justice can stand upon to gaze into the possibility of a better tomorrow. FlyWingsAir.com Thank you again for giving me this opportunity. It is the highlight of my career, and I will work hard to make you proud. I want you to know that I am at your service, and I hope that I can count on your help and support as well.

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From the Executive Director

by Cliff Brashier

Your Guide to www.gabar.org

id you know that the State Bar’s website Member Directory Search When you receive your printed Directory and gets more than 140,000 visits each Handbook in the mail each November, inevitably, it’s already outdated. That’s just the unfortunate fact month? For those of you into the high about printed material. We try our best to work D around that by a nifty fea- tech numbers, each visi- ture on our website—the “Casemaker is currently expanding member directory search. tor views about six pages From the home page, sim- its federal content to include all U.S. ply click on “Directories” per visit, and spends an and then on “Member Supreme Court cases and Circuit Directory Search.” You are average of three to five able to search using first Court cases going back to 1950. name, last name, section, minutes on each page. company, state or zip This ever-expanding library makes code. The best part about We also have “traffic” this is that the search Casemaker one of the most valuable results are the most up-to- from six continents! The date information possible, as membership records top three features visitors member benefits the Bar offers.” are updated nightly. Not only do you receive mem- are utilizing on our website are the member directory bers’ names and addresses, but you also receive their e- mail address, school affiliation and year they were search, research using Casemaker and checking CLE admitted to the Bar. Our website also makes it easy to keep the Bar credits. informed of your most recent contact information,

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which is required by Rule 1-207. the year or if you have carried You can update your information hours over from the previous year. SOUTH with just a few clicks of a mouse with our membership department Other Helpful Pages GEORGIA ADR at www.gabar.org/member_essen Not only is the website good for tials/address_change/. the things mentioned above, it’s SERVICE, LLC also helpful for much more. All of Casemaker the State Bar’s bylaws and rules are MEDIATION and The State Bar entered the online located on the website under ARBITRATION of personal legal research arena on Jan. 3, 2005, “Handbook.” You can also find a injury, wrongful death, with the debut of Georgia list of Advisory Opinions and help- Casemaker. Casemaker is a unique ful indexes under “Ethics.” commercial, real estate and online legal research tool with a Looking for an article that was other complex litigation powerful search engine providing printed in the Georgia Bar Journal? cases. Visit our website for access to a combination of state A complete PDF of each Journal (a fee schedules and and federal materials. Best of all it 10-year archive) is located under biographies of our panel, is free for all members. This online the “Communications” button. comprised of experienced legal research database is available Not only are the Journals posted to all members of the Bar 24 hours on the website, you can also view Middle and South Georgia a day, seven days a week. issues of section newsletters, the trial lawyers. Assistance in Casemaker is just a Young Lawyers Division newslet- phone call away. Our Member ter The YLD Review, and eSource, CHARLES R. ADAMS, III – Fort Valley Benefits Coordinator Jodi McKenzie an online newsletter that our Law THOMAS C. ALEXANDER – Macon also instructs free classes at the Bar Practice Management Program MANLEY F. BROWN – Macon Center twice a month, and there is publishes. JERRY A. BUCHANAN – Columbus usually at least one class offered Parking deck hours including JOHN D. CAREY – Macon outside of Atlanta monthly. The night and weekend hours for free WADE H. COLEMAN – Valdosta Bar is constantly working with event parking, a directory of ven- JOHN A. DRAUGHON, SR. – Macon Casemaker to make it the best it dors for lawyers, and tons of JAMES L. ELLIOTT – Valdosta can be for our members. resource information are all there BENJAMIN M. GARLAND – Macon Casemaker’s comprehensive library for your convenience. Just click ROBERT R. GUNN, II – Macon includes links to Georgia caselaw, “Member Essentials” or other JANE M. JORDAN – Macon Georgia statutes, state and federal headings, and I think you will find JEROME L. KAPLAN – Macon court rules, administrative codes, several areas that you will return to STANLEY M. KARSMAN – Savannah Attorney General opinions, and frequently. BERT KING – Gray much more. To provide a more secure envi- HUBERT C. LOVEIN, JR. – Macon Recently, Casemaker added ronment on the website for our MICHAEL S. MEYER VON BREMEN – Albany libraries for every state in the members, we are working on a S. E. (TREY) MOODY, III – Perry country, which include state new feature that will allow you to PHILIP R. TAYLOR – St. Simons Island caselaw, current state statutes and choose your own custom user- RONALD C. THOMASON – Macon the state’s constitution. Casemaker name and password to access CRAIG A. WEBSTER – Tifton is currently expanding its federal Casemaker, your member profile HON. TOMMY DAY WILCOX, JR. – Macon content to include all U.S. Supreme and CLE information. Look for F. BRADFORD WILSON, JR. – Macon Court cases and Circuit Court this new update in the coming cases going back to 1950. This months. ROBERT R. GUNN, II, ever-expanding library makes As always, your thoughts and Casemaker one of the most valu- suggestions are welcome. My tele- MANAGING PARTNER able member benefits the Bar phone numbers are 800-334-6865 Rachel D. McDaniel, offers. (toll free), 404-527-8755 (direct Scheduling Coordinator dial), 404-527-8717 (fax) and 770- 240 THIRD STREET Check CLE 988-8080 (home). MACON, GEORGIA 31201 Don’t know how many CLE (800) 863-99873 or credits you have? Again, that infor- Cliff Brashier is the executive (478) 746-44524 mation is just a click away. From director of the State Bar of FAX (478) 745-22026 our home page, click on “Check Georgia and can be reached at CLE” and enter your Bar number. [email protected]. www.southgeorgiaADR.com A report is posted that will let you know if you are lacking hours for

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From the YLD President

by Elena Kaplan Walk on the YLD Side!

ight years ago, a friend of mine from college, Division of Family and Children Services has thousands of kids in its care, and each year the staff organ- Kendall Butterworth, called to ask me to help izes a massive gift drive to make sure that every one of those kids gets at least three presents from Santa. YLD restart the YLD’s Community Service Projects members volunteer on a mid-December Saturday to E help make sure that the presents the kids asked for are Committee. At the time, Kendall was the president-elect the presents the kids receive. It’s a fabulous experience—like being one of Santa’s elves, checking of the YLD. As a second year associate, I was a little the list twice and ensuring that these children in foster care can at least have faith that Santa will deliver what unsure whether I really had the time, but I liked the idea they want. The YLD and its committees of meeting other young lawyers “The YLD works hard provide opportunities like this to serve the public and the profes- and doing some good deeds in sion, as well as to network with to have a broad range of other attorneys and have a good the process. So, I agreed. time throughout the year. The committees to address the YLD works hard to have a broad It was definitely one of the range of committees to address better decisions I’ve made; I diverse interests of younger the diverse interests of younger ended up having a great time lawyers throughout Georgia, both working with the commit- lawyers throughout and we are always looking for tee on various projects and dur- new ideas for committees! If you ing the past eight years getting Georgia, and we are always have an idea for a committee, to know other young lawyers please let us know. A sampling through the YLD. Looking looking for new ideas for of the activities of the YLD fol- back, I am really thankful to lows, and a complete list of the Kendall for making that call committees and their descrip- and getting me involved in this committees!” tions, along with a sign-up sheet, wonderful organization. If you can be found at www.gabar. are not yet involved in a bar association, please consid- org/young_lawyers_division/yld_committees. er this article as my call to you. (And this is a call to ALL of you, not just members of the YLD.) Helping the Kids My absolute favorite project from that first year with The High School Mock Trial (HSMT) Committee the Community Service Projects Committee, a project organizes regional mock trial competitions and a with which I have now volunteered for eight years in a statewide mock trial tournament for high school stu- row, is the Secret Santa event. In Fulton County, the dents. In addition, this committee provides support to

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high school mock trial teams opportunities for service, network- tive luncheon (formerly a break- throughout the state. In 2009, the ing, and travel on a national level, fast), and invites various legislators committee will host the national serving as a Georgia representative to speak on the goings-on under HSMT competition in Atlanta. to the ABA/YLD is just the ticket. the Gold Dome. In addition to the The Aspiring Youth Committee speakers, the lunch is attended by organizes a six week after-school Moot Court and Mock numerous elected officials, creating tutoring and mentoring program Trial Competitions a wonderful opportunity for young- twice a year for middle school chil- er lawyers to learn about what is dren. The program is an incredible In addition to the High School going on in our state’s government. growth experience for both the vol- Mock Trial competition mentioned unteering attorneys and the chil- above, YLD committees also organ- Meetings dren benefiting from the one-on- ize the Intrastate Moot Court The YLD has a number of week- one attention. Competition for Georgia law school end meetings each year for YLD If you are interested in working students, the Region V competition members. These meetings are an with kids, consider volunteering of the National Moot Court excellent opportunity to meet other with the High School Mock Trial Competition for law school students lawyers from all over the state, as Committee, the Aspiring Youth in the Southeast, and the William W. well as to earn some of those neces- Committee, the Community Service Daniel National Invitational Mock sary CLE hours! A list of the Projects Committee, the Law-Related Trial, a criminal mock jury trial com- upcoming meetings is below. Education Committee, the Advocates petition for law school students for Students with Disabilities from all over the country. How to Get Involved Committee or the Celebration of If you enjoyed participating in Are you interested in getting Excellence Subcommittee of the moot court or mock trial while in involved yet? To sign up for a Juvenile Law Committee. law school, consider volunteering committee or the YLD meeting with one of these committees and registration form mailing list, go to Networking, CLE help provide that same great expe- www.gabar.org/young_lawyers_ and Professional rience to the next generation of division/yld_committees/ for a lawyers. sign-up sheet. You can also contact Development the YLD by contacting me or The YLD has a variety of commit- Annual Events Deidra Sanderson, YLD director, tees that provide networking and The YLD Signature Fundraiser at [email protected] or 404-527- CLE opportunities for young Committee plans an event to raise 8778. lawyers. There are currently com- money for charity. This committee mittees for Business Law, Criminal was started last year by Immediate Elena Kaplan is the president of Law, Elder Law, Ethics & Pro- Past President Jon Pope to raise the Young Lawyers Division of the fessionalism, Family Law, Intel- money to support Hurricane State Bar of Georgia and can be lectual Property Law, Juvenile Katrina relief. The inaugural event, reached at [email protected] or Law, Labor & Employment Law, a Mardi Gras Casino night, raised 404-880-4741. Litigation, Minorities in the $10,000. The money was con- Profession, Real Estate, and Women tributed to Tipitina’s Foundation, a in the Profession. charity that provides instruments 2007-08 YLD Meetings to music programs in New Orleans Oct. 12-14, 2007 Other YLDs public schools. Because of the great The State Bar YLD also encour- success of the event last year and Union Station Hotel, ages involvement with both local the fun had by all who attended, Nashville, Tenn. and national YLDs. There are many the fundraiser will be held again (UGA vs. Vanderbilt football game) local YLDs in Georgia, including this year to support law-related Jan. 9-12, 2008 Savannah, Atlanta, Cobb County, organizations in Georgia. Omni Hotel at CNN Center Valdosta (just forming), DeKalb The Appellate Admissions Atlanta, Ga. County, Augusta and Macon. Let us Committee plans two ceremonies know if we can put you in touch each year to swear-in new admit- April 11-13, 2008 with your local YLD. Or, if there isn’t tees to the Supreme Court of The Grand Sandestin a local YLD in your area and you Georgia, the Georgia Court of Sandestin, Fla. want to start one, we can help you Appeals, and the U.S. District with that too. On the national level, Courts. Several hundred lawyers June 5-8, 2008 we are an affiliate of the American are admitted in each ceremony. Amelia Island Plantation Bar Association (ABA) YLD. If you Every January, the Legislative Amelia Island, Fla. are interested in some amazing Affairs Committee hosts a legisla-

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A Look at the Law

Are We Witnessing the Erosion of Georgia’s Separate Property Distinction?

by Rachel A. Elovitz

s traditional notions of marriage and fami- riage, as follows: “The separate property of each spouse shall remain the separate property of that spouse except ly continue to change, so do Georgia’s laws as provided in Code Title 30 and except as otherwise provided by law.”4 Through the years, however, this regarding the regulation and dissolution of seemingly concise statement has been eroded by the A Supreme Court of Georgia. the marital unit. This article deals with the latter, specif- Stokes: A Merger of Consistency ically the metamorphosis of Georgia’s laws regarding and Innovation

the distribution of assets. In 1980, the year following the amendment to Georgia’s law, the Supreme Court decided Stokes v. Formerly in Georgia, marriage merged the property Stokes.5 There, the Court confirmed the Orr decision rights of the parties and placed all control in the hus- and the amendment of Section 53-502 of the Georgia band.1 By 1866, however, Georgia law provided: Code.6 In Stokes, the husband sued for divorce from his wife of 20 years and claimed an equitable interest in All the property of the wife at the time of her mar- real and personal property, including the marital resi- riage, whether real, personal or choses in action, shall dence. At trial, the evidence was that the wife’s father be and remain the separate property of the wife, and had deeded the land to the husband, that “a house was . . . all property given to, inherited or acquired by the built,” and that the husband then deeded the land and wife during coverture shall vest in and belong to the house to the wife.7 wife, and she shall not be liable for the payment of The trial court overruled an objection by the wife to any debt, default, or contract of the husband.2 the trial court’s charge on equitable division of property. The jury awarded a three-fourth interest in the prop- One hundred and thirteen years later, as a result of erty to the wife and a one-fourth interest to the hus- the U.S. Supreme Court’s decision in Orr v. Orr,3 the band. The Supreme Court granted review of the deci- Georgia Legislature amended Section 53-502 of the sion, in pertinent part to determine whether the trial Georgia Code to acknowledge each spouse’s right to court erred in charging the jury on division of the mar- retain the property that he or she brought to the marital property.

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The charge given to the jury was plaintiff . . . ‘is’ or ‘is not’ entitled that it established guidelines for as follows: to division of the house and lot the division of assets (again in . . . .” If you find that a division Justice Hill’s concurring opinion), Now, the plaintiff by way of of the property is proper then as follows: an amendment alleged that the you would complete the follow- house and lot at 450 Pinetree ing, “We divide said property as In a suit for permanent alimo- Drive, Lawrenceville, Georgia, follows.”8 ny incident to divorce or legal was acquired by the parties in separation, the court or jury shall: this case and placed in the name In its analysis, the Supreme Court of Joyce Jones, defendant – Joyce noted that it had previously (1) Assign each spouse’s real Jones Stokes. The plaintiff con- “approved the equitable division of and personal property and tends that the purchase money personal property,”9 and then point- assets at the time of the mar- for the house and the property ed to a separate line of cases in riage, or inherited during the and all mortgage payments were which it had upheld the division of marriage, to that spouse. furnished by the joint efforts of real property incident to divorce.10 the parties. And he contends that As a result, the Court concluded (2) Equitably apportion between this property should be equally that the trial court did not err in the parties the real and personal divided between the parties in submitting the issue of property property and assets acquired this case. . . . division to the jury and that the during the marriage whether the husband was entitled to an equi- title thereto is in the name of one . . . . table interest in the marital home.11 spouse or both. (If necessary to an Stokes is regarded as a milestone equitable apportionment, real . . . [T]he . . . question is in domestic relations law, because, property may be partitioned.) In whether or not you think that as noted in Justice Harold N. Hill making this apportionment, the there should be a division of the Jr.’s concurring opinion, it “veri- court or jury shall consider the property involved between fies” that which the Supreme Court duration of the marriage, and any these parties. . . . So I have pro- had for years recognized, “the doc- prior marriage of either party; the vided a further portion of your trine of equitable division.”12 age, health, occupation, vocation- verdict, “We further find that the Stokes was also revolutionary in al skills, and employability of

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each party, as well as the contri- case in the past, the jury should Yet, repetition of that rule may be bution or service of each spouse determine, according to the nothing more than lip service, as it to the family unit; the amount statutory formula (the needs of has been chipped away by its sister and sources of income, estate (see one and the ability of the other), tenet—one that allows a trial court (1) above), debts, liabilities and if one party is entitled to an to take a spouse’s inheritance into needs of each of the parties, as award of permanent alimony consideration when deciding ques- well as debts against property; from the future earnings of the tions of alimony and in determining and whether the apportionment other spouse, or from the estate the “equities” of the case. is in lieu of or in addition to per- (the “separate property” or In Hipps v. Hipps,17 decided in manent alimony (see (3) below) “marriage property” previously 2004, the Supreme Court awarded and the opportunity of each for set apart) of the other spouse. husband’s premarital retirement future acquisition of assets and and survivor benefits to wife. The income by employment or other- As I see it, the procedure husband filed an application for wise. employed in some superior discretionary appeal, claiming that courts has been to focus the the trial court was not authorized (3) Provide permanent alimo- jury’s attention first and fore- to grant the wife his retirement or ny, if it sees fit to do so, to one most on permanent alimony, survivor benefits accrued before party in accordance with the and to allow the jury to equitably the marriage. The Court held that needs of that party and the abili- apportion the property of the the husband’s premarital contribu- ty of the other party to pay, parties (separate as well as mar- tions to his military retirement either from future earnings or riage) as part of and incident to account were not subject to equi- the corpus of the estate whether the permanent alimony award. table division, but that acquired before or during the In my view, separating the com- marriage (see (1) and (2) above), ponents of the permanent alimo- the trial court did not make an in according to the condition of ny award into a three step, rem inter vivos division of either both parties, their separate sequential procedure will be an the proceeds in the account or estates, earning capacities, needs improvement over the practice the monthly amount currently and fixed liabilities. (See Code of treating everything the wife or payable to Husband. Instead, it §§ 30-201, 30-209 as amended.) husband receives as alimony.13 awarded Wife monthly alimony of $1000 and, in addition, a sur- Let me explain that paragraph Stokes Progeny: The vivor’s benefit, which takes the (1), above, is an adaptation of form of an annuity and is con- Code § 53-502, as enacted and as Gradual Erosion of tingent upon her outliving amended, and relates to the Georgia’s Separate Husband.18 “separate property” of the par- Property Distinction ties; paragraph (2) relates to the The Supreme Court went on to equitable division of the proper- In the last 27 years, the Supreme explain that the purpose of the sur- ty identified as the “marriage Court repeatedly has recognized, vivor benefit plan is property” and implements Code “A property interest brought to the §§ 30-105; 30-118; and paragraph marriage by one of the marriage “to provide financial security to (3) relates to permanent alimony partners is a non-marital asset and a designated beneficiary of a mil- and comes from the Code sec- is not subject to equitable division itary member, payable only tions cited. In my view, the jury since it was in no sense generated upon the member’s death in the should first identify the “sepa- by the marriage.”14 The words form of an annuity. Upon the rate property” (paragraph 1) and “only the real and personal prop- death of the member, all pension allocate it to the proper party erty and assets acquired by the rights are extinguished, and the (one share to the husband, if any, parties during marriage is subject only means of support available and one share to the wife, if any). to equitable property division” to survivors is in the form of the Next, the jury should equitably have reverberated off the conclud- survivor benefit plan.” . . . Thus, distribute the remaining proper- ing pages of countless Court deci- “a court order requiring a party ty, the “marriage property,” on sions.15 to designate a former spouse as a the basis of the equitable princi- The Supreme Court also has plan beneficiary does not consti- ples stated in paragraph (2), to repeated the rule that “property tute a transfer of property.”19 the appropriate recipient (one acquired during the marriage by either share to each spouse added to party by gift, inheritance, bequest or The Court also held, “[A]limony the “separate property” shares devise remains the separate property may be awarded either from the previously set apart). Finally of the party that acquired it, and is [H]usband’s earnings or from the (paragraph 3), as has been the not subject to equitable division.”16 corpus of his estate, as by granting

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When an opposing party claims that your client’s separate property was a gift to the marriage, you can perhaps rebut that claim by demonstrating the absence of an essential element or elements of a “gift,” the prerequisites of which are outlined in O.C.G.A. § 44-5-80.

to the [W]ife the title or use of their investment.”25 The line of marriage, the husband transferred property in the possession of the demarcation has been blurred, ownership of his premarital home [H]usband.”20 however, with the ever-expanding to himself and his wife as tenants in The next year, in Smelser v. ways in which the Supreme Court common with right of survivor- Smelser,21 the husband sought dis- has transmuted items of separate ship. In so doing, the Supreme cretionary review of the trial court’s property into marital assets. For Court held, he “manifested an decision to award an interest in a example, the Court has held that intent to transform his own sepa- non-marital residence as alimony to rate property into marital proper- wife, even though the property was as a matter of law, if the sepa- ty.”30 He, in effect, lost what would the husband’s separate asset.22 The rate non-marital property of one have been his right under the Supreme Court affirmed, quoting spouse appreciates in value Source of Funds Rule to a propor- Hipps: “‘Alimony may be awarded during the marriage solely as tionate return on his premarital either from the husband’s earnings the result of market forces, that investment. or from the corpus of his estate, as appreciation does not become a Lerch sparked much debate by granting to the wife the title or marital asset which is subject to among practitioners regarding its use of property in the possession of equitable division; but, if the seeming incompatibility with the the husband.’”23 separate non-marital property express purpose of the doctrine of It seems inconsistent with the of one spouse appreciates in equitable division, that “[o]nly notion of fairness—a concept intrin- value during the marriage as property acquired as a direct result sic to courts of equity—that an oth- the result of efforts made by of the labor and investments of the par- erwise non-divisible, separate either or both spouses, that ties during the marriage is subject to property interest can be awarded appreciation does become a mar- equitable division.”31 to a spouse as alimony. This also ital asset which is subject to Lerch could spawn a number of prompts the question whether it is equitable division.26 new cases, further eroding the sep- right or logical that a spouse’s sepa- arate property distinction. If a rate property interest can be con- The Supreme Court also has held spouse inherits funds from a parent sidered in determining the equities that, when the marital unit reduces and elects to use them as a down of a case for the purpose of allocat- the outstanding indebtedness on payment toward a home, and pending marital assets. Yet these are real property, the contribution ing the real estate closing, deposits questions, as seen in the above translates into a marital interest in the inheritance into a joint checking holdings, that the Supreme Court the property.27 Additionally, an account for a week, the Supreme has continued to answer in the interspousal gift, if initially Court conceivably could decide affirmative. acquired during the course of the that the spouse made a gift to the marriage, will remain marital marriage. In the June 2007 decision Lerch: Another Set of property for the purpose of equi- of Bloomfield v. Bloomfield,32 the Potential Pitfalls table division, “‘notwithstanding Court came very close to doing just any subsequent interchange that. The husband claimed, in rele- For almost two decades (since between the two spouses.’”28 vant part, that the trial court erred 1989), the Source of Funds Rule has Most recently, in Lerch v. Lerch, when it found that a gift of $10,000 guided domestic litigators in deci- the Supreme Court held that if a to his wife from her father consti- phering the separate and marital premarital asset is placed in the tuted wife’s separate property. The property components of assets.24 joint names of the marital couple, husband argued that the funds The rule was intended to provide a then it becomes a gift to the mar- were transmuted into marital prop- mechanism through which the riage and loses its separate proper- erty when placed into the parties’ spouse who contributes separate ty distinction.29 In Lerch, the wife joint account. The trial court found, funds and the marital unit that con- signed a prenuptial agreement however, that at the time that the tributes marital funds to the same promising not to make any claims wife received the gift, the husband item of property each could receive against the husband’s property in would not allow her to maintain an a “proportionate and fair return on the event of divorce. During the individual account, so that she had

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no other account in which to place the funds. Given this unique circumstance, the Supreme Court upheld the trial court’s decision.33 Not every case is going to present those circumstances. Indeed, what if the wife in Bloomfield had been given the “opportunity” to open an account in her own name and elected not to do so? Would the result have been different? What if wife’s father (at wife’s request) had transferred the funds directly from his account to When your life is easier the parties’ joint account, and a couple of months later, and less of a climb, wife used them to purchase stock in her sole name? you’ll see things What if the funds had been part of wife’s inheritance? quite differently... What if they were the product of a settlement from wife’s personal injury lawsuit? In Campbell v. Campbell,34 the Supreme Court held that to the extent that a personal injury settlement represents compensation for pain and suffering and loss of capacity, it is “peculiarly personal to the party who like ways to do your job receives it.”35 The Court thus excluded it from the mar- more efficiently and make ital estate, and noted that “[f]or the other party to ben- more money. efit from the misfortune of the injured party would be unfair.”36 The Court further stated, “The property And once you let which we have found to be outside the marital estate is SoftPro simplify your life, property which is very personal to the party to whom it you’ll understand what belongs and property which was in no sense generated it feels like to be on top. by the marriage.”37 Similarly, a spouse’s inheritance is peculiarly personal to that spouse. It represents a relationship external to the marriage, typically one between The top of the mountain. parent and child. To allow a husband or wife to profit The view is better from up here. from the death of an estranged spouse’s parent could certainly be considered unfair. After Lerch, however, we may see decisions that find that personal injury settle- SoftPro has been the industry leader ments and inherited funds have been transmuted into in closing and title software solutions marital assets by their deposit, even if brief, into joint for years. We recognize that title compa- accounts or by other acts which (even if only in hind- nies like yours face a tremendous amount sight) appear to be acts designed to waive the separate of competition, which is exactly why you nature of the property. need the tools provided by the SoftPro Suite of Products. See why over 11,000 Practical Tips of your competitors have used SoftPro as When an opposing party claims that your client’s their advantage and join us at the top of separate property was a gift to the marriage, you can the mountain! perhaps rebut that claim by demonstrating the absence of an essential element or elements of a “gift,” the pre- The choice is easy, and risk free. requisites of which are outlined in O.C.G.A. § 44-5-80. Try SoftPro today FREE for 30 days. There can be no gift unless the donor intended to give the gift, the donee accepted it, and the gift was delivered.38 Generally, the burden is on the person claiming the gift to prove all essential elements.39 In Georgia, however, a gift is presumed if the payor It’s that simple. and transferee are husband and wife.40 As a result, the call us at 800-848-0143 today! payor/donor must rebut the presumption by showing clear and convincing evidence that there was no gift.41 This hurdle is relatively high, even if it can be shown through circumstantial evidence. Of course, if the trial court finds that separate proper- Closing and Title Software Solutions ty has been contributed to the marriage or otherwise

transmuted because of its commingling with marital SOFTPRO / WEB: WWW.SOFTPROCORP.COM funds, it is not the end of the case for your client. It

August 2007 19 08-07gbj.qxp 7/25/2007 12:13 PM Page 20

would still be within the trial court’s Volunteer Lawyers’ Foundation, an that the verdict was an award of discretion to award him (or her) the original member of the Fulton property, not alimony. asset in its entirety.42 “[A]n equitable County Family Division’s Rules 11. Id. at 771, 273 S.E.2d at 173. The division of property does not neces- Committee. She can be reached at Stokes decision also referenced [email protected], 404- sarily mean an equal division. . . . DAN E. MCCONAUGHEY, DIVORCE, 668-9001. [A]n award is not erroneous simply ALIMONY, AND CHILD CUSTODY § 12- because one party receives a seem- 2 (1975), a publication often con- ingly greater share of the marital Endnotes sidered Georgia’s bible on domes- property.”43 It will be up to counsel 1. Stokes v. Stokes, 246 Ga. 765, 768, tic relations. In that publication, to prove to the court that under the 273 S.E.2d 169, 171 (1980). the author opines that “[i]n a unique circumstances of the case, 2. Id. 768, 273 S.E.2d at 171. divorce action[,] the court has equity demands an award of the 3. 440 U.S. 268 (1979). ancillary jurisdiction to determine property to your client. 4. O.C.G.A. § 53-502 (1979) (citing the equitable interest of either 1979 Ga. Laws at 466, 489) (current spouse in the real or personal Conclusion version at O.C.G.A. § 19-3-9). property owned, either in whole or In the 1950s, married couples 5. 246 Ga. 765, 273 S.E.2d 169 (1980). in part, by the other spouse.” Id. made up 80 percent of American 6. Id. at 768, 273 S.E.2d at 171. 12. Stokes, 246 Ga. at 771, 273 S.E.2d at households, a number that fell to 51 7. Id. at 766, 273 S.E.2d at 170. 174 (Hill, J., concurring). percent by the onset of the 21st cen- 8. Id. at 767, 273 S.E.2d at 170-71. 13. Id. at 772-73, 273 S.E.2d at 174. tury.44 In 1960, one American child 9. Stokes, 246 Ga. at 768, 273 S.E.2d at 14. Payson v. Payson, 274 Ga. 231, 232, in 20 was born out of wedlock, but 172. The Supreme Court of Georgia 552 S.E.2d 839, 841 (2001) (empha- by the end of the 20th century, one cited a line of cases, among them sis added). child out of every three born was Bragg v. Bragg, 224 Ga. 294, 161 15. Yates v. Yates, 259 Ga. 131, 131, illegitimate.45 The concepts of mar- S.E.2d 313 (1968), in which the jury 377 S.E.2d 677, 678 (1989) (quoting riage and family are ever changing, refused to award alimony to the Moore v. Moore, 249 Ga. 27, 28, as are the laws that govern their wife and instead awarded her a 287 S.E.2d 185, 186 (1982)) (empha- beginnings and endings. vehicle, some equity in the house, sis added). Over the last few decades, and a portion of the household fur- 16. Bailey v. Bailey, 250 Ga. 15, 15, 295 Georgia’s laws regarding the divi- nishings. The husband moved to S.E.2d 304, 304 (1982) (emphasis sion of assets have become increas- strike the verdict, claiming that the added). ingly convoluted. Exception after award to wife of personal property 17. 278 Ga. 49, 597 S.E.2d 359 (2004). exception has been carved from the should be set aside as irreconcilable 18. Id. at 49, 597 S.E.2d at 360-61 (cita- traditional rules upon which par- with the denial of an award of tions omitted). ties have come to rely. Assets alimony. The Supreme Court of 19. Id. at 50, 597 S.E.2d at 361 (quoting once—without question—consid- Georgia in Bragg, however, Smith v. Smith, 438 S.E.2d 582, 584 ered separate in nature are now at acknowledged an intention on the (W. Va. 1993), and Matthews v. risk of being treated as marital part of the jury to award wife with Matthews, 647 A.2d 812, 817 (Md. property through a consideration an equitable interest in marital 1994)). of “equities” or transmuted into property, not alimony. Stokes, 246 20. Id. at 50, 597 S.E.2d at 361 (quoting marital property with an act as Ga. at 769, 273 S.E.2d at 172. Jones v. Jones, 220 Ga. 753, 755, simple as making a deposit or sign- 10. Id. at 770-71, 273 S.E.2d at 172-73 141 S.E.2d 457, 460 (1965)); see also ing a deed. (citing Yarbray v. Young, 236 Ga. O.C.G.A. § 19-6-5(a) (permanent 784, 786, 225 S.E.2d 315, 316 (1976), alimony may be granted “to either Rachel A. Elovitz is an and other cases). In Yarbray, the party, either from the corpus of the adjunct professor at jury denied wife’s request for estate or otherwise”). John Marshall Law alimony, but awarded her exclu- 21. 280 Ga. 92, 623 S.E.2d 480 (2005). School. She will be sive use of the house until it sold, 22. Id. at 92, 623 S.E.2d at 481. teaching Domestic at which time she was to receive 23. Id. at 92, 623 S.E.2d at 481 (quoting Relations during the half of the proceeds unless used Hipps, 278 Ga. at 50, 597 S.E.2d at 2007 fall semester. Elovitz is a sole for the children’s education. When 361); see also O.C.G.A. § 19-6-5(a) practitioner whose work focuses the wife remarried in 1975, she (“The finder of fact may grant per- on family law and extends to the moved to force the sale. The trial manent alimony to either party, greater Atlanta area. She earned a court responded by vacating the either from the corpus of the estate B.A. degree from the University of provision in the judgment regard- or otherwise.”). This statute also sets Texas in 1988 and her J.D., magna ing the sale of the house, finding it forth the elements to be considered cum laude, from John Marshall inconsistent with the denial of in granting permanent alimony. Law School in 1995. She is a alimony. On appeal, the Supreme 24. Thomas v. Thomas, 259 Ga. 73, 76, guardian ad litem for the Atlanta Court of Georgia reversed, holding 377 S.E.2d 666, 669 (1989).

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25. See, e.g., Maddox v. Maddox, 278 Ga. 606, 607, 604 S.E.2d 784, 786 (2004); Hubby v. Hubby, 274 Ga. 525, 525, 556 S.E.2d 127, 128 (2001); Horsley v. Horsley, 268 Ga. 460, 460, 490 S.E.2d 392, 393 (1997). Unlock 26. Bass v. Bass, 264 Ga. 506, 507, 448 S.E.2d 366, 367 (1994). your 27. Crowder v. Crowder, 281 Ga. 656, 658, 642 S.E.2d 97, 99 (2007). 28. McArthur v. McArthur, 256 Ga. 762, 763, 353 S.E.2d 486, 487-88 (1987) (quoting Hemily v. Hemily, 403 A.2d 1139, 1143 Potential (D.C. 1979)). Sign up for the Women & Minorities in the 29. 278 Ga. 885, 885, 608 S.E.2d 223, 224 (2005). Profession Committee’s Speaker Clearinghouse 30. Id. at 886, 608 S.E.2d at 224. 31. Payson v. Payson, 274 Ga. 231, 232, 552 S.E.2d 839, 841 (2001) (emphasis added). 32. No. S07F0096, 2007 WL 1582225, at *2 (Ga. June 4, 2007). 33. Id. (“Given this specific finding of fact, we cannot say that the trial court abused its discretion.”). 34. 255 Ga. 461, 339 S.E.2d 591 (1986). 35. Id. at 462, 339 S.E.2d at 593. 36. Id. at 462, 339 S.E.2d at 593. 37. Id. at 462, 339 S.E.2d at 593. 38. Baker v. Baker, 280 Ga. 299, 300, 627 S.E.2d 26, 27-28 (2006). 39. Brock v. Brock, 279 Ga. 119, 120, 610 S.E.2d 29, 31 (2005). About the Clearinghouse 40. See O.C.G.A. § 53-12-92. 41. See Brock, 279 Ga. at 120-21, 610 The Women and Minorities in the Profession S.E.2d at 31. Committee is committed to promoting equal 42. Stanley v. Stanley, 281 Ga. 672, 672-73, 642 S.E.2d 94, 95 (2007). participation of minorities and women in the 43. Waters v. Waters, 280 Ga. 477, legal profession. The Speaker Clearinghouse is 478, 629 S.E.2d 233, 235 (2006) (quoting Wright v. Wright, 277 designed specifically for, and contains detailed Ga. 133, 134, 587 S.E.2d 600, 601 information about, minority and women lawyers (2003)) (emphasis added); see who would like to be considered as faculty mem- Clements v. Clements, 255 Ga. 714, 714, 342 S.E.2d 463, 463-64 bers in continuing legal education programs and (1986) (per curiam). provided with other speaking opportunities. For more 44. STEPHANIE COONTZ, MARRIAGE, A HISTORY: FROM OBEDIENCE TO information and to sign up, visit www.gabar.org. To INTIMACY OR HOW LOVE search the Speaker Clearinghouse, which provides contact CONQUERED MARRIAGE, 243, 250, information and information on the legal experience of 264-64, 275-76 (2005), reprinted in DOUGLAS E. ABRAMS ET AL., minority and women lawyers participating in the pro- CONTEMPORARY FAMILY LAW at 3 gram, visit www.gabar.org. (2006). 45. Id.

