June 2003 Q Volume 8 Q Number 6

TaxTax ApportionmentApportionment ProblemsProblems UnderUnder thethe GeorgiaGeorgia ProbateProbate CodeCode Quick Dial Attorney Discipline (800) 334-6865 ext. 720 (404) 527-8720 Consumer Assistance Program (404) 527-8759 Conference Room Reservations (404) 527-8712 Fee Arbitration (404) 527-8750 June 2003 Volume 8 Number 6 CLE Transcripts (404) 527-8710 Diversity Program (404) 527-8754 ETHICS Hotline (800) 682-9806 (404) 527-8741 Editorial Board Georgia Bar Foundation/IOLTA (404) 588-2240 Rebecca Ann Hoelting Georgia Bar Journal (404) 527-8736 Editor-in-Chief Lawyer Assistance Program (770) 612-1122 (800) 327-9631 Scott Fain Bertschi W. Fray McCormick Lawyers Foundation of Georgia (404) 659-6867 Elizabeth Lee Branch E. Peyton Nunez Law Practice Management (404) 527-8772 Erin Reynolds Chance Erick H. Rock Membership Records (404) 527-8777 Charles Madden Cork III Cynthia B. Smith Meetings Information (404) 527-8790 Lynda Carney Crum John I. Spangler III Pro Bono Project (404) 527-8763 Professionalism (404) 225-5040 John Michael Gross Robert R. Stubbs Sections (404) 527-8774 Michelle Wilkins Johnson Jerre Bailey Swann Jr. Unauthorized Practice of Law (404) 527-8743 Sarah Howard Lamar Kristin H. West Young Lawyers Division (404) 527-8778 Marcus D. Liner Pamela Y. White-Colbert

Manuscript Submissions Advisors The Georgia Bar Journal welcomes the submission of Theodore Harris Davis Jr. unsolicited legal manuscripts on topics of interest to D. Scott Murray the State Bar of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 Marisa Anne Pagnattaro pages, double-spaced (including endnotes) and on let- ter-size paper. Citations should conform to A UNIFORM Editors Emeritus SYSTEM OF CITATION (17th ed. 2000). Please address unsolicited articles to: Rebecca Ann Hoelting, State Bar Marisa Anne Pagnattaro, 01-02 L. Dale Owens, 87-89 of Georgia, Communications Department, 104 D. Scott Murray, 00-01 Donna G. Barwick, 86-87 Marietta St. NW, Suite 100, Atlanta, GA 30303. William Wall Sapp, 99-00 James C. Gaulden Jr., 85-86 Authors will be notified of the Editorial Board’s deci- Theodore H. Davis Jr., 97-99 Jarry B. Blackstock, 84-85 sion regarding publication. L. Brett Lockwood, 95-97 Steven M. Collins, 82-84 The Georgia Bar Journal welcomes the submission of Stephanie B. Manis, 93-95 Walter M. Grant, 79-82 news about local and circuit bar association happen- William L. Bost Jr., 91-93 Stephen E. Raville, 77-79 ings, Bar members, law firms and topics of interest to Charles R. Adams III, 89-91 Robert H. Walling, 75-77 attorneys in Georgia. Please send news releases and other information to: Joe Conte, Director of Communications, 104 Marietta St. NW, Suite 100, Officers of the State Bar of Georgia Atlanta, GA 30303; phone: (404) 527-8736; James B. Durham President [email protected]. William D. Barwick President-Elect Robert D. Ingram Secretary Disabilities George Robert Reinhardt Jr. Treasurer If you have a disability which requires printed materi- James B. Franklin Immediate Past President als in alternate formats, please contact the ADA coor- Derek J. White YLD President dinator at (404) 527-8700 or (800) 334-6865. Andrew W. Jones YLD President-Elect Headquarters Peter J. Daughtery YLD Past President 104 Marietta St. NW, Suite 100 Atlanta, GA 30303 Communications Committee (800) 334-6865 (404) 527-8700 FAX (404) 527-8717 William H. Dodson II Chairperson www.gabar.org Aasia Mustakeem Vice-Chairperson South Georgia Office 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Communications Staff (800) 330-0446 (912) 387-0446 FAX (912) 382-7435 Joe Conte Director Sarah I. Bartleson Assistant Director Daniel L. Maguire Administrative Assistant June 2003 Volume 8 Number 6

Legal 16 Tax Apportionment Problems under the Georgia Probate Code By James R. Robinson Features On the Cover 24 Professionalism in the Principle-CCentered Law Practice By Chief Judge G. Alan Blackburn The Georgia Probate Code as 30 Lawyers: Guardians of Freedom it relates to tax apportionment 4is discussed at length in an By Anthony Lewis article by James R. Robinson. 37 State Bar Navigates Legislature’s ‘Perfect Storm’ See page 16. By Mark Middleton 41 BOG Meets in Masters Territory for Spring Meeting By Daniel L. Maguire 44 Diversity CLE and Luncheon Bring Issues to Light By Sarah I. Bartleson 47 IOLTA Wins Monumental Victory By Len Horton 50 Lawyers Foundation to Award Challenge Grants Departments By Lauren Larmer Barrett 56 Volunteerism in the Profession 4 Letter to the Editor By Sarah I. Bartleson 60 Pro Bono Honor Roll 6 From the President 9 From the Executive Director Annual Fiction Writing Competition 64 The Devil Came Down 12 From the YLD President By Brad Elbein 70 Bench & Bar Publisher’s Statement The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (bi-monthly) by the State Bar of 73 Office of the General Counsel Georgia, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303. © State Bar of Georgia 2003. 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, GA. Opinions and conclusions expressed in articles 75 Lawyer Discipline herein are those of the authors and not necessarily those of the Editorial Board, Communications Committee, Officers or Board of Governors of the State Bar of Georgia. Advertising rate card will be fur- 78 Law Practice Management nished upon request. Publishing of an advertisement does not imply endorsement of any product or serv- ice offered. POSTMASTER: Send address changes to same address. 80 Voluntary Bar 83 Professionalism Page Advertisers Index 88 In Memoriam AAA Attorney Referral Service. . . . 19 LawDocsXpress ...... 7 ABA Members Retirement Program . 33 Lawyers Direct...... 35 89 CLE Calendar Arthur Anthony...... 49 LexisNexis ...... IFC Baker, Donelson ...... 1 Mainstreet ...... 13 91 Notices Butterfield Reimer & Associates. . . 19 Mitchell Kaye Valuation ...... 14 Daniel Turner Builders, Inc...... 19 Netronics ...... 19 94 Classified Resources Daniels-Head Insurance ...... 96 Nextel ...... IBC Elizabeth Mehlman, J.D., Ph.D.. . . 11 Prolegia ...... 39 Florida Detox...... 67 Real Estate Exchange Service . . . . 46 Georgia Juris ...... 79 SoftPro ...... 21 Georgia Lawyers Insurance Co. . . . . 5 South Georgia ADR ...... 53 Gilsbar ...... 45 The Georgia Fund ...... 15 Golden Lantern ...... 49 West...... 33, 43, BC Spoliation Article Omits Critical Issue

Dear Editor: plaint, so that all documents, electronically

Editor stored or otherwise, would be preserved. We I read with interest the spoliation article by followed with a request for production of Ms. Wallace. However, the article omits a documents. If a defendant — in our case, a critical issue in spoliation: what happens corporation — is reasonably on notice that when a defendant (or a third party) has the litigation has begun or is imminent, it would evidence that the plaintiff must obtain to be a profound tactical mistake to destroy prove his or her case? documents.” The sole possible remedy is an ex parte While the issue in Linnen — and the issue spoliation order. While such orders are not in each of the three cases before the Georgia uncommon in other states, they are rare to judges above — involved proposed ex parte unheard of in Georgia. In three recent spoliation orders against defendants or their attempts to obtain one (using a form pub- counsel, there is no reason why an ex parte lished in the Texas Bar Journal), Superior spoliation order should be (a) limited to par- Letter to the Court Judge Jefferson Davis granted such ties or their counsel, or (b) be considered an motion ex parte (defendant had plaintiff’s onerous order or an unethical effort. I would computer and internal records), Superior hope that in this era of electronically stored Court Judge Doris Downs denied the motion (and erased) documents, that ex parte spolia- ex parte in another case (defendant had pho- tion orders should be no more unusual than tographs of the construction development for requests for in camera inspections of sensi- which plaintiff had not been paid), and Judge tive documents. Cindy Morris granted the motion ex parte in a third case (defendant’s counsel’s computer John T. Longino, MBA/JD records could confirm by date of document [email protected] creation the manual back-dating by defen- Ellijay, GA dant of critical documents), then vacated the Licensed GA FL TX AK order on a claim by opposing counsel that it was “unethical.” I then sought an opinion from the Formal LETTERS TO THE EDITOR Advisory Opinion Board of the State Bar of The Georgia Bar Journal encourages letters to Georgia on the ethics of seeking an ex parte the Editor from its readers on any substantive spoliation order at the commencement of a topic of general interest or concern to the mem- case; they declined to issue an opinion on the bers of the State Bar of Georgia, however, first issue. consideration will be given to letters written in On Nov. 7, 2001, The American Corporate response to material appearing in the Journal. Counsel Association sponsored a roundtable The Board reserves the right to edit letters for content or clarity and to limit the number of discussion (published by law.com) dis- letters on a given topic, as well as the number cussing this issue and the case of Linnen, et al. of letters from any individual correspondent. v. A.H. Robins Company, Inc., et al., No. 97- Letters also may not be published if space does 2307 (Middlesex Super. Ct. June 15, 1999). not permit. Counsel for Linnen was Alex H. All letters should be e-mailed to MacDonald who stated, in that roundtable [email protected] or addressed to: Editor, Georgia Bar Journal, 104 Marietta St. NW, Suite 100, discussion: “In the Linnen case, we filed an Atlanta, GA 30303. ex parte order the day that we filed the com-