August 2007 21 08-07gbj.qxp 7/25/2007 12:13 PM Page 22

A Look at the Law

The Next Generation of Child Advocacy Protecting the Best Interest of Children by Promoting a Child’s Right to Counsel in Abuse and Neglect Proceedings

by Hon. Steven C. Teske and Melissa Dorris Carter

he field of children’s law is based on a rela- children through the appointment of an attorney or lay guardian ad litem (GAL). Two competing approaches tively young body of law that has emerged have emerged: the “best interest” GAL model and the traditional attorney-client model. Generally speaking, over the past 130 years. As the field contin- the role of a child’s attorney is to represent the child as T a client, providing legal services for a child and abiding ues to mature, policies and practices are continually by the same ethical and professional duties owed to an adult client. By comparison, a GAL, who may be an scrutinized to ensure that the hundreds of thousands of attorney or a lay advocate, is an officer of the court whose role is to assist the court in discerning and pro- children brought before juvenile courts across the tecting the child’s best interest. The thesis of this article is that Georgia law is settled. country are adequately protected and the mission of Children are indeed parties to the deprivation proceedings concerning them and as such, are entitled to the juvenile court is properly executed. The facet of representation by legal counsel. Contemporary case law decisions, state statutes, and constitutional princi- children’s law that is currently receiving the greatest ples support this conclusion. Further, as parties, children are also entitled to participate meaningfully in attention is the examination of the child’s status as a court proceedings. The challenge posed to juvenile court stakeholders is to craft a practice solution that is party to abuse and neglect (deprivation) proceedings stringent enough to uphold these rights for every child in every case and flexible enough to adjust for the dif- and rights derived from that status, particularly ferences of individual children. In its August 2004 edition, the Georgia Bar Journal including the right to be represented by legal counsel. published an article titled “A Child’s Right to Legal Representation in Georgia Abuse and Neglect The further development of the representation para- Proceedings,” co-authored by Melissa Dorris Carter, digm for children who are involved in deprivation pro- one of the authors of the present article.1 That piece ceedings has been constrained by inconsistencies in analyzed the federal and state statutory and constitu- federal and state law requiring “representation” of tional bases supporting a child’s right to legal repre-

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sentation in civil abuse and neglect simultaneously minimizing costs Children Services (DFCS), and proceedings. Although Georgia’s to local governments. Fulton and DeKalb counties.4 The statutory scheme is ambiguous in plaintiffs alleged that the foster care this area, the conversation begun The Effect of Kenny A. systems operating in Fulton and nearly three years ago has contin- v. Perdue DeKalb counties had a number of ued among a number of juvenile serious problems, including chil- judges throughout the state, and At the time that the Journal pub- dren languishing in foster care, the position advanced in the 2004 lished the last article, the state of children experiencing multiple article has gained strength and Georgia and DeKalb and Fulton placement moves while in state momentum. Although progress counties were vigorously defend- custody, and inadequate health and has been made toward reaching a ing a class action lawsuit filed by educational services for children in consensus on the issue since the Children’s Rights, a self-described foster care. Additionally, the plain- Journal last looked at this aspect of national watchdog organization tiffs asserted a claim against Fulton the law, the practice across the headquartered in New York that and DeKalb counties for the alleged state has not changed dramatically. seeks child welfare system reform failure to provide adequate repre- Every day, juvenile court judges through litigation and policy initia- sentation for children in depriva- are making decisions about chil- tives.3 Children’s Rights filed suit tion and termination of parental dren and their families with no in the U.S. District Court for the rights (TPR) cases.5 guarantee that the child’s wishes Northern District of Georgia on The plaintiffs’ claim against the will be conveyed in court. This arti- June 6, 2002, on behalf of nine county defendants alleged that cle will discuss the recent decision named plaintiffs seeking injunctive effective legal representation was of Kenny A. v. Perdue2 and its effect and declaratory relief against the structurally impossible to provide on children’s right to counsel in agencies and officials responsible due to the excessively high case- abuse and neglect proceedings, for operating the state’s foster care loads maintained by the child and will propose a strategy that system, including the Georgia advocate attorneys in Fulton and accommodates the legal and best Department of Human Resources, DeKalb counties.6 Plaintiffs’ coun- interest concerns of children while the Division of Family and sel argued that the failure to pro-

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vide effective and adequate legal no precedential value because it counsel during the proceedings. representation to children before resulted in a settlement agreement This academic argument is persua- the court in cases alleging depriva- and therefore is applicable only to sive until attempts are made to tion violated the plaintiffs’ due the defendants in the case, these translate it into actual practice. process rights under the Georgia jurists, and especially local govern- The fundamental principle upon Constitution and certain statutory ments, should reconsider this posi- which the child welfare and juve- provisions relating to TPR proceed- tion. No barriers exist to the plain- nile court systems operate is pro- ings.7 The county defendants filed a tiffs’ taking aim at other counties tection of the child. American soci- motion for summary judgment on and filing similar suits. Should this ety assumes that every child needs the issue, arguing that because the occur, these potential defendants a certain degree of protection due Georgia Code specifically requires will be at a disadvantage with the to perceived limitations of the provision of legal counsel only in legal conclusions reached in Kenny child’s age and developmental TPR proceedings, children in foster A. After all, the agreement reached abilities. When children suffer from care do not have a right to effective in Kenny A. was the result of the abuse and neglect, the inclination legal representation in general dep- court’s conclusion that a child is a to protect them from further harm rivation proceedings.8 Ruling on party and entitled to counsel. is heightened. Thus, historically, the motion, Judge Marvin Shoob representation of children has concluded that “foster children A Child as a Party to a taken the form of a substituted have both a statutory and a consti- Deprivation Proceeding judgment model, and the children tutional right to counsel in all dep- themselves are not invited or rivation proceedings, including but The Supreme Court of Georgia expected to attend the court pro- not limited to TPR proceedings.”9 has stated, “[A]ll persons who are ceedings involving their families. The court found authority in directly or consequentially interest- O.C.G.A. §15-11-6(b), which states ed in the event of the suit should be Representing a Child that “a party is entitled to represen- made parties.”12 A child who is as the Subject of the tation by legal counsel at all stages before the juvenile court due to of any proceedings alleging . . . dep- allegations of parental abuse or Proceeding: The Best rivation.”10 neglect has an undeniable interest Interest Generation The authors of the August 2004 in his or her life, care and well- Most commonly, a GAL repre- Journal article did not resolve the being. Moreover, the child has a sents children. Federal law has issue of the child’s status as a party, liberty interest in not being required appointment of a GAL instead finding a right to counsel removed from the care and custody since passage of the Child Abuse through the second clause of of his parents without a proper Prevention and Treatment Act O.C.G.A. §15-11-6(b) based on the showing of competent evidence (CAPTA) in 1974.13 CAPTA does inherent conflict of interest between that meets appropriate standards not define “guardian ad litem,” but a child and his or her parents in the of proof that such separation is jus- the 1996 reauthorization of the Act context of the deprivation proceed- tified. Finally, the child is bound by modified the requirement that to ing. The court in Kenny A., however, the court’s judgment as any other qualify, a GAL “may be an attorney clearly concluded that a child is a party is so bound. For these rea- or a court appointed special advo- party to the proceeding, citing sons, the child is “directly or conse- cate (or both).”14 Regardless of McBurrough v. Department of Human quentially interested” in the case whether the GAL is an attorney or Resources.11 The apparent ambigui- and therefore, a child is indeed a a court-appointed special advocate ties on this issue dissolve when ana- party to the deprivation proceed- (CASA),15 the GAL represents the lyzed within a broader context that ings. Although the child’s position child’s best interest. By definition, includes delinquency proceedings. might overlap with the position of the GAL stands in the place of the The court’s authority to appoint a his or her parent(s) or the state child and in that role, substitutes GAL applies to delinquency pro- agency, the child is a unique party his or her judgment for the child’s. ceedings and is appropriate in cir- to the case, with a discrete and The GAL/CASA is an officer of the cumstances involving conflicts independent viewpoint. court, who is appointed by the between the child and the parent. As a party, the child is entitled to court to provide an independent An example would be when a non- the same rights as any other party, voice for the child. Importantly, the indigent parent refuses, for any including the right to be represent- GAL/CASA is not bound by confi- number of reasons, to retain coun- ed by counsel, the right to present dentiality and can be called as a sel, which could be to the child’s evidence and cross-examine wit- witness and cross-examined by the detriment. Regardless of these nesses, the right to consent to a parties. This best interest model, apparent ambiguities, the law is set- judgment and to appeal a judg- under which the GAL advocates tled by Kenny A. Although some ment, and the right to be present in for what the GAL believes is best jurists have opined that the case has court or at least made available to for the child, should be contrasted

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with a traditional client-directed defendants’ motion for summary desires to live. The child’s selection representation model, under which judgment, the court in Kenny A. is presumptive unless the court an attorney zealously advocates for noted that the Legislature did not determines that such a custodial the expressed wishes of the client intend the appointment of a GAL arrangement is not in the best inter- and is bound by duties of loyalty as a substitute for the appointment est of the child.18 Thus, there is and confidentiality and other rules of counsel.17 clear, established precedent in of professional conduct. If the GAL Moreover, the best interest Georgia law to solicit the voice of is representing the child’s best model is nonsensical. What is in the the child and factor it into the interest, then who is representing child’s “best interest” is the stan- court’s ultimate decision. On the the child’s legal interests? dard that controls every party’s other hand, if DFCS removed Sue, argument, regardless of their the “best interest” model of repre- Representing a Child divergent agendas or different sentation would significantly as a Client: The Next positions. The judge does not need reduce the likelihood of Sue’s to be reminded of the best interest wishes being heard in juvenile Generation standard in a deprivation proceed- court because a recommendation As expressed in Kenny A., the ing. Rather, the role of the judge is as to the custodial arrangement child’s due process interests to hear evidence and testimony that would serve Sue’s “best inter- include an interest in safety, health from all parties, including the est” would supersede Sue’s selec- and well-being; an interest in main- child, and make a determination tion. How can a different level of taining the integrity of the family based on that information as to participation be justified in a case unit and having a parent-child rela- what outcome will best serve the involving the same child, the same tionship; an interest in being pro- child’s interests. Indeed, it is the contestants, and the same facts? No tected from abusive and neglectful judge, and not the GAL/CASA, compelling reason exists why chil- parents; an interest in being pro- who ultimately decides what is in dren should be treated differently tected from an erroneous decision the child’s best interest. in a deprivation proceeding. to terminate parental rights; and an The authors of the August 2004 The Georgia Rules of Pro- interest in proper treatment by the article on a child’s right to legal fessional Conduct contemplate a state while in its custody.16 In addi- representation drew comparisons client-directed model of represen- tion, the liberty interests of a child between a child’s right to counsel tation for children in deprivation in state custody are at risk as a in a delinquency proceeding and a proceedings. The ethics rules apply result of the child’s being subject to child’s right to counsel in depriva- to all practicing attorneys, and no placement in residential and insti- tion proceedings. To continue with exception is made for attorneys tutional facilities that significantly that line of reasoning, it is notable who represent children. In fact, restrict physical liberty. that the public policy of the state of Rule 1.14, “Client Under a The issue of loss of liberty is of Georgia, as reflected by legislative Disability,” directs an attorney to particular concern because of the enactments, is that at age 13, chil- “maintain a normal client-lawyer irony that results when comparing dren who have committed certain relationship” with a client whose the treatment of children in delin- offenses can be incarcerated for life. ability to make adequately consid- quency and deprivation proceed- These children are expected to ered judgments in connection with ings. Query why children who are direct their own defense when the representation is impaired due accused of doing harm to others legal proceedings are instituted to the age of the client.19 The “nor- are entitled to counsel because against them. If a 13-year-old child mal client-lawyer relationship” they may lose their liberty by is presumed capable of meaningful includes duties of undivided loyal- placement in state custody, while participation in his legal defense ty, competence, communication children who are victims of abuse under those circumstances, the and confidentiality, among oth- and neglect and likewise are sub- same 13-year-old child is equally as ers.20 The phrase also imparts the ject to placement in state custody capable of assisting counsel in a expectation that the child-client is a are customarily not afforded the deprivation proceeding and being party to the proceeding and is right to counsel. All of these inter- seated at counsel table. therefore expected to attend all sig- ests, and conceivably more, are at Suppose Sue is neglected by her nificant court appearances. risk when a deprivation case is mother. Sue’s grandmother may The commentary to Rule 1.14 brought against a family, and legal pursue a private custody action in recognizes, as argued above, that counsel is necessary to protect the superior court. Georgia law man- “children as young as five or six child’s interests from infringe- dates that a superior court consider years of age, and certainly those of ment. Juvenile court judges, GALs, the wishes of an 11-year-old in a 10 or 12, are regarded as having and CASAs do not adequately mil- custody matter, and a child age 14 opinions that are entitled to weight itate against the risk of error. or older has a right to select the in legal proceedings concerning Indeed, in its order denying the parent with whom he or she their custody.”21 The Model Rules

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of Professional Conduct, upon attorney believes is in the child’s attorney and a guardian ad litem in which the Georgia Rules are based, best interest. cases where the child is not repre- have recently been amended, and sented by his or her parent, now designate a minor client as The Role of CASA in a guardian or custodian.”25 one with “diminished capacity” Client-Directed Child A CASA should be promoted in rather than a disability.22 Likewise, all courts to serve as an aid to the the two leading authorities on Representation Model court to facilitate reasonable efforts, juvenile law, the American Bar Advancement of a client-direct- monitor state and parental compli- Association (ABA) and the ed model of legal representation ance with court orders and case National Association of Counsel for children in deprivation cases plans, and conduct social studies to for Children (NACC), recommend under either of the above recom- expedite the placement of children the model of the “child’s attorney” mendations does not foreclose the in the most family-like setting. in their “Standards for Lawyers need for a GAL or CASA. As a lay- Furthermore, the appointment of a Who Represent Children in Abuse GAL, the CASA cannot perform CASA or GAL is necessary when the and Neglect Cases.”23 This model, any legal function on behalf of the child’s attorney determines that the as the ABA and NACC describe it, child. “The ultimate goal of a child’s expressed wishes would be calls for an attorney to provide CASA volunteer is to help make seriously injurious to the child. In legal representation to a child, sure the child has a safe, perma- that scenario, the child’s attorney owing all of the duties characteris- nent home.”24 This goal is common should continue representing the tic of a traditional attorney-client ground for the CASA volunteer child’s expressed wishes but request relationship, while recognizing and the child’s attorney, and with appointment of a separate GAL to that under certain circumstances this shared objective, the CASA represent the child’s best interest.26 this model will not best serve the volunteer and the child’s attorney child-client. When the child-client are an effective and powerful team. Conclusion and is preverbal, very young, or other- Indeed, the federal district court in Recommendations wise incapable of meaningful com- Kenny A. concluded that, read munication, the attorney is direct- together, O.C.G.A. § 15-11-6(b) and Since the August 2004 Journal ed to engage in substituted judg- O.C.G.A. § 15-11-9(b) “expressly article on this topic, a growing ment and advocate for what the require the appointment of both an number of juvenile courts and

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child welfare communities have traumatized by attendance; or (2) tional costs to the counties. This embraced the legal arguments other extraordinary circumstances assumption is wrong because supporting a child’s right to legal dictate against having the child GALs are not required to be attor- counsel and the recognition that a present.27 neys. Attorneys serving as GALs child is a party to the proceeding. Children have a statutory and have become a custom and practice The practical and philosophical constitutional due process right to in juvenile courts across the state. barriers to implementing this adequate legal counsel to represent The model proposed by the framework are more difficult to their wishes and legal interests authors simply requires the juve- overcome. Legal arguments aside, throughout the life of a deprivation nile courts to take the GAL hats off human nature gives even veteran case. Thus, all children should the attorneys and place them on juvenile court professionals pause receive the benefit of the appoint- volunteers such as a CASA. Let at the suggestion that a child who ment of legal counsel at every stage attorneys do what they are trained has already suffered abuse or neg- in the proceeding. Moreover, that to do: advocate for the legal inter- lect should be present in court to attorney should abide by a client- ests of their clients. listen to his or her parents testify directed model of representation Juvenile court judges and prac- to the nature and degree of those under most circumstances and titioners will continue to wrestle abusive acts. How can the court should engage in substituted judg- with the translation of the aca- be sure that it is not causing addi- ment and “best interest” advocacy demic arguments supporting a tional harm and trauma by sub- only when the child-client cannot child’s status as a party to his or jecting the child to a retelling of meaningfully communicate with her own deprivation proceeding such a painful experience? Or is the attorney. In circumstances in and the derivative rights to ade- such participation therapeutic at which the attorney cannot recon- quate legal representation and to some level? How can bright-line cile the child’s expressed wishes meaningful participation in the rules be drawn when each child with what is in his or her best inter- case into actual practice in their will react uniquely? est through the attorney’s counsel- courtrooms. The authors challenge At a minimum, children ing role, the attorney should all juvenile court stakeholders to deserve—and have an established request the appointment of a sepa- embrace these concepts despite right to—a competent attorney to rate GAL or CASA to represent the the challenges presented by the represent their legal interests and child’s best interest while continu- complex family dynamics, indi- expressed wishes in abuse and ing in the role of the child’s attor- vidual idiosyncrasies, sophisticat- neglect proceedings. Moreover, as ney zealously advocating for the ed and nuanced legal and social parties to the action, children tech- child’s legal interests. work decision-making, and limit- nically have a right to be present In the alternative, as a compro- ed resources that characterize dep- at all proceedings. A bright-line mise, the legal presumption should rivation cases. The talented juve- mandate requiring all children to be established that legal counsel nile court judges and practitioners be present in court, however, shall be appointed for youth who in this state are up to the test and ignores reality. Some children will are 13 years of age or older, consis- the result will be better outcomes not want to participate in court, tent with the treatment of children for children. and indeed, others could experi- in other types of cases. Again, that ence further trauma as a result. attorney should represent the legal Hon. Steven C. Teske Some children cannot meaningful- interests and expressed wishes of was appointed to the ly participate in the proceedings the client. The court, on its own juvenile bench in or in their representation, and for motion or upon the request of the Clayton County in others, the balance of interests dic- child’s attorney, should appoint a 1999. Prior to taking tates against disrupting a school CASA to represent the child’s best the bench, he was a day to deliver them for court and interest as a complement to the partner in the law firm of Boswell the hours of waiting for their case attorney’s advocacy of the child’s & Teske LLP and represented to be called. Recognizing that chil- legal interests. In this way, the Clayton County Department of dren have a right to meaningful juvenile court judge will be pre- Family and Children Services pros- participation in the case, which sented with a comprehensive pic- ecuting abuse and neglect cases in generally includes a right to be ture of the child’s needs and wish- juvenile court. He is president- present at significant court hear- es to inform the decisions made in elect of the Georgia Council of ings, a decision to exclude a child the case. Adopting this approach Juvenile Court Judges and was from a hearing should be made will require a paradigm shift appointed by Gov. Sonny Perdue based on a particularized determi- among some judges who have to the Children and Youth nation that (1) the child does not assumed that the effectuation of Coordinating Council and the want to attend, is too young to sit Kenny A. would require an addi- Department of Juvenile Justice through the hearing, or would be tional attorney and therefore addi- Advisory Board.

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Melissa Carter is the http://www.gacasa.org. interests of the child require a training director for 16. See Matthews v. Eldridge, 424 U.S. guardian. the Supreme Court of 319, 332-335 (1976). 26. See e.g., ABA/NACC Standards for Georgia’s Committee 17. Kenny A. v. Perdue, 356 F. Supp. Lawyers Who Represent Children on Justice for Children. 2d 1353, 1359 (N.D. Ga. 2005). in Abuse and Neglect Cases, R. B- 18. See O.C.G.A. § 19-9-3(a)(4), (6) 2 (1996). Comments to Rule B-2 In this position she (2007). Note that prior to amend- note that the primary conflict assists in the management of ments enacted in the 2007 legisla- between the two roles arises when Georgia’s Court Improvement tive session, the right of selection the child’s articulated position dif- Project, a federally-funded pro- by a child 14 or older was control- fers from what the lawyer deems gram focused on improving the ling on the court’s decision. to be in the child’s best interest. At processing of civil child abuse and O.C.G.A. § 19-9-1(a)(3)(A) (2006). no time must an attorney abide by neglect cases in the state’s juve- 19. GA. RULES OF PROF’L CONDUCT a child’s directives that are illegal, nile courts. Since graduating from R.1.14(a). frivolous, or potentially harmful. the University of Illinois College of 20. See id. R. 1.1, 1.4, 1.6, 1.7. As a practical matter, when the Law in 2002, Melissa has dedicat- 21. Id. R. 1.14 cmt. 1. lawyer has established a trusting ed her career to a specialization in 22. MODEL RULES OF PROF’L CONDUCT relationship with the child, most R. 1.14, available at ABA Center for conflicts can be avoided. The child advocacy, both through pub- Professional Responsibility, lawyer’s advice and guidance can lic policy advocacy and private http://www.abanet.org/cpr/mrpc/ often persuade the child to aban- legal practice. rule_1_14.html. don or change an imprudent posi- 23. ABA Standards of Practice for tion or identify alternative choices. Endnotes Lawyers Who Represent Children Where the two positions cannot be 1. Beth Locker & Melissa Dorris, A in Abuse and Neglect Cases reconciled, the lawyer must Child’s Right to Legal Representation (adopted by House of Delegates remain in the lawyer-client role in Georgia Abuse and Neglect Feb. 5, 1996). See also ABA/NACC due to the confidential relationship Proceedings, 10 GA. B.J., Aug. 2004, Revised Standards of Practice for and privileged communications at 12. Lawyers Who Represent Children involved. 2. 356 F. Supp. 2d 1353 (N.D. Ga. in Abuse and Neglect Cases 27. See id. R. D-5 cmt. (1996). 2005). (adopted by NACC Oct. 13, 1996). 3. See http://www.childrensrights. 24. Georgia CASA website, org/site/PageServer?pagename= http://www.gacasa.org. Earn up to 6 CLE home_page. 25. Kenny A. v. Perdue, 356 F. Supp. credits for author- 4. First Amended Complaint, Kenny 2d 1353, 1359 (N.D. Ga. 2005) A. v. Perdue, No. 1:02-cv-1686 (emphasis added). O.C.G.A. § 15- ing legal articles (N.D. Ga. 2003). 11-6(b) provides in relevant part: and having them 5. See id. 6. See Kenny A., 356 F. Supp. 2d at [A] party is entitled to representa- published. 1355. tion by legal counsel at all stages Submit articles to: 7. Id. at 1357. of any proceedings alleging . . . 8. Id. deprivation . . . . Counsel must be Donald P. Boyle Jr. 9. Id. provided for a child not represent- Georgia Bar Journal 10. O.C.G.A. § 15-11-6(b) (2006). ed by the child’s parent, guardian, 104 Marietta St. NW, Suite 100 11. 150 Ga. App. 130, 257 S.E.2d 35 or custodian. If the interests of two Atlanta, GA 30303 (1979). or more parties conflict, separate 12. Gormley v. Wilson, 176 Ga. 711, counsel shall be provided for each Contact [email protected] 711, 168 S.E. 568, 569 (1933). See of them.” for more information also Barry v. Slappey, 229 Ga. 109, or visit the Bar’s website, 110, 189 S.E.2d 394, 395 (1972). O.C.G.A. § 15-11-9(b) provides: 13. Child Abuse Prevention and www.gabar.org. Treatment and Adoption Reform The court at any stage of a pro- Act (CAPTA), Pub. L No. 93-247, ceeding under this article, on 88 Stat. 4 (1974) (codified at 42 application of a party or on its U.S.C. §§ 5101-06 (2000)). own motion, shall appoint a 14. 42 U.S.C. § 5106(b)(2)(A)(xiii) guardian ad litem for a child (2003). who is a party to the proceed- 15. A CASA is a specially-trained ing if the child has no parent, community volunteer who is guardian, or custodian appear- appointed by a judge to advocate ing on the child’s behalf or if for the best interest of an abused the interests of the parent, or neglected child who is involved guardian, or custodian conflict in a juvenile court deprivation pro- with the child’s interests or in ceeding. Georgia CASA website, any other case in which the

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GBJ Feature

A Brief Overview of the Proposed New Georgia Rules of Evidence

by Paul S. Milich introduction by Robert D. Ingram

ollowing this introduction is an overview pre- As a result of not obtaining support from the House Judiciary Committee, efforts were stalled until recently. In pared by Professor Paul S. Milich of the signifi- 2003 under President Bill Barwick, the Evidence Study Committee was reactivated with Ray Persons as chair. cant changes from the current Georgia Rules of Most recently, at Immediate Past Bar President Jay Cook’s F urging, the committee refocused their energies on inform- Evidence to the New Georgia Rules of Evidence, which ing and obtaining input from lawyers across the state about the proposed changes to the Rules of Evidence. would occur under the proposed Rules of Evidence being put Presentations were made to the Atlanta Bar, the North Fulton Bar, the Gwinnett Bar and the Sandy Springs Bar forward by the Evidence Study Committee. associations. An update was also given to nearly 300 attorneys who watched a broadcast on the CLE program on evi- The Evidence Study Committee was formed in August dence. In January of this year, a program was presented to 1986 by Bar President Bob Brinson, and functioned actively 80 lawyers and judges on the proposed rules. Updates have from 1986-91. The committee, chaired by Frank C. Jones, also been given to judges of superior courts, state courts wrote a set of rules that passed the Board of Governors on and juvenile courts at ICJE meetings. two separate occasions in 1988 and 1990. A bill was intro- “All responses were very positive and encouraging,” duced in the General Assembly in January 1989 and again in Persons said. “In fact, in all our many presentations and January 1991. On each occasion, the bill was approved by the seminars, we have heard nothing but support for moving Senate, once unanimously, and on the other occasion with forward.” only a few dissenting votes. On both occasions, the House The Evidence Study Committee encourages all Bar mem- Judiciary Committee held up the bill, and it was not consid- bers to carefully study this important and comprehensive ered on the floor. proposed change in Georgia’s evidence law. Your represen- According to Jones, “Our failure to get favorable action in tatives on the Board of Governors will be voting on this no the House was due primarily to opposition from the then earlier than the fall meeting and welcome your advice. For a Speaker. We met with him, and several members of the list of Board members by circuit, please visit House Judiciary Committee, in an effort to obtain support www.gabar.org/directories/board_of_governors/. but were unsuccessful.”

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In 1858, the Georgia Legislature the University of Georgia pre- are relatively straightforward, spe- appointed three commissioners, pared an Advisability and cific and well-organized. Acces- Richard Clark, Thomas R. Cobb, Feasibility Study for a committee sibility is important. Rules of evi- and David Irwin, to prepare a code appointed by Chief Justice Earl dence are only as good as the which should “as near as practica- Warren. In 1965, Green joined 14 lawyers and judges who must ble, embrace in a condensed form, other lawyers, judges and legal recall and apply them quickly and the laws of Georgia” including the scholars on the Advisory accurately in the heat of trial. common law and principles of Committee to formulate uniform The proposed new Georgia rules equity then recognized by the rules of evidence for the federal are based predominantly, but not courts of this state. To Judge Irwin courts. In 1969, the committee completely, on the Federal Rules. fell the task of preparing the Code issued a preliminary draft of the Some older Georgia statutes have of Practice which included civil rules and invited comments from been retained to fill gaps in the procedure, equity practice, and the every segment of the practicing Federal Rules and to reflect specif- rules of evidence. The work was bar. The U.S. Supreme Court ic Georgia policies. A few changes completed in 1860 and adopted by approved the rules in late 1972. have been made to the language of the Legislature with only a few minor changes in December of that year. Due to the war, publication was delayed until 1863 and thus the code has been referred to ever since as the Code of 1863. Most of Georgia’s current rules of evidence are derived from the Code of 1863. But litigation has changed substantially over the last 140 years. With the liberalization of pre-trial discovery, growth in the use of experts, and the increase in the education and experience of the average juror, the pressure has been to open up the trial—to let in more evidence, more efficiently. Georgia courts have not been immune to this pressure and have struggled with the older statutes to broaden the admissibility of probative evidence. Indeed, in some cases, Georgia courts nearly have abandoned the statutes and, from necessity, developed rules in a common law like manner. These Congress insisted that the rules the Federal Rules to customize the incremental efforts have helped be statutory rather than judicial rules for Georgia and to clarify keep Georgia law somewhat cur- and both the House and Senate some issues that have arisen under rent. But the overall result is not conducted detailed studies of the the Federal Rules. that satisfying. From the stand- rules. The Federal Rules of Adoption of new rules of evi- point of the trial judge and lawyer, Evidence were enacted in 1975. dence would bring two changes to “the rule” is not necessarily found Since 1975, the Federal Rules Georgia practice. The first, the sub- in the statutes, since 140 years of have been adopted in 42 states, stantive changes in the law of evi- judicial gloss may have changed including all the states contiguous dence, is briefly summarized that. And the cases that have to Georgia. This extraordinary below. The second change relates applied that gloss are not always response is testament to the fact to accessibility and clarity. consistent. In short, despite our that the Advisory Committee’s 10 Compared with existing Georgia courts’ frequent efforts at rejuvena- years of study and exposure of the law, the new rules provide a clear- tion, Georgia’s Evidence Code is rules to comments by all sectors of er, simpler, more comprehensive showing its age. the legal community produced a approach to evidentiary issues. The effort to draft the Federal remarkably balanced set of rules. This increased accessibility and Rules of Evidence began in 1961 The Federal Rules have been clarity will lead to greater consis- when Professor Thomas Green of praised for their accessibility. They tency in the application of the rules

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in different courts and in a more to the trial judge. The jury, of ty to examine the records before economical trial process. course, continues to be the final trial. See, proposed O.C.G.A. §§ 24-8- Some might say that if the arbiter of the weight to be accorded 803(6); 24-9-902(11). Georgia rules of evidence aren’t admitted evidence. See, proposed broke, don’t fix them. But a more apt O.C.G.A. § 24-1-104. Public Records analogy is to an old car that still runs Exception but is tough to drive and prone to Admissions by Agents sputtering at times. The Federal Georgia’s agency admission rule Georgia has dozens of statutes Rules are a proven model based on has a confusing history, due in regarding the admissibility of spe- much the same design as the old one large part to the overlap of two, cific public records scattered all but incorporating changes based on inconsistent statutes—one in the over the Official Code of Georgia. experience. With millions of miles Evidence Code and one in the Title Together, their coverage is similar already logged on this model in fed- on Agency—that both speak to the to proposed O.C.G.A. § 24-8- eral courts and the courts of 42 admissibility of an agent’s state- 803(8)(A), admitting the routine states, there are no surprises; you ments against his principal. But records of any public agency. know what you are getting. But best even the most liberal readings of Georgia uses its general business of all, it’s easier to drive. these statutes limit admissibility to record exception for admitting statements of the agent which are public records not specifically cov- A Brief Summary of authorized by the principal. Since ered by statute. Again, this does Some of the Major few employees are authorized to not permit statements of opinion in make statements damaging to their the record. Proposed O.C.G.A. Differences Between employers, the Georgia rule is § 24-8-803(8)(B) and (C) admit mat- Existing Georgia Law quite restrictive in effect. The pro- ters observed and reported pur- and the Proposed New posed rules only require that the suant to duty and factual findings statement have been made during resulting from duly authorized Rules of Evidence the agency relationship and that investigations, though these provi- A complete copy of the proposed the subject matter of the statement sions are unavailable to the prose- new rules and commentary is locat- fall within the scope of the agent’s cution in criminal cases. ed on the State Bar of Georgia’s duties. See, proposed O.C.G.A. website at www.gabar.org. § 24-8-801(d)(2)(C) and (D). Party’s Own Statements Res Gestae Business Record The proposed rules retire the term Exception In Georgia, a party generally “res gestae.” While the obscurity of cannot offer his own out-of-court this concept may have been useful Current Georgia law and the pro- statements if they are “self-serv- when the theory of hearsay excep- posed rules differ in two respects. ing.” Under the proposed rules, tions was still growing, most juris- (1) The current Georgia rule does they are admissible even if self- dictions have come to replace it with not allow opinions in the record. serving, if they have a relevant, specific rules covering several class- The proposed rules do. Thus, for nonhearsay use or come within a es of statements that experience (pri- example, an appraiser’s report as to hearsay exception. The rule that a marily with the res gestae concept) the value of certain property could party may not testify to his own has proved are especially trustwor- be admissible under the new rule self-serving statements has its ori- thy. See, proposed O.C.G.A. § 24-8- but not under Georgia law. Expert gin in the old rule that a party was 803 (1),(2),(3). opinions in the record still would incompetent to testify on his own have to qualify under the rules gov- behalf because a party could not Court Decides erning expert testimony. Moreover, be trusted to tell the truth. Georgia Preliminary Questions the court can exclude business repealed party incompetency records when “the source of infor- about 120 years ago, as did every- of Admissibility mation or the method or circum- one else, on the theory that it is In Georgia, most questions stances of preparation indicate a better to have whatever evidence a regarding the admissibility of evi- lack of trustworthiness.” party could give and let the jury dence are determined by the trial (2) Georgia requires that a witness take the self-serving nature of the judge but there are a few areas in at trial lay any foundation necessary evidence into account in weighing which Georgia law holds that the to the admission of a business the evidence. admissibility question is ultimately record. The proposed rules allow the one for the jury. The proposed use of an affidavit to lay this foun- Hearsay rules reflect the modern trend of dation if the proponent gives oppos- Under current Georgia law, leaving all admissibility questions ing parties notice and an opportuni- hearsay is “illegal” evidence and

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even if a party never objected to Statements Against hearsay testimony at trial, the party Interest may later attack the verdict as rest- ing on illegal hearsay. Georgia is In Georgia criminal cases, state- the only state in the country that ments against penal interest are retains this 19th century view of inadmissible. Under the proposed hearsay. The new rules would rules, a statement against penal allow a fact finder to base a deci- interest would be admissible if sion on hearsay if no one objected the declarant is unavailable and to the hearsay at trial. See, pro- there exists corroborating circum- posed O.C.G.A. § 24-8-802. stances that clearly indicate the trustworthiness of the statement. Learned Treatises See, proposed O.C.G.A. § 24-8- In Georgia, an expert may refer 804(b)(3). to treatises and other learned pub- lications on direct but the expert Use of Plea Bargain may not disclose the pertinent con- Discussions tents of the publication. The con- GEORGIA DOMESTIC tents may be inquired into on cross. The proposed rules bar admis- SOLUTIONS The proposed rule allows relevant sion of statements made by the portions of a treatise to be read to accused during plea bargain dis- WE FIND DEFENDANTS the jury on direct of the expert who cussions with the prosecution. relied on the publication if it is Existing Georgia law on this issue Doug Hill Louise Stefani shown that the work is considered is not entirely clear. Georgia courts a reliable authority in the particular may exclude a confession as invol- Office: 770-5514-99736 field. See, proposed O.C.G.A. § 24- untary if it was induced “by the Fax: 770-5514-44203 8-803(18). slightest hope of benefit” but not if Email: [email protected] the benefit was “collateral.” Expert Opinion Georgia courts do not apply cur- Testimony rent O.C.G.A. § 24-3-37 (excluding statements made “with a view to a A-AA-AA Georgia’s new rules regarding compromise”) to criminal cases. ATTORNEY REFERRAL SERVICE expert testimony in civil cases, The proposed rules clarify that passed in 2005, are based on the only plea discussions with the Attention - New Attorneys! Federal Rules. Yet in criminal prosecutor are protected. The main Just went out on your own? New cases, we still use the old rules. The purpose of the new rule’s protec- to Georgia? Let us jump start your proposed rules would retain the tion of plea discussions is to practice. We have helped many. current rules on expert testimony encourage responsible plea bar- And they will tell you. in civil cases and extend their gaining. This is consistent with References available. application to criminal cases. current Georgia practice. (See, e.g., (800) 733-55342 Unif. Sup. Ct. Rule 33.6— Statements 24-hhour paging: “Consideration of Plea in Final (888) 669-44345 of Co-Conspirators Disposition”). See, proposed [email protected] O.C.G.A. § 24-4-410. Georgia does not require that a co-conspirator’s statement have Offers to Compromise– been in furtherance of the conspira- Settlement Negotiations cy in order to be admissible under this exception. Georgia’s law is Georgia law and the proposed very unusual in this respect. The rules are substantially similar proposed rule is based on the though the proposed rules are requirement at common law and simpler in two respects. (1) carried forward in the Federal Georgia courts have made some Rules that any statements admissi- arduous distinctions between ble as a co-conspirator admission “offers to settle” and “offers to must have been in furtherance of compromise.” The proposed rules the conspiracy. See, proposed simply require that liability or O.C.G.A. § 24-8-801(d)(2)(E). damages be in dispute. (2) Georgia

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has struggled with “collateral Authentication and applies to all evidence except admissions”—statements made in Identification where specific evidence rules the course of presenting an offer to expressly set a different stan- compromise but not themselves Existing Georgia law and the dard. See, proposed O.C.G.A. made with a view to a compro- proposed rules are consistent, § 24-4-403. mise. The proposed rules cover though the proposed rules are such statements if they are part of broader in some areas, such as Subsequent Remedial the settlement negotiations or a identification of parties to a phone Measures mediation. See, proposed O.C.G.A. conversation and self-authentica- § 24-4-408. tion of commercial paper, nota- Existing Georgia law and the rized documents, etc. The pro- proposed rule share the same Character Witnesses posed rules pull together all underlying principle—evidence of Current Georgia law allows authentication rules into one, clear subsequent remedial measures is reputation testimony, but not set. See, proposed O.C.G.A. § 24-9- generally inadmissible to prove opinion testimony. The new rules 901, 902. negligence. However, Georgia allow both. As one Georgia court cases suggest that the rule does not wrote, “[I]t is an evidentiary Best Evidence Rule apply in product liability cases. anomaly that in proving general Georgia’s best evidence rule con- The proposed rule would apply in moral character [Georgia] law sists mainly of 19th century such cases. See, proposed O.C.G.A. prefers hearsay, rumor, and gos- statutes. Georgia’s rule, for exam- § 24-4-407. sip, to personal knowledge of the ple, does not apply to photos or witness.” See, proposed O.C.G.A. videos but only writings. The pro- Habit Routine Practice §§ 24-4-405, 24-6-608. posed rules apply to all forms of Georgia case law has slowly rec- recordation. ognized the admissibility of habit Prior Inconsistent Georgia requires that in most evidence but it generally does not Statements cases in which a writing or record- allow a third party to testify to ing must be produced, the propo- another’s habit. The proposed rule Georgia follows the rule of nent must produce the original or has no such restriction. If adequate Queen Caroline’s case, requiring else account for why the original foundation is laid showing how the that a witness be shown his prior cannot be produced before being witness would be familiar with the written statement or have his allowed to use a copy. The pro- subject’s habit or routine, the wit- attention drawn to the time, place posed rules allow the use of copies ness may testify to it. See, proposed and circumstances of a prior oral unless the opponent cites specific O.C.G.A. § 24-4-406. statement before he can be reasons why the court should insist impeached upon it. The proposed on production of the original. See, Paul S. Milich is a rules do not require this founda- proposed O.C.G.A. § 24-10-1001 professor at Georgia tion. It is only necessary under the through 1008. State University proposed rules that the witness College of Law and have an opportunity to explain or Exclusion of Evidence teaches Evidence, deny the prior statement. In prac- Because of Prejudice, Advanced Evidence, tice, this means the prior statement Contracts and Legal History. must be introduced on cross-exam- Confusion or Waste Milich joined the faculty in 1983 ination of the declarant. of Time after practicing with the Reed, Although Georgia cases have McClure firm in Seattle where he Competency of Juror recognized the trial court’s was a trial lawyer. He earned his to Impeach Verdict authority to balance the proba- B.A., cum laude, from the tive value of the evidence against University of California, San In Georgia, a juror is competent its unfairly prejudicial effect, the Diego, in 1974, did graduate only to sustain, never to impeach, cases are inconsistent on the stan- work in philosophy at the a verdict. An exception exists for dard and scope of the trial court’s University of Colorado, and when the jury was exposed to authority. The proposed rules earned a J.D., cum laude, from external information or influence. give the trial court discretion to Georgetown University Law This exception applies only in exclude relevant evidence if its Center in 1980. He serves as the criminal, not civil cases. The pro- probative value is substantially reporter for the State Bar of posed rules extend this exception outweighed by the danger of Georgia’s Evidence Study to civil cases. See, proposed unfair prejudice, confusion or Committee. O.C.G.A. § 24-6-606(b). undue delay. This standard

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GBJ Feature

Negotiating With a Road Map The Importance of Understanding How the Other Side Thinks

by Douglas J. Witten

surprising number of parties maintain, at Our sleepover with Max and his older sister, Hannah, took place last Halloween weekend. On some point in the mediation process, that Sunday morning, after the kids woke us up at the ungodly hour of 6:30 a.m., Holly and I decided to take they have their minds made up and don’t the gang for brunch. Upon prying ourselves out of bed, A we realized that the earlier we got to the restaurant, the care what the other side thinks. Quite the contrary, earlier the kids would be occupied, as we found ourselves encircled by two children wildly running making an effort to understand how the other side around our house, barefoot and in varying stages of pajama-undress. Much delay would mean facing a approaches an issue is an important step in productive large brunch crowd, too. Holly and I started to get dressed and urged the kids negotiations. This is true whether negotiating with a 4- to follow suit. “Okay, guys, are you ready for brunch? Let’s get year-old or mediating to settle a lawsuit for thousands going, okay? The sooner you get dressed, the sooner you can eat pancakes,” I pleaded from outside their bedroom. (or millions) of dollars. “I don’t like pancakes,” Hannah pointed out. “I want toast.” The Best Negotiators are Often the “You can have toast.” “Unless the pancakes have syrup on them,” Hannah Smallest Ones added. My wife Holly and I recently undertook the daunt- “You can have pancakes with syrup or toast, ing task of hosting our niece and nephew—7 and 4 whichever you want. You just have to get dressed.” years old, respectively—for an overnight sleepover. “Okay, I’ll get dressed,” Hannah said. “But Max has We love these kids as if they were our own, and they to get dressed, too, and right now he’s jumping on the are always fun to have around. Frankly, though, the 4- bed in his underwear.” year-old boy, Max, can be a handful. He’s already At that point, I knew the challenge was on. I, the smarter than we are, and he negotiates better than any mediator, prepared to face Max. of the lawyers or other parties I usually face in the Max was, indeed, jumping on the bed in his under- mediation setting.1 wear, laughing and smiling mischievously as he