4 Georgia Bar Journal

By James B. Durham Significant Issues Dominate Year Year in Review Indigent Defense The Bar’s success in working to hen I began my President pass a new Indigent Defense Act year as president will undoubtedly be the greatest success of this year. In December of Wof the State Bar of 2002, the Chief Justice’s Georgia, I wrote in my first column Commission on Indigent Defense issued its report and recommenda- that the diversity of Georgia tions to improve the fairness of the Georgia courts for indigent defen- lawyers is perhaps one of our great- dants in criminal cases. The report from the est strengths. I end my year with the called on the state to assume responsibility for paying for indi- same belief, and I would like to use gent defense services and to estab- my final column in the Georgia Bar lish and enforce basic standards for indigent defense programs. To this Journal to review the major events of end, legislation was introduced, this past year and how they have Senate Bill 102, which was intended to implement many of the compo- unfolded for all Georgia lawyers. nents of the Commission’s report. As I re-read my first column This legislation passed the Senate recently, I was struck by one sen- with some revisions. A new version tence in which I said the likelihood of the legislation was introduced in Serving as of all Georgia lawyers agreeing on the House. After numerous public any particular issue is not likely. I hearings, committee meetings, and president of the lamented that, while our decision long discussions, the legislation to practice law unites us, our rea- passed the House and was placed in State Bar of sons for doing so are varied. conference committee. The confer- ence committee reached a compro- Georgia has been a One year ago, I couldn't have known just how true my words mise and a new Indigent Defense true honor and would prove to be. In this past year, Act was enacted. The legislation we have struggled with many will create a framework for building privilege. I have issues, including indigent defense a viable, constitutional and fair way reform, the Bar Center, and legisla- for the State to provide legal coun- thoroughly enjoyed tion concerning tort reform. On all sel to poor defendants who are of these topics, Georgia lawyers accused of crimes. meeting with have been vocal about their posi- Many people have dedicated tions, whether pro or con, and I countless hours to achieving a lawyers throughout think the Bar leadership has acted framework that will ensure all responsively and appropriately in Georgians are treated fairly by the the state. addressing these issues. judicial system. Although there are far too many people to thank, I

6 Georgia Bar Journal would be remiss if I did not thank effort in raising $4 million in new proud of their Bar Center for years Chief Justice Norman Fletcher, contributions from foundations, cy to come. Justice Robert Benham and all the pres awards and other entities. I Tort Reform Justices of the Supreme Court of am pleased to report that construc- Georgia. They have shown their tion has indeed started and the At the beginning of the year I said dedication in making Georgia’s new deck should be operating in we would be confronted with issues judicial system second to none. about 13 months. that we might not expect. Although Also I must thank Wilson DuBose The next and final step is the we were aware there were discus- and the entire Indigent Defense completion of the Bar Center’s sions concerning tort reform, we Committee of the State Bar of third-floor conference center. This had no idea as to whether legisla- Georgia, who were instrumental area will be utilized for continuing tion would in fact be introduced or from the beginning to the conclu- legal education, judicial education, what that legislation might say. In sion of the process. The passage of mock trials, public education con- an already hectic year, the issue of this legislation is a landmark step cerning the legal system and count- tort reform became volcanic. This in ensuring that legal services are less meetings for lawyers. We issue created tremendous emotional delivered appropriately to poor expect to re-bid this project prior to response on both sides of the legis- defendants accused of crimes. This the Spring of 2004. At the Spring lation. There were well-reasoned assurance is a principle on which 2004 Board of Governors meeting, beliefs and opinions on both sides of our country was founded. the Executive Committee will make the issue of tort reform. The leader- Nonetheless, the work is not yet recommendations as to how we can ship of the State Bar knew we had done; we must strive to guarantee complete the project. We hope to an obligation to hear from interest- that the system is appropriately begin construction on the confer- ed parties and to analyze the legisla- funded to accomplish its goals. ence center shortly thereafter. In the tion carefully because it would have Bar Center meantime, the third-floor meeting a direct impact on the civil justice space is being used by many law- system. Last June, the Bar Center project related organizations and State Bar was on hold, pending litigation committees and sections. over the removal of the nine trees Leasing to legal/judicial-related necessary to begin construction of entities continues. The Georgia the new parking deck. Additional Indigent Defense Council, Georgia and well-configured parking was Prosecuting Attorneys Council, vital to the overall mission of the Chief Justice’s Commission on Bar Center. As many of you will Professionalism, Georgia Bar recall, this lengthy process caused Foundation and Lawyers delays of more than one year. The Foundation of Georgia already call fate of the Bar Center was deter- the Bar Center their home. Lease mined in August of 2002 when the negotiations with three other Georgia Court of Appeals refused important entities are underway, to hear an appeal from the plain- and the new construction is creat- tiffs, thus rendering the decision of ing new inquiries each week. In a the Fulton County Superior Court difficult rental market, we are in our final favor . The trees were doing better than expected. removed beginning on Aug. 16, Although the Bar Center has 2002, and the project was back on produced challenging obstacles in track. That being said, however, the short term, the long-term future the ground work for beginning had of the Bar Center is bright. We have to start over. The construction bids been successful in hurdling many had to be re-secured, new permits of the obstacles and remain firmly obtained and financing re-bid. convinced that the lawyers of Also, we spent much time and Georgia will benefit from and be

June 2003 7 Senate Bill 133 was introduced 14 faceted problem that should be MULTIJURISDICTIONAL days into the legislative session. studied comprehensively. The PRACTICE Because legislation was initially answers do not lie in emotional introduced when full board consid- anecdotes on either side. We must Twelve months ago, I wrote that eration was not practical, the issue always do our part to make the the issue of multijurisdictional fell to the Executive Committee in civil justice system better, while not practice would be an issue the accordance with Standing Board infringing on an individual’s right Board of Governors would need to Policy 100. After hearing from sup- to have access to the system. address. The Board of Governors did address this issue and passed porters and opponents, the ANLIR Executive Committee opposed comprehensive multijurisdictional Senate Bill 133. I testified before the In 1997 the State Bar of Georgia practice rules. Part of multijurisdic- Senate Judiciary Committee to endorsed ANLIR as a professional tional practice included the express the Bar’s concerns and pre- liability carrier in Georgia. Over Supreme Court’s decision to adopt sented a detailed position paper the years Georgia lawyers who a reciprocity rule allowing non- and presented specific objections. I were insured with ANLIR had Georgia lawyers to become mem- made it clear the Bar would support expressed satisfaction with deal- bers of the State Bar of Georgia changes to tort laws which ings they had with ANLIR. without taking the bar exam under improved justice. The Executive Unfortunately, at the beginning of certain conditions. Georgia has Committee’s opposition was limit- this calendar year, ANLIR’s pri- become one of the leaders in the ed to the specific provisions of SB mary re-insurer went into receiver- country in endorsing implementa- 133, not to whether there should or ship in the state of Virginia, leading tion of multijurisdictional practice should not be any reform to the tort ANLIR to go into receivership in rules. system. At its Spring 2003 meeting, the state of Tennessee. Many CONCLUSION the Board reaffirmed the position Georgia lawyers, including my law taken by the Executive Committee firm, were affected by ANLIR Serving as president of the State by a substantial majority vote. The going into receivership. The Board Bar of Georgia has been a true Senate Judiciary Committee passed of Governors’ decision six years honor and privilege. I have thor- a revised version of SB 133, and ago to endorse ANLIR was exten- oughly enjoyed meeting with ultimately legislation did pass dur- sively debated and great effort lawyers throughout the state. ing the final hours of the session. went into review of the company as Neither I nor the State Bar of The final tort reform package it existed. Nonetheless, the ulti- Georgia staff ever envisioned the reflected many of the suggestions mate result makes it clear that the number of issues we would face made by the State Bar. The package State Bar of Georgia or any other this year. I was extremely fortunate included class action reform, forum entity or person cannot accurately to work with an outstanding group non-conveniens language to make predict how future markets may of officers, members of the it more difficult for out-of-state affect an individual company. By Executive Committee and State Bar plaintiffs to maintain a suit in endorsing, the State Bar of Georgia staff. I appreciate the support I Georgia and a dismissal rule can never guarantee nor does it have received from the Board of change that reduces the number of guarantee the economic viability of Governors of the State Bar as well times a plaintiff can dismiss a law- a particular company. The fact as many attorneys throughout the suit. remains, however, that such an state. As I prepare to return to the We realized that this issue endorsement may lead some attor- full-time practice of law, I am would result in heated debate neys to have a greater comfort level grateful for the opportunity to within the Bar. I firmly believe that than they might otherwise have if work with so many of you and to through debate and differing opin- they were analyzing the company serve as your president. ions we ultimately reached the best on their own. As a result, it is my result. The concerns addressed by personal belief that the State Bar of tort reform supporters are legiti- Georgia should not endorse insur- mate. It is important to recognize, ance carriers of any type in the however, that this is a multi- future.

8 Georgia Bar Journal By Cliff Brashier Your State Bar What We Do, Who We Are

fession. All Georgia lawyers are he mission for the staff at welcome to enjoy their new home the State Bar of Georgia is today and for many decades to T to “consistently strive to come. give accurate information and cour- The State Bar of Georgia has been in its new headquarters for just teous assistance to help our mem- over a year and the project contin- bers be better lawyers and judges. ues to move forward. Construction We also seek to provide expert of a new parking structure has assistance and valuable benefits to begun and leasing efforts continue. the public served by the legal pro- All members are invited to visit the

Executive Director bar center when work or leisure fession.” As such, the Bar’s pro- brings them to Atlanta. Contact grams and departments receive Cliff Brashier, (404) 527-8775 or countless calls and inquiries each [email protected]. day and do an outstanding job of BASICS working with and being responsive Bar Association Support to to members and the public. Listed Improve Correctional Services — below are descriptions of the Bar’s BASICS — is a successful and effec-

from the departments and programs that tive program that provides a 30- directly serve members, along with hour course of instruction for soon- to-be-released prison inmates. The Bar’s programs a name and contact information for BASICS also provides after-care and departments the appropriate person in each area. and post-release assistance to I encourage you to keep this article BASICS program participants. receive countless for reference in contacting the State Contact Ed Menifee, (404) 691-9993. calls and inquiries Bar. We truly do look forward to Communications serving you. each day and do The Bar’s publications, media rela- Bar Center tions and Web site are coordinated by this department. Publications include an outstanding job The mission statement of the Bar the bi-monthly Georgia Bar Journal, the Center says that it is the home of of working annual Directory & Handbook; and the the lawyers and judges of Georgia. Consumer Pamphlet Series. The It is their professional gathering with and being department also coordinates mem- place. As such, it is dedicated to bership certificates for Bar members serve all members of the State Bar responsive to and the annual awards programs. of Georgia and the public through Contact Joe Conte, (404) 527-8791 or members and the administration of justice in the [email protected]. the public. highest traditions of the legal pro-

June 2003 9 Consumer Assistance partnership with minority lawyers The JDPP is comprised of commit- Program throughout Georgia. This program tees of Board of Governors mem- is open to all minority- and majori- bers from each of Georgia’s Judicial This program is designed to ty-owned law firms as well as cor- Districts. These committees are improve communication between porations and governmental agen- called Judicial District lawyers and their clients by seek- cies in Georgia. Contact Michelle Professionalism Committees. The ing to informally resolve minor Staes, (404) 527-8700. JDPC seeks to use local peer influ- problems that do not rise to the Fee Arbitration ence on an informal, voluntary level of a serious ethical violation. basis to open channels of communi- The program also enforces Bar The Fee Arbitration Program cation. No judge or lawyer is Rule 1-209 which allows the State provides a convenient mechanism required to cooperate or counsel Bar to suspend an attorney who for resolving fee disputes between with the JDPC or any of its repre- willfully fails to timely pay child attorneys and clients. It also pro- sentatives. If the party against support obligations, and refers vides for the resolution of fee dis- whom the inquiry is addressed cases to the Judicial District putes between lawyers resulting refuses to cooperate by voluntarily Professionalism Program. Contact from a partnership dissolution, meeting with JDPC representatives, Robert Brown, (404) 527-8759 or fax sharing of fees or the withdrawal of the JDPC shall take no further (404) 526-8629. a lawyer from a partnership. action regarding the inquiry. Continuing Legal Petitions are available through the Contact Sharon Bryant, (404) 527- Fee Arbitration office. Contact Rita Education 8776 or [email protected]. Payne, (404) 527-8750 or Law Practice This program operates the [email protected]. Management mandatory CLE program under Georgia Mock the guidelines of the Commission Trial Competition This program provides assis- on Continuing Lawyer tance to firms and solo practition- Competency. It is designed to Regional, state and national high ers in everything from what type of enhance its members’ professional school mock trial competitions are office equipment to buy to what competence as lawyers. Active coordinated annually by the YLD type of billing process is best for lawyers are required to keep cur- High School Mock Trial Committee their firms. The department main- rent on the law by attending a min- to expose high school students to tains a law office management and imum of 12 hours of education the legal system and encourage technology library with resource each year. Of these, at least one them to be better informed citizens. personnel who are available for must be in ethics, one must be in It involves hundreds of volunteer consultations in the lawyers’ professionalism, and for trial attor- lawyers and judges as team coach- offices or by telephone regarding neys, three must be in litigation. es, round judges and planners. This management issues. The depart- The CLE department assists attor- program also sponsors a law acad- ment’s resources and materials are neys with keeping track of their emy, a court artist contest and a available to all Bar members, par- CLE hours throughout the year. journalism contest. Contact Stacy ticularly those who do not have Contact DeeDee Worley, (404) 527- Rieke, (404) 527-8779 or mocktri- professional office management 8710 or [email protected]. [email protected]. personnel. Contact Natalie Diversity Program Judicial District Thornwell, (404) 527-8770 or natal- [email protected]. The Bar’s Diversity Program Professionalism represents a major commitment to Program Lawyer Assistance increase opportunities for ethnic Program The purpose of the JDPP is to minority attorneys in the assign- promote professionalism within the This program provides confi- ment of corporate and governmen- legal profession through increased dential assistance to Bar members tal legal work. Participating corpo- communication, education and the whose personal problems may be rations and government entities informal use of local peer influence. interfering with their ability to seek to forge a lasting working

10 Georgia Bar Journal practice law. Such problems notices of judicial vacancies and Bonne Cella, (229) 387-0446 or include addictions, addictive administers State Bar elections. [email protected]. behavior or mental health prob- Contact Gayle Baker, (404) 527-8777 Unauthorized Practice lems. Contact the helpline, (800) or [email protected]. of Law (UPL) 327-9631 for more information. Office of the Legislative Program General Counsel The UPL Department is respon- sible for the investigation and pros- For many years, the State Bar has This office acts as in-house coun- ecution of UPL in the state of worked aggressively, through its sel for the State Bar of Georgia and Georgia as set forth in the rules Legislative Program, to enact and is involved in lawyer compliance issued by the Supreme Court. enhance legislation. The program is with the ethics rules adopted by Contact Steve Kaczkowski, (404) directed by the Bar’s Advisory the Supreme Court of Georgia. In 527-8743 or [email protected]. Committee on Legislation, chaired addition to maintaining a helpline Young Lawyers by Jeff Bramlett of Atlanta. for members, staff attorneys are The Legislative Program is volun- available to discuss the functions of Division tary and is funded by contributions the office with local and circuit bars The Young Lawyers Division is from State Bar members. Through on request. Attorneys from this responsible for aiding and promot- the research and study of the Board office act as staff for the Clients’ ing the advancement of the of Governors, Sections, the Advisory Security Fund. Created in 1968, this younger members of the State Bar Committee on Legislation and the fund provides financial relief for by providing a program of activi- Bar’s legislative representatives, an members of the public who have ties and projects to serve the profes- impressive success rate is achieved sustained a financial loss as the sion and the public. All members every year. Contact the Bar’s legisla- result of a Georgia lawyer’s dis- who have not yet reached their 36th tive representative, Tom Boller, honest conduct. Contact (404) 527- birthday or who have been admit- (404) 872-0335. 8720 or (800) 682-9806. For the ted to their first bar less than five Meetings Ethics Helpline, call (404) 527-8741. years are automatically members. Contact Deidra Sanderson, (404) The State Bar Board of Sections 527-8778 or [email protected]. Governors holds four meetings Thirty-five sections provide As always, I am available if you each year including the Annual service to the legal profession and have ideas or information to share; and Midyear Meetings. These public. As a conduit for informa- please call me. My telephone num- quarterly meetings offer CLE semi- tion in particular areas of law, sec- bers are (800) 334-6865 (toll free), nars, speakers and issue updates to tions provide newsletters, Web (404) 527-8755 (direct dial), (404) keep lawyers informed of their resources, programs and the 527-8717 (fax) and (770) 988-8080 ever-changing profession. Contact chance to exchange ideas with (home). Michelle Priester, (404) 527-8790 or other practitioners. Contact [email protected]. Johanna Merrill, (404) 527-8774 or Membership [email protected]. This department creates and keeps South Georgia Office up-to-date records for all Bar mem- The Tifton branch of the State bers. It also prepares annual dues Bar of Georgia is designed to give notices, furnishes labels and demo- South Georgia lawyers greater graphics, prepares the membership access to the Bar. The office may be portions of the State Bar Directory & used for CLE seminars, ADR train- Handbook, and prepares letters of ings, local bar meetings, etc. The good standing, bar cards and photo State Bar’s speakers bureau is ID cards. The department also fur- administered through the South nishes membership enrollment pack- Georgia Office as well as the Local ets to all new attorneys, sends out Bar Activities Committee. Contact

June 2003 11 By Derek White Life’s Journey The Values of Going on the Journey vs. Getting to the End of the Journey

C.P. Cavafy wrote the following poem titled Ithaca concerning Odysseus’ travels.

When you start on your journey to Ithaca, Then pray that the road is long, full of adventure, full of knowledge, Do not fear the Lestrygonians and the Cyclopes and the angry Poseidon.

YLD President You will never meet such as these on your path, if your thoughts remain lofty, if a fine emotion touches your body and your spirit. You will never meet the Lestrygonians, the Cyclopes, and the fierce Poseidon, if you do not carry them within your soul, if your soul does not raise them up before you.

Then pray that the road is long. That the summer mornings are many, from the that you will enter ports seen for the first time with such pleasure, with such joy! Stop at Phoenician markets, and purchase fine merchandise, mother-of-pearl and corals, amber, and ebony, and pleasurable perfumes of all kinds, buy as many pleasurable perfumes as you can, visit hosts of Egyptian cities, to learn and learn from those who have knowledge. I will treasure the Always keep Ithaca fixed in your mind. blessings bestowed To arrive there is your ultimate goal. But do not hurry the voyage at all. upon me as your It is better to let it last for long years; and even to anchor at the isle when you are old, president to the rich with all that you have gained on the way, not expecting that Ithaca will offer you riches. end of my legal Ithaca has given you the beautiful voyage. journey. Thank you Without her you would never have taken the road. But she has nothing more to give you. all for your And if you find her poor, Ithaca has not defrauded you. support. With the great wisdom you have gained, with so much experience, you must surely have understood by then what Ithacas mean.

12 Georgia Bar Journal In place of the word “Ithaca,” enter the words “public service” and you should immediately realize how the poem veraciously echoes the demand of the proper soul needed for the legal and public service.

In place of the word “Ithaca,” poem can be utilized as an analogy ual legal Ithacas) should be traveled enter the words “being an attorney” to describe our professional and with one goal in mind, the same goal or “representing others” and you regal endeavors. You should realize espoused above in the poem. That should immediately realize how the how the poem accurately reflects the goal should not concern riches; it poem can be applied to describe our wisdom and experience to be gained should not concern glory; and, it legal travels as members of one of from our professional endeavors, should not concern recognition. the noblest professions known to individually as well as collectively. That goal should concern ethical mankind. You should realize how In place of the word “Ithaca,” representation of others, honest rep- aptly the poem captures the daily enter the words “public service” resentation of others, just represen- tolls of our dedication to our fellow and you should immediately real- tation of others, and a perseverance citizens. Likewise, you should real- ize how the poem veraciously to see the lengthy journey complet- ize how the poem befittingly echoes the demand of the proper ed. These concerns are the true call- describes the rewards of assisting soul needed for the legal and pub- ing of our profession as dictated in those who are unable to assist them- lic service. You should realize how the Attorney’s Oath. These concerns selves in legal matters. the poem beckons one to face the will lead to an enriched journey’s In place of the word “Ithaca,” demons legal and public service end, a glorious journey’s end, and a enter the words “making a differ- will present. well recognized journey’s end. ence in the lives of others” and you All in all, our legal journeys to our If you represent others pursuant should immediately realize how the individual legal ends (our individ- to our Oath and when you reach