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bounced up and down. I could tell by the look in his eye that he was going to be a tough customer. “Come on, now. Don’t you want to go eat? You have to get dressed if you want something to eat. We’re all hungry, and we need you to help us out.” I figured that Max would understand that he was part of our “team,” we were counting on his cooperation, and therefore he would be motivated to work with us. I knew he was hungry, and I assumed the hunger would prod him to listen to reason and take the necessary steps (i.e., get dressed) to allow our group to eat. I was wrong. Max resisted my begging and pleading, which continued shame- lessly for a few minutes, and he showed no signs of giving in. Therefore, I left Max in Hannah’s hands, went back to huddle with Holly in our bedroom, and pro- ceeded to get dressed. “Max’s not putting his clothes on,” Hannah yelped from the kids’ room. “He’s still in his underwear, and now he’s bothering me. Please get him away! And I’m hungry.” “Max, we’re all getting ready, and we’re going to have to leave you if you don’t get your clothes on in a hurry. You can stay here, fix yourself some coffee and make yourself some French toast. We’ll show you where the eggs, milk and bread are. Fine with me, pal.” After a roll of the eyes and a hint of a smile, Holly said quietly in my ear, “I love you, but I don’t think this reverse psychology bit is working. Are you sure you’re a mediator?” “I have an idea,” she whispered to me before raising her voice for the kids to hear. “Max, I’m coming in!” Holly continued from the kids’ room. “Do you want to wear your clown wig today?” Max’s new Halloween costume included a rainbow-colored clown wig and a red plastic, stick-on nose. He was very excited about wearing his wig, and Holly knew that the

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mere mention of it would get Max in a way that we would not fashion, decides to solve the dis- Max’s attention. have otherwise been able. Was pute by splitting the potato down “Yeah!” he screamed. “I want to Max hungry? Yes, but satisfying the middle and giving half to each wear my wig! And you don’t want his hunger was clearly not his pri- child. The end result in the parent’s me to wear it, right?” he asked, mary goal. Igniting a “competi- mind: equal division, neither side almost instinctively. Max’s eyes lit tion” between the kids and the completely happy or unhappy, up wide like saucers, twinkling adults created additional motiva- producing a “fair” outcome. with anticipation and refocused tion for both Max and Hannah but, As the example goes, the par- energy. again, this was not the negotia- ent, upon subsequently learning “Oh, you can wear it,” Holly tion’s driving force. of the children’s true desires, replied, “but only if you and Hannah Only a 4 year old would find finds that the “fair” result was not are dressed before the adults are. And value in having the ability to wear the optimum result. This is so I don’t think you can beat us!” a novelty wig out to eat, and that is because one child wanted to eat “Yes we can! YES we can!” Max precisely why offering it as part of only the potato skin and the other and Hannah screeched excitedly a negotiating strategy was such a wanted to eat only the potato’s and in unison. wonderful touch. Our negotiations inside. Therefore, had the parent From our bedroom, Holly and I resulted in what is typically simply peeled the potato and listened intently to the rustling described as a “win-win” outcome, given the skin to the one child and sounds of two kids dressing as since both sides wound up win- the remaining potato to the other, quickly as possible. Hannah shout- ners; those who were hungry got each child would have received ed encouraging words to Max in an to eat in a timely manner, and exactly what he or she wanted. effort to move him along, and it those who like attention and acting Because the parent did not under- sounded like she even helped him silly got to wear a clown wig to stand the children’s true desires dress. They worked as a team, in an brunch. before determining the solution, amazing turn of events. Another key to our negotiation’s all involved lost the opportunity Lo and behold, Hannah and Max success is a deceptively simple, yet to reach a “win-win” result. were dressed before we adults critical, point about effective nego- Recently, while dining out at a were. Holly claims that we let them tiation strategy: whenever possible, Chinese restaurant with my broth- win, but I maintain that I was try- offer a concession that has high er and his wife, I witnessed anoth- ing to get ready quickly and that value to the other side but low er simple situation in which sepa- my best wasn’t good enough. value to the offering party. The rate preferences can create oppor- “Pure genius,” I whispered to corollary to this point is that the tunities for successful “negotia- Holly on our way to the car, true value of a negotiation conces- tion.” My brother’s favorite dish, Hannah and Max scampering sion is placed upon it by the receiv- cashew chicken, comes with onions ahead of us, Max proudly donning ing party, which will not necessari- and bean sprouts, neither of which his clown wig. ly be equal to the value assessed by he likes. My sister-in-law’s favorite the offeror. dish, beef with Chinese vegetables, To Satisfy the Other In this case, offering Max the comes with water chestnuts and Side’s Needs is First To ability to wear his clown wig had carrots, neither of which she likes. low value to us, but Max highly Instead of each special ordering Understand Them valued that privilege.2 Therefore, their meals without certain ingredi- This simple anecdote about we were able to “give up” some- ents, my brother and his wife order Hannah and Max makes some crit- thing that cost us nothing—since the dishes as prepared and give the ical points about productive nego- we didn’t mind Max’s wearing his unwanted ingredients to the other tiating. wig to brunch—and that was a true person. For them, this works out First, Holly and I were successful victory in his mind. In such a case, perfectly: my brother enjoys the in our negotiations with Max the negotiation result is a prover- otherwise unwanted water chest- because we were able to understand bial “win-win” that satisfies both nuts and carrots, and my sister-in- how the other side thinks. More pre- sides.3 law loves the onions and bean cisely, Holly was able to under- It may be helpful to note other sprouts that my brother despises. stand how Max thinks and correct- simple illustrations of how an Again, this is an example of a “win- ed my misguided approach to understanding of the other side’s win” situation for the group as a negotiating with a precocious 4 thinking can produce successful whole, as each person gets what he year old. negotiations.4 For example, two or she likes and the collective Only with an understanding that children are around the dinner group maximizes their result.5 A wearing his clown wig to brunch table fighting over a single potato. down-the-middle split of these was the most valuable commodity The children’s parent hears the dishes certainly wouldn’t work in in play were we able to motivate argument and, in Solomon-esque this instance because, in addition to

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the preferences and aversions described above, my brother does- The n’t like the beef of his wife’s dish and she doesn’t like the broccoli winning edge and peppers in his. Therefore, by NLRG National Legal Research Group selectively sharing in the described CHARLOTTESVILLE, VIRGINIA manner, neither gives up anything for Georgia Put us to work helping you win today. desired and each gains something 1-800-727-6574 or [email protected] liked. attorneys Surely, we can all think of Fast, Affordable, Specialized instances in our lives in which we since Research, Writing and Analysis arrive at successfully negotiated For more information, and to see what your results that derive from our indi- 1969 peers are saying about us: www.nlrg.com vidual preferences. If we are unaware of what things others involved value highly and what things they consider low-value, how they think and what motivates them, how can we arrive at successfully negotiated results? How would a waitress at the Chinese restaurant have efficiently divvied up two dishes, as my brother and sister-in-law were able to, without knowing each person’s unique preferences? How would we have motivated our nephew to get dressed without appreciating that he places a higher value on wearing a clown’s wig than avoiding a restaurant’s brunch crowd? For the same reasons that understanding how and what the other side thinks allows for successful negotiations in the above illustrations, such an understanding can likewise lead to successful results in mediation and more formal negotiation settings. Understanding the Other Side in More Formal Negotiation Settings: A Workers’ Compensation Case Study Understanding how and what the other side is thinking can often help savvy parties negotiate settle- ments in personal injury cases. A wise negotiator realizes that effective negotiation strategy is based upon an appreciation of—and even empathy towards—the other side’s position. Such an understanding

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does not require a party to aban- of personal debt he has incurred tion—and by understanding the don its own position but rather since sustaining his job-related other’s thinking and needs—the allows the party to be conscious of injury. Therefore, the claimant parties arrived at a mediated com- what is driving a negotiation and indicates that he would accept promise. best determine how to craft a $55,000 as a reasonable value to set- mutually beneficial settlement. tle his claim, provided that he Understanding as a Suppose an insurance company could get $5,000 of that amount on Road Map To is negotiating with a workers’ com- an expedited basis. pensation claimant and the compa- With the skillful assistance of the Negotiation Success ny representative is involved in mediator, the parties are eventually Of course, it is quite possible for mediation with the claimant and able to settle the claim for $50,000, parties to reach a negotiated agree- claimant’s counsel. At the group including provision for the insur- ment without a mutual apprecia- negotiation session that convenes ance company to advance the tion of concerns. The number of the formal mediation process, the claimant $5,000 of those funds parties who insist that they don’t claimant demands a lump-sum set- within a week of the settlement care what the other side thinks con- tlement of $125,000, and the insur- agreement. Upon learning, through tinually surprises me. Sometimes, ance company’s initial settlement the mediator and with permission these parties are even able to bully offer is $15,000. After discussing of the other side, what the their way towards agreements. The their preliminary positions and claimant’s true interests were, the odds of success are much greater, respective views of the case, the insurance company representative however, when two parties take parties adjourn to separate rooms was able to offer assistance regard- the time and effort to gain a better to further the mediation process. ing the injured party’s underlying understanding of the other side’s In a caucus, or private session needs. The insurance rep’s brother- true needs, motivations and with the mediator, after making in-law owns a car dealership, we desires. It is only with such an significant strides towards settle- come to learn, and he sells certified, understanding that negotiating ment and near the end of the low-mileage used cars and trucks. parties can arrive at uniquely cre- mediation, the insurance compa- A quick personal phone call con- ative solutions that could not have ny representative explains the firms that the claimant can buy a been achieved in a one-sided, non- precise calculation that leads the certified, used Toyota truck for collaborative manner. company to conclude that around $15,000. Making an effort to understand between $45,000 and $55,000 In this way, by settling the claim how the other side approaches an would be a reasonable settlement for $50,000 (with $5,000 advance issue is a crucial step towards pro- range: (i) the future stream of payment), each party gets what it ductive negotiation and mediation weekly income benefits the insur- needs: (i) the claimant gets enough sessions. Most people seem to ance company would owe the money to cover his medical bills, appreciate that “there are two sides claimant over the life of his claim, truck payment, and personal debts, to every coin,” but they do not reduced to present value; plus (ii) thereby avoiding bankruptcy, and always recognize that, when deal- the value of the permanent partial (ii) the insurance company pays ing with human beings, the prover- disability rating a doctor has less than the maximum of what bial “other side” is multi-dimen- assigned the claimant for his back they would have been willing to sional. A failure to delve deeper into injury; plus (iii) a reasonable esti- pay based upon their internal cal- the mind of the opposing side will mate of future medical cost, totals culations, and advancing $5,000 is often lead to a failed negotiation. between $45,000-$55,000. not particularly costly. Even the Thus, to negotiate without car- Upon returning to the claimant’s insurance company representa- ing what the other side private caucus, the mediator learns tive’s brother-in-law makes money thinks—much less truly under- that the employee’s view of a rea- on the transaction despite giving standing the other side’s views and sonable value of his claim is based the claimant a fair price on the cer- motivations—is like taking a trip upon entirely different calcula- tified truck. without a road map. Although you tions. In this case, the claimant Therefore, both sides to the might reach your destination with- explains that what he really wants mediation are able to win through out it, having a clear picture of how from the negotiation is: (i) $5,000 the negotiation process. Note, how- to reach your endpoint greatly for estimated future medical bills; ever, that each party arrived at its enhances your odds of getting (ii) $20,000 to buy a new Toyota numbers in completely different there successfully. At times, one truck; and, most importantly, (iii) ways and each party was influ- party will be able to impose its will $30,000—$5,000 of which he which enced by very distinct preferences on another and practically force the he needs by the end of the month in and desires. They wanted and other party to “agree” to the man- order to avoid having to file for needed vastly different things, yet dated terms, typically as a result of bankruptcy—to pay off a mountain through the magic of negotia- the one party having significantly

40 Georgia Bar Journal 08-07gbj.qxp 7/25/2007 12:13 PM Page 41

greater bargaining power than the Endnotes to Max’s or the adults, she could conceivably be considered a third other. However, successful agree- 1. Holly would add that Max is as party in our illustrative example. ments will most often result when cute as a button but I, the professional mediator, refuse to let that Suffice it to say, however, that each party has negotiated to satis- between “winning” and being fy, at least to some extent, its color my judgment when it comes to negotiation. ready before the adults, witness- respective needs and interests. 2. Recall that, when faced with the ing the spectacle of Max wearing Sometimes, to your amazement, possibility of gaining permission a clown wig in a restaurant, and success might just be as simple as to don his wig, Max immediately getting to eat brunch, Hannah letting the other party wear his sought confirmation that we didn’t was a satisfied party to our nego- clown wig to brunch. want him to wear it. Max ques- tiations, and the two-party model tioned us to make sure that we here does not separately address Douglas J. Witten, were prepared to give up some- her interests. experienced in corpo- thing valuable and, in fact, the 4. See, e.g., Herb Cohen, You Can Negotiate Anything 198-99 (Bantam rate health law, is cur- value he allocated to gaining our Books 1982) (1980). rently a deputy direc- permission was directly propor- tional to our opposition to the 5. Of course, it would have been tor for the ADR simple enough for my brother Division of Georgia’s wig. We, of course, nimbly dodged his line of questioning, and his wife each to order a dish State Board of Workers’ so Max naturally assumed that without the unwanted ingredi- Compensation. Witten has earned any reasonable person would ents. In that case, however, there a B.B.A. from Emory University, a highly value the wig-wearing are potential and actual down- J.D. from New York University privilege. sides, such as: (1) neither would School of Law, and an LL.M. 3. For simplicity’s sake, I’m speak- have the benefit of enjoying the (Health Law and Policy) from the ing here of a two-party negotia- other’s unwanted items; (2) a dish University of Houston. He is a reg- tion, the two parties being (1) could take longer to prepare if specially ordered; and (3) a dish’s istered, bilingual mediator who Max and (2) the rest of our group. Of course, Holly’s and my overall composition and balance has presided in approximately could be compromised with 800 cases. interests are always perfectly aligned, and because Hannah’s ingredients omitted. interests were not exactly equal

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August 2007 41 08-07gbj.qxp 7/25/2007 12:13 PM Page 42

GBJ Feature Business, Pleasure Mix at 2007 Annual Meeting

by Jennifer R. Mason Photos by Sarah I. Coole, Jennifer R. Mason, Johanna B. Merrill 2006-07 Bar President Jay Cook with members of a breakdancing troupe from Universal Studios at the Opening Night Street Fair.

he Sawgrass Marriott Resort and Spa in Opening Night Festival— Street Fair Style Ponte Vedra Beach, Fla., provided a beauti- While the location of the event was moved inside ful setting for the State Bar of Georgia’s 43rd due to the threat of rain, the spirit of the authentic T street festival prevailed at the opening of the 2007 Annual Meeting. While business was on the agenda, Annual Meeting. Members along with their families and guests mingled as the sights and sounds of the fes- the luxurious spa, the sound of the waves at the tival, reminiscent of a night on the boardwalk, set the tone for the evening. The smells of cotton candy and Cabana Beach Club and the impeccable surface of the popcorn competed with scents of more sophisticated street fare while music and laughter resonated greens at TPC Sawgrass reminded attendees that hard throughout the venue. Children and adults alike wait- ed for their turn to spar in the jousting ring and the work reaps its own rewards. demand for custom hologram I.D. tags never waned.

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At the make-your-own-CD booth, Committee), and Judicial Elections Spring Meeting in New Orleans groups of people gathered to listen by Edward Lindsay (vice chair of for which it raised $10,000 for to the unique interpretations of the Judiciary Committee). the Tipitina’s Foundation and some very well known songs as During the plenary session, volunteered at a local food friends, families and strangers President Jay Cook delivered his bank; the National High School came together to create their very outgoing remarks as required by Mock Trial Competition that own musical memories. the bylaws of the State Bar. A copy was won by Jonesboro High of those remarks can be found on School and which will be host- Business Begins page 50 of this Journal. ed by Georgia in 2009; and the Following the successful open- Following a report by Kenneth Juvenile Law Committee’s ing night event, attendees got L. Shigley on the Rule of rewriting of the juvenile code down to the heart of the meeting Professional Conduct 1.15(I)(b) the that is nearing completion. with CLE sessions, section and following motion was approved by The Board, by unanimous voice alumni events. Breakfasts, lunches unanimous voice vote: vote, approved the following and receptions provided a social Motion presidential appointments to atmosphere in which members To refer to the Disciplinary the State Disciplinary Board: could reconnect with old friends Rules and Procedures Com- Investigative Panel and network while enhancing their mittee the question of whether District 8: Donald W. knowledge of the law. Interspersed Rule of Professional Conduct Huskins, Eatonton (2010) with business were opportunities 1.15(I)(b) should be amended, District 9: Christine Anne to connect in a purely social atmos- and to ask the Formal Advisory Koehler, Lawrenceville phere with the YLD/LFG 5K Fun Opinion Board to further study (2010) Run, tennis tournament and the proposed Formal Advisory District 10: Larry Ira Smith, ever-popular golf tournament. Opinion request No. 05-R6, to Augusta (2010) more clearly define the specific At-Large: Kenneth G. Board Meeting interests of creditors of clients as Menendez, Atlanta (2010) Highlights to which an attorney may be Review Panel required to provide notice, Northern District: C. Following the presentation of accounting or payment from a Bradford Marsh, Atlanta awards at the June 15 plenary ses- client’s funds, such as (i) judg- (2010) sion, the Board received reports on ments, (ii) statutory or judgment Middle District: Ralph F. the Investigative Panel by Dennis liens, (iii) letters of protection, Simpson, Tifton (2010) C. Sanders, the Review Panel by and (iv) consensual security Southern District: Judd Gregory L. Fullerton, the Formal agreement. Thomas Drake, Metter Advisory Opinion Board by Gerald M. Edenfield presided (2010) Edward B. Krugman, the Supreme over the 214th Board of Governors Formal Advisory Opinion Court of Georgia by Chief Justice meeting on Saturday, June 16. Board Leah Ward Sears, the Court of Highlights of the meeting At-Large: Edward B. Appeals of Georgia by Chief Judge included: Krugman, Atlanta (2009) Anne E. Barnes, the Georgia House Elena Kaplan provided a report University of Georgia: of Representatives by Wendell on the activities of the YLD Professor C. Ronald Willard (chair of the Judiciary including: a recap of the YLD’s Ellington, Athens (2009)

Corporate Sponsors Lawyers USA Dispute Resolution Consumer Law 5 Gavel Real Property Law Section, Intellectual Property Law Creditors’ Rights The Georgia Fund State Bar Legal Economics Environmental Law Georgia Lawyers Insurance Taxation Law Fiduciary Law Company Section Sponsors Platinum Level, $5,000 Bronze Level, $1,000 General Practice and Trial 3 Gavel Business Law Agriculture Law Individual Rights ABA Retirement Funds Criminal Law Appellate Practice Labor & Employment Law Minnesota Lawyers Mutual Product Liability Eminent Domain Other Thomson West Tort & Insurance Practice Health Law Administrative Law 2 Gavel Gold Level, $3,000 Real Property Law Entertainment & Sports Law Brown & Gallo, LLC Elder Law Workers’ Compensation Law Government Attorneys 1 Gavel Silver Level, $2,000 Copper Level, $500 Military Law/Veterans Affairs Insurance Specialists, Inc. Bankruptcy Law Antitrust Law Sections General Fund

August 2007 43 08-07gbj.qxp 7/25/2007 12:13 PM Page 44

As required by Article V, by unanimous voice vote, The Board received a copy of Section 8 of the bylaws, the approved the 2007-08 budget. the future meetings schedule. Board: The Board approved a language Rudolph N. Patterson present- Authorized the president clarification in the Reserves ed the annual James M. Collier to secure blanket fidelity Policy wherein the cash Award to Robert M. Brinson bonds for the Bar’s officers reserves and Board designated who was instrumental in initiat- and staff handling State Bar reserves are further defined for ing the IOLTA program and funds. background information. working with the banking insti- Directed the State Bar and Results of the Executive tutions to help establish manda- related entities to open appro- Committee election were as fol- tory IOLTA (see page 62). priate accounts with such lows: Kenneth L. Shigley, David Linda Klein and Lauren Barrett banks in Atlanta, but exclud- S. Lipscomb and A. Thomas provided a report on the activi- ing any banks that do not par- Stubbs. ties of the Lawyers Foundation ticipate in the IOLTA Program, The Board elected Cliff Brashier of Georgia. and other such depositories as as executive director for the Sally Lockwood provided a may be recommended by the 2007-08 Bar year. report on the activities of the Finance Committee and desig- The Board approved the Board of Bar Examiners. nated by the Executive appointments of Lisa Chang, The Board received a copy of the Committee of the Board of William C. Rumer, Mark Dehler minutes of the April 19, 2007, Governors of the State Bar of and Leigh M. Wilco, for two- Executive Committee Meeting. Georgia, said depository cur- year terms, to the Georgia Legal Tom Stubbs provided a report rently being Merrill Lynch, Services Board of Trustees. on the Bar’s 2007 legislative and that the persons whose The Board took the following activities. titles are listed below are action on proposed Rules, The Board received a written authorized to sign an agree- Bylaws and policy changes: annual report from the ment to be provided by such Disciplinary Rule 4- Unauthorized Practice of Law banks and customary signa- 201(b)(5), Rule 4-103, Rule 4- Program, the Fee Arbitration ture cards, and that the said 203(b)(7) and Rule 9.4. Program and the Supreme banks are hereby authorized to Approved by unanimous Court of Georgia Equal Justice pay or otherwise honor any voice vote (see page 103). Commission. check drafts, or other orders Eligibility of President- The Board received written issued from time to time for elect. The Board, by majority annual reports from the follow- debit to said accounts when hand vote, approved the dele- ing sections: Agriculture Law, signed by two of the following: tion of existing Rule 1-404. Appellate Practice Law, Anti- treasurer, secretary, president, Thereafter, the Board meeting trust Law, Aviation Law, immediate past president, was suspended and the Bankruptcy Law, Business Law, president-elect, executive Plenary Session was con- Dispute Resolution, Eminent director, general counsel, and vened, where, by majority Domain, Family Law, Fiduciary officer manager provided hand vote, the proposed Law, General Practice and Trial, either the president, secretary, Bylaw was approved, as Immigration Law, Intellectual or treasurer shall sign all revised, predicated upon the Property Law, International checks or vouchers, and that acceptance of the proposed Law, Local Government Law, said accounts can be reconciled rule change by the Supreme Military/Veterans, Real Property from time to time by said per- Court. Following that, the Law, School and College Law, sons or their designees. The Plenary Session was suspend- Technology Law, and Tort and authority herein given is to ed and the Board meeting was Insurance Practice. remain irrevocable so as said reconvened (see page 98). banks are concerned until they Rule 1-501. License Fees. Annual Awards are notified in writing, Approved by unanimous During the plenary session, acknowledge receipt thereof. voice vote (see page 99). specific Bar members and organi- Designated that Jones and YLD Membership (see zations were honored for the Kolb be designated as the page 102). Approved by unan- work that they have done over the independent auditing firm to imous voice vote. past year. President Jay Cook audit the financial records of The Board received a copy of began by recognizing all members the State Bar for the fiscal year the proposed new Georgia present for the work they do, and 2005-06. Rules of Evidence that will be stating that while not everyone Following a presentation by an action item at a future Board can receive an award, all are Treasurer Lester Tate, the board, meeting. deserving of one.

44 Georgia Bar Journal 08-07gbj.qxp 7/25/2007 12:13 PM Page 45

(Left to right) Winners of the annual tennis tournament include Caroline Brashier, John Corish, John and Nancy Whaley prior to the Kathryn Tanksley and Roger Murray. YLD/LFG Dinner Gala.

Chief Justice Thomas O. sion and the justice system in provide the best informational Marshall Professionalism Georgia, through dedicated service source to their membership, Awards to a voluntary bar, practice bar, according to their size: The Sixth Annual Chief Justice specialty bar or area of practice sec- 101 to 250 members: Sandy Thomas O. Marshall Profes- tion. This year’s recipient was the Springs Bar Association sionalism Awards, sponsored by Hon. Adele Platt Grubbs, Cobb 251 to 500 members: Gwinnett the Bench and Bar Committee of County Bar Association. County Bar Association the State Bar of Georgia, honors one The Award of Merit is given to 501 members or more: Atlanta lawyer and one judge who have voluntary bar associations for their Bar Association and continue to demonstrate the dedication to improving relations In 1961, Congress declared May highest professional conduct and among local lawyers and devoting 1 as Law Day USA. It is a special paramount reputation for profes- endless hours to serving their com- time for Americans to celebrate sionalism. This year’s recipients munities. The bar associations are their liberties and rededicate were the Hon. George H. Kreeger, judged according to size. themselves to the ideals of equali- judge, Superior Court, Marietta, Under 50 members: Fountain ty and justice under the law. Every Ga.; and Paul W. Painter Jr., Ellis, City Bar Association year, voluntary bar associations Painter, Ratterree & Adams LLP, 101 to 250 members: Forsyth plan Law Day activities in their Savannah, Ga. County Bar Association respective communities to com- 251 to 500 members: DeKalb memorate this occasion. The Law Georgia Association of Bar Association Day Awards of Achievement are Criminal Defense Lawyers 501 members or more: Cobb also judged in size categories: Awards County Bar Association 51 to 100 members: Blue Ridge The Georgia Association of Honorable Mention: Gwinnett Bar Association Criminal Defense Lawyers present- County Bar Association 101 to 250 members: Dougherty ed the 2006 GACDL Indigent The Best New Entry Award is Circuit Bar Association Defense Award to Gerald P. Word presented to recognize the excel- 251 to 500 members: Gwinnett and the 2006 Rees Smith Lifetime lent efforts of those voluntary bar County Bar Association Achievement Award to Douglas associations that have entered the 501 members or more: Cobb N. Peters. Law Day, Award of Merit or County Bar Association Newsletter competitions for the The President’s Cup Award is a Voluntary Bar Awards first time in four years. This year’s traveling award that is presented The Excellence in Bar Leader- recipient was the Forsyth County annually to the voluntary bar asso- ship Award, presented annually, Bar Association. ciation with the best overall pro- honors an individual for a lifetime The Best Newsletter Award is gram. This year’s recipient was the of commitment to the legal profes- presented to voluntary bars that Cobb County Bar Association.

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(Right) Georgia Court of Appeals Chief Judge Anne Elizabeth Barnes addresses the Board of Governors. (Below) Board Member Donna Barwick, Board Member Judge Ed Carriere, Past President Bill Barwick and Executive Committee Member David Lipscomb at the Opening Night Festival.

(Below left) 2007-08 YLD President Elena Kaplan and YLD Past President Laurel Payne Landon at the Inaugural Gala. (Below right) Board Member Chuck Driebe enjoys the festivities of the evening.

(Left) Past President Rudolph Patterson dances with his granddaughter, Katy Beth, to the sounds of Rupert’s Orchestra. (Right) 2006-07 President Jay Cook dances with his wife Frankie. 08-07gbj.qxp 7/25/2007 12:13 PM Page 47

(Top) Madison Croxson sings “All My Ex’s Live in Texas” with her grandfather, Past President Paul Kilpatrick, in the make-your-own-CD booth at the Opening Night Festival. (Center left) Secretary Bryan Cavan, Susan Reinhardt, Past President Rob Reinhardt and Board Member Michael Elsberry at the Opening Night Festival. (Center right) 2006-07 President Jay Cook presents the Local Bar Award of Merit to Mike Hawkins, president of the DeKalb Bar Association, at the Plenary Session. (Left) Kirtan and Ritu Patel and Board Member Sonjui L. Kumar at the Presidential Inaugural Gala Saturday evening. 08-07gbj.qxp 7/25/2007 12:14 PM Page 48

Pro Bono Business Law Award was presented by the State Bar of Georgia A Business Commitment Committee and the State Bar of Georgia Pro Bono Project to Paul D. Fancher of Troutman Sanders, LLP, and Lynn E. Fowler of Kilpatrick Stockton, LLP. Section Awards These awards are presented to outstanding sections for their dedication and service to their areas of practice, and for devoting endless hours of volunteer effort to the profession. Section of the Year Business Law Section, Paul Cushing, chair Kristie Edenfield, 2007-08 President Gerald Edenfield, Fay Foy Franklin and Past President Jimmy Franklin at the Opening Night Festival. Awards of Achievement Family Law Section, Shiel Edlin, chair Pro Bono Awards Access to Justice Committee of the Intellectual Property Law The H. Sol Clark Award is State Bar of Georgia and the Pro Section, Griff Griffin, chair named for former Georgia Court of Bono Project to the Dougherty Real Property Law Section, Appeals Judge Clark of Savannah, County Law Library’s Legal David Burge, chair who is known as the “father of Information and Assistance Technology Law Section, legal aid in Georgia.” The presti- Center for its small-city/rural Michael Stewart, chair gious Clark Award honors an indi- focus in delivering critical access to vidual lawyer who has excelled in legal information, forms and Tradition of Excellence one or more of a variety of activi- lawyer-supervised advice clinics. Awards ties that extend civil legal services The Dan Bradley Award honors The Tradition of Excellence to the poor. the commitment to the delivery of Awards are presented each year to The H. Sol Clark Award is pre- high quality legal services of a selected Bar members who have sented by the Access to Justice lawyer of Georgia Legal Services reached the age of 50 in recognition Committee of the State Bar of Program or the Atlanta Legal Aid for their commitment of service to Georgia and the Pro Bono Project. Society. The award honors the the public, to Bar activities and to The 2007 award was presented to memory of Georgia native and civic organizations. The 2007 recipi- Timothy B. Phillips, who has Mercer Law graduate Dan J. ents were: L. Hugh Kemp (defense), demonstrated professionalism and Bradley, who was president of the Charles J. Driebe (general practice), proven commitment to, and sup- federal Legal Services Corporation. Paul Kilpatrick Jr. (plaintiff) and port for, the delivery of civil legal The 2007 Dan Bradley Award was Justice Carol Hunstein (judicial). services to the poor. presented by the Access to Justice The William B. Spann Jr. Award Committee of the State Bar of Young Lawyers Division is given each year either to a local Georgia and the Pro Bono Project Awards bar association, law firm project or to Wendy Glasbrenner, managing Recipients of the Award of a community organization in attorney for the Gainesville Achievement for Outstanding Georgia that has developed a pro Regional Office of Georgia Legal Commitment and Service to the State bono program that has satisfied Services Program. Bar of Georgia’s Young Lawyers previously unmet needs or extend- The Georgia A Business Division included: Derek Bauer, ed services to underserved seg- Commitment Pro Bono Business Shiriki Cavitt, Mawuli Davis, ments of the population. The Law Award honors the business Sharri Edenfield, Sally Evans, award is named for a former presi- law pro bono contributions of an Elizabeth Fite, Terri Gordon, dent of the American Bar individual lawyer, corporate legal Stephanie Kirijan, Scott Masterson, Association and former executive department or law firm to the non- Ari Mathe’, Shane Mayes, Jill director of the State Bar of Georgia. profit and community economic Muvdi, Stephinie Petties, Stacy The 2007 William B. Spann Jr. development sectors in Georgia. Rieke, Lea Thompson, Tania Award was presented by the The 2007 A Business Commitment Trumble, and the Savannah YLD.

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Recipients of the Distinguished Patterson was honored for his “con- Attendees moved from the busi- Judicial Service Award In spicuous service to the cause of ness portion of the evening right Recognition of Distinguished jurisprudence and to the advance- into the celebration. Four themed Service on the Bench, Commitment ment of the legal profession in the rooms provided food, drinks and to Improving the Practice of Law, state of Georgia.” (See page 60.) entertainment that kept the party and Active Support of the Young Saturday evening marked the going on into the night. The scotch Lawyers Division included: Chief beginning of a new chapter for the and cigar and martini bars were full Judge Anne Elizabeth Barnes, Bar as Gerald M. Edenfield was of people looking for drinks in a Justice George H. Carley and sworn in as the 45th president of sophisticated setting, while the ‘50s Judge John J. Ellington the State Bar of Georgia by his sports bar was equipped with all The recipient of the Young brother, Hon. B. Avant Edenfield. sorts of games and diversions for Lawyer Ethics and Professionalism After stepping on stage, Edenfield the more competitive individual. Award was Andrew Goldner. placed his left hand on the Bible The room that once again captured The recipient of the Ross Adams and repeated the following: the largest audience was the dance Award was Joe Dent. I, Gerald Edenfield, do solemnly club where Rupert’s Orchestra swear that I will execute the office of played popular ‘80s dance hits Changing of the Guard president of the State Bar of Georgia, along with personal favorites. Prior to the swearing-in ceremo- and perform all the duties incumbent ny, 2006-07 President Jay Cook pre- upon me, faithfully, to the best of my Jennifer R. Mason is sented the Distinguished Service ability and understanding, and agree- the assistant director Award, the highest accolade able to the policies, bylaws and rules of communications for bestowed on an individual lawyer and regulations of the State Bar of the State Bar of by the State Bar of Georgia, to Past Georgia; the laws and constitution of Georgia and can be President Rudolph N. Patterson. the United States. So help me God. reached at [email protected]. 2007-08 Executive “What did you like best Committee President about the Annual Meeting?” Gerald M. Edenfield, Statesboro

President-elect Jeffrey O. Bramlett, Atlanta

Immediate Past President Jay Cook, Athens

Treasurer S. Lester Tate III, Cartersville

Secretary Bryan M. Cavan, Atlanta

YLD President Elena Kaplan, Atlanta

YLD Immediate Past President The best part of the Bar Association Going to the Golf Course and Jonathan A. Pope, Canton meeting was the Opening playing golf. -Dallas NeSmith ceremony, especially the boxing At-large Members ring. I hope the next meeting could The best thing about the kids C. Wilson DuBose, Atlanta be just as fun!! program was going to the pool. Phyllis J. Holmen, Atlanta -Patrick Hampton -Hanna Flanagan David S. Lipscomb, Lawrenceville My favorite thing was when we The best part was meeting new Kenneth L. Shigley, Atlanta went in the pool and I got to get friends and seeing my old friends. A. Thomas Stubbs, Decatur together with my friend. One of the best times I’ve had was N. Harvey Weitz, Savannah -Ryan Hampton hanging out with Carlos. -Michael DelCampo

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GBJ Feature

Cook Says: There is Hope

by Jay Cook The bylaws of the State Bar of Georgia specify the duties of the president. One of the responsibilities is to “deliver a report at the Annual Meeting of the members of the activities of the State Bar during his or her term of office and furnish a copy of the report to the Supreme Court of Georgia.” Following is the report from President Jay Cook on his year, 2006-07, delivered June 15, at the State Bar’s Annual Meeting.

e have made an admirable dent in the

goals I outlined when I accepted the W presidential gavel in June 2006: to restore a healthy, balanced vision of the American jus-

tice system and the paramount role it plays in preserv-

ing and protecting a democratic society. Photo by Sarah I. Coole But I can’t and won’t take credit for the progress we 2006-07 Bar President Jay Cook at the Plenary Session at the State made. It would not have been possible without the Bar’s Annual Meeting. endorsement of the Board of Governors. It would not have been possible without the full support of the The proof, as they say, is in the pudding. Nothing we’d Executive Committee. It would not have been possible tried thus far was working. We needed expert help and without the vision and leadership of my predeces- we were lucky to find a rare breed of consultant that sors—Rob Reinhardt and Robert Ingram—who saw both shared our values and understood how to trigger the need for public education and established the a values-based conversation about American justice. Foundations of Freedom Commission during their That dialogue, they convinced us, needed to take place presidencies. And it would not have been possible if on higher ground, under a standard of American val- the Bar’s officers—Gerald Edenfield, Jeff Bramlett, ues, and through a clear, truthful message that res- Bryan Cavan, and Lester Tate—did not understand onates deeply with the public. that public education must be a permanent fixture in The process taught us other important things: (1) tra- our continuing strategy to safeguard the judiciary’s ditional marketing (self-promotion and “selling”) don’t critical role in preserving founding principles and the work; (2) facts don’t matter because people think in American way of life. “frames”—words or phrases that carry deeper mean- But getting everybody on board was only the first ings and can’t be easily supplanted by data; and (3) step. The next step was to resign ourselves to the fact most Americans believe in strong courts that are free that lawyers aren’t always the best communicators. from political influence, but few understand how the

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separation of powers works to truth and fairness are on our side mately, prosecutors and judges uphold the Constitution. . . . . A belief in justice—even an erro- who behave like tyrants in the We then developed (and tested) neous belief—can be the line that courtroom will find that it isn’t the a set of core messages that reveal separates gentility from riots in the little guy . . . who suffers the direst the ways in which the justice sys- streets.” consequences when the justice tem embodies and preserves While I disagree with Ms. myth dies. No. When the powerful American values. Following are Wolfe’s cynical premise that our close the doors to justice—and some of these messages and how belief in justice is a myth, I feel she when common people understand Georgians rated them in a public is right about one thing: our deep that the doors are closed—we have opinion poll commissioned by the belief in justice must prevail if we one more place to turn: the streets.” State Bar: are to preserve a civilized society The onus is on us to ensure the based on the rule of law. doors of justice remain wide open Justice for all means equal pro- But we can’t ignore the signs and welcoming. The onus is on us tection under the law and that Americans are losing faith in to restore the public’s belief in jus- equal rights for all citizens (96 justice. Somewhere along the line, tice through values-based mes- percent agreed) the American people became saging. The path is long, but there Justice for all means upholding ashamed rather than proud of ask- is hope. Like Confucius said, the Constitution as the ing the courts to resolve legitimate “Every journey of a thousand supreme law of the land (95 disputes. Somewhere along the miles begins with a single step.” percent agreed) line, the American people began We have taken the first steps. Justice for all requires strong perceiving jury service as a chore Let’s keep going. We need each of courts, impartial judges, and rather than a privilege and a liber- you to stand up and take the next citizen juries (98 percent ty-sustaining responsibility. And step with us. agreed) somewhere along the line, the Justice for all means defending American people began demean- Jay Cook is the fair and impartial courts (98 ing the role our founding fathers immediate past percent agreed) intended for lawyers and judges to president of the State Justice for all is a constitutional play in our system of justice. Bar of Georgia and can promise worth keeping (96 per- Where will it end? Ms. Wolfe be reached at jaycook cent agreed) pessimistically prognosticates: @midspring.com. “Ultimately, the myth dies. We used these messages to Whether you’re a constitutional develop radio and television ad scholar or a semi-literate kid, you campaigns and editorials to know you won’t get justice in the improve public understanding of justice system. Remember, the jus- the importance of impartial courts tice system isn’t the little guy’s first and an independent judiciary; we hope. It’s the last. What do you do used these messages to remind the when that hope is snuffed?” public of the importance of keeping It is up to us, as officers of the politics out of the judiciary during court, to keep that hope alive. It is last year’s Supreme Court elections; up to us—the lawyers, judges, and and we used these messages to court administrators—to ensure advance our perspective under the that the courtroom remains an hon- Gold Dome. orable place for citizens to settle But our work is far from over. legitimate disputes. This means, And that is why I choose to leave first and foremost, honoring the liti- you not with a litany of past gants who have demonstrated their achievements, but with a bounty of faith in the system by asking the food for future thought. court to resolve a disagreement in a “We cherish a myth that the jus- civilized, dignified and common- tice system is the last, best hope for sense way that’s fair to both parties. the beleaguered ‘little guy’ in the We owe it to the litigants and to world of the powerful,” Claire Wolfe ourselves not to shake their faith in wrote in her 1998 essay After the Fall justice by making the trial about of Justice. “No matter what happens, anything but the fair, impartial and we’ve been told, even the humblest efficient administration of justice. of us can ‘have our day in court,’ be Ms. Wolfe leaves us with this heard and be vindicated, as long as thought-provoking warning: “Ulti-

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GBJ Feature

Edenfield Plans for New Bar Year

by Gerald M. Edenfield The following is excerpted from Gerald M. Edenfield’s presidential speech at the 2007 Annual Meeting in Ponte Vedra Beach, Fla.

want to thank all of you for being here tonight and

sharing this momentous occasion with me. This I will not be a lengthy speech, I promise. But I do want to take the opportunity to thank you once again for

this tremendous honor and responsibility—and, before

we leave this beautiful setting, to tell you a little about

myself and leave you with a few thoughts about our

mission for the upcoming year. Photos by Sarah I. Coole

As many of you know, I grew up in rural Bulloch 2007-08 President Gerald Edenfield addresses the attendees of the County in South Georgia, a child at the beginning of Presidential Inaugural Gala. the baby boom. I was reared on a tobacco farm, and so was my wife, who rode to school on a school bus driv- Indeed, this fulfillment must have manifested itself en by her father, while we were both in elementary in my children. Two of the three are lawyers, and the school. My parents did not graduate from high other has yet to select what path to pursue. I would not school—they were a product of the depression—but choose any other life’s pursuit for myself, and I hope all education was a major part of my upbringing. of you feel the same. I was told by my parents, as many of you were told by Much has changed in the practice of law through the yours, that I could be anything and do anything that I put years since I began practicing. Many of the changes my mind to as long as I worked hard, persevered, was have been good, including modernization brought on competent and demonstrated character and manners. by computers and the Internet. Another positive Thanks to this encouragement given not only to me, change is the number of women in the profession. Both but to my brother and sister as well, two of the three of of my daughters are practicing attorneys. us went on to attend college and law school. There have also been some unfortunate changes. In fact, since 1970, I have had the honor and privi- Perhaps the worst is a trend that has gotten some press lege of practicing law in the great state of Georgia. lately and is something that we talk a lot about at Bar Being a lawyer and practicing law in the county where meetings: the public’s very negative perception of I was reared is a dream come true for me. lawyers and the erosion of confidence in our legal system.