June 2003 13 your journey’s end, “you must sure- Michelle Adams; Ali Marin; Kids and Justice Program ly have understood by then what Jonathan A. Pope; Steve Lowry; Committee, Malcolm Wells, co- Ithacas mean.” The following offi- Bryan D. Scott; Amanda A. chair; Mike McCleary, co-chair; cers, directors and chairpersons of Farahany; Laurel P. Landon; Law-Related Education the YLD do understand the mean- Tilman “Tripp” Self III; Zahra S. Committee, Beth Ellen Dotson, co- ing of Ithaca and should be thanked Karinshak; Chandra C. Tutt; and chair; Melissa Anderson, co-chair; for their selfless contributions and Amy Loggins. Legislative Affairs Committee, willingness to service the Bar and Committee Chairs Stephen Glenn Lowry, co-chair; the citizens of the State of Georgia. Michael Keith Watson, co-chair; Officers Advocates for Special Needs Litigation Committee, Brad Children Committee, Marc Strawn, co-chair; Christopher Pete J. Daughtery, Immediate D’Antonio, co-chair; Ali Mitchell, Weems, co-chair; MCLE/Trial Past President; Andrew W. Jones, co-chair; Appellate Admissions, Credit Assistance Committee, Beth President-Elect; Damon E. Elmore, Nathan Wheat, chair; Aspiring T. Kertscher, chair; Membership & Treasurer; David S. Gruskin, Youth Program Committee, Affiliate Outreach, Elena Kaplan, Secretary; and Laurel P. Landon, Malcolm Wells, co-chair; Vicki co-chair; Chandra Tutt, co-chair; Newsletter Editor. Wiley, co-chair; Zahra Karinshak, Minorities in the Profession Directors co-chair; Committee, Brad Gardner, co- Bridge the Gap, J. Ben Finley, chair; Elvin Sutton Jr., co-chair; James R. Doyle II; Elena co-chair; Timothy J. Buckley, co- National Moot Court Kaplan; Leigh Martin; Daniel B. chair; Business Law Committee, Competition Committee, Jason Snipes; Janne McKamey-Lopes; Charles E. Hodges II, chair; Career Saliba, chair; Pro Bono Committee, Veronica Brinson; Marc E. Issues Committee, Lynn A. Ryan Schneider, co-chair; Tonya D’Antonio; Malcolm L.H. Wells; Howell, chair; Community Service Boga, co-chair; Publications Projects Committee, Amy Alcoke, Committee, Laurel Landon, chair; co-chair; Shelley Senterfitt, co- Solo and Small Firm Practice chair; Criminal Law Committee, Committee, Charles Morris Jr., co- Scott Semrau, co-chair; Sara chair; Render Heard Jr., co-chair; Yeager, co-chair; Disability Issues The Great Day of Service Committee, Tom Mazziotti, chair; Committee, Leigh Martin, co-chair; Disaster Legal Assistance Daniel Snipes, co-chair; Truancy Committee, Tonya Boga, chair; Intervention Committee, Kevin Elder Law Committee, Richard Snyder, chair; William W. Daniel Bryson, co-chair; Kristin A. National Invitational Mock Trial Ruzicka, co-chair; Committee, Jeremy E. Citron, chair; Employers’ Duties and Problems Women in the Profession Committee, Shanda Galloway, Committee, Sherry Neal, co-chair; chair; Ethics & Professionalism Janet Bozeman, co-chair; and the Committee, Dean Bucci, chair; Youth Judicial Program High School Mock Trial Committee, Brad Folsom, chair. Committee, Candace Byrd, co- Due to the combined effort of chair; Robert McDonald, co-chair; these noble persons, my serving Indigent Criminal Defense com- you was made easy. I will treasure mittee, Ali Mitchell, chair; the blessings bestowed upon me as Intrastate Moot Court Competition your president to the end of my Committee, Chris Kellner, chair; legal journey. Thank you all for Judicial Liaison Committee, your support. Richard Braun Jr., chair; Juvenile Law Committee, Andre Johnson, co-chair; Beth Reimels, co-chair;

14 Georgia Bar Journal

TaxTax ApportionmentApportionment ProblemsProblems underunder thethe GeorgiaGeorgia ProbateProbate CodeCode By James R. Robinson which the decedent had an interest, sonal representative of the probate in whatever form, to the extent of estate. n the Anglo-Saxon common his or her interest therein.2 Various The Uniform Estate Tax 5 law tradition, the archetypal Internal Revenue Code Sections Apportionment Act (the “Act”) , ensure the includibility of virtually adopted by roughly half of the means of transferring proper- all non-probate assets, including states, addresses these concerns. In I 2 ty at death is by will. However, in life insurance, joint tenancy with contrast to the common-law rule, right of survivorship3 and employ- the “default” rule under the Act is modern society, significant wealth ee benefits.4 These assets generate one of full apportionment of taxes: often is transferred by non-testa- tax liability in the same manner as that is, taxes are paid pro rata from those that pass under the dece- all assets that generate tax liability, mentary means. The disposition of dent’s will. whether part of the probate estate The question of who bears the or not. The question posed by this many forms of wealth is controlled burden of the taxes attributable to Article is, which should be the not by the terms of a will, but by these assets can be a significant default rule: the common-law bur- one, especially when the benefici- den on the residue rule, still fol- contractual arrangement or by aries of one asset or disposition and lowed in Georgia and in a handful operation of law. For example, life another are not the same. of other states, or the rule of appor- Unfortunately, current Georgia law tionment as contained in the Act? insurance or employee benefits does not provide an answer that is Given the sometimes dramatic typically pass directly to one or even remotely adequate. Georgia is (and potentially unintentional) one of a minority of states that still inequities that can arise by virtue more beneficiaries designated by follow the common-law “burden of the common-law rule, I argue the insured or the employee. on the residue” rule. Unless the that apportionment is the prefer- decedent’s will directs otherwise, able rule, and should be adopted in Property held in joint tenancy with all taxes and other expenses of Georgia. The Act provides a ready- right of survivorship passes to the administration are paid out of the made solution at hand, one that can residuary estate — that is, that part easily be incorporated into surviving joint tenant(s) by opera- of the probate estate remaining after Georgia’s Probate Code.6 tion of law; an attempted disposi- all specific testamentary disposi- tions have been deducted. A will OVERVIEW OF tion by will of an undivided inter- that is silent on the payment of APPORTIONMENT taxes is subject to this rule, the est in such property is ineffective. operation of which can produce As its name suggests, the term These assets sometimes are significant (and perhaps unexpect- “apportionment” refers to the allo- ed) inequities. An attorney must cation of the liabilities and expens- referred to as “non-probate” assets consider how to address the issue es of an estate, most significantly and do not comprise a decedent’s of the tax burden, especially when federal estate taxes, against the var- drafting a will for a client with sig- ious assets of the estate. It is to be “estate,” that is the property nificant non-probate assets. contrasted with the common-law owned by the decedent and subject However, for the Georgia practi- “burden on the residue” rule, tioner there is a further and poten- which in the absence of a specific to the probate code, which estab- tially more serious difficulty. It is direction in the will to the contrary, charges all taxes and expenses of lishes the rules for disposing of unclear whether under Georgia law a direction in a will to charge administration against the residue property by will. taxes or other expenses against of the probate estate, that is, what Federal estate tax typically non-probate assets is effective or is left over after all specific testa- makes no such distinctions. The enforceable, at least in the absence mentary dispositions are made. gross estate for federal estate tax of a specific federal statute granti- A simple example will suffice to purposes includes all property in ng a right of recovery to the per- illustrate the basic concept.

June 2003 17 Suppose that T dies owning a resi- cussed below, it is unclear whether tion of the bonds from the gross dence worth $500,000, savings a testamentary direction to appor- estate) would be apportioned pro bonds also worth $500,000, and tion taxes to non-probate assets is rata to the property passing to A, C securities in a brokerage account effective under Georgia law. and D. Equitable apportionment is worth $1,000,000. T’s will devises Three other related concepts an important consideration, not the residence to T’s child A, require definition. The first two of only because it ensures that taxes bequeaths the savings bonds to T’s these are “inside” and “outside” are fairly apportioned among the child B, and leaves the residue of apportionment. “Inside” appor- parts of the estate actually incur- the estate to T’s children C and D. tionment refers to apportionment ring tax, but also because it avoids For simplicity’s sake, assume that among probate assets, that is, a potential tax problem that occurs T’s estate of $2,000,000 generates assets whose disposition is con- if taxes are paid from assets that $435,000 in estate taxes, and make trolled by the terms of the dece- otherwise qualify for a deduction, the further assumption that there dent’s will. In general, these are principally the marital deduction.8 are no other expenses associated assets that the decedent owned Thus, a full apportionment with the administration of T’s outright in his or her own name scheme would be one that provid- estate. T’s will is silent on the pay- and not jointly, and whose disposi- ed for both inside and outside equi- ment of taxes. Under the burden on tion at death is not specifically con- table apportionment. Whether such the residue rule, A and B would trolled by some form of contractual a scheme is appropriate in any receive the property devised or arrangement. In the example given case must necessarily be bequeathed to them undiminished above, all three of T’s assets — the answered in light of the circum- by taxes, which would be paid residence, the bonds and the bro- stances, but our question here from the residue of the estate. kerage account — are probate should be: what would the average Thus, C and D would each receive assets, and apportionment of the testator want as a rule in the event $282,500 after the payment of taxes, tax burden among them is an his or her will does not address the while their siblings each would example of strictly inside appor- issue directly (or adequately)? As receive property worth $500,000. tionment. “Outside” apportion- may be seen from the foregoing By contrast, if apportionment is ment, necessarily, refers to appor- discussion, a full apportionment directed either by statute or by the tionment among non-probate scheme seeks to distribute the tax will, each child’s share would bear assets. For example, if T owned a burden equitably among all parts a pro rata portion of the total tax policy of insurance on his or her of the estate that generate tax liabil- liability. All other things being life and named B and C as benefici- ity. It is submitted that this should equal, each child would receive a aries, any apportionment of the tax be the rule that operates in the net amount of $391,250.7 Whether burden to the insurance proceeds absence of specific direction to the one result or another comports would be outside apportionment. contrary, in order to avoid poten- with T’s intention is a question The third concept is “equitable” tial inequities such as that pro- only T can answer, but this exam- apportionment. Under an equitable duced by the operation of the com- ple serves to illustrate the dramatic apportionment scheme, only those mon-law rule in the example difference between the common- assets or dispositions that generate above. law rule and an apportionment tax are liable for a portion of the scheme. The question is, what tax. If we change the initial exam- FEDERAL LAW should be the “default” rule? ple so that B is T’s spouse instead of Although federal law imposes Assuming that T wanted to treat all T’s child, and the bequest of the the lion’s share of the tax burden in four children equally, the answer is savings bonds qualified for the the form of the federal estate tax, that apportionment is the only way estate tax marital deduction (and apportionment, like most property to achieve this, at least in the thus had not been taxable), no part laws, is a creature of state law.9 absence of specifically tailored lan- of the tax burden would be charged Thus, it is inaccurate to refer to a guage to the contrary. In Georgia, against the savings bonds; B would federal “apportionment” rule. though, even such language is not receive the full $500,000; and the However, federal law does provide guaranteed to be effective, no mat- tax burden (which would be for a right of recovery in the dece- ter how carefully drafted; as dis- reduced as a result of the deduc- dent’s personal representative —