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Lawyer jokes are nothing new Finch. He is one of the few charac- I’ve mentioned tonight, so I ask for (in fact most of them are showing ters whom we all admire and the your help in galvanizing the pro- their age), but I think what is new public reveres. tection of these ideals among ALL is the damage that has been done to He was an excellent lawyer who Georgia lawyers. Unless we stand our profession and, by extension, practiced his profession with dis- united on these issues, our defense our country’s justice system. tinction. Furthermore, he was a against these attacks will fail. One of the things that I have wonderful parent, a good neigh- I call upon each member of the realized about being a lawyer is bor, and a respected member of his State Bar to serve in whatever that our profession, and the system community. capacity you can to ensure the law we are sworn to serve, provides the And while there are exceptions is upheld, respected and accessible foundation upon which liberty and to every rule, the vast majority of to those who require it. It does not justice stand. the lawyers that I know represent matter what area of the law you Even though the judiciary was the ideals for which we so admire practice in. Whether you are a designed as a separate but equal in Atticus Finch. transactional lawyer, tax lawyer, branch of government, it is open to The public’s negative percep- litigator or lawyer of any other vicious attacks by other branches, tion of lawyers and the legal sys- kind, you know that access to jus- when individuals in those other tem is one borne out of a miscon- tice is the bedrock upon which our branches do not agree with the ception, fueled by the same indi- entire profession stands. We must law’s application. viduals who hate judicial inde- all stand together. As retired Justice Sandra Day O’Connor warned, “There is no natural constituency for judicial independence except for a vibrant, responsible lawyer class. We can’t just expect the courts to protect themselves.” Therefore, it is up to us to protect our profession, the courts and judicial independence as the ultimate weapons against lawlessness. As everyone here has heard at some point in our professional careers, there were three original professions: ministry, medicine and law. While each profession has its own significant virtues, our mission is justice. Our work, our service, our dedication to upholding timeless principles of justice allows for this state and this nation to The Edenfield family—Sharri, Gerald, Sharon, Gerry and Kristie at the Presidential Inaugural Gala prosper and prevail. on June 16. What makes the American system of justice the envy of the world pendence and access to the courts In truth, I must confess that in is the unique concept that access to because they cannot control it. If any organization, a small per- the courts, judicial independence, the public knew the truth about centage assume the obligation to and professional integrity are what we do and why access to the lead. Help me to find those essential to the fair administration courts and an impartial judiciary lawyers who will assume the of justice. The bedrock of the pro- is so important, I do not believe responsibility. Even more impor- fession is a competent, independ- that this misconception would tantly, let’s encourage young ent judiciary. Without this, really continue. lawyers to participate and nothing else matters. Therefore, I dedicate my term as assume positions of leadership, Hovering over the profession, president to mobilizing the State whether it is in their community, however, is a “suspicion” that we Bar to educate the public about in the State Bar, in the Legislature are skilled people doing bad things what we do and why it is impor- or by other means. because we know how. I suppose tant. I know in some respects that I I challenge you to use the pas- that’s why most lawyers enjoy To am “preaching to the choir” sion you had for the law when you Kill a Mockingbird and Atticus regarding some of the topics that passed the Bar and began your

August 2007 53 08-07gbj.qxp 7/25/2007 12:14 PM Page 54

“And Justice for All” 20072 State Bar Campaign for the Georgia Legal Services Program, Inc.

Because of You… HOPE exists 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, you can make 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 £ä{Ê >ÀiÌÌ>Ê-ÌÀiiÌ]Ê-ÕÌiÊÓxäÊÊUÊÊÌ>Ì>]ÊÊÎäÎäÎ Honor Roll of Contributors in the Georgia Bar Journal. 08-07gbj.qxp 7/25/2007 12:14 PM Page 55

practice. Use that passion to con- those human needs among our ates, Charlie Aaron, Sharri vey this mission to the younger State Bar members. Edenfield and Benji Colson. generation of lawyers and the pub- As the incoming president of Without these fine lawyers and our lic. That mission being the educa- this great organization, I plan on terrific staff, I would not be able to tion of others of why lawyers are leading by example. Those of you serve in this position. I also want to an integral part of our justice sys- who know me can attest to my pas- thank my family who is here with tem and the importance of our jus- sion for the law and service. me tonight, some of whom have tice system. We have to live the law and traveled great distance to be with I challenge you to become the become its messenger. After all, as us. Finally, and especially, I want rock where liberty and justice can I asked the Board of Governors this to thank my wife and children for stand and gaze at the possibility of morning: if lawyers do not stand joining me on this next exciting a better tomorrow. up for our justice system and adventure. Finally, I wish for my children, remind our fellow citizens why As the year progresses, I hope and all of us, professional satisfac- judicial independence matters, each of you will seize that opportu- tion. How we improve the status of who will? nity to live the law . . . to serve lawyers and how to provide for I want to thank Jay Cook for his humanity . . . tand uphold the prin- their professional and personal outstanding service this past year, ciples of liberty and justice for all. needs are worthwhile pursuits of and for the trail he and all our past We are the beneficiaries of the this organization. Creating more presidents have blazed for this foundation on which they stand, meetings and committees is not organization. As they have, I and we must make sure that it my objective. It is clear to many know I will benefit from the never falters. that more billable hours, better efforts and expertise of Cliff computers, more depositions and Brashier and the entire State Bar Gerald M. Edenfield six-figure incomes have not staff to meet the opportunities and is the president of the addressed the human needs that the challenges ahead. State Bar of Georgia our highly intelligent and hard- I want to thank my law partners and can be reached at working profession has. Let’s Susan Cox, Marc Bruce, and [email protected]. begin a process this year to address Michael Classens and our associ-

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GBJ Feature

Gerald M. Edenfield: A Reputation Built on Service

by Joel Alvarado

erald Edenfield laughs when recalling his The next day, after staying up all night to research the issue, Edenfield came to realize the doctor was shaky beginning as an attorney in wrong and he became a little more humble. Fortunately, Neely was willing to tutor the young aspi- Atlanta. His client was scheduled for a rant and served as a mentor for years afterward. G Although an inglorious beginning, one can argue that deposition with Edgar Neely, a great trial lawyer with Edenfield has spent the next 37 years of his life making amends by providing his clients excellent legal service. years of experience. The 45th president of the State Bar of Georgia was born on July 6, 1945. He grew up on a farm in Bulloch “Mr. Neely was extremely prepared and thoroughly County, where his parents instilled in him a strong

Gerald, Sharon, Gerry, Sharri and Gerald, Sharon, Gerry, questioned my client, who was a doctor,” Edenfield work ethic and an appreciation for education. His par- said. The doctor, totally exasperated from the grilling, ents were obviously very successful in rearing their requested a break to consult with Edenfield. He want- children for both he and his brother became attorneys ed to exercise his doctor-patient privilege and refuse to and his sister retired after working as a hearing admin- (Left to right) answer any more questions. Edenfield, wanting to sat- istrator for the Social Security Administration. isfy the interest of his client, was more than willing to Edenfield, for his part, graduated in 1968 from the comply with his request and advised Neely of his University of Georgia with an A.B. in political science client’s desire. and philosophy. By 1970 he graduated from Mercer Unfortunately, Edenfield did not study or research University’s Walter F. George School of Law in doctor-patient privilege and relied on the knowledge Macon. Throughout his matriculation in both under- of his client. Edenfield now chuckles, for in retrospect graduate and law school, Edenfield worked numer- he realized “it was a bad move on my part.” Neely, ous jobs: selling patent medicine, door-to-door sales- fully aware that such a privilege was not applicable to person, laundry truck driver and at a beer distribu- the case in question, asked for him to research if the tion company. He was determined to get his educa- doctor-patient privilege was an appropriate request. tion and to never let any obstacle deter him from his 2007-08 State Bar President Gerald M. Edenfield along with his wife and three children at their farm, 2007-08 State Bar President Plantation, located in Stilson, Ga. Meldrim Woods Kristie. photo by www.lorigrice.com August 2007 57 08-07gbj.qxp 7/25/2007 12:14 PM Page 58

goal of realizing the dreams of his ly lucky to have a close confidant tool that can help advance the legal parents. in his life to discuss the law: his profession in both collegiality, pro- After passing the bar exam, brother, U.S. District Judge B. fessionalism, and improve the effi- Edenfield was fortunate to start his Avant Edenfield. He has always ciency of the justice system.” To legal career with the firm of been able to call upon him when Edenfield, “serving as a mentor Heyman & Sizemore. He remem- situations developed that were allows a person who has practiced bers that “they were always willing difficult. His brother always law for many years, and has to give me the responsibility and “emphasized getting to the point, amassed a great wealth of informa- the credit for performing the task at to not embarrass anyone, be suc- tion, to pass onto other attorneys hand.” The one thing the senior cinct, and fully disclose to the their experiences and other pearls attorneys emphasized, which has court all the information that is of wisdom.” stayed with him to this day, was necessary for the court to make a In time, Edenfield moved back that a good reputation was essen- just decision.” to Statesboro. He has been manag- tial to having a successful law prac- More important, his brother as ing partner of Edenfield, Cox, tice—words to live by. well as another relative, the late Bruce & Classens since 1988. His Edenfield credits firm represents the late Lamar such local clients Sizemore, a partner as the Bryan at Heyman & County Board of Sizemore and father Education, Farm- of current Superior ers and Merchants Court Judge Lamar Bank, Bulloch Sizemore of Macon, County Board of with teaching him Education, Cand- many lessons about ler County Board dealing with clients, of Education and how to deal with other important conflicts that arise, local organiza- and how to best tions. He consid- address controver- ers Susan Cox, a sial matters. To but- partner in the firm, tress his point, as another great Edenfield told a mentor. Edenfield story of a well- notes that “when known client, photo by www.lorigrice.com things get hectic, whose son had the she reminds me misfortune of violating certain traf- U.S. District Judge Newell that tomorrow is another day. She fic laws, and who was constantly Edenfield, cautioned him to “main- has a calming effect on all lawyers bailed out by his father. Finally, it tain your reputation,” for that is the and always conducts herself in the came to a point where no lawyer most important asset an attorney most professional way.” could successfully defend the has. Without credibility, a lawyer’s Away from the office, Edenfield client’s son without his spending words ring hollow in the face of the enjoys relaxing on his farm and some time in jail. Constitution and the system of jus- fishing. He has been married to his The father called Edenfield and tice we all cherish. wife Sharon for 39 years, and they asked him to visit the incarcerated Mentoring is very important to have three children. His daughter son. While meeting the son in jail, Edenfield; it has helped with Sharri is an attorney in Statesboro; Edenfield became aware that the developing his craft and establish- Kristie, his other daughter, is also client’s son had an illegal weapon ing certain principles, which he an attorney practicing in Savannah sneaked in. Fearing for the son’s has relied upon throughout his with Hunter Maclean; and their son safety, Edenfield met with career. He has never forgotten the Gerry is a senior at the University Sizemore for guidance and they advice or generosity of other attor- of Georgia. To Edenfield, family is were able to remove the young neys. When the opportunity pre- an essential part of his life. man from harm without violating sented itself to serve as a mentor Regardless of his work schedule he his confidences. As has been the for newly admitted lawyers always found time to attend impor- case, Edenfield’s commitment to through the State Bar’s pilot men- tant family events and share holi- serving his client and maintaining toring program, Edenfield was one days with his loved ones. “I will his solid reputation was evident. of the first to sign up. He recog- always be there for my family,” Edenfield says he was extreme- nizes that “mentoring is a valuable exclaims Edenfield, “for their love

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and support have allowed me to Governors for the State Bar of blessed with an opportunity to not succeed professionally.” Georgia, and chairman of the only be caretakers of the law, but He has received numerous hon- Committee to Relocate the Federal caretakers of democracy. It is a ors for his legal excellence and vol- Court. Under his leadership, he responsibility Edenfield does not unteerism. Since 2004, Edenfield will challenge his fellow State Bar take lightly and a message he con- has been a member of the presti- members to find that opportunity veys to all new or aspiring attor- gious American College of Trial to live the law, to serve humanity, neys he meets. Lawyers. This organization is com- and uphold the principles of liber- Edenfield has built his reputa- posed of the best of the trial bar ty and justice. tion through more than three from the United States and Canada Edenfield is also heavily decades of service to the public and and is widely considered to be the involved in local organizations. the justice system. He has never premier professional trial organi- He has served as president of the been ashamed to ask for assistance zation in America. In 2005, he was Rotary Club, director of the and guidance from his peers nor recognized by Atlanta Magazine as Statesboro Chapter for the has been silent when a colleague a Georgia “Super Lawyer” in liti- American Lung Association, pres- could benefit from his counsel. gation. Edenfield was also hon- ident of the Statesboro-Bulloch When asked what one piece of ored with the Service to Mankind Chamber of Commerce, and advice he can offer, Edenfield Award in 1995 and the Founders director of the Farmers and quickly responds: “Your reputa- Award from Deen Day Smith, an Merchants Bank. Edenfield agrees tion as an attorney is the most valu- organization in Statesboro that rec- with Woodrow Wilson who able asset that you have since we ognizes the contributions of local declared that “(lawyers) are the all have the same books to read and leaders. servants of society, the hand ser- appear in the same courts. But, if Edenfield is a member of many vants of justice.” you truly seek justice, your reputa- legal associations: the State Bar of To Edenfield, service must tion will precede you, and you will Georgia, the American Bar extend beyond the courtroom. accomplish much and be respected Association, and the National Attorneys have the knowledge, by both the bench and the bar.” Association of School Attorneys, skill and ethical foundation to just to name a few. Within these serve the public at large. It is a Joel Alvarado is a organizations he has served in the moral imperative to give of one- media consultant to following capacities—secretary of self to make the world better. No the State Bar of the State Bar of Georgia, task is too small if it can somehow Georgia. Legislative Committee for the improve the lives of people. At the State Bar of Georgia, Board of end of the day, lawyers are

Behind the Scenes at the Meldrim Woods Plantation Photo Shoot Statesboro native and family friend Lori Grice photographed the Edenfields at their farm on June 18. It was a hot day, but Lori and the family had fun shooting at different locations around the property. photos by Sarah I. Coole

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GBJ Feature

Past President Receives 2007 Distinguished Service Award

by Johanna B. Merrill

tate Bar Past President Rudolph N.

Patterson received the State Bar of Georgia’s S Distinguished Service Award during the June 16 inaugural ceremony at the 2007 Annual

Meeting at the Sawgrass Marriott Resort & Spa in

Ponte Vedra Beach, Fla. Outgoing President Jay Cook

presented the award to a surprised Patterson, who was

unaware that he was the 2007 recipient. Photo by Sarah I. Coole Past President Rudolph N. Patterson accepts the 2007 Distinguished The highest honor bestowed by the Bar, the award Service Award from 2006-07 President Jay Cook. recognizes conspicuous service to the cause of jurisprudence and to the advancement of the legal profession chairperson of the Institute of Continuing Legal in Georgia. Patterson has been an asset and a friend to Education in Georgia, attorney trustee of the Institute the Bar since he was admitted to what was then the of Continuing Judicial Education of Georgia, member Georgia Bar Association in 1962, offering outstanding of the Southern Conference of Bar Presidents, and and unfailing service, as not only an attorney in private Georgia delegate for the ABA. practice but also as a member of the Board of In addition to receiving the Distinguished Service Governors for almost two decades. His leadership Award, Patterson is a past recipient of the General qualities have been felt across local, state and national Practice and Trial Section’s Tradition of Excellence levels of bar service as president of the Macon Bar award as well as the Georgia Southwestern State Association, president of the State Bar of Georgia, and University’s 21st Century Leadership Award. through many years of service to the American Bar A 1963 graduate of Mercer University, Walter F. Association and as founder and president of the George School of Law, Patterson practices in the areas National Organization of Social Security Claimants’ of Social Security disability law, personal injury and Representatives. workers’ compensation law. His long-standing commitment to the legal profession includes past and current service as chair of the Johanna B. Merrill is the section liaison State Bar’s General Practice and Trial Section, chair of for the State Bar of Georgia and a con- the State Bar’s General Counsel Committee, president tributing writer to the Georgia Bar Journal of the Georgia Bar Foundation, vice chair of the and can be reached at [email protected]. Lawyers Foundation of Georgia, chair of the Commission on Continuing Lawyer Competency,

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State Bar of Georgia 2007 Distinguished Service Award Rudolph N. Patterson

WHEREAS, Rudolph N. Patterson has served the legal profession and the State Bar of Georgia with unfailing commitment, enthusiasm and pride since he was admitted to the Bar in 1962; and WHEREAS, the State Bar of Georgia recognizes Rudolph N. Patterson for his outstanding and unfailing service as a private practice attorney in Macon and as a member of the Board of Governors since 1991, including his service as State Bar President in 1999-2000; and WHEREAS, Rudolph N. Patterson played a crucial role in the development of the Bar Center by revising a 100-year old easement for the protection of access to the building; and WHEREAS, during his service to the profession, his leadership qualities have been felt locally as President of the Macon Bar Association, statewide as a member of the State Bar’s Executive Committee and as a Chairman of the General Practice and Trial Section, and nationally through the American Bar Association and as the Founder and President of the National Organization of Social Security Claimants’ Representatives; and WHEREAS, his involvement with the ABA as a State Bar of Georgia delegate and member of the National Caucus of State Bars reinforces his dedication and commitment to the profession, not only in the state of Georgia, but nationally; and WHEREAS, Rudolph N. Patterson has shown extensive devotion to continuing legal education for lawyers and judges with his past and current service as Chair of the Commission on Continuing Lawyer Competency, Chairperson of the Institute of Continuing Legal Education in Georgia and Attorney Trustee of the Institute of Continuing Judicial Education of Georgia; and WHEREAS, Rudolph N. Patterson has been recognized for his contributions to the public and the profession with the General Practice and Trial Section’s Tradition of Excellence Award; the Georgia Southwestern State University Twenty-First Century Leadership Award and as the fifth Guest Lecturer in the Griffin Bell Lecture Series; and WHEREAS, the State Bar of Georgia has benefited from Rudolph N. Patterson’s involvement as Vice Chairman of the Lawyers Foundation of Georgia, President of the Georgia Bar Foundation, a member of the Southern Conference of Bar Presidents, and through his service to numerous State Bar committees; and WHEREAS, Rudolph N. Patterson has provided sage advice and counsel to Georgia and other state bar leaders, sharing with them historical knowledge of the organized Bar that few lawyers possess; he gives the same sound mentoring to countless young lawyers in Social Security Law and other areas in which he practices; and WHEREAS, the legal community and citizens of Georgia owe a debt of thanks to Rudolph N. Patterson for giving of himself selflessly for the betterment of our communities through 45 years of dedicated service with the State Bar of Georgia. NOW THEREFORE BE IT RESOLVED that the State Bar of Georgia does express its gratitude and appreciation to Rudolph N. Patterson for his many years of devotion to the legal profession and to the people of Georgia by presenting him with the Distinguished Service Award—the highest honor bestowed by the State Bar of Georgia for conspicuous service to the cause of jurisprudence and to the advancement of the legal profession in the state of Georgia. Given this 16th day of June 2007. Jay Cook President, State Bar of Georgia 08-07gbj.qxp 7/25/2007 12:14 PM Page 62

GBJ Feature

Bob Brinson Wins James M. Collier Award

by Len Horton obert M. Brinson, past president of the

State Bar of Georgia and partner in the law R firm of Brinson, Askew, Berry, Seigler, Richardson & Davis in Rome, received the fourth

annual James M. Collier Award. The award was pre-

sented at the Board of Governors meeting during the

State Bar of Georgia’s Annual Meeting in Ponte Vedra

Beach, Fla., by Rudolph Patterson, president of the

Georgia Bar Foundation. Photo by Len Horton Past President Robert M. Brinson accepts the 2007 James M. Collier Award from Past President Rudolph Patterson. “Bob Brinson exemplifies service to the Georgia Bar Foundation and to IOLTA and the many grant recipients who depend on the Georgia Bar Foundation for they wanted to. By showing the typical Georgia funding,” said Patterson. lawyer that IOLTA was okay, it set the stage for “In the beginning of IOLTA when we were fighting mandatory IOLTA five years later. Once Bob had to get the concept accepted by Georgia lawyers and shown that IOLTA, like oatmeal, was the right thing to bankers, Bob led the way with his ‘Totally Painless do, the selling of mandatory IOLTA became much eas- Way To Give’ marketing campaign. Eventually that ier. Without the groundwork set by Bob, mandatory effort helped establish IOLTA as one of the most valu- might never have happened. Without mandatory able ways a lawyer can contribute to his or her com- IOLTA, civil legal assistance to the poor along with munity. It got us over the hump and into the minds of scores of other programs including mock trial, law- lawyers and bankers who wanted to help solve hun- related education and efforts to help children at risk dreds of law-related problems in Georgia.” might never have happened.” “Those were the voluntary days,” Patterson contin- In addition to being an IOLTA pioneer, Brinson ued, “when lawyers did not need to participate unless remained a source of wisdom whenever the Georgia

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Bar Foundation or IOLTA encoun- tered challenges. To this day, Brinson is a pro bono counselor to the Bar Foundation on everything from dealing with legal problems to identifying ways to win needed Consumer support in the Legislature. Whether on an airplane heading toward Minnesota to represent a Pamphlet client or in his car or even occasionally at home, he was always reachable, always full of ideas and Series unfailingly positive. Patterson went on to say, “As he The State Bar of Georgia’s Consumer did with the State Bar, Bob has left footprints on the Georgia Bar Pamphlet Series is available at cost to Foundation’s sands of time, and Bar members, non-Bar members and believe me I know that those prints organizations. Pamphlets are priced at are from shoes that are difficult to fill. The Georgia Bar Foundation is cost plus tax and shipping. fortunate to have had him as its Questions? Call 404-527-8792. pilot in its maiden flight.” The James M. Collier Award is presented annually to a person whose efforts in support of the Bar Selecting a Wills Divorce Personal Bankruptcy Juror’s Foundation and its mission are so Care Home extraordinary that they must be Manual recognized. The award honors the extraordinary financial support of Jim Collier, who as an officer in the Bank of Dawson, has been able State Bar State Bar State Bar State Bar State Bar of Georgia of Georgia of Georgia of Georgia of Georgia to provide certificates of deposit Consumer Consumer Consumer Consumer Consumer Pamphlet Pamphlet Pamphlet Pamphlet Pamphlet with significantly higher interest Series Series Series Series Series 63 rates than are available anywhere else. He and his bank together set a standard of support for the Georgia Bar Foundation that The following pamphlets are available: demanded recognition and led to the creation of the James M. Auto Accidents Bankruptcy Buying a Home Collier Award. Divorce How to Be a Good Witness How to Since 1983, the Georgia Bar

Foundation has been working Choose a Lawyer Juror’s Manual Lawyers and with the assistance of the State Legal Fees Legal Careers Legal Rights of Nursing Bar of Georgia in accordance with Home Residents Living Wills Patents, Trademarks orders from the Supreme Court of Georgia to provide funding for and Copyrights Selecting a Nursing Home law-related organizations through- Selecting a Personal Care Home Wills out the state. In the process thousands of economically disadvan- taged Georgians benefit each year. Visit www.gabar.org Len Horton is the executive director of for an order form and more information the Georgia Bar or e-mmail [email protected]. Foundation. He can be reached at hortonl @bellsouth.net.

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GBJ Feature

LFG Enjoys Another Year at the Annual Meeting

by Lauren Larmer Barrett

onte Vedra Beach, Fla., is one of the pretti-

est spots in the world, and the lawyers of P Georgia were lucky enough to gather there this year for the 2007 State Bar of Georgia Annual

Meeting. Just a few miles south of the Georgia-Florida

border, it was a great spot for reconnecting with

friends and colleagues. The Lawyers Foundation’s

events during the meeting included a silent auction

and fellows meeting, as well as the joint YLD/LFG Photos by Sarah I. Coole and Johanna B. Merrill Fellow Judge Philip C. Smith with wife Pamela Boles ready to attend Dinner Gala and the annual Fun Run. the YLD/LFG Dinner Gala.

The Lawyers Foundation of Georgia’s Silent Auction The annual YLD/LFG 5K Fun Run was held on the was a rousing success. More than $11,000 was raised to beach in front of the resort’s private Cabana Beach benefit the Challenge Grant Program. Thank you to Club. Every runner crossed the finish line and was everyone who worked so hard this year obtaining able to proudly clutch the coveted T-shirt while items for us—you are great! And of course, we can’t downing a bottle of cold water. forget to thank those who actually bid on the merchan- The fellows meeting, held each year to provide fel- dise. Your willingness to give is much appreciated. lows with an update on the foundation and to elect the

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Lawyers Foundation of Georgia Sponsors These companies are year round sponsors of the Lawyers Foundation of Georgia. Through their support the Lawyers Foundation is able to accomplish its goals. Platinum The Georgia Fund SunTrust Legal Specialty Group Silver AT&T (formerly BellSouth) The Coca-Cola Company Minnesota Lawyers Mutual Bronze Brown and Gallo, LLC Cushman & Wakefield Mauldin & Jenkins

Margaret Chasteen, Past President Bobby Chasteen, Board Member Tom Chambers and Carol Chambers before they head off to the YLD/LFG Dinner Gala. officers and trustees, was held June 15 at a time when many may have preferred to be on the beach, in the pool or on the golf course. Despite the call of the outdoors, the turnout was good. The slate of trustees and officers for the coming year are listed above. Thank you to the law firms who hosted and to all our sponsors, particularly the platinum, gold and silver level organizations: SunTrust Legal Specialty Group, The Georgia Fund, AT&T (formerly BellSouth) The Coca-Cola Company and Minnesota Lawyers Mutual. To all those who support the Lawyers Foundation of Georgia, thank you! The continued growth of More than $11,000 was raised in the Lawyers Foundation of Georgia Silent Auction to benefit the foundation is due to your partic- the Challenge Grant Program. ipation and contributions. If you have any questions about the activi- LFG 2007-08 Board of Trustees ties, events and programs of the foundation, please contact Lauren Chairperson John A. Chandler, Atlanta Larmer Barrett, 104 Marietta St. NW, Rudolph N. Patterson, Macon James B. Durham, Brunswick Suite 630, Atlanta, GA 30303, lfg_lau Secretary Gerald M. Edenfield, Statesboro [email protected], 404-659-6867. James B. Franklin, Statesboro Lester B. Johnson III, Savannah Vice Chairperson Lauren Larmer Elena Kaplan, Atlanta George E. Mundy, Cedartown Barrett is the execu- Laurel Payne Landon, Augusta tive director of the Treasurer William R. Jenkins, Atlanta George R. Reinhardt Jr., Tifton Lawyers Foundation of Teresa W. Roseborough, Long Georgia and can be LFG Board Members Jeff Bramlett, Atlanta Island City, N.Y. reached at lfg_lau Ed Tarver, Augusta [email protected]. Cliff Brashier, Atlanta N. Harvey Weitz, Savannah

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GBJ Feature

Young Lawyers Division Celebrates 60 Years by Deidra Sanderson

he Young Lawyers Division (YLD) and the was wonderful to celebrate the 60th birthday of the YLD with so many former presidents and friends pres- Lawyers Foundation of Georgia (LFG) joined ent at such a magnificent place as TPC,” Immediate Past President Jon Pope said. forces to present a black tie gala in celebra- Past presidents in attendance included: Charles J. T Driebe, 1963-64; W. G. Elliott, 1964-65; Matthew H. tion of the 60th anniversary of the Young Lawyers Patton, 1970-71; Robert M. Brinson, 1973-74; James Elliott, 1976-7l; James A. Pannell, 1979-80; Richard T. de Division, on June 15 at the Tournament Players Club Mayo, 1982-83; William D. Barwick, 1984-85; John C. Sammon, 1987-88; Donna G. Barwick, 1988-89; Dana B. (TPC) in Ponte Vedra Beach, Fla. The evening, Miles, 1989-90; Stanley G. Brading Jr., 1990-91; Rachel K. Iverson, 1993-94; Tina Shadix Roddenbery, 1994-95; J. “Celebrating 60 Years of Service,” honored YLD presi- Henry Walker, 1996-97; Joseph W. Dent, 1999-00; Peter J. Daughtery, 2001-02; Derek J. White, 2002-03; Laurel dents since the organization’s establishment in 1947. Payne Landon, 2004-05; and Damon E. Elmore, 2005-06. “I had too much fun!” Chuck Dreibe, 1963-64 presi- Traditionally, the LFG Fellows Dinner and the YLD dent said. “As the oldest living young lawyer, it was Dinner take place separately during the State Bar of great fun to see all the old codgers. The anniversary Georgia’s Annual Meeting, but combining the events event was an excellent party in the grand tradition of allowed for an unforgettable evening for the groups to the YLD.” become familiar, or to reconnect, with each other, pro- Guests enjoyed a cocktail hour and were treated to a viding a foundation to build upon in the future. State display of YLD memorabilia representing the organi- Bar Past President Linda Klein said, “It is fitting that zation’s 60 years of history. Newsletters, including the the charity of choice for Georgia lawyers would join very first edition (Fall 1961), ABA Awards of with the largest group of lawyer volunteers, the YLD, Achievement, scrapbooks, and numerous photographs to celebrate their 60th anniversary.” were on display. A DVD photo montage of past presi- Three hundred attendees arrived at the majestic new dents played continuously throughout the evening on 77,000 square-foot Mediterranean revival-style club- four large screen monitors. house to the sound of bagpipes playing from the bal- “Thanks to the YLD for honoring us past YLD pres- cony. Many YLD past presidents were in attendance, as idents—all 60 years of us. I was impressed that so the evening was dedicated to celebrating the 60th many past presidents were able to attend—obviously anniversary by honoring the YLD’s past presidents. “It having successfully completed their incarcerations,

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rehabs, identity makeovers and health issues associated with getting as old as we are. The efforts to accommodate us old timers were admirable—having walkers and wheelchairs readily available was most thoughtful. However, I did think the wheelchair limbo contest was a little over the top. The Alzheimer’s jokes were really funny, or at least I think they were because I can’t remember any of them. One suggestion I have for the next reunion is to have pictures on the nametags, like high school reunions. With the increased girth, gray (or no) hair and denture replacements, I hardly recognized anyone. Heck, if my name hadn’t been on the old pictures I wouldn’t have recognized myself!” joked Stan Brading, 1990-91 president. YLD Award recipients for the 2006-07 Bar year were recognized by Immediate Past President Jon Pope: Award of Achievement, Outstanding Service to the Public: Shiriki Cavitt, Terri Gordon, Community Service Projects Committee co-chairs; Ari Mathe’, Lea Thompson, Juvenile Law Committee co- chairs Award of Achievement, Outstanding Service to the Profession: Derek Bauer, Intrastate Moot Court Competition Committee Chair; Sally Evans, Stacy Rieke, Tania 2007-08 YLD President Elena Kaplan (right) with her parents, Stephanie Brundage and Ken Harkins, prior to the YLD/LFG 60th Anniversary Celebration Dinner Gala. Trumble, High School Mock Trial Committee; Elizabeth Fite, Appellate Admissions Third Annual Young Lawyer The inaugural Ross Adams Ceremony committee chair Ethics and Professionalism Award, which honors a lawyer Outstanding Service to the Bar: Award: Andrew Goldner personifying the exemplary service Shane Mayes, Scott Masterson, Distinguished Judicial Service and great qualities of the late YLD Litigation Committee co-chairs; Award: Chief Judge Anne president, was presented to Ross’s Mawuli Davis, Stephinie Elizabeth Barnes; and Judge close friend Joe Dent, YLD presi- Petties, Minorities in the John J. Ellington (Judge of the dent in 1999-00, who was both sur- Profession Committee co-chairs Year) prised and moved by the honor. Award of Achievement, The YLD honored Justice Robin and Paige Adams, wife and Outstanding Service to the George H. Carley for his serv- daughter of Ross, attended the din- YLD: Jill Muvdi, State Bar of ice to the YLD in swearing in ner and were on stage along with Georgia Fee Arbitration the YLD officers over the last YLD Past Presidents Damon Department; Sharri Edenfield; 15 years. The High School Elmore and Tina Shadix Rod- Stephanie Kirijan; Scott Mock Trial Program also hon- denbery to present the award to Masterson; and the Savannah ored Justice Carley for his Dent. “I thought the event was well Young Lawyers Division support. planned and appropriately hon-

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Far left: YLD Past President Matt Patton with Jennie Derby. Center: Frank Burns, YLD Past Presidents Henry Walker and Joe Dent. Top Right: YLD Past Presidents Dana Miles and Bill Barwick. Bottom Right: Kelly White and YLD Past President Derek White.

Many YLD Past Presidents were honored with tribute gifts for the 60th Anniversary Celebration: $1000 and more: 1977-1978: Charles T. Lester Jr. 1993-1994: Rachel K. Iverson $999 and less: 1947-1948: Harry S. Baxter* Sutherland Asbill & Brennan, LLP Morris Manning & Martin 1964-1965: W. G. Elliott Kilpatrick Stockton, LLP 1978-1979: Theodore M. Hester 1994-1995: Tina Shadix Roddenbery Elliott, Blackburn, Barnes & Gooding, 1949-1950: Griffin B. Bell King & Spalding Kidd & Vaughan P.C. King & Spalding 1979-1980: James L. Pannell 1996-1997: J. Henry Walker 1973-1974: Robert M. Brinson 1953-1954: Kirk M. McAlpin Oliver Maner & Gray LLP AT&T Brinson, Askew, Berry, Seigler, Kirk M. McAlpin Jr. 1980-1981: W. Terence Walsh 1999-2000: Joseph W. Dent Richardson & Davis LLP 1955-1956: Kenneth M. Henson Alston & Bird Watson, Spence, Lowe & 1987-1988: John C. Sammon Kenneth M. Henson Jr. 1983-1984: Walter H. Bush Jr. Chambless, LLP McCurdy & Candler, LLC 1956-1957: Frank C. Jones Schiff Hardin 2000-2001: S. Kendall Butterworth 1989-1990: Dana B. Miles Jones, Cork & Miller, LLP 1984-1985: William D. Barwick Kilpatrick Stockton, LLP Miles, McGoff & Moore, LLC 1961-1962: Harry C. Howard Sutherland, Asbill & Brennan AT&T King & Spalding 1988-1989: Donna G. Barwick 2001-2002: Peter J. Daughtery Gifts in Honor of all YLD Past Presidents: 1967-1968: Robert L. Steed Mellon Personal Wealth Daughtery Crawford Fuller & Brown David Farnham King & Spalding Management LLP Michael Geoffroy 1970-1971: Matthew H. Patton 1990-1991: Stanley G. Brading Jr. 2004-2005: Laurel Payne Landon Charlie Lester Kilpatrick Stockton LLP Miller & Martin Kilpatrick Stockton, LLP Adam Malone 1974-1975: R. William Ide III 1991-1992: Leland M. Malchow Tina Shadix Roddenbery McKenna Long & Aldridge LLP Nimmons & Malchow (*deceased)

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A gathering of YLD past presidents—Front row: Rachel Iverson, Tina Shadix Roddenbery and Laurel Payne Landon. Second row: Richard de Mayo, Bill Barwick, Donna Barwick, Stan Brading and Jim Pannell. Third row: Chuck Driebe, Matt Patton and Henry Walker. Fourth row: Gus Elliott, John Sammon and Dana Miles. Back: Bob Brinson.

ored the YLD and its past presi- Director Avarita Hanson said, “In more importantly, I reminded dents,” Dent said. “I was particu- the very elegant setting at the TPC those present that while the State larly caught by surprise when I Clubhouse, it was special to be Bar has elected but one woman was given the Ross J. Adams part of the tradition of hearing president, the YLD has elected Award. What an honor to receive Justice Carley swear in the YLD eight. Where the State Bar has an award that memorializes Ross officers and see his continued elected no African-Americans pres- and his commitment to the YLD enthusiastic support for the mock ident, the YLD has done so twice. and the State Bar of Georgia.” trial competition.” Atlanta YLD officers alternated Following the award presenta- YLD and State Bar Past with outside Atlanta candidates tions, Justice George H. Carley President Bill Barwick gave a toast every other year. Big firm lawyers swore in the 2007-08 YLD officers: to celebrate the 60th anniversary of coexisted with small or solo shop Elena Kaplan, president the YLD, the LFG, and the evening. lawyers, and plaintiffs’ lawyers got Josh Bell, president-elect “In toasting the YLD on its 60th along with their defense brethren. Amy Howell, treasurer anniversary, I recalled the fond The State Bar could learn a lot from Michael Geoffroy, secretary days of my youth at the Sheraton its youth.” Jonathan A. Pope, immediate Savannah on Wilmington Island, past president or the ‘Sheraton Gomorrah’ as we Deidra Sanderson is Stephanie Kirijan, newsletter liked to call it,” Barwick said. “The the director of the co-editor poolside elections, where there Young Lawyers Curtis Romig, newsletter co- were always more offices than can- Division for the State editor didates, and where the ballots were Bar of Georgia and The Chief Justice’s Commission seldom counted, were social rather can be reached at on Professionalism’s Executive than adversarial occasions. But [email protected].

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Bench & Bar

Kudos five 2007 winners chosen from more than 100 nomi- > LawHelp.org won the 2007 Webby Award for Best nees. The award was established by the ABA Law Site. A part of the LawHelp consortium, Commission on Women in the Profession in 1991 to www.LegalAid-GA.org is one of LawHelps’ top recognize and celebrate the accomplishments of four public sites. LawHelp beat out such notables as women lawyers who have excelled in their field and Findlaw, Nolo, Thomas (Library of Congress) and have paved the way to success for other women HollywoodReporterESQ. lawyers. The award is named for Margaret Brent, the first woman lawyer in America. > Kilpatrick Stockton announced that its website was ranked third among the top 250 largest law firms in > Gov. Sonny Perdue announced the following execu- the nation according to the 2006-07 IMA (Internet tive appointments. Sherrod & Bernard partner Marketing Attorney) website reviews and awards. Kenneth R. Bernard Jr. was appointed 13th The site was evaluated based on design, content, Congressional District Representative to the Board usability, interactivity and intangibles. of Regents of the University System of Georgia. Also, Kilpatrick Stockton was named a Atlanta attorney J. Max Davis was appointed 4th NameProtect Trademark Insider Award recipient Congressional District Representative, and Macon for 2006. Recognized for its significant trademark attorney Rebecca Robin Davis was appointed 8th filing activities in 2006, the firm was named the No. Congressional District Representative to the 1 trademark law firm in Atlanta. Nonpublic Postsecondary Education Commission. Additionally, they announced that Intellectual Smith, Gambrell & Russell, LLP, partner David Property Today ranked the firm among the top 20 James Burge and Eastman attorney C. Michael trademark firms in the nation. The firm ranked 13th Johnson were appointed to the Georgia Superior out of a total of 172 law firms in the publication’s list Court Clerks’ Cooperative Authority. of top trademark firms. > Fisher & Phillips LLP partner Robert W. Ashmore > and associate Brian M. Herman are recipients of the 2007 Burton Award for Legal Writing. The award is given to recognize effective legal writing, honoring law firm partners and other attorneys who use plain, clear, and concise language, avoiding stilted legalese. The Atlanta attorneys wrote an Awotwi Johnson Beck Lurey article that was one of only 30 honored. Kilpatrick Stockton announced that Adwoa Awotwi, an attorney in the > McGuireWoods attorney Curtis L. firm’s corporate department, and Mack has been appointed to the Board Katherine Johnson, an attorney in the of Trustees of The Leadership firm’s financial transactions, real estate Academy for Women of Color and restructuring department, were Attorneys, a national organization Leonard selected as members of the Destiny focused on helping women of color Fund’s 2008 class. Intellectual Property Department attorneys to develop their careers and manage partner Joseph M. Beck was selected to serve on the diversity issues in the workplace. Among other advisory panel of The Indian Journal of Intellectual activities, the Leadership Academy hosts an annual Property Law. Al Lurey, a partner in the financial conference to provide participants a dynamic transactions, real estate and restructuring depart- exchange of ideas on advancing a career; development, is the 2007 recipient of the annual Atlanta Bar ing a legal business; achieving personal and profes- Association Bankruptcy Section David Pollard sional satisfaction through work-life balance strate- Award. Jim Leonard, a partner in the firm’s litigation gies; and managing workplace diversity issues, as department, was selected to serve on the board of well as one’s physical and emotional well-being. HARMONY, Atlanta’s International Youth Chorus. > Arnall Golden Gregory LLP received two awards > Marva Jones Brooks, a partner with Atlanta law recognizing the firm’s commitment to pro bono legal firm Arnall Golden Gregory LLP, won an American representation. The Atlanta Volunteer Lawyers Bar Association (ABA) 2007 Margaret Brent Women Foundation recognized Arnall Golden Gregory for its Lawyers of Achievement Award. Brooks is one of pro bono representation of low-income clients by

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Bench & Bar

honoring the firm with its 2007 S. Phillip Heiner cuting attorneys who have been honored for suc- Award. The award is given each year to the individ- cessfully bringing to justice killers in notorious cases. ual or firm who stands out as a leader in pro bono In recognition of the award, State Bar Past President within the Atlanta legal community. The American Jay Cook hosted a reception for the Sullivan team in Civil Liberties Union (ACLU) of Georgia recog- Courtroom 8-A of the Slaton (Fulton) County nized Arnall Golden Gregory pro bono efforts in Courthouse, where the case was tried. PRIDE v. White County Schools with the organization’s Georgia Civil Liberties Pro Bono Award, presented > Woodcock Washburn LLP attorney Eduardo during the annual ACLU Bill of Rights dinner. Carreras presented a networking luncheon seminar entitled, “Intellectual Property Issues with > Carlton Fields shareholder Lawrence Converters” in June at the 2007 CMM International M. Gold was asked to serve on the Conference. The biennial CMM International is the Board of Trustees of the Lawyers world’s largest showcase and educational forum for Committee for Civil Rights (LCRR). the global converting and package printing industries. The LCCR was formed in 1963 to involve the private bar in securing > Fisher & Phil- equal justice under the law for segments of our lips LLP attor- society who have been subjected to various social neys Steven M. injustices. Gold handles corporate matters for both Bernstein, public and private businesses, with significant Douglas R. Sul- experience in mergers and acquisitions; arranging lenberger and Bernstein Sullenberger Walters corporate financings including equity and debt James M. Wal- arrangements; and advising businesses on succes- ters were among those recognized by the Labor sion strategies and strategic investments. Relations Institute as “Top 100 Labor Attorneys.” This year’s elite list was chosen from 8,600 practicing > Fish & Richardson P.C. was selected as the U.S. labor lawyers, based on the extent of their experience Patent Litigation Firm of the Year by Managing in labor law and their win records. Intellectual Property Magazine. The publication conducted a survey based on extensive research and > McGuireWoods attorney Mark L. interviews with practitioners worldwide and then Keenan was named to the “Top One ranked firms in each geographic area based on the Hundred Labor Attorneys” in the survey results. This is the second top patent ranking United States by the Labor Relations that Fish & Richardson has received this year. Institute. The honor places Keenan in the top 1 percent of all labor attorneys > Julian R. Friedman, of Savannah, joined in the United States. To be eligible for considera- the National Arbitration Forum’s nation- tion, lawyers must have represented clients in a al panel of independent and neutral arbi- substantial volume of union representation elec- trators and mediators. Friedman added to tions during the last 10 years with a win rate in the National Arbitration Forum’s out- excess of 50 percent, based on NLRB election standing panel of more than 1,600 neu- results. trals. Panelists adhere to ethical and legal standards, follow stringent rules to ensure that parties’ rights are > Constangy, Brooks & Smith, LLC, announced protected, and uphold all ethical principles. Friedman, managing members, Townsell G. Marshall Jr. and a fellow in both the American College of Trust and Clifford H. Nelson Jr. in the firm’s Atlanta office, Estate Counsel and the American College of Tax and W. Melvin Haas III in the Macon office were Counsel, has expertise in estate and trust law, probate, named “Top One Hundred Labor Attorneys” in corporate law and federal taxation. the United States for 2007, as determined by Labor Relations Institute, Inc., a leading industry informa- > The legal team of Anna Green, Kellie Hill, Sheila tion source. Haas, Marshall and Nelson made the Ross and Clint Rucker were awarded the Home elite list due to the number of National Labor Run Hitters Award of Excellence by the National Relations Board elections in which they represented District Attorneys Association for their prosecution clients and the success of those election outcomes. of the 2006 James Sullivan murder trial. The veteran They were selected from more than 8,700 labor prosecutors joined a long list of distinguished prose- attorneys evaluated by Labor Relations Institute.

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On the Move Ashburn serves as a member of the firm’s special matters and investigations team, and practices in In Atlanta the areas of securities, corporate and financial insti- > Lisa Steinmetz Morchower joined Berman Fink tutions litigation. The firm’s Atlanta office is located Van Horn P.C. as of counsel. Morchower, previ- at One Atlantic Center, 14th Floor, 1201 W. ously an attorney with the Atlanta law firm of Fine Peachtree St. NW, Atlanta, GA 30309; 404-572-6600; and Block and former senior assistant city attorney Fax 404-572-6999; www.pogolaw.com. for the city of Atlanta responsible for all alcoholic beverage and general licensing matters, will contin- > Smith Moore LLP gained an Atlanta office by joining ue to represent clients in alcoholic beverage and with Carter & Ansley LLP. Smith Moore currently general licensing, zoning and land use, hospitality has four North Carolina locations. The Atlanta office law, governmental regulation and general litigation is located at One Atlantic Center, 1201 W. Peachtree matters. The firm is located at 3423 Piedmont Road St., Suite 3700, Atlanta, GA 30309; 404-962-1000; Fax NE, Suite 200, Atlanta, GA 30305; 404-261-7711; Fax 404-962-1200; www.smithmoorelaw.com. 404-233-1943; www.bfvlaw.com. > Carlton Fields announced that intellectual property > Immigration attorney Gary C. Furin attorneys, James J. Wolfson, Brooke Lewis and announced the relocation of his office. Gail Podolsky, all formerly of Greenberg Traurig, The new office is located at 5447 have joined the firm in its Atlanta office. Wolfson, Roswell Road, Atlanta, GA 30362; 404- who will serve as co-chair of the firm’s IP practice 237-1932; Fax 404-264-1149. group, focuses his practice on intellectual property litigation and counseling, including IP portfolio management. Lewis and Podolsky both have expe- > Attorneys William H. Lawson and William R. rience in intellectual property and general commer- Moseley Jr. announced the formation of Lawson & cial litigation. The firm’s Atlanta office is located at Moseley, LLP. The firm will provide legal counsel One Atlantic Center, 1201 W. Peachtree St., Suite and representation in the areas of corporate, busi- 3000, Atlanta, GA 30309; 404-815-3400; Fax 404-815- ness and transactional matters for individuals and 3415; www.carltonfields.com. corporations, governmental affairs as well as commercial and personal injury litigation. Joining the > The executive committee of Arnall Golden Gregory firm as associates are Andrew C. Matteson and LLP appointed partner Sherman Cohen to the posi- Heather M. Davis. The firm is located at 950 East tion of chairman of the corporate practice group. In Paces Ferry Road, Suite 1550, Atlanta Plaza, his new role, Cohen is responsible for administra- Atlanta, GA 30326; 404-812-0777; Fax 404-814-0497; tive matters and business and strategic planning www.lawsonandmoseley.com. affecting the corporate practice group. Cohen’s practice concentrates on transactional matters > including public and private company mergers and acquisitions, securitizations, and equity and debt financings. The firm is located at 171 17th St. NW, Suite 2100, Atlanta, GA 30363; 404-873-8500; Fax 404-873-8501; www.agg.com.

Cottey Pumpian Sigmund Vargo > Woodcock Washburn LLP announced the addition Powell Goldstein LLP announced the of three partners, Lance Reich, Andrea Bates and election of four new partners: Tia L. Michelle Tyde, and associate Carmen Lyles- Cottey, Ryan T. Pumpian, Rebecca L. Irving. All previously were with Carlton Fields. Sigmund and Kathryn B. Vargo, and Reich specializes in complex patent prosecution one counsel, Daniel G. Ashburn. and litigation, with a particular emphasis in the Cottey is a member of the firm’s real electronics, computer software and business meth- Ashburn estate capital markets practice. ods areas. Bates is a transactional attorney with sig- Pumpian is a member of the firm’s technology and nificant experience in the development, structure, intellectual property litigation group. Sigmund spe- prosecution, licensing, defense, utilization and cializes in immigration law. Vargo practices exclu- monetization of intellectual property. Tyde special- sively in the labor and employment law field. izes in intellectual property strategy and manage-

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Bench & Bar

Civil Right To Representation search of a playwright. Weber was really that good an advocate, and the Court openly displayed its intellectual Argued in CLE Mock Hearing fire. Always cordial, always reasoning, the Court Before Supreme Court of Georgia became a whirlwind of the thoughts of five justices By Len Horton devouring ideas, spinning some away as garbage but Civil justice in the United States of America is a work carefully and constantly arranging and rearranging oth- in progress. It is still evolving into the idea that “with ers in pursuit of the correct course of action to bring liberty and justice for all” applies to everyone, not just justice to the forefront. people who can afford to buy legal representation. Floyd received a no less fervent greeting from the Inspired by the possibility of closing the “justice gap,” Court. Dutifully accepting his antagonist role in the clash the Supreme Court of Georgia’s Equal Justice of ideas, Floyd entered the debate and added his own Commission and the Committee on Civil Justice created thoughts to the mix. He, too, became engaged in a give a CLE seminar to explore whether a civil right to counsel and take of thinking, sometimes almost brainstorming, is supported by the U.S. Constitution. This seminar was with the Court. Of course, his statements often disputed presented on June 15, during the State Bar of Georgia’s points made by Weber, and he had to defend those Annual Meeting, which was held this year in Ponte statements after further questions from the Court. Vedra Beach, Fla. If truth requires clash to have the best chance to Arguing in favor of such a right was Gerald R. Weber become evident, then truth had a good chance at this Jr., legal director of the American Civil Liberties Union of seminar. The clash was real, and the Court and audience Georgia. Timothy W. Floyd, professor of law and direc- had much to think about after participating. tor of the Law and Public Service Program at Mercer After the Court departed, the crowd discussed the University’s Walter F. George School of Law, provided merits of the arguments and observations made. No opposing argumentation. Supreme Court of Georgia matter which side each member of the audience Chief Justice Leah Ward Sears presided over the mock thought had won, unanimity was clear about two hearing; other Supreme Court of Georgia justices partic- things: Karlise Grier, former staff attorney to the ipating included Presiding Justice Carol Hunstein, Justice Supreme Court’s Committee on Civil Justice, put George H. Carley, Justice Hugh P. Thompson and Justice together a great seminar; and Anne W. Lewis, vice P. Harris Hines. chairperson of the Committee on Civil Justice, had Peppered with questions that would have distracted produced an event that people will talk about for a any advocate, Weber deviated from his prepared pres- long time. entation to answer penetrating questions and observations and then gently guided the discussion back to his Len Horton is the executive director of presentation with such smoothness that the audience the Georgia Bar Foundation. He can be might have thought it was observing a stage play in which protagonist Weber had rehearsed his lines hun- reached at [email protected]. dreds of times. Judging from the aggressive, often interrupting, barrage of sincere questions Weber received, this was no play, and these were not actors in

ment, and assists companies in acquiring, protect- Howick & Westfall, LLP, announced the formation ing and monetizing their IP assets. Lyles-Irving is of a new law firm under the name of Howick, a former USPTO examiner in the chemical and Westfall, McBryan & Kaplan, LLP. The firm will materials group, and a registered patent attorney continue to focus on creditor’s rights, including with extensive experience in the chemical arts. The bankruptcy and commercial litigation as well as firm’s Atlanta office is located at 2002 Summit commercial real estate and domestic relations. The Blvd., Suite 800, Atlanta, GA 30319; 404-459-0050; four partners were also joined by associates David Fax 404-459-5734; www.woodcock.com. Dolinsky, Jonathan Rotenberg, Christopher Cooper and Virginia Bogue. The firm is located at > Susan L. Howick, M. Todd Westfall, Louis G. One Tower Creek, Suite 600, 3101 Towercreek McBryan and Michael C. Kaplan, formerly part- Parkway, Atlanta, GA 30339; 678-384-7000; Fax ners in the law firm of Macey, Wilensky, Kessler, 678-384-7034; www.hwmklaw.com.

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Bench & Bar

Chambers USA 2007 Chambers and Partners Publishing, based in London, > Kilpatrick Stockton LLP: Kilpatrick Stockton achieved produces the annual Chambers USA: America’s Leading a No. 1 ranking for Georgia for intellectual property, Lawyers for Business. For the current U.S. directory, bankruptcy/restructuring, construction and labor & more than 14,000 interviews were conducted covering employment. In Atlanta, 36 attorneys were recog- the entire country and were carried out by a team of nized: Miles Alexander, Rupert M. Barkoff, Joseph more than 40 full-time researchers over a period of six Beck, Stanley Blackburn, William Boice, Richard months. Below are a list of firms and their members that Boisseau, William H. Brewster, Susan Cahoon, Tim were included in the publication.* Carssow, Richard R. Cheatham, A. Stephens Clay, James Coil, Brian Corgan, William Dorris, Jim Ewing, > Baker, Donelson, Bearman, Caldwell & Berkowitz, Candace L. Fowler, Lynn Fowler, Randall F. Hafer, PC: Michael J. Powell, managing shareholder of the Richard Hankins, Richard Horder, Hilary P. Jordan, firm’s Atlanta office, was ranked as a leading practi- Colvin T. Leonard III, Alfred Lurey, Dennis Meir, Todd tioner in the area of intellectual property in Georgia. Meyers, John Pratt, Susan Richardson, Paul M. Rosenblatt, George Anthony Smith, Jerry Smith, Jim > Chamberlain, Hrdlicka, White, Williams & Martin: Steinberg, David Stockton, Phillip Street, Jerre Swann, Chamberlain Hrdlicka ranked both nationally and Neal Sweeney and David Zacks. regionally in tax litigation. Listed were David Aughtry, Atlanta managing shareholder, and Charles > Paul, Hastings, Janofsky & Walker LLP: 22 Atlanta- E. Hodges II, Atlanta shareholder. based Paul Hastings attorneys were listed: Richard M. Asbill, Jesse Austin, Wayne N. Bradley, Daryl > Hunton & Williams LLP: Hunton & Williams was Buffenstein, Cindy J. Davis, Leslie Dent, Weyman ranked nationally in business process outsourcing Johnson, Walter Jospin, Karen B. Koenig, Mark S. and regionally in environment, banking & finance, Lange, Frank Layson, Deborah Marlowe, Philip intellectual property, labor & employment and gener- Marzetti, Chris D. Molen, Elizabeth H Noe, John al commercial litigation. Attorneys listed were: W. Parker, Rey Pascual, Andy Scott, Charles Sharbaugh, Christopher Arbery, Matthew J. Calvert, L. Traywick Kyle Sherman, Geoff Weirich and John F. Wymer. Duffie, James A. Harvey, Robert E. Hogfoss, Catherine D. Little, James E. Meadows, Kurt A. *This is not a complete list of all State Bar of Georgia Powell, William M. Ragland Jr., Melvin S. Schulze members included in the publication. The information and John R. Schneider. was complied from Bench & Bar submissions from the law firms above for the August Georgia Bar Journal.

> J. Scott Anderson joined Needle & Rosenberg, is located at The Proscenium, 1170 Peachtree St. NE, P.C., as an associate in the litigation and mechanical Suite 2100, Atlanta, GA 30309; 404-443-5500; Fax practice groups. Anderson’s practice focuses on all 404-443-5599; www. mcguirewoods.com. aspects of intellectual property litigation and the prosecution of patents for mechanical systems, > Fish & Richardson P.C. announced that Jay P. medical technology, computer software, optical Smith III joined the firm as an associate in its liti- components and business methods. The firm’s gation group. Smith focuses his practice on intellec- Atlanta office is located at 999 Peachtree St., Suite tual property litigation, including patent and trade 1000, Atlanta, GA 30309; 678-420-9300; Fax 678-420- secret litigation. Prior to joining Fish & Richardson, 9301; www.needlerosenberg.com. he was an associate at Alston & Bird LLP. The firm’s Atlanta office is located at 1180 Peachtree St., 21st > Andrew G. Phillips joined McGuire- Floor, Atlanta, GA 30309; 404-892-5005; Fax 404- Woods LLP as an associate in the firm’s 892-5002; www.fr.com. environmental litigation/toxic tort department. He practices primarily in In Columbus the areas of product liability, toxic tort, > J. Anderson “Andy” Harp and Jefferson “Cal” consumer class action litigation and avi- Callier have formed the firm of Harp & Callier, LLP. ation law. Phillips was previously an associate with The firm continues its practice focused on cata- Nelson Mullins in Atlanta. The firm’s Atlanta office strophic injury and wrongful death cases throughout

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Bench & Bar

the southeast, including brain and spinal cord injury, burn injuries, railroad injuries, medical malpractice, Have an Announcement products liability and motor vehicle collisions. The You Want to Share With firm is located at Suite 900, The Corporate Center, Georgia’s Legal Community? 233 12th St., Columbus, GA 31901; 706-323-7711; Fax 706-323-7544; www.harpcallier.com. If you have an announcement you would like to place in Bench & Bar, please send your submission In Johns Creek to [email protected] or Stephanie Wilson, > The Johns Creek City State Bar of Georgia, 104 Marietta St. NW, Suite Council approved the 100, Atlanta, GA 30303-2743. appointments of Donald Schaefer and Scott Carter as the city’s first municipal Children At Risk Symposium judges. Schaefer is a partner Schaefer Carter in the private Decatur law Veterans Reconvene firm of Brownlow & Schaefer, specializing in traffic On May 18 attendees of the first Children at Risk and criminal law, and works as a part-time judge for symposium reconvened at Alston & Bird in Atlanta to the cities of Alpharetta, Sandy Springs and learn how each had applied the ideas learned at the first Loganville and the Recorder’s Court of DeKalb symposium last December. Many of the attendees of the County. Carter, in private practice in Chamblee since first symposium were so interested in the concepts being 2000, has been a Municipal Court Judge in the city of presented that they wanted to get back together to Doraville for 18 years. The Johns Creek Municipal share their experiences implementing the children at risk Court is located at 11445 Johns Creek Parkway, Johns concept. Creek, GA 30097; 678-512-3444; www.johnscreek- “I’ve never seen people so motivated to share ideas ga.gov/court. and talk about their experiences,” said Rudolph Patterson, president of the Georgia Bar Foundation. In Savannah “Showing kids how they can become self-sufficient by > David E. Laesser II joined Weiner, learning about and applying the concepts of the free Shearouse, Weitz, Greenberg & Shawe enterprise system has proven to be a winner.” Everyone as an associate. Laesser was formerly attending had a slightly different approach to how these associated with the firm of John F. principles can be applied to help children. Gilhool in Southgate, Mich. His practice will include the areas of civil litigation The symposium again featured Ed Menifee and his and business transactions. The office is located at 14 creativity as a motivational speaker and his knowledge East State St., Savannah, GA 31401; 912-233-2251; of how to introduce children at risk in entrepreneurial Fax 912-235-5465; www.wswgs.com. ideas that can change their lives. Menifee expanded upon many of the concepts from his first children at risk In Birmingham, Ala. symposium last December. > Carter H. Dukes announced a new shareholder to Each symposium features a person who went through the firm, which is now Scott Dukes & Geisler, P.C. Menifee’s Children at Risk program, which features free The firm is located at 2100 Third Ave. N, Suite 700, enterprise system training. Andre Dickens, president of Birmingham, AL 35203; 205-251-2300; Fax 205-251- City Living Home Furnishings, spoke to the attendees 6773; www.scottdukeslaw.com. and explained how his experiences in Menifee’s training In Lincoln, Neb. program gave him the skills to start his own business. “Without his training, I would not have known that > David D. Cookson was named Chief Deputy Attorney General for Nebraska. He formerly served starting my own business was even an option for me,” as special counsel to the attorney general, responsible said Dickens. “This program made all the difference for interstate water issues, environmental law and for me.” major litigation. Prior to his work for the Nebraska A total of 31 people representing 25 organizations attorney general, Cookson was a partner with the law evaluated these new observations and left the meeting firm Webb, Carlock, Copeland, Semler & Stair in with even stronger beliefs that the Georgia Bar Atlanta. The Nebraska attorney general’s office is Foundation’s children at risk ideas are worth implement- located at 2115 State Capitol, Lincoln, NE 68509; 402- ing in their own organizations. 471-2682; Fax 402-471-3297; www.ago.state.ne.us.

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Office of the General Counsel

Is It Unethical To Try Your Case in the Media? by Paula Frederick

“ otta run,” your partner announces, hand- The Rule and Comments contain specific examples of the type of information a lawyer may discuss pub- ing his credit card to the waiter. “I’ve got licly. For instance, if a client has been subjected to recent publicity that will have “substantial undue prej- a press conference in 45 minutes.” udicial effect,” the lawyer may make a limited state- G ment to mitigate the adverse publicity. “A press conference? About the Niedermeyer case?” Comment 5A provides a laundry list of topics that you ask. would likely be prejudicial, such as the character, cred- “Yep. The investigating police officer was on the ibility, or reputation of a party or suspect, the results of news last night squawking about the DNA test results. examinations or tests, and information that would like- I called a press conference to respond.” ly be inadmissible as evidence in a trial. “Wait a minute!” you caution. “Respond to what? I Comment 5B provides a similar laundry list of sub- thought it was unethical to try your case in the media. jects that are usually safer to discuss, such as the nature You can’t just call a press conference and start arguing of the claim, information contained in a public record, about the evidence on the six o’clock news!” and requests for assistance in obtaining evidence. Or can you? Most importantly, the lawyer considering a public Rule 3.6 of the Georgia Rules of Professional statement needs to be certain that it will benefit the Conduct prohibits a lawyer involved in a case from client, and not just provide free publicity for the making out-of-court statements that will materially lawyer’s practice. The lawyer should carefully explain prejudice the trial of the case.1 Since the absence of the pros and cons of going public, and of course should restrictions in this area could result in “the nullification obtain the client’s advance permission to do so. of the protective effect of the rules of forensic decorum In modern times trial publicity may be unavoidable and the exclusionary rules of evidence,”2 the Rule for all but the most mundane of cases. Review the seeks to strike a balance between competing interests— rules, and think before you speak! free speech versus the right of an accused to a fair trial. Paula Frederick is the deputy general counsel for the State Bar of Georgia and can be reached at [email protected].

Endnotes 1. Rule 3.6, Trial Publicity, provides in part that “a lawyer who is participating . . . in the investigation or litigation of a matter shall not make an extrajudicial statement . . . that will have a substantial likelihood of materially preju- dicing an adjudicative proceeding in the matter.” 2. Rule 3.6, Comment 1.

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“Helping You, Help Your Clients.” Member of the Encore Financial Services Group, Inc. www.NewCashOption.org 08-07gbj.qxp 7/25/2007 12:15 PM Page 78

Lawyer Discipline

Discipline Summaries (April 13, 2007 through June 21, 2007)

by Connie P. Henry

Review Panel Reprimands 248852) be suspended from the practice of law pending Newell McAfee Hamilton appeal of his felony conviction on three counts of theft Brunswick, Ga. by receiving in the Superior Court of Lamar County. Admitted to Bar in 1997 Upon termination of the appeal, the State Bar shall seek On June 4, 2007, the Supreme Court of Georgia appointment of a special master pursuant to Bar Rule ordered that Newell McAfee Hamilton (State Bar No. 4-106(f)(I). 320905) be administered a Review Panel reprimand with conditions. In 2003 Respondent developed Jon Philip Carr severe depression and started to abuse alcohol. Milledgeville, Ga. During this time he failed to provide at least eight Admitted to Bar in 1987 clients with the assistance they deserved. In 2006 On June 4, 2007, the Supreme Court of Georgia Hamilton undertook significant efforts to rectify the accepted the petition of Jon Philip Carr (State Bar No. issues that led to his depression and substance abuse; 111888) for suspension pending appeal of his felony contacting clients and apologizing in writing for his convictions in the Superior Court of Baldwin County. inattentiveness and reimbursing retainers or fees paid, where he thought he had not earned the fee, Suspension and Public Reprimand referring many of his cases to other attorneys and cor- Monique Walker recting the outstanding issues in other cases. Augusta, Ga. In mitigation the Court found that Respondent had Admitted to Bar in 1996 no prior disciplinary record; that he fully accepts On May 14, 2007, the Supreme Court of Georgia responsibility for his behavior; that he is deeply ordered that Monique Walker (State Bar No. 731241) be remorseful for his conduct; that he has taken steps to suspended from the practice of law for 120 days and be remedy the substance abuse; that he reimbursed the administered a public reprimand. Walker pled guilty fees he had not earned; and that he fully cooperated in federal court to filing a fraudulent tax return. She in the disciplinary proceedings. The Court ordered accepted a check that bore the notation “consulting Respondent to continue with the treatment program fees,” for $700 from her father’s company, and did not recommended by the Lawyer Assistance Program report the money as income. Walker contends she and his physicians; that he provide to the Office of believed the money was a gift. In her Petition for the General Counsel written updates and treatment Voluntary Discipline, Walker is remorseful and con- records showing his progress; that he waive his right trite for her negligence in not reporting the check as to confidentiality of his treatment records; and that income and she states that she did not intend to he be administered a Review Panel reprimand. deceive the Internal Revenue Service. Walker has paid the taxes and penalties owed. Suspensions Arthur Hurst English Reinstatement Granted McDonough, Ga. David Lee Judah Admitted to Bar in 2000 Riverdale, Ga. On April 24, 2007, the Supreme Court of Georgia On May 14, 2007, the Supreme Court of Georgia ordered that Arthur Hurst English (State Bar No. ordered that David Lee Judah (State Bar No. 405605)

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be reinstated as an attorney to practice law in the state of Georgia. In 2000 the Court imposed on Judah a three-year suspension with conditions for reinstatement. Judah complied with all the proce- dural and legal requirements to be readmitted. 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 N D L response is filed. Since April 12, Norwitch Document Laboratory 2007, two lawyers have been sus- Forgeries - Handwriting - Alterations - Typewriting pended for violating this Rule, and Ink Exams - Medical Record Examinations - “Xerox” Forgeries one lawyer has been reinstated. F. Harley Norwitch - Government Examiner, Retired Connie P. Henry is the Court Qualified Scientist - 27 years. Expert testimony given in clerk of the State excess of three hundred times including Federal and Off-shore Disciplinary Board and 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 can be reached at www.questioneddocuments.com [email protected]. Telephone: (561) 333-7804 Facsimile: (561) 795-3692

Thank you to the Council of State Court Judges For their generous donation of over $86,000 to the Judge Rowland Barnes endowment fund, housed at the Lawyers Foundation of Georgia, supporting the 2009 National High School Mock Trial Championship in Atlanta Our fundraising goal is $375,000–please help us achieve this goal by making a donation today. Contact the Mock Trial office at the State Bar of Georgia at 404-527-8779/800-334-6865 ext. 779 or [email protected] for more information about volunteer opportunities or to make a donation.

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Law Practice Management

Wrap Up Your Practice Before Retirement by Pamela Myers

Lawyers in partnership are often governed by the partnership agreement, with stated retirement age that may or may not be negotiable. Solo practitioners have a bit more leeway in retirement planning. The assumption is that you’ve taken care of all the other important aspects of retirement planning, but now you’ve got to make a decision as to what to do with the practice. For all intent, you can phase down or you can sell. Phasing down is a popular method. Don’t accept new cases and concentrate on closing open cases. Eventually the last case will disappear and you can pack your bags and head for paradise. If you don’t want to wait until you’ve closed your cases, you might find another attorney who is willing to take over the open files. But the client must be given the opportunity to accept the new attorney or find new counsel. Be aware that there are instances where the courts may not be willing to accept new counsel mid-case. Many lawyers don’t think their small firms have ou’re contemplating retirement. What do much value, but most practices are saleable. The biggest mistake a lawyer can make in closing a practice is to you do with your practice? In the coming walk away from possible money in the bank. Ed Poll, author of Selling Your Law Practice: The Profitable Exit years, we expect to hear that question more Strategy, recalls an attorney who was weary of practicing Y law and wanted a complete change in lifestyle. She had frequently. Those of us who are now on the cusp of planned to just walk away from her practice, but Poll persuaded her to sell the firm and helped her negotiate retirement have, most likely, been thinking seriously with a buyer. “She sold her practice for $300,000—she never believed she could get that much,” Poll says. for a number of years how to wind down or wrap up If you’d like to sell your firm, it is best to get help. (Also, refresh yourself with Bar Rules 1.16(d) and 1.17 the practice. in this regard.) There are a number of valuation firms, locally and across the country that can provide assis- It may be that you, like attorneys in Italy, Germany tance. Few lawyers regularly buy or sell practices and and France, decide that you’re not going to retire. You most have no experience in setting price or terms for may reduce your case load and work well into your 70s, a sale. Since each situation is unique, it would be 80s or 90s. That’d be great! Most likely, though, you’ll advantageous if you begin the process of selling the follow the retirement path of American and British practice to another lawyer or firm as part of your practitioners and retire anywhere from age 55 to 70. retirement plan. This can alleviate urgency and pro-

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vide time for fair negotiation with 7. General ledger Some solo practitioners and potential buyers. 8. Bank statements, cancelled small firms may feel that the list is There are many possible factors checks (if available) and bank too burdensome, but the appraiser that might affect the price of your reconciliations will need to have access to all this practice and all need to be taken into 9. Aged accounts receivable information to give a fair and full account. Valuation is not a science, listing value to the practice. as there are no absolutes in the 10. Work in progress detail Although this article has been process. Below are just a few exam- 11. Insurance policies directed toward the valuation and ples of what is needed to conduct a 12. Data on key personnel of sell- sale of your practice, there are comprehensive valuation: ing attorney who will assist in many other aspects of closing your the transition or remain practice with which you’ll need to 1. Financial statements and state employed by the buying attor- become familiar. The Law Practice and federal tax returns for the ney Management Program has material previous five years 13. Firm brochure to help with all aspects of closing a 2. Fee schedules for the previous 14. Annual appointment books or practice—whether related to retire- five years electronic calendars ment or not. I hope you’ll contact 3. Leases still in effect for the 15. Goodwill us the minute you think about tak- premises and all equipment a. Immediate use of tangible ing down your shingle. 4. Notes payable, deeds of trust, assets conditional sale contracts b. Trained and assembled work Pamela Myers is the 5. Documents relating to the force resource advisor of the acquisition and obligations on c. Case files and qualified State Bar of Georgia’s real and personal property client/prospect list Law Practice investments 16. Liabilities of the practitioner Management Program 6. Cash receipts, cash disburse- related to the practice which and can be reached at ments, sales, purchase, payroll will be taken over by the buyer [email protected]. and general journals 17. Other relevant documents

Decision Management Associates, Inc. CONTINUING EDUCATION CREDITS AVAILABLE

Hone your conflict resolution skills that are essential to many legal situations. Memorial Gifts The Lawyers Foundation of Georgia furnishes the General Civil Mediation Georgia Bar Journal with memorials to honor deceased Domestic & Family members of the State Bar of Georgia. Arbitration A meaningful way to honor a loved one or to com- And More Have fun, memorate a special occasion is through a tribute and Learn, and memorial gift to the Lawyers Foundation of Georgia. Quality Training by earn 24 An expression of sympathy or a celebration of a family Bob Berlin, Lead Trainer CLEs! event that takes the form of a gift to the Lawyers Foundation of Georgia provides a lasting remem- Approved by State Bar brance. Once a gift is received, a written acknowledge- of Georgia & GA ODR ment is sent to the contributor, the surviving spouse or other family member, and the Georgia Bar Journal. DMA Is committed to offering the best! Small class size, relaxed Information atmosphere, and focus on adult learning techniques help make For information regarding the placement of a memorial, the learning environment fun for everyone.

please contact the Lawyers Foundation of Georgia at Contact us to learn more. (404) 659-6867 or 104 Marietta St. NW, Suite 630, Toll Free: 800-274-8150 1100 Hill Place Atlanta, GA 30303. Phone: 478-477-3317 Macon, GA 31210 Email: [email protected] http://dma-adr.home.mindspring.com

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Casemaker Getting the Most Out of Casemaker: Searching the State Code by Jodi McKenzie

ne of the most common questions we get at The browse mode gives you the option of previous doc or next doc buttons. Clicking on the next doc but- the Casemaker helpdesk is, “Can you ton will move you forward through the statute. In this example, you would move forward from 9-11-9 to 9-11- access the state code through Casemaker?” 9.1. If you continued to click on this button you would O move to 9-11-9.2 then 9-11-9.3 and so on. Previous doc Absolutely! You can search the library using statute would move you back a page (see fig. 4). If you do not know the exact statute that you are numbers, key words or phrases, or a combination of both looking for, you can also search the library using a key word or phrase. In this example, we entered the term statute numbers and key words or phrases. Let’s take a “land surveyors” (see fig. 5). Again, click on the search target button to begin. closer look at how to search the code in Casemaker. The results will include all statutes that include the words land and surveyor in the content of the statute. In order to search the state code, you would enter the You may then view the two-line summary given with Georgia Casemaker Library. From here, you would locate the results to choose the statute most relevant to your the “Georgia Codes and Acts” link at the bottom of the issue. You would then open the statute by clicking on Georgia Library Content page (see fig. 1). At this point the blue, underlined statute number (see fig. 6). you have the option to either search or browse the code. You may also do a search using a combination of The search mode allows you to search the current both key words and a statute number. In this example, statute library using a statute number, a key word or you may add the statute number 9-11-9 to your key phrase, or a combination of a statute number and key words. It is important to note that it is not necessary for word or phrase. For example, if you wanted to find the statute to appear in front of or behind your key O.C.G.A. § 9-11-9, you would simply enter the number words. You could have entered “9-11-9 land survey- with the dashes (see fig. 2). Casemaker will not accept ors” to receive the same results (see fig. 7). Again, click a search with “O.C.G.A. §.” For this example we will the search target button to view your results. enter “9-11-9.” Once the number is entered, click on the In this instance, you retrieve two results that are target search button to begin. within statute 9-11-9 that contain both the land and The search will give you results of statutes included surveyor (see fig. 8). in 9-11-9. The second result in this example is the statute Casemaker is one of the most widely used member we are looking for (see fig. 3). To open the statute, sim- benefits the State Bar of Georgia offers. The Georgia ply click on the blue, underlined statute number. Codes and Acts library is just one of the many features You now have access to the content of the statute. Casemaker makes available for free. To learn more You may move through the content of the statute by about this valuable member benefit, please look for using the scroll bar located vertically on the right upcoming training sessions on the Bar’s homepage hand side of the statute. Or you also have the option under the News and Events section at www.gabar.org, to switch to the browse mode from the search mode. or call the Casemaker helpdesk at 877-227-3509. In the middle of the Casemaker tool bar you will see Jodi McKenzie is the member benefits the option for search mode or browse mode. Since coordinator for the State Bar of Georgia. you started your search in the search mode, the She can be reached at 404-526-8618 or search mode box will be highlighted. To switch to the browse mode, simply click on the browse box [email protected]. (see fig. 4).