18 Georgia Bar Journal who is liable for payment of the of state law, and is not a federal tax10 — for certain types of proper- priority.12 ty or dispositions. Section 2206 of Whatever the reason, what is the Internal Revenue Code allows clear is that if federal law is silent a right of recovery for taxes gener- on the issue, state law supplies the ated by the inclusion of life insur- answer. Thus, in the absence of a ance proceeds in the decedent’s specific federal right of recovery gross estate; Section 2207 of the for taxes attributable, for example, Code gives a right of recovery for to employee benefits, those taxes taxes generated by property may be recovered from that prop- included by virtue of the dece- erty only if state law allows such a dent’s having possessed a power recovery. Unfortunately, Georgia of appointment; Section 2207A law is unclear and inadequate in grants a similar right for the tax this regard. attributable to so-called “QTIP” assets (i.e., assets held in a trust GEORGIA LAW that qualifies for the marital Despite an otherwise almost deduction under Section 2056(b)(7) complete overhaul and modern- of the Code); and Section 2207B ization of the probate code in 1997, provides a right of recovery for the common-law rule was carried taxes attributable to property over virtually unchanged from the included in the estate under old probate code13, resulting in Section 2036 (property transferred Georgia being one of the few states to trust with a retained income that still follow the common-law interest). “burden on the residue” rule.14 However, these provisions all Thus, unless the will directs oth- can be waived by will. Careful erwise, all federal estate taxes are attention must be paid to whether payable from the residue of the such a waiver is appropriate and, if probate estate, as in the initial so, how it is accomplished (the dif- example above. It is clear that if a ferent Code sections impose differ- will does not waive the federal ent requirements for effective rights of recovery discussed above, waiver). Further, and much more the personal representative of an to the point of this article, one right estate may exercise those rights of recovery is conspicuous by its and collect tax from the assets sub- absence: the Code currently pro- ject to the right of recovery in vides no right of recovery for fed- accordance with federal law. What eral estate taxes generated by the is troubling for the practitioner is inclusion of assets under Code that it is not at all clear that a testa- Section 2039, which typically is the mentary direction to apportion provision that makes employee taxes to a non-probate asset is benefits subject to federal estate effective under Georgia law when taxes.11 Efforts to enact such a pro- there is no federal right of recov- vision have been ongoing for more ery. The probate code makes no than a decade, but so far have pro- specific reference to the effective- duced no results, possibly because ness of a will provision in this the U.S. Treasury Department’s regard, and the case law indicates position follows that of the U.S. that the Georgia courts will not Supreme Court: the question of reach out to find a right of recov- apportionment principally is one ery where none is granted by fed-

June 2003 19 eral law, particularly if the will federal right of recovery for the wanted had the question been pre- contains any discernible evidence non-probate assets (i.e., the trust sented to him or her. Arguably, the of an intent to follow the common- and the 401(k)); and third, the oper- problem in Emmertz was as much a law rule.15 ation of the common-law (Georgia) problem of federal law, which in The consequences of the current rule of burden on the residue. Even the case of insurance proceeds law can be disastrous, and in many if a federal right of recovery existed requires only that the decedent cases unlikely to be consistent with for either the trust or the 401(k), the “direct otherwise” in his or her will the testator’s wishes. For example, inclusion of boilerplate language to waive the federal right of recov- suppose that T has assets that directing payment of taxes from ery, as of state law. Nevertheless, it include a residence worth $250,000, the residue would almost certainly may be fairly questioned whether a brokerage account worth have produced the same result.17 the drafter of the will at issue in the $600,000, a trust (includible in T’s This example points out the impor- case would have included lan- estate under Code Section 2038 by tance of including the proper tax guage directing payment of taxes virtue of a retained power of dispo- payment provision, in the will out of the residue if the default rule sition) that owns assets worth based on the testator’s assets and in Georgia had been one of full $700,000, and a 401(k) plan account provides a warning against the apportionment. also worth $700,000, for a total unthinking inclusion of standard estate (for federal tax purposes) of pay-from-residue language. More THE REVISED $2,250,000. Note that there is no to the point, it raises the question UNIFORM federal right of recovery for taxes whether the common-law rule is attributable to either the trust or the most desirable one to operate as ESTATE TAX the 401(k). T’s will (which is silent the “default” rule. An apportion- APPORTIONMENT on payment of taxes) devises the ment regime, in particular one that residence to T’s spouse and provided for both inside and out- ACT bequeaths all of the residue of T’s side apportionment, would operate The Uniform Estate Tax estate to A, who is T’s child by T’s in the facts of the example to Apportionment Act, promulgated first marriage. The beneficiaries of spread the tax burden equally originally in 1958 and revised in the trust and 401(k) plan are B and among all of the property passing 1964, addresses many of the issues C, who are T’s children by T’s sec- to the children (but not, assuming raised in the foregoing discussion. ond marriage. Assuming that the equitable apportion were the rule, First, it mandates apportionment devise of the residence qualifies for to the spouse, as that asset generat- as the “default” rule.18 Moreover, it the marital deduction, T’s taxable ed no tax liability). Were such a directs both inside and outside estate is $2,000,000, which pro- rule the “background” or “default” apportionment, first by defining duces a federal estate tax liability of rule, the drafter of T’s will would the “estate” as the gross estate for $435,000. The entire tax liability is have had to have made a conscious federal estate tax purposes,19 and borne by A, who nets $165,000 decision to mandate a different second by requiring apportion- (which amount likely will be fur- result by directing payment from ment among “all persons interest- ther reduced by the expenses of the residue of T’s estate, a result ed in the estate.”20 Equitable administering T’s estate). that might well have been strongly apportionment is achieved by Thus, by operation of the com- rejected by T if its consequences directing that exemptions, deduc- mon-law rule, A’s share is almost were explained. tions, and credits against the estate completely wiped out, while the As the Emmertz case in particular tax inure to the benefit of the per- property passing to B and C is illustrates, the practice of including sons receiving the property that 16 untouched. This result, which on boilerplate language directing pay- generates the exemption, deduc- its face appears inequitable and ment from the residue — a not tion or credit.21 Thus, in the previ- was probably not what T had in uncommon approach in a jurisdic- ous example, no part of the tax bur- mind, is driven by the operation of tion that follows that rule — can den would be apportioned to the three factors: first, the silence of T’s produce a result that is on its face residence passing to T’s spouse, as will on the subject of payment of inequitable and in all likelihood that property qualified for the mar- tax; second, the lack of a specific not what the testator would have

20 Georgia Bar Journal ital deduction and thus was not nized this oddity; their explanation requirements for waiver or alter- taxable. The Act also sets forth pro- was simply that there was no other ation of the Act’s provisions. As it cedures for judicial determination practical solution.26 Whether this is stands, careless drafting might of the apportionment of tax22 and in fact the case is debatable; tempo- cause unintended consequences. for the withholding by the fiduci- ral interests must be valued at their For example, suppose that T’s ary of property sufficient to pay the present value for estate tax purpos- probate estate consists of a resi- tax liability and for recovery by the es, and presumably the tax burden dence, cash, stocks and an automo- fiduciary of the tax attributable to could be apportioned on that basis. bile collection. T also owns a 401(k) assets in possession of other inter- Apart from the oddity regarding plan account, which accounts for ested persons.23 As of the year the apportionment to temporal approximately half of T’s net 2000, a total of 24 states had adopt- interests, the Act contains at least worth. T wishes to bequeath the ed either the 1958 or the 1964 ver- one potentially significant difficul- automobile collection to child A, sion of the Act.24 ty. The Act provides that its appli- and does not want the collection to The Act does contain at least one cation may be altered by will, with- be liquidated to pay taxes. oddity: it directs that all taxes out requiring anything by way of Therefore, T’s will specifically attributable to a “temporary” inter- specific reference to the Act or any bequeaths the collection to A, and est in property — for example, a of its provisions.27 While provision the residue of the estate also goes life estate — are payable from prin- for waiver in general is not only to A. The beneficiary of the 401(k) cipal.25 Thus, if T devises real prop- desirable but necessary — there are account is T’s other child, B. T’s erty to T’s child A, with the remain- certainly instances in which pay- will specifies that “all estate taxes der to T’s grandchildren, the ment of taxes from the residue is shall be paid from the residue of remainder interest is liable for all perfectly appropriate — one might my estate.” Does this mean that all taxes attributable to the real prop- wish that the Act imposed more taxes (including those attributable erty. The drafters of the Act recog- rigorous, or at least specific, to the 401(k) account) are to be paid

June 2003 21 from the residue? Or only that the onus on the drafter to ensure that example, that T owns the real prop- taxes attributable to the probate waiver or alteration (if desirable) is erty with T’s children as joint ten- property are to be so paid? made in the proper instrument. ants with right of survivorship. Assuming that T’s principal wish For example, suppose that T has Does it make sense to require that was to treat T’s children equally, a sizeable inter vivos revocable the desired result be accomplished one would suppose that the latter trust, which is administered by a by a will, which, under these facts, result was the one T had in mind. corporate trustee and holds the would dispose of little or no prop- Arguably, though, the language majority of T’s wealth, principally erty? At the very least, any legisla- quoted opts out of apportionment marketable securities. T also owns ture considering adoption of the of taxes entirely. A more exacting several parcels of real property of Act should give some thought to waiver requirement — for exam- significant value, which for various easing somewhat the rule that full ple, one requiring that the testator reasons are owned by T individual- apportionment may be avoided refer specifically to the relevant ly and not by the trust. T does not only by will. section of the Act, or requiring spe- want any taxes apportioned to the Despite these flaws — if they are cific reference to assets passing real estate, because T does not want indeed flaws — the Act represents under, or outside of, the will — to require any of the parcels (which a significant improvement over the might avoid such interpretive diffi- have been in T’s family for several common-law rule. It implements a culties, at the very least by obliging generations) to be liquidated to pay full apportionment regime, with the drafter of T’s will to focus on estate taxes. Therefore, T wants the both inside and outside apportion- exactly what is intended. trust, which contains liquid assets, ment, and allows for equitable Moreover, the operation of the to bear the liability. Under the Act, apportionment by providing that Act may be avoided only by will, T must direct by will that no taxes tax benefits follow the property and not by any inter vivos instru- be apportioned to the real proper- that generates those benefits. ment (such as a revocable or irrev- ty, regardless of whether the prop- Consider again the examples raised ocable trust). While this normally erty is probate property or not. A in this article. Is it reasonable to will not be of great concern — typ- provision in the trust is not suffi- assume that the average person — ically, even clients who own the cient. who is, at least in theory, the per- majority of their assets in a revoca- While this rule may not be a son to whom a statute is to apply — ble trust will have in place a “pour- problem in itself, it does raise the would want the apparently over” will that directs the disposi- question (again) what should be inequitable outcomes postulated in tion of the probate estate to the the “default” rule, that is, the rule these examples? If the answer to trust, which contains the disposi- to apply in the absence of a careful- this question is “no” — and it tive provisions — it does place the ly-drafted alternative. Suppose, for seems obvious that, in the typical www.gabar.org Just a click away. The one site you need for top-notch legal information and State Bar resources.