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Writing Matters

Using Citations Effectively

by Karen J. Sneddon and David Hricik

he last installment of “Writing Matters” judge were to look up the cases to find what the lawyer meant, she might confront lengthy cases, and the addressed reducing citation clutter by gener- lawyer has not even given the judge a pinpoint citation for where to look for each court’s discussion. ally not using statutes or cases as the subjects The paragraph is neither informative nor persuasive. T Three things are missing: an accurate signal, pinpoint of sentences. This installment continues to tackle cita- citations and parenthetical explanations. The use of all three makes citations more effective. We’ll cover sig- tion usage by addressing two of the several techniques nals in the next installment. Pinpoint citations are simply the page number in the to maximize the effectiveness of citations. Lawyers case where the pertinent point is made. A citation without at least a pinpoint cite indicates laziness and lack of should maximize the impact of citations by using sig- clarity. It also leaves too much work to the reader to be informative or persuasive. To us, it also indicates slop- nals and explanatory parentheticals. The use of string piness and inattention to detail—neither of which sig- nals a strong opponent. At minimum, a citation should cites (i.e., a series of cases unaccompanied by explana- include the page number (or page numbers) where the relevant proposition exists. tory parentheticals that identify the cases’ relevance) Using explanatory parentheticals increases the persuasive and informative impact of citations. If the case illustrate ineffective use of citations. is not quoted in the text, a concise explanatory parenthetical inserted after the citation can state its perti- Consider the following example: nence. Explanatory parentheticals typically take one of three forms: (1) an entire quoted sentence, (2) a short Although there is no U.S. Supreme Court case on statement (generally a two or three word phrase), or point, a majority of the courts that have addressed (3) a phrase that begins with a present participle. Here the issue have held that motions to dismiss for is the example with pinpoint cites and each type of par- improper venue based upon the parties’ forum selec- enthetical (and the signal, “see, e.g.,”): tion clauses must be raised as required by Federal Rule of Civil Procedure 12(b)(3) or be waived. Although no 8th Circuit case is on point, a majority Sucampo Pharmaceuticals, Inc. v. Astellas Pharma, Inc., of the courts that have addressed the issue have held 471 F.3d 544 (4th Cir. 2006); Lipcon v. Underwriters at that motions to dismiss for improper venue based Lloyd’s, London, 148 F.3d 1285 (11th Cir. 1998). upon the parties’ forum selection clauses must be raised as required by Federal Rule of Civil Procedure This writing is not persuasive to the opposing party or 12(b)(3) or be waived. See, e.g., Sucampo the judge, because it provides only the citation, without Pharmaceuticals, Inc. v. Astellas Pharma, Inc., 471 F.3d explanation or even pinpoint citation, to two cases. 544, 549 (4th Cir. 2006) (holding that such motions Further, the sentence says that a majority of courts sup- are governed by Rule 12(b)(3) because that approach port the proposition, but the lawyer cites two: is there was “more consistent with the Supreme Court’s only one other, and so it’s two of three? Worse, if the treatment of such clauses”); Lipcon v. Underwriters at

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Lloyd’s, London, 148 F.3d 1285, incurred during impoundment roosters used in cockfights, 1290 (11th Cir. 1998) (“[W]e con- of the animal. Cal. Penal Code which have been held to be sider Rule 12(b)(3) a more appro- § 599aa. In either case, the court “fighting animals.” People v. priate vehicle through which to may also impose fines. Baniqued, 101 Cal. Rptr. 2d 835, assert the motion to dismiss.”); The term “fighting animal” 841 (Cal. App. 2000). Dogs are Shipco Transp., Inc. v. Cyclo has been construed twice. A 50- man’s best friend and share Indus., LLC, 2007 WL 988884 year old slow-moving herbivo- more in common with a slow- (S.D. Fla. March 30, 2007) (fol- rous tortoise named “Rocky” moving turtle than with a roos- lowing Lipcon). was found not to be a “fighting ter with metal claws. Thus, while animal” because he was “a slow- a dog is an “animal,” it is not a This discussion should reveal moving, grass-grazing, giant tor- “fighting animal” that is subject the inherent ineffectiveness of toise.” Jett v. Municipal Court, 223 to forfeiture. string cites. The seductiveness of Cal. Rptr. 111, 114 (Cal. App. string cites springs from the 1986). In contrast, roosters that Karen J. Sneddon is writer’s desire to highlight the had been equipped with small an assistant professor thoroughness of the research and knives and other sharp objects at Mercer Law School to buttress arguments. However, have been held to be “fighting and teaches in the when reading a string cite, particu- animals.” People v. Baniqued, 101 Legal Writing Program. larly one without even pinpoint Cal. Rptr. 2d 835, 841 (Cal. App. citations, many readers assume 2000). that the author either failed to David Hricik is an review the authorities carefully or Here is the paragraph to revise: associate professor at is simply inattentive to detail. Mercer Law School Proving that is sometimes what Defendant submits that the who has written sever- happens, a court recently observed dog is not subject to forfeiture al books and more that a string cite in a brief actually because it is not a “fighting ani- than a dozen articles. undercut the party’s argument. mal.” Even large turtles with Mercer’s Legal Writing Program is The court stated that “[i]ronically, razor-sharp teeth are not “fight- although the Transit Authority ing animals,” although roosters consistently rated as one of the argues that [the statute] is not used in cockfights can be. See Jett top two legal writing programs in applicable to it, it string cites to v. Municipal Court, 223 Cal. Rptr. the country by U.S. News & World eight decisions, all of which” held 111 (Cal. App. 1986); People v. Report. that the statute did apply to it. Baniqued, 101 Cal. Rptr. 2d Williams v. N.Y.C. Transit Authority, 835 (Cal. App. 2000). Dogs 724 N.Y.S.2d 830, 832 (N.Y. City are man’s best friend and Civ. Ct. App. 2001). share more in common with a slow-moving tortoise than with Practice Problem a rooster with metal claws. So, This problem is a little different- while a dog is an “animal,” it is than previous practice problems. not a “fighting animal” that is We’ve put a paragraph below subject to forfeiture. explaining, hypothetically, the state of the law in California on an Possible Revision: interpretation of a statute, and we follow it with a short paragraph for Defendant submits that the you to re-write to more effectively dog is not subject to forfeiture use the citations. Here is the law: because it is not a “fighting animal.” Even large turtles with California statutes have long razor sharp teeth are not “fight- made it a crime to mistreat ani- ing animals.” Jett v. Municipal mals. The power of the court Court, 223 Cal. Rptr. 111, 114 depends upon the type of animal (Cal. App. 1986) (holding that an that was mistreated. If it is a enormous turtle capable of rip- “fighting animal,” then the court ping through grass with its teeth may order forfeiture of the ani- was, nonetheless, not a “fighting mal; otherwise, the court may animal”). In addition, the dog only require the owner to reim- here was not equipped to fight burse the government for costs other animals and so is unlike

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South Georgia Office

First Impression, Lasting Legacy

by Bonne Cella

tate Court Judge Larry Mims of the Tift Back at home, Mims invites local students into the courtroom and explains our justice system, often using Judicial Circuit is a champion for children mock trials. He then encourages the students to enter a First Impressions essay contest about their courtroom and an advocate of law education. His dedi- experience. S This year’s essay contest winner, Nataliah Mazhar, cation earned him the 2007 Law Related Education received her award at the Tifton Circuit Bar’s Law Day Celebration. The 2007 Liberty Bell Award was also (LRE) Supporter of the Year Award. Christine Ledvinka, presented in tribute to the late Michael Cantlebary of the Juvenile Justice Department and reads in part: We interim director of the LRE, presented the award to an hereby acknowledge that Michael Cantlebary spent his entire life working for the good of others within the court unsuspecting Mims, while he was in Atlanta with 24 system with professionalism and dedication. His life’s work instilled a greater sense of individual responsibility in the fourth graders on a tour of the Bar Center.1 youth of this circuit. Photos by Bonne Cella Christine Ledvinka presents the 2007 Law Related Education Supporter of Linda Cantlebary listens to the tribute paid to her late husband the Year Award to Judge Larry Mims. Michael Cantlebary at the Tifton Circuit Bar’s Law Day Celebration.

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Special guest speaker for the Law Day event, 2006-07 Bar President Jay Cook offered a heartfelt address on the Foundations of Freedom,2 which no doubt, left a lasting impression on Nataliah, the Bar members and their guests.

Bonne Cella is the office administrator at the State Bar of Georgia’s South Georgia Office in Tifton and can be reached at [email protected]. Endnotes 1. Marlene Melvin presents an exceptional interactive tour of the Bar Center called Journey Through Justice. Contact Faye First, conference center manager for the State Bar, at 404-527-8700 to arrange the tour for students in your area. 2. Contact Sarah Coole, director of communications for the State Bar, at 404-527-8791 for more information on the Foundations of Freedom program. 2006-07 Bar President Jay Cook speaks at the Tifton Circuit Bar’s Law Day Celebration.

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Section News

Annual Meeting Hosts Section Functions

by Johanna B. Merrill

tate Bar sections have long been an active

presence at the Bar’s annual meetings. The S 2007 Annual Meeting, which took place at the Sawgrass Marriott Resort in Ponte Vedra Beach,

Fla., was no exception. Twenty-eight sections donated a

record amount in sponsorships for the Opening Night

Festival, which was a family-friendly affair filled with

music, breakdancers, stilt walkers and carnival games.

(See sidebar on page 43 for a list of sponsoring sections.)

On June 14 the Family Law Section co-sponsored the CLE “Nuts and Bolts, Excel and Excedrin: A Primer for the New Child Support Guidelines.” The seminar highlighted significant changes in child support guidelines and the impact of the new law on the preparation and presentation of child support cases. It focused on the new vocabulary, new procedures for filing cases, tem- porary hearings and final judgments, advocacy in present child support cases using the new law and the expanded definition of income and deviations, tips for using the Internet-based and downloadable Excel child

support calculators, and changes in the modification Photos by Sarah I. Coole, Alison Danacean and Johanna B. Merrill laws and jury trial procedures. Elizabeth Green Lindsey, ICLE Executive Director Larry Jones accepts the Section of the Year a past section chair, presided; speakers were Paul award from 2006-07 Bar President Jay Cook on behalf of the Business Johnson, Tina Shadix Roddenbery and Laurie Dyke. Law Section. The majority of sections’ activities took place on June 15, the second day of the meeting. The School and and Employment Law Section also hosted a breakfast College Law, Military Law/Veterans Affairs, Tort and meeting on June 15; Paul DeCamp, administrator from Insurance Practice and Taxation Law sections held the U.S. Department of Labor’s Wage and Hour business breakfast meetings that morning. The Labor Division was the featured speaker.

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The IP Law Section hosted its second annual Spring Reception on The General Practice and Trial Section’s 2007 “Tradition of Excellence May 30, where the 2007 Outstanding Leadership Award was pre- Award” recipients received their plaque at the section breakfast at the sented to Joe Bankoff (left). Miles Alexander (right), the 2006 Sawgrass Marriott Hotel on June 15. (Left to right) Charles J. Driebe (gener- recipient, was on hand to introduce Bankoff during the presenta- al practice); Supreme Court of Georgia Presiding Justice Carol W. Hunstein tion ceremony. (judicial); L. Hugh Kemp (defense); and Paul Kilpatrick Jr. (plaintiff).

Also held that day was the Atlanta. During the reception, the Bellamy of Home Depot, Inc., and General Practice and Trial section’s Outstanding Leadership Sandra Sheets Gardiner of Morris, Section’s annual Tradition of Award was presented to Joseph R. Manning and Martin LLP. Excellence Awards breakfast. The Bankoff of the Woodruff Arts Johanna B. Merrill is 2007 award recipients were Charles Center. Section Chair Griff Griffin the section liaison for J. Driebe (general practice); welcomed the approximately 60 the State Bar of Supreme Court of Georgia attendees to the reception before Georgia and can be Presiding Justice Carol W. Hunstein Miles Alexander, the award’s 2006 reached at (judicial); L. Hugh Kemp (defense); recipient, introduced Bankoff. [email protected]. and Bar Past President Paul On June 27, the IP Law Section Kilpatrick Jr. (plaintiff). The section hosted its annual Summer also held a reception to honor the Associate Mixer at the Four awardees later that evening. Seasons Hotel. The mixer is an And finally, the Appellate opportunity for summer associates Practice Section hosted a lunch to meet practicing attorneys in meeting with guest speaker Hon. Atlanta’s intellectual property Marion T. Pope on June 15. The community. Michael Bishop of section also held elections to select AT&T IP Corporation, Cynthia officers for the 2007-08 Bar year. Parks of Parks & Knowlton LLC During the Plenary Session on and Stephen Schaetzel of King & June 15, 2006-07 Bar President Jay Spalding LLP gave a short presen- Cook presented section awards. tation, offering different perspec- The 2007 winners were: tives on the practice of IP law. The Technology Law Section Section of the Year – Business hosted its fourth quarterly CLE Law, Paul Cushing, chair luncheon of the Bar year and annual Awards of Achievement – meeting on June 27 at the offices of Intellectual Property Law, Troutman Sanders. The panel dis- Griff Griffin, chair; Technology cussion titled “The Art of Law, Michael Stewart, chair; Negotiating Technology Acquisition Family Law, Shiel Edlin, chair; Deals,” examined acquisition deals and Real Property Law, David from the differing perspectives of Burge, chair the parties involved; topics included negotiation pitfalls, indemnification The Intellectual Property Law concerns and limitations of liability. Section hosted its second annual Kevin Cranman of Tandberg Spring Reception on May 30 at Television moderated the panel, Trois restaurant in Midtown which consisted of speakers Lael

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Professionalism Page

Guard Your Credibility

by Douglas S. Lavine

n the early 1950s, three members of the Psychology ciple at issue more than 2,300 years ago when he wrote in The Rhetoric: Department at Yale University conducted a series “Persuasion is achieved by the speaker’s personal of experiments relating to persuasion. character when the speech is so spoken as to make us I think him more readily credible. We believe good In one of the experiments, two test groups were men more fully and readily than others: this is true exposed to the same communication, which attempted generally whatever the question is and absolutely to answer the question: “Can a practicable atomic- true where exact certainty is impossible and opin- powered submarine be built at the present time?” One ions are divided . . . . It is not true, as some writers of the groups was told that the source of the communi- assume in their treatises on rhetoric, that the person- cation was Robert J. Oppenheimer, the famous physi- al goodness revealed by the speaker, contributes cist and the “father” of the atomic bomb. The other nothing to his power of persuasion; on the contrary, group was told the communication came from Pravda, his character may almost be called the most effective the Communist Party of the Soviet Union’s official means of persuasion he possesses.” newspaper. Although the communications were identical, the If I could ask Aristotle one question, it would be this: groups hearing them evaluated them through entirely If the personal goodness of the communicator is so essen- different lenses. Ninety-six percent of the group tial to his or her power of persuasion, why have some of believing the communication came from history’s most vicious and blood-thirsty rulers been such Oppenheimer considered the author “fair” in his pres- effective communicators? Since I am unlikely to have the entation, and 80 percent felt the author’s conclusion opportunity to pose that question anytime soon, let me was “justified” by the facts. But only 69.4 percent of proceed on the solid assumption that the credibility of the group believing that the communication came the communicator is a key component of successful from Pravda thought the author’s presentation was advocacy. And let me explore the simple question: Why? “fair” and only 44.4 percent thought the author’s con- Do not think this discussion is of theoretical interest clusion was “justified” by the facts. Identical commu- only. It is of crucial importance to every practicing nications, dramatically different responses. The three lawyer, wherever they may be and whatever sort of Yale researchers were Carl I. Hovland, Irving L. Janis legal work they do. Experienced lawyers and judges and Harold H. Kelly. The results of their experiments will tell you that credibility is the single most precious are found in Communication and Persuasion (Yale asset a lawyer possesses in a case, and over a career. University Press, 1953). All lawyers need to guard their credibility scrupulously, because, once it is lost, it is impossible to recover. It Lawyers Need To Guard Their is possible to build an entire theory of successful advo- Credibility Scrupulously cacy around one proposition: everything that enhances credibility is a good thing and should be The result of this Cold War experiment would have encouraged, and everything that detracts from credi- been no surprise to Aristotle, who understood the prin- bility is a bad thing and should be discouraged.

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There is, of course, no simple or a credible communicator—one who legal communities. Just as lawyers perfect answer to the question of is prepared, accurate, honest, fair, talk about judges, so do judges talk why credibility is so important. I knowledgeable about legal and fac- about lawyers. would be interested to hear from tual issues, courteous and profes- readers on this subject. sional—what you say is more likely Just As In School, Bad But my view comes down to to be believed. To use an analogy, Reputations Are Hard understanding this fundamental you are taking bricks out of your principle of persuasion: changed advocacy wheelbarrow and your To Shake attitudes are self-induced, not the job of persuasion is lighter. If a lawyer believes that another result of heavy-handed, coercive But when you fail to establish lawyer is not as good as his or her appeals. That is, the persuasive your credibility, you are adding word, he or she will communicate advocate is able to appeal to one, or bricks into the wheelbarrow and that to colleagues. And if a judge more, of the audience’s cluster of your job of persuasion becomes has a bad experience with a lawyer, beliefs, emotions, and allegiances, much more onerous. Adding you can be sure that other judges triggering something inside the bricks is never a good thing. will be warned to be careful. You audience that produces a particular Consider the two obvious conse- never want to be the lawyer who way of viewing a bundle of facts, quences of a loss of credibility in doesn’t know that he is wearing an circumstances and human interac- front of a court or a jury—or any invisible “Do Not Trust This tions. Stated otherwise, the effective groups of decision-makers. Person” sign around his neck. advocate does not superimpose his First, when you are not credible, Remember the kid in high school or her own beliefs on the audience, the decision-maker loses confidence who was quickly labeled by teach- pushing decision-makers to come to in you. Once you have demonstrat- ers as never prepared? Once repu- conclusions with which they are ed that you are not trustworthy, or tations are established, they are uncomfortable. Rather, persuasion that what you say is not accurate or hard to shake. This is as true in the is a more subtle process, in which truthful, as to Issue A, the odds are legal field as in any other arena. the decision-maker is gently led to that you will not be believed on In real estate, it is often said view things as the advocate wants. Issue B. This brings to mind the jury that the three key considerations Think about your daily life, par- instruction that judges give to juries relating to the sale of property ticularly in the context of a desire to all the time: “If you find that a wit- are: “location, location, location.” obtain information from someone, ness has been untruthful as to one In advocacy, the three factors at or make a purchase. Think about the issue, you may choose to believe the heart of successful advocacy first moments of contact and com- some, all or none of that witness are “credibility, credibility, credi- munication with someone you have says as to other issues.” bility.” not met before. Instantaneously, and Therefore, when you lose credi- So take the high ground. to some extent unconsciously, you bility on one issue, your ability to Candor, professionalism and accu- start making judgments. Do you like persuade as to other issues is radi- racy should undergird everything the person? Do they seem authentic? cally diminished and your ability you say, write and do. You should Do you trust the person? Is what the to succeed in your case is substan- work tirelessly to build a reputa- person says believable? Would you tially, sometimes fatally, under- tion as a credible, competent, trust- feel comfortable relying on what the mined. The opposite, of course, is worthy lawyer with your col- person says? Does the person seem also true. If the decision-maker leagues and with the bench. logical and reasonable in what they finds you credible on Issue A, they The alternative is really no alter- assert? Are his or her assertions sup- are more likely to be predisposed native at all. ported by credible evidence? to find you credible on Issue B. Very quickly, an initial opinion Second, in the long run, your repu- Douglas S. Lavine, a forms. Soon, you make a gut deci- tation in the community of lawyers judge on the sion about whether you would buy with whom you practice, and Connecticut Appellate the proverbial used car from this judges before whom you appear, is Court, is the author of person. If you would not, your compromised. Connecticut, where Cardinal Rule of defenses go up, your willingness to I live and work, is a relatively small Advocacy (NITA 2002) be open goes down, and the interstate with a comparatively small and Questions from the Bench action takes on a certain defensive- bar. It does not take long for a (ABA Section of Litigation 2004). ness. But if you do trust the person, lawyer to gain a reputation as you find yourself on a different tra- someone whose word can be trust- Reprinted with permission from the jectory. You find yourself opening ed. It also does not take long for May 21, 2007, edition of The National up to what they say. someone to gain a reputation as Law Journal © 2007 ALM Properties, The same is true in a legal con- someone who needs to be watched Inc. All rights reserved. Further dupli- text. When you establish yourself as closely. Word travels fast in most cation without permission is prohibited.

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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.

Walter W. Calhoun James V. Hilburn John A. Pierce Alpharetta, Ga. Dublin, Ga. Savannah, Ga. Admitted 1949 Admitted 1969 Admitted 1984 Died March 2007 Died May 2007 Died September 2006

Kenneth Alan Clark Naiyareh Karimimanesh H. T. Quillian Jr. Marietta, Ga. Atlanta, Ga. LaGrange, Ga. Admitted 1996 Admitted 2006 Admitted 1947 Died May 2007 Died April 2007 Died May 2007

Eugene Cline Thomas P. Kiley Thomas Matthew Rego Decatur, Ga. Augusta, Ga. Cedartown, Ga. Admitted 1949 Admitted 1975 Admitted 1990 Died April 2007 Died January 2007 Died April 2007

Scott Sterling Colavolpe W. Robert Lane Philip L. Ruppert Chino Hills, Calif. Dallas, Ga. Stockbridge, Ga. Admitted 1987 Admitted 1962 Admitted 1976 Died April 2007 Died May 2007 Died April 2007

William Stuart Conner Evan Garland Lea E. S. Sell Jr. Columbus, Ga. Cartersville, Ga. Macon, Ga. Admitted 1979 Admitted 1995 Admitted 1938 Died April 2007 Died April 2007 Died February 2007

B. W. Crecelius Kenneth Alexander Main Robert Harvey Shannon Newborn, Ga. Decatur, Ga. Flint, Mich. Admitted 1961 Admitted 1993 Admitted 1998 Died June 2007 Died January 2007 Died May 2007

John J. Flynt Jr. S. Elaine McChesney Thomas G. Smith Griffin, Ga. Chicago, Ill. Darien, Ga. Admitted 1938 Admitted 1987 Admitted 1975 Died June 2007 Died April 2007 Died April 2007

Arnold Eugene Gardner William H. Newsom C. Gordon Statham Johns Creek, Ga. Marietta, Ga. Decatur, Ga. Admitted 1984 Admitted 1962 Admitted 1970 Died April 2007 Died March 2007 Died April 2007

Glenville Haldi James M. Nichols Robert Edward Surles Roswell, Ga. Conyers, Ga. Summerville, Ga. Admitted 1963 Admitted 1947 Admitted 1951 Died May 2007 Died May 2007 Died May 2007

George E. Hibbs William R. Patterson Arthur Blenn Taylor Jr. Atlanta, Ga. Atlanta, Ga. St. Simons Island, Ga. Admitted 1982 Admitted 1951 Admitted 1964 Died May 2007 Died March 2007 Died June 2007

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Darryl R. Vandeford was a strong supporter of nation- Philip Louis Ruppert Lawrenceville, Ga. al defense serving on the Defense passed away in April Admitted 1971 Subcommittee as well as the 2007. Ruppert was well Died May 2007 Subcommittee for State, Justice, respected and loved by Commerce and the Judiciary. He all. He was described Former Congressman also served as chairman of the as a lawyer’s lawyer. John J. Flynt Jr., of Committee on Standards of Ruppert was born in 1933 in Griffin, passed away in Official Conduct (Ethics Manhattan, N.Y., to the late Henry June 2007. John James Committee). Flynt is still remem- William and Philippine Gertrude Flynt Jr. was born on bered by many Georgians for his Freese Ruppert. He was preceded Nov. 8, 1914, the only help and services to his con- in death by his son, Philip Louis son of John James Flynt Sr. and stituents, particularly those serv- Ruppert Jr. Susan Winn Banks Flynt. He was ing in the armed forces. He served his country in the U.S. educated in the Spalding County After retiring from Congress in Marine Corps from 1951-54 and con- School System and graduated from 1979, he returned home to Griffin sidered it a life-changing experience. Georgia Military Academy. After and joined Robert H. Smalley Jr. He not only was a diehard Marine, graduating from the University of and John M. Cogburn Jr., creating but he felt the call to serve others. He Georgia (A.B.) in 1936, he attended the law firm of Smalley, Cogburn graduated from John Marshall Law law schools at the University of & Flynt. Flynt was an organizer School in Atlanta in 1975. Georgia, Emory University and and director of the Bank of Ruppert dedicated his life and received an LLB from George Spalding County until its merger the last 32 years to serving his fel- Washington University Law with Premier Bank, now BB&T low man. He handled thousands of School in 1940. In 1936, he received Bank. He was a member of the clients regardless whether they had his commission in the U.S. Army American Bar Association and money or not. He cared for every Reserves. Flynt was assigned to the State Bar of Georgia for 67 years, client as if it were his own son or 6th Horse Calvary Regiment at serving as State Bar President in daughter. Ruppert’s wife was his Fort Oglethorpe, Ga. He later grad- 1954, the American Legion, soul mate, partner and constant uated from Air Corps Advanced Veteran of Foreign Wars, Sons of companion. Their clients loved Flying School, Brooks Field, Texas Confederate Veterans, Georgia them for who they were and what and the Command and General Farm Bureau, Sigma Alpha they gave to everyone. The lives of Staff College. Epsilon, Phi Delta Phi, lifelong all people who met or knew Philip In World War II, he served as member of the Griffin First United Ruppert were made better because Aide-de-Camp for Brigadier Gen. Methodist Church, served on the of this man. Robert W. Grow in the 3rd Board of Trustees at LaGrange Ruppert had retired and moved Armored Division in France and College, Georgia Methodist to Florida in 1997 but moved back to was awarded the Bronze Star Children’s Home and was chair- Georgia in 2001. He loved tennis. He Medal in 1944. He later retired a man of the Board of Visitors at the loved the Yankees. He was involved colonel in the U.S. Army Reserves. United States Air Force Academy in theatrical productions in Florida Flynt was appointed Assistant U.S. from 1963 until 1978. He was also a and with the Henry County Players. Attorney for the Northern District Mason, Elk, Moose, Woodman of Ruppert was a loving husband, of Georgia from 1939-41 and 1945- the World, Kiwanian and lifetime father and grandfather. 46. He served in the Georgia member of the National Rifle He is survived by soul mate and House of Representatives from Association, where he made the partner, Dianne Ruppert of 1947-49, then in 1949, was elected keynote address at the annual Stockbridge; children, Renee and Ken solicitor general of the Griffin meeting in 1958. Staples of Lawrenceville, Darlene Judicial Circuit and served until Flynt is survived by his wife of Godwin of Jefferson, Kelly Ruppert of 1954. In 1954, Flynt was first elect- 65 years, the former Patricia Irby Jefferson, Michael Mullinax of Indian ed to the U.S. House from the 4th Bradley, daughter Susan Flynt Harbour, Fla.; Cindy and Rob Hargis District of Georgia (later the 6th Stirn of Arlington, Va.; sons and of Knoxville, Tenn.; Sheila Ruppert District) where he served continu- daughters-in-law, John J. Flynt III and Kim Shaffer of Indian Harbour, ously for 13 terms, defeating polit- and wife, Susan of Augusta, Ga., Fla.; Philip (Beau) Ruppert III of ical newcomer Newt Gingrich in and Crisp B. Flynt and wife, McDonough; 13 grandchildren and 1 1974 and 1976. Patricia Baker Flynt of Griffin; great-grandchild; brother, Henry While in Congress, Flynt served grandchildren, Laura Flynt Vetter, (Bud) Ruppert of Deland, Fla.; sister, as a ranking member of the Anna Flynt, Crisp B. Flynt Jr. and Eleanor Coady of Buford; numerous Interstate and Foreign Commerce Margaret Corrine Flynt; and great- nieces and nephews; and his great and on the powerful grandchildren Killian and Zara friend, partner and confidant, Gary Appropriations Committee. He Vetter. Bowman.

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CLE Calendar

August-October AUG 2 Lorman Education Services AUG 16 District of Columbia Bar— Workers Compensation Update Forum Bar Association Athens, Ga. Introduction to Effective Writing 6 CLE Hours for Lawyers Washington, D.C. AUG 8-9 Institute of Continuing Legal 4 CLE Hours Education in Georgia Real Property Law Institute Video Replay AUG 21 Lorman Education Services Duluth, Ga. Real Estate Development From See www.iclega.org for locations Beginning to End 12 CLE Hours Macon, Ga. 6 CLE Hours AUG 9-10 Institute of Continuing Judicial Education of Georgia AUG 23 Lorman Education Services 20 Hour Domestic Violence Retreat Commercial Real Estate Financing Braselton, Ga. Atlanta, Ga. 8 CLE Hours 6 CLE Hours

AUG 9 Cobb County Superior Court AUG 24 Lorman Education Services Mediation Styles—Evaluative v. Real Estate Development From Facilitative Beginning to End Marietta, Ga. Atlanta, Ga. 3 CLE Hours 6 CLE Hours

AUG 10 Lorman Education Services AUG 24 Institute of Continuing Legal Leaves of Absence, FMLA and Beyond Education in Georgia Atlanta, Ga. Contract Litigation 6 CLE Hours Atlanta, Ga. See www.iclega.org for locations AUG 10 Institute of Continuing Legal 6 CLE Hours Education in Georgia Nuts & Bolts of Franchise Law AUG 24 Institute of Continuing Legal Atlanta, Ga. Education in Georgia See www.iclega.org for locations Nuts and Bolts of Family Law 6 CLE Hours Savannah, Ga. See www.iclega.org for locations AUG 15 Lorman Education Services 6 CLE Hours Accounting for Estates and Trusts Atlanta, Ga. AUG 24 NBI, Inc. (Formerly National Business 6.7 CLE Hours Institute) Deposition A-Z AUG 16 NBI, Inc. (Formerly National Business Atlanta, Ga. Institute) 6.1 CLE Hours Drafting Commercial Real Estate Leases Atlanta, Ga. 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.

94 Georgia Bar Journal 08-07gbj.qxp 7/25/2007 12:16 PM Page 95

CLE Calendar

AUG 29 Lorman Education Services SEPT 11 NBI, Inc. (Formerly National Business Effective Choice of Entity Planning in Institute) Georgia—From the Basics to Advanced Fundamentals of Water Law Atlanta, Ga. Atlanta, Ga. 6.7 CLE Hours 6 CLE Hours

AUG 30 Institute of Continuing Legal SEPT 12 Institute of Continuing Legal Education in Georgia Education in Georgia Residential Real Estate, 2007, Beginning Lawyers Program Video Replay Atlanta, Ga. Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for locations 6 CLE Hours SEPT 16-21 Institute of Continuing Judicial Education of Georgia AUG 30 Institute of Continuing Legal 40 Hour Civil Basic Certification Education in Georgia Program—Non Attorney Magistrates The Future Practice of Law, 2007, Athens, Ga. Video Replay 22 CLE Hours Atlanta, Ga. See www.iclega.org for locations SEPT 19 NBI, Inc. (Formerly National Business 3 CLE Hours Institute) Helping Your Client Select the Best AUG 31-1 Institute of Continuing Legal Option Education in Georgia Atlanta, Ga. 18th Annual Urgent Legal Matters 6.7 CLE Hours St. Simons Island, Ga. See www.iclega.org for locations SEPT 13-14 Institute of Continuing Legal 12 CLE Hours Education in Georgia City and County Attorneys Institute SEPT 7 Institute of Continuing Legal Athens, Ga. Education in Georgia See www.iclega.org for locations Professionalism, Ethics & Malpractice 12 CLE Hours Kennesaw, Ga. See www.iclega.org for locations SEPT 14 Institute of Continuing Legal 4 CLE Hours Education in Georgia Nuts and Bolts of Family Law SEPT 7 Institute of Continuing Legal Atlanta, Ga. Education in Georgia See www.iclega.org for locations Health Care Fraud 6 CLE Hours Atlanta, Ga. See www.iclega.org for locations SEPT 17 Institute of Continuing Legal 6 CLE Hours Education in Georgia Government Attorneys SEPT 7-8 Institute of Continuing Legal Amicalola Falls, Ga. Education in Georgia See www.iclega.org for locations Lawyers and Disability 6 CLE Hours Atlanta, Ga. See www.iclega.org for locations 6 CLE Hours

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CLE Calendar

August-October SEPT 20 Institute of Continuing Legal SEPT 28 Institute of Continuing Legal Education in Georgia Education in Georgia Whistleblower Law Symposium Construction Law Atlanta, Ga. Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for locations 3 CLE Hours 6 CLE Hours

SEPT 20 Institute of Continuing Legal SEPT 28 Institute of Continuing Legal Education in Georgia Education in Georgia Employment Law Cutting Edge in Courtroom Persuasion Atlanta, Ga. Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for locations 6 CLE Hours 6 CLE Hours

SEPT 20 NBI, Inc. (Formerly National Business OCT 4-6 Institute of Continuing Legal Institute) Education in Georgia Property Taking Through Eminent Workers’ Compensation Law Institute Domain in Georgia St. Simons Island, Ga. Atlanta, Ga. See www.iclega.org for locations 6 CLE Hours 12 CLE Hours

SEPT 21 Institute of Continuing Legal OCT 4-5 Institute of Continuing Legal Education in Georgia Education in Georgia Punitive Damages Business Law Institute Atlanta, Ga. Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for locations 6 CLE Hours 12 CLE Hours

SEPT 21 Institute of Continuing Legal OCT 4 Institute of Continuing Legal Education in Georgia Education in Georgia Agricultural Law School and College Law Macon, Ga. Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for locations 6 CLE Hours 6 CLE Hours

SEPT 27-29 Institute of Continuing Legal OCT 4 Institute of Continuing Legal Education in Georgia Education in Georgia Insurance Law Institute Title Standards St. Simons Island, Ga. Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for locations 12 CLE Hours 6 CLE Hours

SEPT 27 Institute of Continuing Legal OCT 5 Institute of Continuing Legal Education in Georgia Education in Georgia Doing Business in China and Taiwan Professional and Ethical Dilemmas Atlanta, Ga. Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for locations 3 CLE Hours 3 CLE Hours

96 Georgia Bar Journal 08-07gbj.qxp 7/25/2007 12:16 PM Page 97

CLE Calendar

OCT 10 National Conference of Bankruptcy OCT 11 Institute of Continuing Legal Judges Education in Georgia National Conference of Bankruptcy Judges Ethics of Rhetoric Orlando, Fla. Atlanta, Ga. 8 CLE Hours See www.iclega.org for locations 3 CLE Hours OCT 11 Institute of Continuing Legal Education in Georgia OCT 12 Institute of Continuing Legal Keep It Simple Education in Georgia Atlanta, Ga. Class Actions See www.iclega.org for locations Atlanta, Ga. 6 CLE Hours See www.iclega.org for locations 6 CLE Hours OCT 11 Institute of Continuing Legal Education in Georgia OCT 12 Institute of Continuing Legal U.S. Supreme Court Update Education in Georgia Atlanta, Ga. Securities Litigation See www.iclega.org for locations Atlanta, Ga. 6 CLE Hours See www.iclega.org for locations 6 CLE Hours CHATHAM FINANCIAL’S FREE Casemaker Classes ATLANTA CLE WORKSHOP SERIES WHAT TO THINK ABOUT Offered at the Bar Center BEFORE DEFEASING

Free online legal research Upcoming Casemaker Classes: INTEREST RATE HEDGING Aug. 27, Aug. 30, Sept. 13 and ISSUES AND STRATEGIES is available to all Bar Sept. 20 at 10 a.m. to 12 p.m. and from 2:30 to 4:30 p.m. each day. WHEN members. Learn how to For information contact Jodi Tuesday, October 16, 2007 McKenzie at 404-526-8618. WHERE effectively use and 103 West - Buckhead WHO navigate the Georgia Recommended for real estate attorneys representing real estate Casemaker library. Each developers, investors and REITs

session is limited to the Space is limited, RSVP by September 28th to Cheryl Pavic Henner at 484.731.0011 or first 10 attendees. [email protected] Download the registration

form at www.gabar.org. www.ChathamFinancial.com

August 2007 97 08-07gbj.qxp 7/25/2007 12:16 PM Page 98

Notices

Notice of Motion to Amend the Rules and Regulations of the State Bar of Georgia

No earlier than thirty days after the publication of eligibility of candidates for the position of President- this Notice, the State Bar of Georgia will file a Motion elect be amended by deleting the rule in full. The cur- to Amend the Rules and Regulations for the rent rule reads as follows: Organization and Government of the State Bar of Georgia pursuant to Part V, Chapter 1 of said Rules, Rule 1-404. Eligibility of President-elect 2005-2007 State Bar of Georgia Directory and Handbook, p. No person shall be eligible for election as H-6 to H-7 (hereinafter referred to as “Handbook”). President-elect if a member of the judicial circuit in I hereby certify that the following is the verbatim which such person is a member was elected to the text of the proposed amendments as approved by the office of President-elect at any time within one year Board of Governors of the State Bar of Georgia. Any immediately prior to the election in which such member of the State Bar of Georgia who desires to person is a candidate. object to these proposed amendments to the Rules is reminded that he or she may only do so in the manner In lieu of said rule, the membership of the State Bar at provided by Rule 5-102, Handbook, p. H-6. the plenary session of the annual meeting on June 16, This Statement and the following verbatim text are 2007 conditionally approved the following new para- intended to comply with the notice requirements of graph in Article V, Section 3 of the bylaws should this Rule 5-101, Handbook, p. H-6. Court grant the motion to delete Rule 1-404:

Cliff Brashier Section 3. The President-Elect Executive Director No person shall be eligible for election as State Bar of Georgia President-elect if a member of the judicial circuit in which such person is a member was elected to IN THE SUPREME COURT the office of President-elect at any time within STATE OF GEORGIA one year immediately prior to the election in which such person is a candidate. This Provision IN RE: STATE BAR OF GEORGIA may be waived by a majority of the present and Rules and Regulations for its voting members at a duly noticed meeting of the Organization and Government Board of Governors. Once a waiver has been obtained, no additional waiver may be requested MOTION TO AMEND 2007-1 by anyone from the judicial circuit that was the subject of the waiver until the fourth mid-year MOTION TO AMEND THE RULES AND REGU- meeting of the Board of Governors following the LATIONS OF THE STATE BAR OF GEORGIA waiver’s approval.

COMES NOW, the State Bar of Georgia, pursuant to The President-elect shall perform duties delegat- the authorization and direction of its Board of ed to him or her by the President, prescribed by the Governors in a regular meeting held on June 16, 2007, Board of Governors and as otherwise provided in and upon the concurrence of its Executive Committee, the Bar Rules and Bylaws. Upon the absence, and presents to this Court its Motion to Amend the death, disability, or resignation of the President, Rules and Regulations of the State Bar of Georgia as set the President-elect shall preside at all meetings of forth in an Order of this Court dated December 6, 1963 the State Bar and the Board, and shall perform all (219 Ga. 873), as amended by subsequent Orders, 2006- other duties of the President. 2007 State Bar of Georgia Directory and Handbook, pp. 1- H, et seq., and respectfully moves that the Rules and To insure continuity in the program of the State Regulations of the State Bar of Georgia be amended in Bar for the benefit of the legal profession and the the following respects: public, the President-elect shall plan the program I. for the year in which he or she shall act as President and make needed arrangements for the It is proposed that Rule 1-404 of Chapter 4 of Part I prompt inauguration of the program upon taking of the Rules of the State Bar of Georgia regarding the office as President.

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II. (B) $250.00 for the second reinstatement paid within the first year of suspension, It is proposed that Rule 1-501 of Chapter 5 of Part I of plus $250.00 for each year of suspension the Rules of the State Bar of Georgia regarding license thereafter up to a total of five years; fees be amended by deleting the struck-through portions of the rule and inserting those portions in boldface (C) $500.00 for the third reinstatement paid italics as follows: within the first year of suspension, plus $500.00 for each year of suspension there- Rule 1-501. License Fees after up to a total of five years; or (a) Annual license fees for membership in the State Bar shall be due and payable on July 1 of each (D) $750.00 for each subsequent reinstate- year. Upon the failure of a member to pay the license ment paid within the first year of suspen- fee by September 1, the member shall cease to be a sion, plus $750.00 for each year of suspen- member in good standing. When such license fees sion thereafter up to a total of five years. and late fees for the current and prior years have been paid, the member shall automatically be rein- The yearly increase in the reinstatement fee shall stated to the status of member in good standing, become due and owing in its entirety upon the first except as provided in section (b) of this Rule. day of each next fiscal year and shall not be prorat- ed for any fraction of the fiscal year in which it is (b) In the event a member of the State Bar is actually paid. delinquent without reasonable cause in the payment of any license fees, late fee, assessment, rein- (c) A member suspended for a license fee delin- statement fee or penalty of any nature for a period quency under subsection (b) above for a total of five of one (1) year, the member shall be automatically years in succession shall be immediately terminat- suspended, and shall not practice law in this state. ed as a member without further action on the part The suspended member may thereafter lift such of the State Bar. The terminated member shall not suspension only upon the successful completion of be entitled to a hearing as set out in section (d) all of the following terms and conditions: below. The terminated member shall be required to apply for membership to the Office of Bar (i) payment of all outstanding dues, assess- Admissions for readmission to the State Bar. Upon ments, late fees, reinstatement fees, and any completion of the requirements for readmission, and all penalties due and owing before or the terminated member shall be required to pay the accruing after the suspension of membership; total reinstatement fee due under subsection (b)(iii) above plus an additional $750.00 as a readmission (ii) provide the membership section of the State fee to the State Bar. Bar the following: (d) Prior to suspending a membership member (A) a certificate from the Office of General for a license fee delinquency under subsection (b) Counsel of the State Bar that the suspended above, the State Bar shall send by certified mail a member is not presently subject to any dis- notice thereof to the last known address of the ciplinary procedure; member as contained in the official membership records. It shall specify the years for which the (B) a certificate from the Commission on license fee is delinquent and state that either the fee Continuing Lawyer Competency that the and all penalties related thereto are paid within suspended member is current on all require- sixty (60) days or a hearing to establish reasonable ments for continuing legal education; cause is requested within sixty (60) days, the membership shall be suspended. (C) a determination of fitness from the Board to Determine Fitness of Bar If a hearing is requested, it shall be held at State Applicants; Bar Headquarters within ninety (90) days of receipt of the request by the Executive Committee. Notice of (iii) payment to the State Bar of a non-waivable time and place of the hearing shall be mailed at least reinstatement fee as follows: ten (10) days in advance. The party cited may be represented by counsel. Witnesses shall be sworn; and, (A) $150.00 for the first reinstatement paid if requested by the party cited, a complete electronic within the first year of suspension, plus record or a transcript shall be made of all proceed- $150.00 for each year of suspension there- ings and testimony. The expense of the record shall after up to a total of five years; be paid by the party requesting it and a copy thereof

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shall be furnished to the Executive Committee. The argument by the Respondent attorney or the presiding member or special master shall have the Executive Committee. The Court shall promptly con- authority to rule on all motions, objections, and sider the report of the Executive Committee, excep- other matters presented in connection with the tions thereto, and the responses filed by any party to Georgia Rules of Civil Procedure, and the practice in such exceptions, if any, and enter its judgement. A the trial of civil cases. The party cited may not be copy of the Court’s judgement shall be transmitted to required to testify over his or her objection. the Executive Committee and to the Respondent attorney by the Court. The Executive Committee shall (1) make findings of fact and conclusions of law and shall determine Within thirty (30) days after a final judgement whether the party cited was delinquent in violation which suspends membership, the suspended mem- of this Rule 1-501; and (2) upon a finding of delin- ber shall, under the supervision of the Supreme quency shall determine whether there was reason- Court, notify all clients of said suspended mem- able cause for the delinquency. Financial hardship ber’s inability to represent them and of the necessi- short of adjudicated bankruptcy shall not constitute ty for promptly retaining new counsel, and shall reasonable cause. A copy of the findings and the take all actions necessary to protect the interests of determination shall be sent to the party cited. If it is said suspended member’s clients. Should the sus- determined that no delinquency has occurred, the pended member fail to notify said clients or fail to matter shall be dismissed. If it is determined that protect their interests as herein required, the delinquency has occurred but that there was rea- Supreme Court, upon its motion, or upon the sonable cause therefor, the matter shall be deferred motion of the State Bar, and after ten (10) days for one (1) year at which time the matter will be notice to the suspended member and proof of fail- reconsidered. If it is determined that delinquency ure to notify or protect said clients, may hold the has occurred without reasonable cause therefor, the suspended member in contempt and order that a membership shall be suspended immediately upon member or members of the State Bar take charge of such determination. An appropriate notice of sus- the files and records of said suspended member pension shall be sent to the clerks of all Georgia and proceed to notify all clients and take such steps courts and shall be published in an official publica- as seem indicated to protect their interests. Any tion of the State Bar. Alleged errors of law in the member of the State Bar appointed by the Supreme proceedings or findings of the Executive Committee Court to take charge of the files and records of the or its delegate shall be reviewed by the Supreme suspended member under these Rules shall not be Court. The Executive Committee may delegate to a permitted to disclose any information contained in special master any or all of its responsibilities and the files and records in his or her care without the authority with respect to suspending membership consent of the client to whom such file or record for license fee delinquency in which event the spe- relates, except as clearly necessary to carry out the cial master shall make a report to the Committee of order of the court. its findings for its approval or disapproval. (e) Any member terminated solely for license fee After a finding of delinquency, a copy of the find- delinquency after January 1, 1997 shall be eligible to ing shall be served upon the Respondent attorney. apply for reinstatement on the same terms and con- The Respondent attorney may file with the Court any ditions and in the same manner as a member sus- written exceptions (supported by the written argu- pended for license fee delinquency may apply for ment) said Respondent may have to the findings of lifting of suspension pursuant to (b) above. the Executive Committee. All such exceptions shall be filed with the Clerk of the Supreme Court and If this motion of the State Bar of Georgia is granted, served on the Executive Committee by service on the the amended rule 1-501 will read as follows: General Counsel within twenty (20) days of the date that the findings were served on the Respondent Rule 1-501. License Fees attorney. Upon the filing of exceptions by the (a) Annual license fees for membership in the Respondent attorney, the Executive Committee shall State Bar shall be due and payable on July 1 of within twenty (20) days of said filing, file a report of each year. Upon the failure of a member to pay its findings and the complete record and transcript of the license fee by September 1, the member shall evidence with the Clerk of the Supreme Court. The cease to be a member in good standing. When Court may grant extensions of time for filing in such license fees and late fees for the current and appropriate cases. Findings of fact by the Executive prior years have been paid, the member shall Committee shall be conclusive if supported by any automatically be reinstated to the status of mem- evidence. The Court may grant oral argument on any ber in good standing, except as provided in sec- exception filed with it upon application for such tion (b) of this Rule.

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(b) In the event a member of the State Bar is ed for any fraction of the fiscal year in which it is delinquent in the payment of any license fees, late actually paid. fee, assessment, reinstatement fee or penalty of any nature for a period of one (1) year, the member (c) A member suspended under subsection (b) shall be automatically suspended, and shall not above for a total of five years in succession shall be practice law in this state. The suspended member immediately terminated as a member without fur- may thereafter lift such suspension only upon the ther action on the part of the State Bar. The termi- successful completion of all of the following terms nated member shall not be entitled to a hearing as and conditions: set out in section (d) below. The terminated member shall be required to apply for membership to (i) payment of all outstanding dues, assess- the Office of Bar Admissions for readmission to the ments, late fees, reinstatement fees, and any State Bar. Upon completion of the requirements for and all penalties due and owing before or readmission, the terminated member shall be accruing after the suspension of membership; required to pay the total reinstatement fee due under subsection (b)(iii) above plus an additional (ii) provide the membership section of the State $750.00 as a readmission fee to the State Bar. Bar the following: (d) Prior to suspending a member under subsec- (A) a certificate from the Office of General tion (b) above, the State Bar shall send by certified Counsel of the State Bar that the suspended mail a notice thereof to the last known address of member is not presently subject to any dis- the member as contained in the official member- ciplinary procedure; ship records. It shall specify the years for which the license fee is delinquent and state that either the fee (B) a certificate from the Commission on and all penalties related thereto are paid within Continuing Lawyer Competency that the sixty (60) days or a hearing to establish reasonable suspended member is current on all require- cause is requested within sixty (60) days, the mem- ments for continuing legal education; bership shall be suspended.

(C) a determination of fitness from the If a hearing is requested, it shall be held at State Board to Determine Fitness of Bar Bar Headquarters within ninety (90) days of receipt Applicants; of the request by the Executive Committee. Notice of time and place of the hearing shall be mailed at least (iii) payment to the State Bar of a non-waivable ten (10) days in advance. The party cited may be rep- reinstatement fee as follows: resented by counsel. Witnesses shall be sworn; and, if requested by the party cited, a complete electronic (A) $150.00 for the first reinstatement paid record or a transcript shall be made of all proceed- within the first year of suspension, plus ings and testimony. The expense of the record shall $150.00 for each year of suspension there- be paid by the party requesting it and a copy thereof after up to a total of five years; shall be furnished to the Executive Committee. The presiding member or special master shall have the (B) $250.00 for the second reinstatement authority to rule on all motions, objections, and paid within the first year of suspension, other matters presented in connection with the plus $250.00 for each year of suspension Georgia Rules of Civil Procedure, and the practice in thereafter up to a total of five years; the trial of civil cases. The party cited may not be required to testify over his or her objection. (C) $500.00 for the third reinstatement paid within the first year of suspension, plus The Executive Committee shall (1) make findings $500.00 for each year of suspension thereof fact and conclusions of law and shall determine after up to a total of five years; or whether the party cited was delinquent in violation of this Rule 1-501; and (2) upon a finding of delin- (D) $750.00 for each subsequent reinstate- quency shall determine whether there was reason- ment paid within the first year of suspen- able cause for the delinquency. Financial hardship sion, plus $750.00 for each year of suspen- short of adjudicated bankruptcy shall not constitute sion thereafter up to a total of five years. reasonable cause. A copy of the findings and the determination shall be sent to the party cited. If it is The yearly increase in the reinstatement fee shall determined that no delinquency has occurred, the become due and owing in its entirety upon the first matter shall be dismissed. If it is determined that day of each next fiscal year and shall not be prorat- delinquency has occurred but that there was rea-

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sonable cause therefor, the matter shall be deferred motion of the State Bar, and after ten (10) days for one (1) year at which time the matter will be notice to the suspended member and proof of fail- reconsidered. If it is determined that delinquency ure to notify or protect said clients, may hold the has occurred without reasonable cause therefor, the suspended member in contempt and order that a membership shall be suspended immediately upon member or members of the State Bar take charge of such determination. An appropriate notice of sus- the files and records of said suspended member pension shall be sent to the clerks of all Georgia and proceed to notify all clients and take such steps courts and shall be published in an official publica- as seem indicated to protect their interests. Any tion of the State Bar. Alleged errors of law in the member of the State Bar appointed by the Supreme proceedings or findings of the Executive Committee Court to take charge of the files and records of the or its delegate shall be reviewed by the Supreme suspended member under these Rules shall not be Court. The Executive Committee may delegate to a permitted to disclose any information contained in special master any or all of its responsibilities and the files and records in his or her care without the authority with respect to suspending membership consent of the client to whom such file or record for license fee delinquency in which event the spe- relates, except as clearly necessary to carry out the cial master shall make a report to the Committee of order of the court. its findings for its approval or disapproval. III. After a finding of delinquency, a copy of the finding shall be served upon the Respondent attorney. It is proposed that Rule 1-703 of Chapter 7 of Part I of The Respondent attorney may file with the Court any the Rules of the State Bar of Georgia regarding the written exceptions (supported by the written argu- Younger Lawyers Division be amended by deleting the ment) said Respondent may have to the findings of struck-through portions of the rule and inserting those the Executive Committee. All such exceptions shall portions set out in boldface italics as follows: be filed with the Clerk of the Supreme Court and served on the Executive Committee by service on the Rule 1-703. Young Lawyers Division General Counsel within twenty (20) days of the date There shall be a division of the State Bar com- that the findings were served on the Respondent posed of (1) all members of the State Bar who have attorney. Upon the filing of exceptions by the not reached their thirty-sixth birthday prior to the Respondent attorney, the Executive Committee shall close of the preceding Annual Meeting of the State within twenty (20) days of said filing, file a report of Bar and (2) all members of the State Bar who have its findings and the complete record and transcript of been admitted to their first bar less than three five evidence with the Clerk of the Supreme Court. The years. All persons holding an elective office or post Court may grant extensions of time for filing in in the Young Lawyers Division who are qualified appropriate cases. Findings of fact by the Executive by age to assume such office or post on the date of Committee shall be conclusive if supported by any his or her election shall remain members of the evidence. The Court may grant oral argument on any Young Lawyers Division for the duration of their exception filed with it upon application for such offices or posts. In the case of a President-elect of argument by the Respondent attorney or the the Young Lawyers Division who is qualified by Executive Committee. The Court shall promptly con- age to assume such office on the date of such per- sider the report of the Executive Committee, excep- son’s election, such person shall remain a member tions thereto, and the responses filed by any party to of the Young Lawyers Division for the duration of such exceptions, if any, and enter its judgement. A the terms of President and Immediate Past copy of the Court’s judgement shall be transmitted to President to which he or she succeeds. the Executive Committee and to the Respondent attorney by the Court. The Young Lawyers Division shall have such organization, powers, and duties as may be pre- Within thirty (30) days after a final judgement scribed by the Bylaws of the State Bar. which suspends membership, the suspended member shall, under the supervision of the Supreme If this motion of the State Bar of Georgia is granted, Court, notify all clients of said suspended mem- the amended rule 1-703 will read as follows: ber’s inability to represent them and of the necessity for promptly retaining new counsel, and shall Rule 1-703. Young Lawyers Division take all actions necessary to protect the interests of There shall be a division of the State Bar composed said suspended member’s clients. Should the sus- of (1) all members of the State Bar who have not pended member fail to notify said clients or fail to reached their thirty-sixth birthday prior to the close of protect their interests as herein required, the the preceding Annual Meeting of the State Bar and (2) Supreme Court, upon its motion, or upon the all members of the State Bar who have been admitted

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to their first bar less than five years. All persons hold- The Board of Governors moves that Rule 4-201(b)(5) ing an elective office or post in the Young Lawyers be amended by deleting the struck-through portions of Division who are qualified by age to assume such the rule and inserting those portions set out in boldface office or post on the date of his or her election shall italics as follows: remain members of the Young Lawyers Division for the duration of their offices or posts. In the case of a Rule 4-201. State Disciplinary Board President-elect of the Young Lawyers Division who is (a) . . . qualified by age to assume such office on the date of such person’s election, such person shall remain a (b) The Review Panel shall consist of the Immediate member of the Young Lawyers Division for the dura- Past President of the State Bar, the Immediate Past tion of the terms of President and Immediate Past President of the Young Lawyers Division or a President to which he or she succeeds. member of the Young Lawyers Division designated by its Immediate Past President, nine members of The Young Lawyers Division shall have such the State Bar, three from each of the three federal organization, powers, and duties as may be prejudicial districts of the State appointed as described scribed by the Bylaws of the State Bar. below, and four public members appointed by the Supreme Court of Georgia. IV. (1) . . . It is proposed that Rule 4-103 of Chapter 1 of Part IV of the Rules of the State Bar of Georgia regarding mul- (2) . . . tiple disciplinary violations, and Rules 4-201 and 4-203 of Chapter 2 of Part IV of the Rules of the State Bar of (3) . . . Georgia regarding the State Disciplinary Board be amended as set out below. In addition, the Board of (4) . . . Governors moves to amend Rule 9.4 of the Georgia Rules of Professional Conduct found in Chapter 1 of (5) The Review Panel shall elect a chairperson Part IV of the Rules of the State Bar of Georgia. and such other officers as it may deem proper in July of each year. A majority The presence of The Board of Governors moves that Rule 4-103 be six members of the Panel shall constitute a quo- amended by inserting those portions set out in boldface rum. A majority of a quorum Four members of italics as follows: the Panel shall be authorized to act except that a recommendation of the Review Panel to sus- Rule 4-103. Multiple Violations pend or disbar shall require the affirmative A finding of a third or subsequent disciplinary vote of at least six members of the Review infraction under these rules shall, in and of itself, Panel, with not more than four negative votes. constitute discretionary grounds for suspension or However, in any case in which one or more disbarment. The Review Panel may exercise this Review Panel members are disqualified, the discretionary power when the question is appropri- number of members constituting a quorum and ately before that Panel. Any discipline imposed by the number of members necessary to vote affir- another jurisdiction as contemplated by Rule 9.4 matively for disbarment or suspension, shall be may be considered a disciplinary infraction for the reduced by the number of members disquali- purpose of this Rule. fied from voting on the case. No recommendation of disbarment or suspension may be made Should this Court grant the motion, the rule in its by fewer than four affirmative votes. For the entirety would read as follows: purposes of this rule the recusal of a member shall have the same effect as disqualification. Rule 4-103. Multiple Violations A finding of a third or subsequent disciplinary Should this Court grant the motion, Rule 4-201 in its infraction under these rules shall, in and of itself, entirety would read as follows: constitute discretionary grounds for suspension or disbarment. The Review Panel may exercise this 4-201. State Disciplinary Board discretionary power when the question is appropri- The powers to investigate and discipline mem- ately before that Panel. Any discipline imposed by bers of the State Bar of Georgia and those author- another jurisdiction as contemplated by Rule 9.4 ized to practice law in Georgia for violations of the may be considered a disciplinary infraction for the Standards of Conduct set forth in Bar Rule 4-102 are purpose of this Rule. hereby vested in a State Disciplinary Board and a Consumer Assistance Program. The State

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Disciplinary Board shall consist of two panels. The decide to divide itself into subcommittees or to first panel shall be the Investigative Panel of the consolidate after having divided. A majority State Disciplinary Board (Investigative Panel). The shall constitute a quorum and a majority of a second panel shall be the Review Panel of the State quorum shall be authorized to act. However, in Disciplinary Board (Review Panel). The Consumer any matter in which one or more Investigative Assistance Program shall operate as described in Panel members are disqualified, the number of Part XII of these Rules. members constituting a quorum shall be reduced by the number of members disquali- (a) The Investigative Panel shall consist of the fied from voting on the matter. President-elect of the State Bar of Georgia and the President-elect of the Young Lawyers Division of the (5) The Investigative Panel is authorized to State Bar of Georgia, one member of the State Bar of organize itself into as many subcommittees as Georgia from each judicial district of the State the Panel deems necessary to conduct the expe- appointed by the President of the State Bar of ditious investigation of disciplinary matters Georgia with the approval of the Board of Governors referred to it by the Office of the General of the State Bar of Georgia, one member of the State Counsel. However, no subcommittee shall con- Bar of Georgia from each judicial district of the State sist of fewer than seven (7) members of the appointed by the Supreme Court of Georgia, one at- Panel and each such subcommittee shall large member of the State Bar of Georgia appointed include at least one (1) of the public members. by the Supreme Court, one at-large member of the State Bar of Georgia appointed by the President with (b) The Review Panel shall consist of the the approval of the Board of Governors, and six pub- Immediate Past President of the State Bar, the lic members appointed by the Supreme Court to Immediate Past President of the Young Lawyers serve as public members of the Panel. Division or a member of the Young Lawyers Division designated by its Immediate Past President, (1) All members shall be appointed for three- nine members of the State Bar, three from each of the year terms subject to the following exceptions: three federal judicial districts of the State appointed as described below, and four public members (i) any person appointed to fill a vacancy appointed by the Supreme Court of Georgia. caused by resignation, death, disqualification or disability shall serve only for the (1) The nine members of the Bar from the unexpired term of the member replaced federal judicial districts shall be appointed for unless reappointed; three year terms so that the term of one Panel member from each district will expire each (ii) ex-officio members shall serve during year. The three vacant positions will be filled in the term of their office; and odd years by appointment by the President, with the approval of the Board of Governors, (iii) certain initial members as set forth in and in even years by appointment by the paragraph (2) below. Supreme Court of Georgia.

(2) It shall be the goal of the initial appoint- (2) The Panel members serving at the time ments that one-third (1/3) of the terms of the this rule goes into effect shall continue to serve members appointed will expire annually. until their respective terms expire. New Panel members shall be appointed as set forth above. (3) A member may be removed from the Panel pursuant to procedures set by the Panel for (3) Any person appointed to fill a vacancy failure to attend regular meetings of the Panel. caused by resignation, death, disqualification or The vacancy shall be filled by appointment of the disability shall serve only for the unexpired term current President of the State Bar of Georgia. of the member replaced unless reappointed.

(4) The Investigative Panel shall annually (4) Ex-officio members shall serve during the elect a chairperson, a vice-chairperson, or a term or terms of their offices. vice-chairperson for any subcommittee for which the chairperson is not a member to serve (5) The Review Panel shall elect a chairper- as chairperson for that subcommittee, and such son and such other officers as it may deem other officers as it may deem proper. The Panel proper in July of each year. The presence of six shall meet in its entirety in July of each year to members of the Panel shall constitute a quo- elect a chairperson. At any time the Panel may rum. Four members of the Panel shall be

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authorized to act except that a recommenda- Should this Court grant the motion, Rule 4-201 in its tion of the Review Panel to suspend or disbar entirety would read as follows: shall require the affirmative vote of at least six members of the Review Panel, with not more Rule 4-203. Powers and Duties than four negative votes. However, in any case (a) In accordance with these rules, the in which one or more Review Panel members Investigative Panel shall have the following powers are disqualified, the number of members con- and duties: stituting a quorum and the number of members necessary to vote affirmatively for disbarment (1) To receive and evaluate any and all writ- or suspension, shall be reduced by the number ten grievances against members of the State Bar of members disqualified from voting on the and to frame such charges and grievances as case. No recommendation of disbarment or shall conform to the requirements of these suspension may be made by fewer than four rules. A copy of any grievance serving as the affirmative votes. For the purposes of this rule basis for investigation or proceedings before the recusal of a member shall have the same the Panel shall be furnished to the respondent effect as disqualification by the procedures set forth in Rule 4-204.2;

The Board of Governors moves that Rule 4-203(b)(7) (2) To initiate grievances on its own motion, be amended by inserting those portions set out in bold- to require additional information from a com- face italics as follows: plainant, where appropriate, and to dismiss and reject such grievances as to it may seem Rule 4-203. Powers and Duties unjustified, frivolous, or patently unfounded. (a) . . . . However, the rejection of a grievance by the Investigative Panel shall not deprive the com- (b) In accordance with these rules, the Review plaining party of any right of action he or she Panel or any subcommittee of the Panel shall have might otherwise have at law or in equity the following powers and duties: against the respondent;

(1) To receive reports from special masters, (3) To issue letters of instruction when dis- and to recommend to the Supreme Court the missing a grievance; imposition of punishment and discipline; (4) To delegate the duties of the Panel enu- (2) To adopt forms for subpoenas, notices, merated in subparagraphs (1), (2), (11) and (12) and any other written instruments necessary or hereof to the chairperson of the Panel or chair- desirable under these rules; person of any subcommittee of the Panel or such other members as the Panel or its chair- (3) To prescribe its own rules of conduct and person may designate subject to review and procedure; approval by the Investigative Panel or subcommittee of the Panel; (4) (Reserved). (5) To conduct probable cause investigations, (5) Through the action of its chairperson or to collect evidence and information concerning his or her designee and upon good cause grievances, to hold hearings where provided shown, to allow a late filing of the respondent’s for in these rules, and to certify grievances to answer where there has been no final selection the Supreme Court for hearings by special mas- of a special master within thirty days of service ters as hereinafter provided; of the formal complaint upon the respondent; (6) To pass upon petitions for protection of (6) Through the action of its chairperson or the clients of deceased, disappearing or inca- his or her designee, to receive and pass upon pacitated members of the State Bar; challenges and objections to special masters; (7) To adopt forms for formal complaints, sub- (7) To receive Notices of Reciprocal poenas, notices, and any other written instru- Discipline and to recommend to the Supreme ments necessary or desirable under these rules; Court the imposition of punishment and discipline pursuant to Bar Rule 9.4(b)(3). (8) To prescribe its own rules of conduct and procedure;

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(9) To receive, investigate, and collect evi- shown, to allow a late filing of the respondent’s dence and information; and to review and answer where there has been no final selection accept or reject such Petitions for Voluntary of a special master within thirty days of service Discipline which request the imposition of con- of the formal complaint upon the respondent; fidential discipline and are filed with the Investigative Panel prior to the time of issuance (6) Through the action of its chairperson or of a formal complaint by Bar counsel. Each his or her designee, to receive and pass upon such petition shall contain admissions of fact challenges and objections to special masters; and admissions of conduct in violation of Part IV, Chapter 1 of these rules sufficient to author- (7) To receive Notices of Reciprocal ize the imposition of discipline. Bar counsel Discipline and to recommend to the Supreme shall, upon filing of such petition, file with the Court the imposition of punishment and disci- Panel its recommendations as to acceptance or pline pursuant to Bar Rule 9.4(b)(3). rejection of the petition by the Panel, giving the reasons therefor, and shall serve a copy of its The Board of Governors moves to amend Rule 9.4 of recommendation upon the respondent present- the Georgia Rules of Professional Conduct found in ing such petition; Chapter 1 of Part IV of the Rules of the State Bar of Georgia by deleting the struck-through portions of the (10) To sign and enforce, as hereinafter rule and inserting those portions set out in boldface ital- described, subpoenas for the appearance of ics as follows: persons and for the production of things and records at investigations and hearings; RULE 9.4: JURISDICTION AND RECIPROCAL DISCIPLINE (11) To extend the time within which a for- (a) Jurisdiction. Any lawyer admitted to practice mal complaint may be filed; law in this jurisdiction, including any formerly admitted lawyer with respect to acts committed (12) To issue letters of formal admonition prior to resignation, suspension, disbarment, or and Investigative Panel Reprimands as here- removal from practice on any of the grounds pro- inafter provided; vided in Rule 4-105 4-104 of the State Bar, or with respect to acts subsequent thereto which amount to (13) To enter a Notice of Discipline providing the practice of law or constitute a violation of the that unless the respondent affirmatively rejects Georgia Rules of Professional Conduct or any Rules the notice, the respondent shall be sanctioned or Code subsequently adopted by the court in lieu as ordered by the Investigative Panel; thereof, and any Domestic or Foreign Lawyer specially admitted by a court of this jurisdiction for a (14) To use the investigators, auditors, particular proceeding and any Domestic or Foreign and/or staff of the Office of the General Lawyer who practices law or renders or offers to Counsel in performing its duties. render any legal services in this jurisdiction, is subject to the disciplinary jurisdiction of the State Bar (b) In accordance with these rules, the Review of Georgia State Disciplinary Board. Panel or any subcommittee of the Panel shall have the following powers and duties: (b) Reciprocal Discipline. Upon being disciplined suspended or disbarred in another jurisdiction, a (1) To receive reports from special masters, lawyer admitted to practice in Georgia shall and to recommend to the Supreme Court the promptly inform the Office of General Counsel of imposition of punishment and discipline; the State Bar of Georgia of the discipline. Upon notification from any source that a lawyer within (2) To adopt forms for subpoenas, notices, the jurisdiction of the State Bar of Georgia has been and any other written instruments necessary or disciplined in another jurisdiction, the Office of desirable under these rules; General Counsel shall obtain a certified copy of the disciplinary order and file it with the Investigative (3) To prescribe its own rules of conduct and Panel Clerk of the State Disciplinary Board. procedure; Nothing in this Rule shall prevent a lawyer disciplined in another jurisdiction from filing a petition (4) (Reserved); for voluntary discipline under Rule 4-227.

(5) Through the action of its chairperson or (1) Upon receipt of a certified copy of an his or her designee and upon good cause order demonstrating that a lawyer admitted to

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practice in Georgia has been disciplined dis- (b) the discipline imposed by the for- barred or suspended in another jurisdiction, the eign jurisdiction exceeds the level of disci- Investigative Panel Clerk of the State pline allowed under these Rules. Disciplinary Board shall docket the matter and forthwith issue a notice directed to the lawyer (vi) The discipline would if imposed in containing: identical form be unduly severe or would require action not contemplated by these (i) A copy of the order from the other Rules. jurisdiction; and If the Review Panel determines that any of (ii) An order directing A notice approved those elements exists, the Review Panel shall by the Review Panel that the lawyer must make such other recommendation to the inform the Office of General Counsel and Georgia Supreme Court as it deems appropri- the Review Panel, within thirty days from ate. The burden is on the party seeking differ- service of the notice, of any claim by the ent discipline in this jurisdiction to demon- lawyer predicated upon the grounds set strate that the imposition of the same discipline forth in paragraph (b)(3) below, that the is not appropriate. imposition of the identical substantially similar discipline in this jurisdiction would (4) The Review Panel may consider excep- be unwarranted and the reasons for that tions from either the Office of the General claim. Counsel or the Respondent for the grounds enumerated at Part (b)(3) of this Rule, and may in (2) In the event the discipline imposed in the its discretion grant oral argument. Exceptions other jurisdiction has been stayed there, any and briefs shall be filed with the Review Panel reciprocal discipline imposed in this jurisdic- within thirty days from service of the Notice of tion shall be deferred until the stay expires. Reciprocal Discipline. The responding party shall have ten days after service of the excep- (3) Upon the expiration of thirty days from tions within which to respond. service of the notice pursuant to the provisions of paragraph (b)(1), the Review Panel shall rec- (4) (5) In all other aspects, a final adjudica- ommend to the Georgia Supreme Court the tion in another jurisdiction that a lawyer, identical substantially similar discipline, or whether or not admitted in that jurisdiction, removal from practice on the grounds provid- has been guilty of misconduct, or has been ed in Rule 4-104, unless the Office of General removed from practice on any of the grounds Counsel or the lawyer demonstrates, or the provided in Rule 4-104 of the State Bar, shall Review Panel finds that it clearly appears upon establish conclusively the misconduct or the the face of the record from which the discipline removal from practice for purposes of a disci- is predicated, that: plinary proceeding in this state.