22 Georgia Bar Journal case, it would be — then serious Nevertheless, the Act represents a prefer to avoid such a result. consideration should be given to significant improvement over the 9. Riggs v. Del Drago, 317 U.S. 95 (1942). abandoning the common-law rule current state of the law, and should 10. I.R.C. § 2002. in favor of the apportionment be incorporated into the Georgia 11. The significance of this omission scheme set forth in the Act. Probate Code at the earliest oppor- can best be appreciated if one con- tunity. siders the vast amounts of wealth A PROPOSED currently held in deferred compen- James R. Robinson is sation arrangements such as 401(k) SOLUTION an associate in the plans. At the end of 2001, an esti- Private Wealth Group mated $1.75 trillion was held in Individuals often own substan- 401(k) plans. See of Arnall Golden tial assets that can cause significant http://www.ici.org/about- Gregory LLP. He funds/401k_faqs.htm. tax liability, but whose disposition received his B.A. from 12. Jeffrey N. Pennell, Tax Payment is not controlled by will. Current the University of Colorado at Provisions and Equitable Georgia law, with its adherence to Boulder, his M.A. from New York Apportionment, C109 ALI-ABA 991, 1029-30 (1995). the common-law burden on the University and his J.D. from Emory 13. The modern trend is away from residue rule and its lack of clear Law School. the common-law rule toward a authority regarding the effective- rule of apportionment. Indeed, ness of a testamentary direction to ENDNOTES only a small minority of states still follow the common-law rule. See 1. I.R.C. § 2033. apportion taxes attributable to non- Jeffrey N. Pennell & Robert T. 2. Id. § 2042. probate property, is inadequate to Danforth, 834 Tax Mgmt.(BNA), 3. Id. § 2040. Transfer Tax Payment and address the planning needs of 4. Id. § 2039. Apportionment, at A-23 (hereinafter today’s clients. A full apportion- 5. The Uniform Estate Tax “Pennell & Danforth”). Apportionment Act is currently ment scheme, one that operates by 14. O.C.G.A. § 53-4-63. being revised by the Drafting default to distribute tax liability 15. See Emmertz v. Cherry, 271 Ga. Committee to Revise Uniform 458, 520 S.E.2d 219 (1999) (boiler- among all parts of a decedent’s Estate Apportionment Act and plate language sufficient to waive estate (in the federal estate tax Section 3-916 of the Uniform right of recovery for taxes attribut- Probate Code, under the auspices sense of that word) that generate able to insurance proceeds); Collier of the National Conference of tax liability, not only addresses v. First Nat’l Bank, 262 Ga. 338, 417 Commissioners on Uniform State S.E.2d 653 (1992) (assets taxable as modern forms of property owner- Laws. part of revocable trust not liable 6. O.C.G.A. §§ 53-1-1 to -11-10. ship, but also avoids potentially for portion of tax). 7. Even this simple example points unintentional inequities in the dis- 16. If apportionment were the rule, out potential complexities. For each child’s share would be liable position of property caused by the example, it is assumed either that for a pro rata portion of the tax. A common-law rule. At the very the residence can be liquidated for would net $469,500, while B and C its full fair market value, or that A least, it obliges practitioners to would net $547,750 each — a dra- has other funds with which to pay address the payment of taxes in a matically different outcome for A the pro rata portion of the tax lia- in particular. way that the current rule does not, bility. Nevertheless, it serves to 17. Emmertz, 271 Ga. at 460, 520 S.E.2d by requiring an affirmative opting point out that of the two rules, at 221. only apportionment operates to out of a scheme that by default 18. Revised Uniform Estate Tax achieve a sort of rough justice requires all of the parts of the tax- Apportionment Act § 2, 8A ULA among the various testamentary 336 (1993). able estate to bear their proportion- dispositions and beneficiaries. 19. Id. § 1(a), 8A ULA 334. 8. If taxes are payable from property ate part of the total liability. The 20. Id. § 2, 8A ULA 336. that qualifies for the marital Uniform Estate Tax 21. Id. § 5, 8A ULA 341. deduction, the payment of taxes 22. Id. § 3, 8A ULA 338. Apportionment Act provides a from this property reduces the 23. Id. ready-made apportionment regime amount passing to the surviving 24. Pennell and Danforth, at A-24 n. spouse, which in turn reduces the that easily can be adopted into 146. deduction, which in turn increases Georgia law. Attention should be 25. Revised Uniform Estate Tax taxes, which must be paid from the Apportionment Act § 6, 8A ULA given to the manner in which the marital property. The resulting 360. Act addresses both apportionment circular or “whirlpool” calculation 26. Id. cmt. can increase the tax liability signifi- to temporal interests and waiver or 27. Id. § 2, 8A ULA 352; see also cantly — by approximately 50%. alteration of its operation. Pennell and Danforth, at A-25. Presumably, most clients would

June 2003 23 GBJ feature

Professionalism in the Principle-Centered Law Practice By Chief Judge G. Alan Blackburn

Whatever happened schemes which were guaranteed to bound. Our code of ethics often to ethics? greatly improve the financial picture requires lawyers, within certain of Home Depot. He was assured bounds, to place a client’s interest that the schemes were perfectly above their own. Indeed, these dis- In a recent address, Bernie legal, and that they were employed tinctions are what separate the pro- Marcus, the founder of Home by many major companies. fessions from other commercial In analyzing these proposals, endeavors. Depot, raised the above question in Marcus looked not only to opinions Ethics are what the law requires of their legality, but he looked to his of lawyers in the conduct of the response to an inquiry about Enron own moral compass for direction. practice of law. Lawyers are subject and other corporate business prac- He did not understand how you to sanctions, including disbarment, could improve the financial appear- for violations of the Georgia Rules tices. In the context of his address, ance of Home Depot when your of Professional Conduct. scheme did not increase its rev- Unchecked ethical violations, by Marcus was referring to the per- enues, reduce its costs, or improve good and decent lawyers, occur sonal ethics and moral principles the efficiency of its work force. In routinely. Have you ever come his own words, “it didn’t pass the across controlling case law which is by which corporate leaders are smell test.” Marcus rejected the sug- harmful to your case, of which guided, not those rules and regula- gested schemes based on the appli- your opponent is clearly unaware? cation of his own principles, not the Have you awaited a hearing or trial tions which govern commercial limited rules that control corporate hoping your opponent does not practices. He is a man of principle, discover the controlling case? Have practices. Unlike the practice of who, before his retirement, ran a you then argued your position to law, business is generally limited principle-centered business. the court, orally or by brief, while Ethics, your opponent failed to raise the only by a determination of what is controlling authority of which you Professionalism and were aware? If so, you have violat- legal, not what is ethical or moral. the Practice of Law ed Rule 3.3, Candor Toward The Marcus related that for years he Tribunal, which provides in para- Unlike big business, the conduct was bombarded by accountants and graph (a) (3), “[A]n advocate has a of lawyers is not limited to the business consultants with Enron- duty to disclose directly adverse statutorily legal. Lawyers also have type accounting procedures and authority in the controlling juris- a code of ethics by which they are

24 Georgia Bar Journal diction which has not been dis- ering up of any crime or other ille- sent the public attitude? Coleridge, closed by the opposing party. The gal activity, including fraud, and wrote of the devil, who upon see- underlying concept it that legal any attorney who becomes so ing a lawyer killing a viper, smiled, argument is a discussion seeking to involved, is not practicing law, but, for it put him in mind of Cain and determine the legal premises prop- rather, is a co-conspirator in the Abel. erly applicable to the case.” criminal or fraudulent activity, and We are collectively responsible Another provision of the is just as guilty of violating the law for our public perception. None of Georgia Rules of Professional as is the client. The Georgia Rules us practice in isolation. We each Conduct which is often misunder- of Professional Conduct are pub- contribute to the reputation of the stood, is Rule 1.2, Scope of lished in the State Bar of Georgia other, and we rise or fall as a Representation. While a lawyer shall Directory and Handbook, and are rea- group, in the collective eye of the generally abide by a client’s deci- sonably specific on given issues. I public. The presence or absence of sions concerning the objectives of recommend a periodic review of professionalism by those lawyers representation, that Rule is subject these rules by all lawyers. with whom they come in contact, to exceptions as outlined in sub- Professionalism, on the other is, in large measure, determinative paragraphs: hand, refers to that heightened of the public’s perception of us as (c) A lawyer may limit the objec- level of civility, courtesy, accom- lawyers. tives of the representation of the modation and good faith that I encourage lawyers to take the client, if the client consents after lawyers expect from each other in time to consider and adopt under- consultation; the handling of legal matters in our lying principles upon which they (d) A lawyer shall not counsel a adversary system of justice. will conduct their business. By client to engage in conduct that Professionalism relates to that stan- doing this, they will have a basic the lawyer knows is criminal or dard which we, as lawyers, have foundation to which they can refer fraudulent, nor knowingly set for each other in the conduct of in determining their actions. These assist a client in such conduct, the business of our clients. principles give the lawyer guid- but a lawyer may discuss the In its simplest terms, profession- ance at a time when other pres- legal consequences of any pro- alism is nothing more than busi- sures may be present. The adoption posed course of conduct with a ness morality. My former col- of the attached aspirational goals of client and may counsel or assist league, Presiding Judge Birdsong, professionalism as the basic princi- a client to make a good faith once described professionalism in ples of operation of the law practice effort to determine the validity, another way. He said that the gold- would be a sound beginning. scope, meaning or application en rule says it all. He was right, and Those who do not do so are like of the law; and, it is such a simple rule to follow. rudderless ships floating on a sea (e) When a lawyer knows that a Our Supreme Court has adopt- of self-interest and greed, respond- client expects assistance not ed a Lawyers’ Creed, an Aspirational ing to those pressures, without permitted by the rules of profes- Statement on Professionalism, certain regard to the morality or correct- sional conduct or other law, the General Aspirational Ideals, and cer- ness of the decision. lawyer shall consult with the tain Specific Aspirational Ideals. I Helpful Hints for the client regarding the relevant have included these materials for limitations on the lawyer’s con- your review, as Appendices “A,” Principle-Centered duct. “B,” “C” and “D”, respectively. Lawyer The maximum penalty for a vio- The Principle-Centered Initial Employment lation of this Rule is disbarment. It is during the initial employ- Many lawyers do not seem to Law Practice ment discussions that the lawyer understand that their obligation to What is the public perception of should come to a complete under- represent their client is subject to lawyers? Do you think that we are standing with the client as to all the Georgia Rules of Professional generally viewed as Atticus Finch, important elements in the handling Conduct. For example, a client is the lawyer in To Kill a Mockingbird? of the case. This agreement should not entitled to advice of counsel in Or does Samuel Taylor Coleridge’s be reduced to writing and signed the planning, carrying out, or cov- perception more accurately repre-