(i) The procedure was so lacking in (6) Discipline imposed by another jurisdic- notice or opportunity to be heard as to con- tion but of a lesser nature than disbarment or stitute a deprivation of due process; or suspension may be considered in aggravation of discipline in any other disciplinary proceeding. (ii) There was such infirmity of proof establishing the misconduct as to give rise The maximum penalty for a violation of this Rule to the clear conviction that the court could is disbarment. not, consistent with its duty, accept as final the conclusion on that subject; or Should this Court grant the motion, Rule 4-201 in its entirety would read as follows: (iii) The discipline imposed would result in grave injustice or be offensive to the RULE 9.4 JURISDICTION AND RECIPROCAL public policy of the jurisdiction; or DISCIPLINE (a) Jurisdiction. Any lawyer admitted to practice (iv) The reason for the original discipli- law in this jurisdiction, including any formerly nary status no longer exists; or admitted lawyer with respect to acts committed prior to resignation, suspension, disbarment, or (v) (a) the conduct did not occur within removal from practice on any of the grounds pro- the state of Georgia; and, vided in Rule 4-104 of the State Bar, or with respect

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to acts subsequent thereto which amount to the practice on the grounds provided in Rule 4-104, practice of law or constitute a violation of the unless the Office of General Counsel or the Georgia Rules of Professional Conduct or any Rules lawyer demonstrates, or the Review Panel finds or Code subsequently adopted by the court in lieu that it clearly appears upon the face of the record thereof, and any Domestic or Foreign Lawyer spe- from which the discipline is predicated, that: cially admitted by a court of this jurisdiction for a particular proceeding and any Domestic or Foreign (i) The procedure was so lacking in Lawyer who practices law or renders or offers to notice or opportunity to be heard as to con- render any legal services in this jurisdiction, is substitute a deprivation of due process; or ject to the disciplinary jurisdiction of the State Bar of Georgia State Disciplinary Board. (ii) There was such infirmity of proof establishing the misconduct as to give rise (b) Reciprocal Discipline. Upon being suspended to the clear conviction that the court could or disbarred in another jurisdiction, a lawyer not, consistent with its duty, accept as final admitted to practice in Georgia shall promptly the conclusion on that subject; or inform the Office of General Counsel of the State Bar of Georgia of the discipline. Upon notification (iii) The discipline imposed would result from any source that a lawyer within the jurisdic- in grave injustice or be offensive to the tion of the State Bar of Georgia has been disciplined public policy of the jurisdiction; or in another jurisdiction, the Office of General Counsel shall obtain a certified copy of the discipli- (iv) The reason for the original disciplinary order and file it with the Clerk of the State nary status no longer exists; or Disciplinary Board. Nothing in this Rule shall prevent a lawyer disciplined in another jurisdiction (v) (a) the conduct did not occur within from filing a petition for voluntary discipline under the state of Georgia; and, Rule 4-227. (b) the discipline imposed by the for- (1) Upon receipt of a certified copy of an eign jurisdiction exceeds the level of disci- order demonstrating that a lawyer admitted to pline allowed under these Rules. practice in Georgia has been disbarred or suspended in another jurisdiction, the Clerk of the (vi) The discipline would if imposed in State Disciplinary Board shall forthwith issue a identical form be unduly severe or would notice directed to the lawyer containing: require action not contemplated by these Rules. (i) A copy of the order from the other jurisdiction; and If the Review Panel determines that any of those elements exists, the Review Panel shall (ii) A notice approved by the Review make such other recommendation to the Panel that the lawyer must inform the Georgia Supreme Court as it deems appropri- Office of General Counsel and the Review ate. The burden is on the party seeking differ- Panel, within thirty days from service of ent discipline in this jurisdiction to demon- the notice, of any claim by the lawyer pred- strate that the imposition of the same discipline icated upon the grounds set forth in para- is not appropriate. graph (b)(3) below, that the imposition of the substantially similar discipline in this (4) The Review Panel may consider excep- jurisdiction would be unwarranted and the tions from either the Office of the General reasons for that claim. Counsel or the Respondent on the grounds enumerated at Part (b)(3) of this Rule, and may (2) In the event the discipline imposed in the in its discretion grant oral argument. other jurisdiction has been stayed there, any Exceptions and briefs shall be filed with the reciprocal discipline imposed in this jurisdic- Review Panel within thirty days from service of tion shall be deferred until the stay expires. the Notice of Reciprocal Discipline. The responding party shall have ten days after serv- (3) Upon the expiration of thirty days from ice of the exceptions within which to respond. service of the notice pursuant to the provisions of paragraph (b)(1), the Review Panel shall rec- (5) In all other aspects, a final adjudication in ommend to the Georgia Supreme Court sub- another jurisdiction that a lawyer, whether or stantially similar discipline, or removal from not admitted in that jurisdiction, has been

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guilty of misconduct, or has been removed Counsel for the State Bar of Georgia from practice on any of the grounds provided ______in Rule 4-104 of the State Bar, shall establish William P. Smith, III conclusively the misconduct or the removal General Counsel from practice for purposes of a disciplinary State Bar No. 665000 proceeding in this state. ______Robert E. McCormack (6) Discipline imposed by another jurisdiction Deputy General Counsel but of a lesser nature than disbarment or sus- State Bar No. 485375 pension may be considered in aggravation of discipline in any other disciplinary proceeding. OFFICE OF THE GENERAL COUNSEL State Bar of Georgia The maximum penalty for a violation of this 104 Marietta Street, NW – Suite 100 Rule is disbarment. Atlanta, Georgia 30303 (404) 527-8720 SO MOVED, this ____ day of ______, 2007. Notice of Proposal to Amend Rule 1-502, Amount of License Fee

In July, the Executive Committee of the State Bar of Rule 1-502. Amount of License Fees Georgia voted to recommend to the Board of Governors The amount of such license fees for active mem- that it petition the Supreme Court of Georgia to raise bers shall not exceed $250.00 $350.00, and shall the cap on annual dues for the first time in 12 years. annually be fixed by the Board of Governors for the Under the proposal, Bar dues, which are now set at $230 ensuing year; provided, however, that except in the and capped at $250, would be capped at $350. case of an emergency, such annual dues shall not be increased in any one year by more than $25.00 over Raising the cap does not necessarily mean that Bar those set for the next preceding year. The annual members should expect to pay higher dues next year. license fees for inactive members shall be in an Asking the Supreme Court to raise the cap is merely a amount not to exceed one-half (1/2) of those set for way to ensure that the Bar has leeway, if needed in the active members. Subject to the above limitations, future, to meet the rising costs of its annual operations. license fees may be fixed in differing amounts for Introduced by Supreme Court Order in 1983, the first different classifications of active and inactive mem- dues cap was set at $150. The cap was then raised to bership, as may be established in the bylaws. $250 in 1995, where it has remained. But inflation esti- mates show that $250 in 1995 would be the equivalent Members who wish to submit comments or objec- of $330 in today’s marketplace. tions regarding the proposed amendment may do so either by contacting their circuit representative to the The Board sets annual dues each year, usually at its Board of Governors, or by presenting such comments spring meeting. By rule, the Board is limited to a max- or objections in person before the meeting of the Board imum increase of $25 in one year. They make every of Governors on Nov. 2, 2007, or by submitting them in effort to maintain a reasonable dues level for Georgia writing to the following address: lawyers. In comparison with the 28 unified bars in the United States, we rank fifth in lawyer population and Bar Counsel 19th in dues level. State Bar of Georgia 104 Marietta Street; Suite 100 Pursuant to State Bar of Georgia Rule 5-104, Notice Atlanta, GA 30303 is hereby provided to all members that a proposal to raise limit on the license fee amount contained in Rule I hereby certify that the text of the proposed amend- 1-502 from $250 to $350 will be considered at the next ment contained in the notice above is a verbatim copy meeting of the Board of Governors scheduled for 2 of the proposed amendment to be considered at the p.m. on Friday, Nov. 2, 2007 at Callaway Gardens, Pine meeting of the Board of Governors to be held on Nov. Mountain, Ga. 2, 2007. ______A verbatim copy of the proposed amendment to Cliff Brashier State Bar Rule 1-502 is as follows: Executive Director

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Supreme Court Issues Formal Advisory Opinion No. 05-6 Pursuant to 4-403(d)

The second publication of this opinion appeared in the through all forms of public media...so long as the commu- December 2005 issue of the Georgia Bar Journal, which nication is not a false, fraudulent, deceptive, or misleading was mailed to the members of the State Bar of Georgia on communication about the lawyer or the lawyer’s servic- or about November 30, 2005. The opinion was filed with es.” A communication is false or misleading if it the Supreme Court of Georgia on December 19, 2005. On “[c]ontains a material misrepresentation of fact or law or December 30, 2007, the State Bar of Georgia filed State omits a fact necessary to make the statement considered as Bar of Georgia’s Petition for Discretionary Review with a whole not materially misleading,” Rule 7.1(a)(1). the Supreme Court of Georgia. On May 3, 2007, the Supreme Court of Georgia issued an Order granting The advertisement of legal services is protected com- review of Formal Advisory Opinion No. 05-6 and mercial speech under the First Amendment. Bates v. approving Formal Advisory Opinion No. 05-6 as the State Bar of Arizona, 433 U.S. 350 (1977). Commercial replacement for Formal Advisory Opinion No. 92-2. In speech serves to inform the public of the availability, accordance with Bar Rule 4-403(e), this opinion is bind- nature and prices of products and services. In short, ing upon all members of the State Bar of Georgia, and the such speech serves individual and societal interests in Supreme Court shall accord this opinion the same prece- assuring informed and reliable decision-making. Id. at dential authority given to the regularly published judi- 364. Thus, the Court has held that truthful ads includ- cial opinions of the Court. ing areas of practice which did not conform to the bar’s approved list were informative and not misleading and STATE BAR OF GEORGIA could not be restricted by the state bar. In re R.M.J., 455 FORMAL ADVISORY OPINION NO. 05-6 U.S. 191 (1982). Approved and Issued On May 3, 2007 Pursuant to Bar Rule 4-403 Although actually or inherently misleading adver- By Order Of The Supreme Court Of Georgia Thereby tisements may be prohibited, potentially misleading ads Replacing FAO No. 92-2 cannot be prohibited if the information in the ad can be Supreme Court Docket No. S06U0799 presented in a way that is not deceiving. Gary E. Peel v. Attorney Registration and Disciplinary Comm’n of QUESTION PRESENTED: Illinois, 496 U.S. 91, 110 S.Ct. 2281, 2287-2289 (1990). Requiring additional information so as to clarify a Ethical propriety of a lawyer advertising for legal potentially misleading communication does not infringe business with the intention of referring a majority of on the attorney’s First Amendment. Zauderer v. Office that business out to other lawyers without disclosing of Disciplinary Counsel, 471 U.S. 626, 651 (1985). that intent in the advertisement. Georgia Rules of Professional Conduct balance the SUMMARY ANSWER: lawyer’s First Amendment rights with the consumer’s interest in accurate information. In general, the intru- It is ethically improper for a lawyer to advertise for sion on the First Amendment right of commercial legal business with the intention of referring a majority speech resulting from rationally based affirmative dis- of that business out to other lawyers without disclosing closure requirements is minimal. that intent in the advertisement and without complying with the disciplinary standards of conduct applicable to A true statement which omits relevant information is lawyer referral services. as misleading as a false statement. So, for example, when contingency fees are mentioned in the communi- OPINION: cation, the fees must be explained. Rule 7.1(a)(5). The Rules prohibit communications which are likely to cre- Correspondent seeks ethical advice for a practicing ate an unjustified explanation about results the lawyer attorney who advertises legal services but whose ads do can achieve or comparison of service unless the com- not disclose that a majority of the responding callers will parison can be substantiated. Rule 7.1(a)(2), (3). be referred to other lawyers. The issue is whether the failure to include information about the lawyers referral prac- The Rules evidence a policy of full disclosure enabling tices in the ad is misleading in violation of the Georgia the client to investigate the attorney(s) and the services Rules of Professional Conduct. Rule 7.1 of the Georgia offered. Any advertisement must be clearly marked as Rules of Professional Conduct governing the dissemina- an ad, unless it is otherwise apparent from the context tion of legal services permits a lawyer to “advertise that it is such a communication and at least one respon-

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sible attorney’s name must be included. Rule 7.1(a)(4), names and addresses of participating lawyers and dis- (6)(b). Law firms practicing under a trade name must close the relationship between the lawyers. New York include names of practicing attorneys. The firm’s trade Bar Association, Opinion 597, 1/23/89. name cannot imply connections to an organization with which it has no connection. Rule 7.5(a)(2). An attorney is The situations presented to the Virginia, Maryland prohibited from implying associations with other attor- and New York committees are analogous to the facts neys when an association does not exist and may state or presented here. The advertiser in all these cases refers imply practice in a partnership or other organizations a majority of the business generated by the ad, without only when that is the fact. Rule 7.5(d). These disclosure disclosure. The ad here does not disclose any associa- requirements assure that the public receives accurate tion with other attorneys. information on which to base decisions. The advertisement at issue conveys only the offer of Similarly, other jurisdictions have required disclo- legal services by the advertising attorney and no other sure of attorney names and professional associations in service or attorney. The ad does not accurately reflect the advertisement of either legal services or referral the attorney’s business. The ad conveys incomplete services. A group of attorneys and law firms in the information regarding referrals, and the omitted infor- Washington, D.C. area planned to create a private mation is important to those clients selecting an attor- lawyer referral service. The referral service’s advertis- ney rather than an attorney referral service. ing campaign was to be handled by a corporation entitled “The Litigation Group.” Ads would state that Furthermore, the attorney making the referrals may lawyers in the group were willing to represent clients be circumventing the regulations governing lawyer in personal injury matters. The person answering the referral services. Attorneys may subscribe to and accept telephone calls generated by the ad would refer the referrals from a “a bona fide lawyer referral service caller to one of the member law firms or lawyers. operated by an organization authorized and qualified to do business in this state; provided, however, such The Virginia State Bar Standing Committee on Legal organization has filed with the State Disciplinary Board, Ethics found the name misleading because it implied at least annually a report showing its terms, its sub- the entity was a law firm rather than simply a referral scription charges, agreements with counsel, the number service. The Committee required the ad include a dis- of lawyers participating, and the names and addresses claimer explaining that “The Litigation Group” was of lawyers participating in the service.” Rule 7.3(c)(1). not a law firm. Virginia State Bar Standing Committee These regulations help clients select competent counsel. on legal Ethics, Opinion 1029, 2/1/88. If the attorney is not operating a bona fide lawyer referral in accordance with the Rules, the client is deprived The Maryland State Bar Association Committee on of all of this information. The attorneys accepting the Ethics was presented with facts identical to those pre- referrals also violate Rule 7.3(c) by participating in the sented in Virginia. The Maryland Committee also illicit service and paying for the referrals. required additional information in the ad to indicate the group was not a law firm or single entity providing Assuming that the advertisements at issue offers legal services. Maryland State Bar Association only the advertising attorneys services and that the Committee on Ethics, Opinion 88-65, 2/24/88. attorney accepts cases from the callers, the ad is not false or inherently misleading. However, where a Similarly, an opinion by the New York Bar majority of the responding callers are referred out, this Association prohibited an attorney from using an adver- becomes a lawyer referral service. The Rules require tising service which published ads for generic legal serv- disclosure of the referral as well as compliance with the ices. Ads for legal services were required to include the Rules applicable to referral services. Notice of Filing Formal Advisory Opinions in Supreme Court

Second Publication of has issued the following Formal Advisory Opinion, Proposed Formal Advisory Opinion No. 05-7 pursuant to the provisions of Rule 4-403(d) of Chapter Hereinafter known as 4 of the Rules and Regulations of the State Bar of “Formal Advisory Opinion No. 05-7” Georgia approved by order of the Supreme Court of Georgia on May 1, 2002. This opinion will be filed Members of the State Bar of Georgia are hereby with the Supreme Court of Georgia on or after August NOTIFIED that the Formal Advisory Opinion Board 15, 2007.

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Rule 4-403(d) states that within 20 days of the filing of QUESTION PRESENTED: the Formal Advisory Opinion or the date the publication is mailed to the members of the Bar, whichever is later, Ethical considerations of an attorney representing an only the State Bar of Georgia or the person who request- insurance company on a subrogation claim and simul- ed the opinion may file a petition for discretionary taneously representing the insured. review thereof with the Supreme Court of Georgia. The petition shall designate the Formal Advisory Opinion SUMMARY ANSWER: sought to be reviewed and shall concisely state the manner in which the petitioner is aggrieved. If the Supreme A lawyer representing an insurance company on a Court grants the petition for discretionary review or subrogation claim should not undertake the simultane- decides to review the opinion on its own motion, the ous representation of the insured on related claims, record shall consist of the comments received by the unless it is reasonably likely that the lawyer will be able Formal Advisory Opinion Board from members of the to provide adequate representation to both clients, and Bar. The State Bar of Georgia and the person requesting only if both the insurance company and the insured the opinion shall follow the briefing schedule set forth in have consented to the representation after consultation Supreme Court Rule 10, counting from the date of the with the lawyer, have received in writing reasonable order granting review. A copy of the petition filed with and adequate information about the material risks of the Supreme Court of Georgia pursuant to Rule 4-403(d) the representation, and have been given the opportuni- must be simultaneously served upon the Board through ty to consult with the independent counsel. Rule 1.7, the Office of the General Counsel of the State Bar or Conflict of Interest: General Rule. Georgia. The final determination may be either by written opinion or by order of the Supreme Court and shall state OPINION: whether the Formal Advisory Opinion is approved, modified, or disapproved, or shall provide for such other final This inquiry addresses several questions as to ethical disposition as is appropriate. propriety and possible conflicts between the representation of the client, the insurance company, and its In accordance with Rule 4-223(a) of the Rules and insured. Regulations of the State Bar of Georgia, any Formal Advisory Opinion issued pursuant to Rule 4-403 which Hypothetical Fact Situation is not thereafter disapproved by the Supreme Court of Georgia shall be binding on the State Bar of Georgia, the The insurance company makes a payment to its State Disciplinary Board, and the person who request- insured under a provision of an insurance policy which ed the opinion, in any subsequent disciplinary proceed- provides that such payment is contingent upon the ing involving that person. transfer and assignment of subrogation of the insured’s rights to a third party for recovery with respect to such Pursuant to Rule 4-403(e) of Chapter 4 of the Rules payment. and Regulations of the State Bar of Georgia, if the Supreme Court of Georgia declines to review the Formal Question 1: May the attorney institute suit against Advisory Opinion, it shall be binding only on the State the tortfeasor in the insured’s name without getting Bar of Georgia and the person who requested the opin- the insured’s permission? ion, and not on the Supreme Court, which shall treat the opinion as persuasive authority only. If the Supreme Pursuant to the provisions of Rule 1.2(a), a lawyer Court grants review and disapproves the opinion, it may not institute a legal proceeding without obtaining shall have absolutely no effect and shall not constitute proper authorization from his client. The ordinary pro- either persuasive or binding authority. If the Supreme vision in an insurance policy giving the insurance com- Court approves or modifies the opinion, it shall be bind- pany the right of subrogation does not give the lawyer ing on all members of the State Bar and shall be pub- the right to institute a lawsuit in the name of the lished in the official Georgia Court and Bar Rules man- insured without specific authority from the insured. ual. The Supreme Court shall accord such approved or The normal subrogation agreements, trust agreements modified opinion the same precedential authority given or loan receipts which are executed at the time of the to the regularly published judicial opinions of the Court. payment by the insurer usually give the insurance company the right to pursue the claim in the insured’s name STATE BAR OF GEORGIA and depending upon the language may grant proper ISSUED BY THE FORMAL ADVISORY OPINION authorization from the insured to proceed in such fash- BOARD ion. Appropriate authorization to bring the suit in the PURSUANT TO RULE 4-403 ON JUNE 15, 2007 insured’s name should be obtained and the insured FORMAL ADVISORY OPINION NO. 05-7 (Redrafted should be kept advised with respect to developments in Version of Formal Advisory Opinion No. 93-2) the case.

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Question 2: Does the attorney represent both the permissible even with some differences in interest.) to insured and the insurance company, and, if so, Rule 1.7. would he then have a duty to inform the insured of his potential causes of action such as for diminution A much more difficult problem is presented in the of value and personal injury? event an attorney attempts to represent both an insurance company’s subrogation interest in property dam- The insurance policy does not create an age and an insured’s personal injury claim. In most attorney/client relationship between the lawyer and cases the possibility of settlement must be considered. the insured. If the lawyer undertakes to represent the Any aggregate settlement would necessarily have to be insured, the lawyer has duties to the insured, which allocated between the liquidated damages of the subro- must be respected with respect to advising the insured gated property loss and the unliquidated damages of as to other potential causes of action such as diminution the personal injury claim. Any aggregate settlement of value and personal injury. Rule 1.7(b); see also, would require each client’s consent after consultation, Comment 10 (assuring independence of counsel) and and this requirement cannot be met by blanket consent Comment 12 (common representations permissible prior to settlement negotiations. Rule 1.8(g); see also even with some differences in interests). Comment 6 to Rule 1.8. Only the most sophisticated of insureds could intelligently waive such a conflict, and Question 3: Is there a conflict of interest in repre- therefore in almost all cases an attorney would be presenting the insured as to other potential causes of cluded from representing both the insurer and the action? insured in such cases.

In most instances no problem would be presented In conclusion, a lawyer representing an insurance with representing the insured as to his deductible, company on a subrogation claim should not undertake diminution of value, etc. Generally an insurance com- the simultaneous representation of the insured on relat- pany retains the right to compromise the claim, which ed claims, unless it is reasonably likely that the lawyer would reasonably result in a pro-rata payment to the will be able to provide adequate representation to both insurance carrier and the insured. The attorney repre- clients, and only if both the insurance company and the senting the insured must be cautious to avoid taking insured have consented to the representation after con- any action, which would preclude the insured from sultation with the lawyer, have received in writing rea- any recovery to which the insured might otherwise be sonable and adequate information about the material entitled. Rule 1.7, Conflict of Interest: General Rule, risks of the representation, and have been given the (b); see also, Comment 10 (assuring independence of opportunity to consult with independent counsel. Rule counsel) and Comment 12 (common representations 1.7(a) and (b). Supreme Court Issues Formal Advisory Opinion No. 05-13 Pursuant to 4-403(d)

The second publication of this opinion appeared in STATE BAR OF GEORGIA the April 2007 issue of the Georgia Bar Journal, which FORMAL ADVISORY OPINION NO. 05-13 was mailed to the members of the State Bar of Georgia Approved And Issued On June 21, 2007 Pursuant to on or about April 6, 2007. The opinion was filed with Bar Rule 4-403 the Supreme Court of Georgia on April 16, 2007. On By Order Of The Supreme Court Of Georgia Thereby April 16, 2007, the State Bar of Georgia filed State Bar of Replacing FAO No. 93-1 Georgia’s Petition for Discretionary Review with the Supreme Court Docket No. S07U1159 Supreme Court of Georgia, asking the Court to review Formal Advisory Opinion No. 05-13 and adopt it as the QUESTION PRESENTED: replacement for Formal Advisory Opinion No. 93-1. On June 21, 2007, the Supreme Court of Georgia issued an (1) Whether the designation “Special Counsel” may Order granting review of Formal Advisory Opinion No. be used to describe an attorney and/or law firm affili- 05-13 and approving Formal Advisory Opinion No. 05- ated with another law firm for the specific purpose of 13 as the replacement for Formal Advisory Opinion No. providing consultation and advice to the other firm in 93-1. In accordance with Bar Rule 4-403(e), this opinion specialized legal areas: (2) and whether the ethical is binding upon all members of the State Bar of Georgia, rules governing conflict of interest apply as if the firm, and the Supreme Court shall accord this opinion the the affiliated attorney and the affiliated firm constitute same precedential authority given to the regularly pub- a single firm. lished judicial opinions of the Court.

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SUMMARY ANSWER: firm) must be a bona fide relationship that entails the use of special counsel’s expertise. The relationship cannot It is not improper for a law firm to associate another be established merely to serve as a referral source. Any lawyer or law firm for providing consultation and fees charged between special counsel and the law firm, advice to the firm’s clients on specialized matters and to of course, must be divided in accordance with the identify that lawyer or law firm as “special counsel” for requirements of Rule 1.5.3 that specialized area of the law. The relationship between the law firm and special counsel must be a The first two questions are answered in the affirmative. bona fide relationship. The vicarious disqualification rule requiring the additional disqualification of a part- The third question presents a more complex issue. ner or associate of a disqualified lawyer does apply to the outside associated lawyer or law firm. The Georgia vicarious disqualification rule is found- ed on the lawyer’s duty of loyalty to the client. This OPINION: duty is expressed in the obligations to exercise independent professional judgment on behalf of the client, This opinion deals with the following questions: and to decline representation or withdraw if the ability to do so is adversely affected by the representation of 1. May a law firm which associates a lawyer for another client. Recognizing that the client is the client of providing consultation and advice to the firm’s the firm and that the duty of loyalty extends to all firm clients on specialized matters identify that lawyer members, it follows that the duty to decline or with- as being, for example, “Special Counsel for Trust draw extends to all firm members. Rule 1.10. and Estate and Industrial Tax Matters”? Identifying an associated firm or lawyer is calculated 2. May a law firm which associates another law to raise the expectation in the mind of the client that the firm for providing consultation and advice to the relationship is something more than casual. Indeed it is firm’s clients on specialized matters identify that calculated to convey to the client that the client’s matter law firm as being, for example, “Special Counsel is being handled by a unit made up of the associating for Tax and ERISA Matters”? and associated firm or lawyer, so that the expertise of all can be brought to bear on the problem. Accordingly, 3. Should Rule 1.10,1 the vicarious disqualification in the situation presupposed in the hypothetical, the rule requiring the additional disqualification of a clients of the associating firm become, for the purposes partner or associate of a disqualified lawyer, apply of Rule 1.10, the clients of the associated firm or lawyer to outside associated lawyers and law firms? and vice versa. The unit as a whole has a duty of loyalty to the client and must exercise independent profession- The problem should be viewed from the standpoint al judgment on behalf of the client as an entirety. of clients. Can the law firm render better service to its clients if it establishes such relationships? If the answer Reference should be made to Georgia Rules of is yes, there is no reason such relationships cannot be Professional Conduct, Rule 1.10, imputed disqualifica- created and publicized. tion; General Rule. Rule 1.10 discusses when an imputed disqualification can bar all attorneys at a firm or There is no Rule which would prohibit a law firm office from representing a particular client. from associating either an individual lawyer or law firm as special counsel and such association may be Rule 1.10 and Comment 1 of the Rule make affilia- required by Rule 1.1.2 While the American Bar tions among lawyers or law firms less complex. Rule Association has concluded that one firm may not serve 1.10 applies to entities other than associated lawyers and as counsel for another (Formal Opinion No. 330, law firms to include in addition to lawyers in a private August 1972) this court declines to follow that prece- firm, lawyers in the legal department of a corporation or dent. Moreover, a subsequent ABA opinion recognized other organization, or in legal services organizations. that one firm may be associated or affiliated with another without being designated “of counsel.” (Formal As set forth in Comment 1,4 two practitioners who Opinion No. 84-351, October 20, 1984). In the view of share office space and who occasionally assist each this court, it is not improper to establish the type of other in representation of clients, may not regard them- relationship proposed. If established, it must be identi- selves as a law firm. However, if they present them- fied and identified correctly so that clients and potential selves to the public suggesting that they are indeed a clients are fully aware of the nature of the relationship. firm, they may be regarded as a firm for purposes of these Rules. Factors such as formal agreements between Finally, the relationship between the law firm and associated lawyers, as well as maintenance of mutual special counsel (whether an individual lawyer or a law access to information concerning clients, may be rele-

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vant in determining whether practitioners who are the client, preferably in writing, before or within a reasonable time after commencing the representation. sharing space may be considered a firm under the Rule. (c) (1) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter The third question is answered in the affirmative. In in which a contingent fee is prohibited by paragraph (d) or light of the adoption of Rule 1.1, ethical rules governing other law. A contingent fee agreement shall be in writing conflict of interest apply to entities and affiliations of and shall state the method by which the fee is to be deter- lawyers in a broader sense than what has traditionally mined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or been considered a “law firm.” appeal, litigation and other expenses to be deducted from ______the recovery, and whether such expenses are to be deduct- 1. Rule 1.10 ed before or after the contingent fee is calculated. (2) Upon (a) While lawyers are associated in a firm, none of conclusion of a contingent fee matter, the lawyer shall pro- them shall knowingly represent a client when any one of vide the client with a written statement stating the follow- them practicing alone would be prohibited from doing so ing: by Rules 1.7: Conflict of Interest: General Rule, 1.8(c): (i) the outcome of the matter; and, Conflict of Interest: Prohibited Transactions, 1.9: Former (ii) if there is a recovery, showing the: Client or 2.2: Intermediary. (A) remittance to the client; (b) When a lawyer has terminated an association with (B) the method of its determination; a firm, the firm is not prohibited from thereafter represent- (C) the amount of the attorney fee; and ing a person with interests materially adverse to those of a (D) if the attorney’s fee is divided with another client represented by the formerly associated lawyer unless: lawyer who is not a partner in or an associate of the (1) the matter is the same or substantially related to lawyer’s firm or law office, the amount of fee that in which the formerly associated lawyer represent- received by each and the manner in which the divi- ed the client; and sion is determined. (2) any lawyer remaining in the firm has informa- (d) A lawyer shall not enter into an arrangement for, tion protected by Rules 1.6: Confidentiality of charge, or collect: Information and 1.9(c): Conflict of Interest: Former (1) any fee in a domestic relations matter, the payment Client that is material to the matter. or amount of which is contingent upon the securing of (c) A disqualification prescribed by this rule may be a divorce or upon the amount of alimony or support, or waived by the affected client under the conditions stated in property settlement in lieu thereof; or Rule 1.7: Conflict of Interest: General Rule. (2) a contingent fee for representing a defendant in a The maximum penalty for a violation of this Rule is criminal case. disbarment. (e) A division of a fee between lawyers who are not in 2. Rule 1.1 the same firm may be made only if: A lawyer shall provide competent representation to a (1) the division is in proportion to the services per- client. Competent representation as used in this Rule means formed by each lawyer or, by written agreement with that a lawyer shall not handle a matter which the lawyer the client, each lawyer assumes joint responsibility for knows or should know to be beyond the lawyer’s level of the representation; competence without associating another lawyer who the (2) the client is advised of the share that each lawyer is original lawyer reasonably believes to be competent to han- to receive and does not object to the participation of all dle the matter in question. Competence requires the legal the lawyers involved; and knowledge, skill, thoroughness and preparation reasonably (3) the total fee is reasonable. necessary for the representation. The maximum penalty for a violation of this Rule is a The maximum penalty for a violation of this Rule is public reprimand. disbarment. 4. Comment 1 of Rule 1.10 3. Rule 1.5 [1] For purposes of these Rules, the term “firm” (a) A lawyer’s fee shall be reasonable. The factors to includes lawyers in a private firm, and lawyers in the legal be considered in determining the reasonableness of a fee department of a corporation or other organization, or in a include the following: legal services organization. Whether two or more lawyers (1) the time and labor required, the novelty and dif- constitute a firm within this definition can depend on the ficulty of the questions involved, and the skill requisite specific facts. For example, two practitioners who share to perform the legal service properly; office space and occasionally consult or assist each other (2) the likelihood that the acceptance of the partic- ordinarily would not be regarded as constituting a firm. ular employment will preclude other employment by However, if they present themselves to the public in a way the lawyer; suggesting that they are a firm or conduct themselves as a (3) the fee customarily charged in the locality for firm, they should be regarded as a firm for the purposes of similar legal services; the Rules. The terms of any formal agreement between (4) the amount involved and the results obtained; associated lawyers are relevant in determining whether (5) the time limitations imposed by the client or by they are a firm, as is the fact that they have mutual access to the circumstances; information concerning the clients they serve. Furthermore, (6) the nature and length of the professional rela- it is relevant in doubtful cases to consider the underlying tionship with the client; purpose of the Rule that is involved. A group of lawyers (7) the experience, reputation, and ability of the could be regarded as a firm for purposes of the rule that the lawyer or lawyers performing the services; and same lawyer should not represent opposing parties in liti- (8) whether the fee is fixed or contingent. gation, while it might not be so regarded for purposes of (b) When the lawyer has not regularly represented the the rule that information acquired by one lawyer is attrib- client, the basis or rate of the fee shall be communicated to uted to the other.

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Notice of Filing Formal Advisory Opinions in Supreme Court

Second Publication of Proposed Advisory Opinion, it shall be binding only on the State Formal Advisory Opinion Request No. 05-R2 Bar of Georgia and the person who requested the opin- Hereinafter known as ion, and not on the Supreme Court, which shall treat the “Formal Advisory Opinion No. 07-1” opinion as persuasive authority only. If the Supreme Court grants review and disapproves the opinion, it Members of the State Bar of Georgia are hereby shall have absolutely no effect and shall not constitute NOTIFIED that the Formal Advisory Opinion Board has either persuasive or binding authority. If the Supreme issued the following Formal Advisory Opinion, pur- Court approves or modifies the opinion, it shall be bind- suant to the provisions of Rule 4-403(d) of Chapter 4 of ing on all members of the State Bar and shall be pub- the Rules and Regulations of the State Bar of Georgia lished in the official Georgia Court and Bar Rules man- approved by order of the Supreme Court of Georgia on ual. The Supreme Court shall accord such approved or May 1, 2002. This opinion will be filed with the Supreme modified opinion the same precedential authority given Court of Georgia on or after August 15, 2007. to the regularly published judicial opinions of the Court.

Rule 4-403(d) states that within 20 days of the filing STATE BAR OF GEORGIA of the Formal Advisory Opinion or the date the publi- ISSUED BY THE FORMAL ADVISORY OPINION cation is mailed to the members of the Bar, whichever is BOARD later, only the State Bar of Georgia or the person who PURSUANT TO RULE 4-403 ON JUNE 15, 2007 requested the opinion may file a petition for discre- FORMAL ADVISORY OPINION NO. 07-1 tionary review thereof with the Supreme Court of Georgia. The petition shall designate the Formal QUESTION PRESENTED: Advisory Opinion sought to be reviewed and shall concisely state the manner in which the petitioner is May a lawyer ethically disclose information concern- aggrieved. If the Supreme Court grants the petition for ing the financial relationship between the lawyer and discretionary review or decides to review the opinion his client to a third party in an effort to collect a fee from on its own motion, the record shall consist of the com- the client? ments received by the Formal Advisory Opinion Board from members of the Bar. The State Bar of Georgia and SUMMARY ANSWER: the person requesting the opinion shall follow the briefing schedule set forth in Supreme Court Rule 10, count- A lawyer may ethically disclose information con- ing from the date of the order granting review. A copy cerning the financial relationship between himself and of the petition filed with the Supreme Court of Georgia his client in direct efforts to collect a fee, such as bring- pursuant to Rule 4-403(d) must be simultaneously ing suit or using a collection agency. Otherwise, a served upon the Board through the Office of the lawyer may not report the failure of a client to pay the General Counsel of the State Bar or Georgia. The final lawyer’s bill to third parties, including major credit determination may be either by written opinion or by reporting services, in an effort to collect a fee. order of the Supreme Court and shall state whether the Formal Advisory Opinion is approved, modified, or OPINION: disapproved, or shall provide for such other final disposition as is appropriate. This issue is governed primarily by Rule 1.6 of the Georgia Rules of Professional Conduct. Rule 1.6 pro- In accordance with Rule 4-223(a) of the Rules and vides, in pertinent part: Regulations of the State Bar of Georgia, any Formal Advisory Opinion issued pursuant to Rule 4-403 which (a) A lawyer shall maintain in confidence all infor- is not thereafter disapproved by the Supreme Court of mation gained in the professional relationship with Georgia shall be binding on the State Bar of Georgia, the a client, including information which the client has State Disciplinary Board, and the person who request- requested to be held inviolate or the disclosure of ed the opinion, in any subsequent disciplinary proceed- which would be embarrassing or would likely be ing involving that person. detrimental to the client, unless the client consents after consultation, except for disclosures that are Pursuant to Rule 4-403(e) of Chapter 4 of the Rules impliedly authorized in order to carry out the rep- and Regulations of the State Bar of Georgia, if the resentation, or are required by these rules or other Supreme Court of Georgia declines to review the Formal law, or by order of the Court.

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Comment 5 to Rule 1.6 provides further guidance: vides that “[i]n any case, a disclosure adverse to the client’s interest should be no greater than a lawyer rea- Rule 1.6: Confidentiality of Information applies not sonably believes necessary to the purpose.” merely to matters communicated in confidence by the client but also to all information relating to the In Georgia, it is ethically permissible for a lawyer to representation, whatever its source. A lawyer may retain a collection agency as a measure of last resort in not disclose such information except as authorized order to collect a fee that has been properly earned. or required by the Rules of Professional Conduct or Advisory Opinion No. 49 issued by the State other law. Disciplinary Board. Advisory Opinion 49, however, only applies to a referral to a “reputable collection Former Standard 28 limited confidentiality to “confi- agency”. Advisory Opinion 49 further states that a dences and secrets of a client.” However, Rule 1.6 lawyer should exercise the option of revealing confi- expands the obligations by requiring a lawyer to dences and secrets necessary to establish or collect a fee “maintain in confidence all information gained in the with considerable caution. Thus, while use of a rep- professional relationship” including the client’s secrets utable collection agency to collect a fee is ethically prop- and confidences. er, disclosures to other third parties may not be ethically permissible. Formal Advisory Opinion 95-1 provides An attorney’s ethical duty to maintain confidentiali- that limitations exist on a lawyer’s efforts to collect a fee ty of client information is distinguishable from the from his client even through a fee collection program. attorney-client evidentiary privilege of O.C.G.A. §§24- 9-21, 24-9-24 and 24-9-25. Tenet Healthcare Corp. v. Other jurisdictions that have considered similar Louisiana Forum Corp., 273 Ga. 206, 209-10 (2000). issues have distinguished between direct efforts to col- Thus, Rule 1.6 applies not only to matters governed by lect an unpaid fee, such as bringing suit or using a col- the attorney-client privilege, but also to non-privileged lection agency, from indirect methods in which infor- information arising from the course of representation. mation is disclosed to third parties in an effort to collect Information concerning the financial relationship unpaid fees. In these cases, the direct methods have between the lawyer and client, including the amount of generally been found to be ethical, while more indirect fees that the lawyer contends the client owes, may not methods, such as reporting non-paying clients to credit be disclosed, except as permitted by the Georgia Rules bureaus, have been found to be unethical. South of Professional Conduct, other law, order of the court or Carolina Bar Advisory Opinion 94-11 concluded that a if the client consents. lawyer may ethically use a collection agency to collect past due accounts for legal services rendered but can- Rule 1.6 authorizes disclosure in the following cir- not report past due accounts to a credit bureau. The cumstances: Opinion advises against reporting non-paying clients to credit bureaus because (1) it is not necessary for estab- (b)(1) A lawyer may reveal information covered by lishing the lawyer’s claim for compensation, (2) it risks paragraph (a) which the lawyer reasonably believes disclosure of confidential information, and (3) it smacks necessary: of punishment in trying to lower the client’s credit rat- . . . ing. S.C. Ethics Op. 94-11 (1994). See also South Dakota (iii) to establish a claim or defense on behalf of Ethics Op. 95-3 (1995) and Mass. Ethics Op. 00-3 (2000) the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge The Alaska Bar Association reached a similar conclu- or civil action against the lawyer based upon con- sion when it determined that “an attorney who lists a duct in which the client was involved, or to client with a credit agency has revealed confidential respond to allegations in any proceeding concern- information about the client for a purpose not permit- ing the lawyer’s representation of the client. ted by ARPC 1.6 (b) (2) since such a referral is at most an indirect attempt to pressure the client to pay the The comments to Rule 1.6 clarify that such disclo- fee.” Alaska Ethics Op. No. 2000-3 (2000). The Alaska sures should be made only in limited circumstances. Bar Ethics Opinion is based on the notion that listing an While Comment 17 to Rule 1.6 provides that a lawyer unpaid fee with a credit bureau is likely to create pres- entitled to a fee is permitted to prove the services ren- sure on the client to pay the unpaid fee more from an in dered in an action to collect that fee, it cautions that a terrorem effect of a bad credit rating than from any lawyer must make every effort practicable to avoid merit to the claim. unnecessary disclosure of information related to a representation, to limit disclosure to those having the need The State Bar of Montana Ethics Committee conclud- to know it, and to obtain protective orders or make ed that an attorney may not report and disclose unpaid other arrangements minimizing the risk of disclosure. fees to a credit bureau because such reporting “is not Further caution is found in Comment 12, which pro- necessary to collect a fee because a delinquent fee can

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be collected without it.” Mont. Ethics Op. 001027 (2000). close information to non-clients not involved in the suit The Montana Opinion further concluded, “The effect of in order to coerce the client into settling and may not a negative report is primarily punitive [and] it risks dis- use or threaten tactics, such as personal harassment or closure of confidential information about the former asserting frivolous claims, in an effort to collect fees. client which the lawyer is not permitted to reveal under Restatement (Third) of the Law Governing Lawyers § 41, Rule 1.6.” See also New York State Ethics Opinion 684 comment d (2000). The Restatement has determined that (1996) (reporting client’s delinquent account to credit collection methods must preserve the client’s right to bureau does not qualify as an action “to establish or col- contest the lawyer’s position on the merits. Id. The lect the lawyer’s fee” within the meaning of the excep- direct methods that have been found to be ethical in tion to the prohibition on disclosure of client informa- other jurisdictions, such as bringing suit or using a col- tion). But see Florida Ethics Opinion 90-2 (1991) (it is lection agency, allow the client to contest the lawyer’s ethically permissible for an attorney to report a delin- position on the merits. Indirect efforts, such as report- quent former client to a credit reporting service, pro- ing a client to a credit bureau or disclosing client finan- vided that confidential information unrelated to the col- cial information to other creditors of a client or to indi- lection of the debt was not disclosed and the debt was viduals or entities with whom the client may do busi- not in dispute). ness, are in the nature of personal harassment and are not ethically permissible. Accordingly, a lawyer may While recognizing that in collecting a fee a lawyer not disclose information concerning the financial rela- may use collection agencies or retain counsel, the tionship between himself and his client to third parties, Restatement (Third) of the Law Governing Lawyers con- other than through direct efforts to collect a fee, such as cludes that a lawyer may not disclose or threaten to dis- bringing suit or using a collection agency. Amendments to the Rules of the U.S. Court of Appeals for the 11th Circuit

Pursuant to 28 U.S.C. § 2071(b), notice and opportu- obtained without charge from the Office of the Clerk, nity for comment is hereby given of proposed amend- U.S. Court of Appeals for the Eleventh Circuit, 56 ments to the Rules of the U.S. Court of Appeals for the Forsyth St., N.W., Atlanta, Georgia 30303 [phone: 404- Eleventh Circuit. 335-6100]. Comments on the proposed amendments A copy of the proposed amendments may be may be submitted in writing to the Clerk at the above obtained on and after Aug. 1, 2007, from the court’s street address by Aug. 31, 2007. website at www.ca11.uscourts.gov. A copy may also be Update Your Member Information Keep your information up-to-date with the Bar’s membership department. Please check your information using the Bar’s Online Membership Directory. Member information can be updated 24 hours a day by visiting www.gabar.org/member_essentials/address_change/.

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