June 2003 25 by the parties. In addition to defendant in trying the case than in will never have another opportuni- addressing such matters as fees settling it; or the defendant’s ty to recover for that claim. and costs, the agreement should lawyer has failed to either apprise Counseling the Client outline communications between his client of the risks of trial, or con- Remember, lawyers are also attorney and client (and any vince the client of such potential. If counselors to their clients and owe charges therefor), decisions on rou- the parties are able to settle the case, to them a duty to be straight-for- tine matters during the conduct of then they have kept the decision- ward in discussing the strengths the litigation (continuances, exten- making process within the control and weaknesses of their position. It sions, stipulations, etc.), a recogni- of the parties. It is generally true is unprofessional to exaggerate the tion that the lawyer is bound by that parties are far more likely to potential value of a claim in order ethical standards and that the liti- voluntarily abide by a resolution to to obtain employment, and such gation will be conducted as which they have agreed than one exaggeration likely will come back required by such standards and the which is dictated by a judge or jury. to haunt you, as it will make a rea- highest level of professionalism. Someone once said that “a rea- sonable pre-trial settlement diffi- The lawyer should explain general- sonable settlement is one in which cult. It also assures an unhappy ly what this means and why it is each of the parties is equally dissat- client even if a reasonable verdict is ultimately in the best interest of the isfied.” It is a rare case in which a obtained, as the award will general- client for the litigation to be con- party is totally successful in obtain- ly be far less than you have led the ducted in this manner. ing all of the relief sought through client to believe that it would be. settlement. There is little benefit to Settlement Rather, it is far better to explain a defendant in such a settlement, as In evaluating settlement versus to the client that the recovery at a jury would do no worse at trial trial, trial should generally be the trial will be the result of a number and the defendant just might win. least preferred option. When a case of unknown factors, such as: the Plaintiffs’ personal injury lawyers is tried, that means there has been a makeup of the jury, the testimony should also keep in mind that failure in the case. Either the plain- and credibility of the fact witness- while they will have many future tiff’s lawyer has failed to convince es, and the expert witnesses, the trials in the event of a loss, a plain- the defendant of the justness of the jury’s evaluation of any compara- tiff who loses at trial after having claim, the amount of the damages, tive negligence evidence, the natu- turned down a settlement offer, or that there is a greater risk to ral sympathies of the case and the jury’s attitude toward the parties, APPENDIX A: A LAWYER’S CREED their lawyers and witnesses (do they like them or dislike them?). To my clients, I offer faithfulness, competence, diligence, and good judge- ment. I will strive to represent you as I would want to be represented and to Juries tend not to make meaningful be worthy of your trust. awards to plaintiffs they don’t like, or to award large sums against To the opposing parties and their counsel, I offer fairness, integrity, and defendants that they do like and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute vice versa. It is easy to predict a dignified one. where the natural sympathies To the courts, and other tribunals, and to those who assist them, I offer would lie if a lawyer/plaintiff sued respect, candor, and courtesy. I will strive to do honor to the search for jus- an elderly, gray-haired grandmoth- tice. er in a fender-bender involving To my colleagues in the practice of law, I offer concern for your welfare. I minor damage. will strive to make our association a professional friendship. The lawyer should anticipate To the profession, I offer assistance. I will strive to keep our business a pro- matters unique to the client’s repre- fession and our profession a calling in the spirit of public service. sentation, and be sure that the client understands and agrees to To the public and our systems of justice, I offer service. I will strive to the manner in which the case will improve the law and our legal system, to make the law and our legal system be handled. This is the time for the available to all, and to seek the common good through the representation of my clients. lawyer to prevent future misunder- standings and problems.

26 Georgia Bar Journal Communications APPENDIX B: ASPIRATIONAL A lawyer should counsel with STATEMENT ON PROFESSIONALISM the client at the time of employ- The Court believes there are unfortunate trends of commercialization and ment concerning communications loss of professional community in the current practice of law. These trends are during the handling of the case. manifested in an undue emphasis on the financial rewards of practice, a lack of The lawyer’s policy concerning courtesy and civility among members of our profession, a lack of respect for telephone calls and any charges the judiciary and for our systems of justice, and a lack of regard for others and therefor should be fully discussed. for the common good. As a community of professionals, we should strive to The advantage to the client of com- make the internal rewards of service, craft, and character, and not the external municating through staff should be reward of financial gain, the primary rewards of the practice of law. In our practices we should remember that the primary justification for who we are fully explained. The benefits of and what we do is the common good we can achieve through the faithful rep- such communication could be cost, resentation of people who desire to resolve their disputes in a peaceful man- speed of response and efficiency. It ner and to prevent future disputes. We should remember, and we should help is a good idea to routinely copy the our clients remember, that the way in which our clients resolve their disputes client with copies of pleadings and defines part of the character of our society and we would act accordingly. correspondence, with information As professionals, we need aspirational ideals to help bind us together in a and instruction forms attached, i.e. professional community. Many of the aspirational ideals of our community are forward a copy of interrogatories contained within our Ethical Considerations. The Ethical Considerations con- received with a cover sheet telling tain the objectives towards which every member of the profession should the client what to do. It is good pol- strive. Our Ethical Considerations, however, also contain specific regulatory icy to review all cases on an appro- provisions, interpretative guidance for our Directory Rules, and other matters priate time basis and to communi- that are not aspirational. This combining of different purposes makes the cate with the clients, so they will Ethical Considerations difficult to use as a statement of aspirational ideals. Some of our aspirational ideals are also found in “Duties of Attorneys,” OCGA know they have not been forgotten. § 15-19-4, but most of those ideals are limited to the role of attorney as an Controlling the Case and officer of the court. Our Directory Rules and Standards of Conduct set forth Decision-Making minimum standards. They are not intended as aspiration statements. The client has sought your repre- Accordingly, the Court issues the following Aspirational Statement setting sentation because of your knowl- forth general and specific aspirational ideals of our profession. This statement edge, experience and skill, talents is a beginning list of the ideals of our profession. It is primarily illustrative. Our the client generally does not pos- purpose is not to regulate, and certainly not to provide a basis for discipline, but rather to assist the Bar’s efforts to maintain a professionalism that can sess. It is for this reason, that deci- stand against the negative trends of commercialization and loss of community. sions concerning the conduct of the It is the Court’s hope that Georgia’s lawyers, judges, and legal educators will case should generally be made by use the following aspirational ideals to reexamine the justifications of the prac- the lawyer. The client is not famil- tice of law in our society and to consider the implications of those justifications iar with, or bound by the lawyer’s for their conduct. The Court feels that enhancement of professionalism can be canons of ethics or basic standards best brought about by the cooperative efforts of the organized bar, the courts, of professional conduct. Too often, and the law schools with each group working independently, but also jointly in clients are so emotionally involved that effort. in their case that they seek only to cause misery for the other side. We tions of law and fact, and dealing Appeal and Post-Trial have all dealt with such clients, with your opponent’s tardiness at a Evaluation who seem to resent their attorney calendar call. It is for this reason The only appropriate legal basis even being civil to the other side or that decisions concerning proce- for an appeal is that there has been their attorney. dural matters should be made by a reversible error committed by the Clearly, such people are not the the lawyer, with the consent of the trial court which has harmed your ones who should decide those mat- client. It is you, the lawyer, who client. It is unprofessional to appeal ters which routinely arise during can best evaluate what action is a case where no such bona fide the conduct of litigation, such as: required by professional standards claim exists. the granting of extensions, stipula- of conduct and what is ultimately Attempting to gain leverage for in the best interest of the client. negotiation is not an appropriate

June 2003 27 basis for appeal. The fact that your Do Not Make False APPENDIX C: client has suffered a major award Representations GENERAL against it is not a basis for appeal ASPIRATIONAL IDEALS Even if it is to ease the pain of absent reversible error. Neither is unpleasant news, the outcome of As a lawyer, I will aspire: the fact that a defendant’s verdict such dishonesty could be devastat- (a) To put fidelity to clients and, was returned in the plaintiff’s “mil- ing to your career as an attorney. through clients, to the common lion-dollar” case a basis for appeal, Rule 2.1 strictly prohibits false rep- good, before selfish interests. absent reversible error. It is unethi- resentations, and the penalty for (b) To model for others, and par- cal and unprofessional to appeal an iolating this standard may be dis- ticularly for my clients, the respect adverse result absent reversible barment. In fact, a review of recent due to those we call upon to error, and may expose the appel- resolve our disputes and the disbarment cases shows that lying regard due to all participants in lant to sanctions under the rules of about the progress of a case is sur- our dispute resolution processes. the appellate courts. prisingly common cause of disbar- (c) To avoid all forms of wrongful Handling Client’s Money ments and voluntary surrenders of discrimination in all of my activities Failure to keep a client’s money licenses. See also Rule 1.3. including discrimination on the in a separate account may result in Handle or Limit Your basis of race, religion, sex, age, disciplinary action by the State Bar, Workload handicap, veteran status, or since commingling is a violation of national origin. The social goals of There is no doubt that case load Rule 1.15 of the mandatory State equality and fairness will be per- management is the cause of many sonal goals for me. Bar Standards of Conduct. In addi- client complaints. The lawyer (d) To preserve and improve the tion, keep a complete record of all becomes overburdened with work law, the legal system, and other funds disbursed to or received and fails to communicate with the dispute resolution processes as from a client. client. Too often lawyers do not instruments for the common good. Stay Out of Business with meet their obligation to properly (e) To make the law, the legal sys- Your Client handle those cases they accept. tem, and other dispute resolution This is particularly true in situa- Organize to handle the cases you processes available to all. accept, or accept fewer cases. (f) To practice with a personal com- tions where your clients are relying mitment to the rules governing our on you, as their lawyer, to protect G. Alan Blackburn is profession and to encourage others or oversee their interest, so that the presiding judge in to do the same. you are both business partner and the Georgia Court of (g) To preserve the dignity and the lawyer. Although the Bar stan- integrity of our profession by my dards do not absolutely prohibit Appeals. After serving conduct. The dignity and the this under all circumstances, it is four years on active integrity of our profession is an better to avoid such situations alto- duty in the United States Air Force, inheritance that must be main- gether. Judge Blackburn returned to tained by each successive genera- Atlanta and entered John Marshall tion of lawyers. Avoid Conflicts of Interest Law School. He received his LLB in (h) To achieve the excellence of Rules 1.8 and 1.9 in the State Bar of 1968. He received his Masters of our craft, especially those that per- Georgia Handbook deal directly with Law Degree from the University of mit me to be the moral voice of defining what conflicts of interest to Virginia Law School in 2001. clients to the public in advocacy avoid. Generally, if it feels bad, it is while being the moral voice of the bad, and should be avoided. If you public to clients in counseling. are caught in a “grey area,” seek Good lawyering should be a moral advice from one who is experienced achievement for both the lawyer and knowledgeable. And remem- and the client. ber, the mere fact that you are con- (i) To practice law not as a busi- cerned that a conflict of interest ness, but as a calling in the spirit of public service. exists may be a sufficient indication that you should stay out of a partic- ular matter.

28 Georgia Bar Journal APPENDIX D: SPECIFIC (1) Avoid non-essential litigation and non-essential pleading in litigation; ASPIRATIONAL IDEALS (3) Explore the possibilities of settlement of all litigated As to clients, I will aspire: matters; (a) To expeditious and economical achievement of all client (3) Seek non-coerced agreement between the parties on objectives. procedural and discovery matters; (b) To fully informed client decision-making. As a professional, I (4) Avoid all delays not dictated by a competent presenta- should: tion of a client’s claims; (1) Counsel clients about all forms of dispute resolution; (5) Prevent misuses of court time by verifying the availabili- (2) Counsel clients about the value of cooperation as a ty of key participants for scheduled appearances before the means towards the productive resolution of disputes; court and by being punctual; and (3) Maintain the sympathetic detachment that permits (6) Advise clients about the obligations of civility, courtesy, objective and independent advice to clients; fairness, cooperation, and other proper behavior expected (4) Communicate promptly and clearly with clients; and, of those who use our systems of justice. (5) Reach clear agreements with clients concerning the (b) To model for others the respect due to our courts. As a pro- nature of the representation. fessional I should: (c) To fair and equitable fee agreements. As a professional, I (1) Act with complete honesty; should: (2) Know court rules and procedures; (1) Discuss alternative methods of charging fees with all (3) Give appropriate deference to court rulings; clients; (4) Avoid undue familiarity with members of the judiciary; (2) Offer fee arrangements that reflect the true value of (5) Avoid unfounded, unsubstantiated, or unjustified public the services rendered; criticism of members of the judiciary; (3) Reach agreements with clients as early in the relation- (6) Show respect by attire and demeanor; ship as possible; (7) Assist the judiciary in determining the applicable law; and, (4) Determine the amount of fees by consideration of (8) Seek to understand the judiciary’s obligations of many factors and not just time spent by the attorney; informed and impartial decision-making. (5) Provide written agreements as to all fee arrangements; As to my colleagues in the practice of law, I will aspire: and (a) To recognize and to develop our interdependence; (6) Resolve all fee disputes through the arbitration meth- (b) To respect the needs of others, especially the need to devel- ods provided by the State Bar of Georgia. op as a whole person; and, (d) To comply with the obligations of confidentiality and the (c) To assist my colleagues become better people in the practice avoidance of conflicting loyalties in a manner designed to achieve of law and to accept their assistance offered to me. the fidelity to clients that is the purpose of these obligations. As to our profession, I will aspire: As to opposing parties and their counsel, I will aspire: (a) To improve the practice of law. As a professional, I should: (a) To cooperate with opposing counsel in a manner consistent (1) Assist in continuing legal education efforts; with the competent representation of all parties. As a profes- (2) Assist in organized bar activities; and, sional, I should: (3) Assist law schools in the education of our future (1) Notify opposing counsel in a timely fashion of any can- lawyers. celed appearance; (b) To protect the public from incompetent or other wrongful (2) Grant reasonable requests for extensions or scheduling lawyering. As a professional, I should: changes; and, (1) Assist in bar admissions activities; (3) Consult with opposing counsel in the scheduling of (2) Report violations of ethical regulations by fellow appearances, meeting, and depositions. lawyers; and, (b) To treat opposing counsel in a manner consistent with his or (3) Assist in the enforcement of the legal and ethical stan- her professional obligations and consistent with the dignity of the dards imposed upon all lawyers. search for justice. As a professional, I should: As to the public and our systems of justice, I will aspire: (1) Not serve motions or pleadings in such a manner or at (a) To counsel clients about the moral and social consequences such a time as to preclude opportunity for a competent of their conduct. response; (b) To consider the effect of my conduct on the image of our (2) Be courteous and civil in all communications; systems of justice including the social effect of advertising meth- (3) Respond promptly to all requests by opposing counsel; ods. (4) Avoid rudeness and other acts of disrespect in all meet- (c) To provide the pro bono representation that is necessary to ings including depositions and negotiations; make our system of justice available to all. (5) Prepare documents that accurately reflect the agree- (d) To support organizations that provide pro bono representa- ment of all parties; and tion to indigent clients. (6) Clearly identify all changes made in documents submit- (e) To improve our laws and legal system by, for example: ted by opposing counsel for review. (1) Serving as a public official; As to the courts, other tribunals, and to those who assist (2) Assisting in the education of the public concerning our them, I will aspire: laws and legal system; (a) To represent my clients in a manner consistent with the (3) Commenting publicly upon our laws; and, proper functioning of a fair, efficient, and humane system of jus- (4) Using other appropriate methods of effecting positive tice. As a professional, I should: change in our laws and legal system.

June 2003 29 GBJ feature

Lawyers: Guardians of Freedom By Anthony Lewis

Editor’s Note: Pulitzer Prize journalist Anthony Lewis spoke at the 21st Annual American Law Institute/State Bar Judicial Procedure & Administration Committee Breakfast on March 20, 2003, in the Sanders Dining Room, courtesy of Troutman Sanders. The event was co-chaired by Tommy Malone, chair of the State Bar Committee, and Senior Judge Dorothy Toth Beasley, member of the American Law Institute. The Committee serves as liaison between the Georgia bench & bar and the ALI. Lewis' remarks, entitled "Civil Liberties After 9/11," are reprinted here. Lewis was awarded the ALI's prestigious Henry Friendly medal last year for his pioneering work at The New York Times in reporting on the Supreme Court of the United States.

believe that lawyers have a Terrorism and the war that our The Bush Administration has done government has declared against it exactly that to two American citi- special responsibility in have put the Constitution under zens. Jose Padilla was born in stress. Rights we have long taken Chicago in 1971, became a gang American society. They are I for granted are under threat. A member, was arrested half a dozen the guardians of our freedom. For striking example: President Bush times and served several jail sen- has asserted the right — the power tences. He became a Muslim and that view, I have been accused of — to arrest any American citizen took the name Abdullah al- being a romantic about the legal and detain him or her indefinitely Muhajir. He traveled to Egypt, in solitary confinement, without Saudi Arabia, Afghanistan, profession. Perhaps so. But the charges, without a trial, without a Pakistan. lawyer. As the basis for that deten- On May 8 of last year Padilla founders of this country put their tion, all the president need do is flew into Chicago from abroad. faith in a novel conception: a writ- designate the person an “enemy Federal agents took him into cus- combatant.” The prisoner cannot tody at O’Hare Airport. He was ten Constitution that binds rulers effectively challenge that designa- flown to a jail in New York where tion in any court. He or she may the Justice Department went before and the ruled alike as law. That not talk to a lawyer or to family a federal judge and got a warrant puts an inescapable obligation on members. That is the government’s for Padilla’s arrest and detention as claim of power. a material witness for a grand jury lawyers and judges. That idea may strike you as sitting there to investigate the Sept. The role of freedom’s guardian extraordinary, impossible. How 11 attacks. On May 15 he was is profoundly important today. could such a thing happen in the brought before a judge, who United States? But it is happening. appointed a lawyer, Donna R.

30 Georgia Bar Journal Newman, to represent him. The Newman, that she could write to in the Bill of Rights, such as the judge set June 11 for a hearing on Padilla — but he might not get the right to counsel. Padilla’s case. letter. She went ahead and chal- Jose Padilla’s case has been decid- But on June 9, two days before lenged his detention in a lawsuit. ed by a federal trial judge, Michael the scheduled hearing, the Justice The Government argued in both Mukasey in New York; it gave Department informed the judge cases that in wartime, courts have Padilla narrow victory: extremely that Padilla had been designated to pay great deference to the presi- narrow. Like the Fourth Circuit, an enemy combatant and flown to dent, with his constitutional power Judge Mukasey said the president a Navy brig in South Carolina. The as commander in chief of the mili- had the power to hold enemy com- next day, June 10, Attorney tary. A court could not re-examine batants without a trial. But he gave General John Ashcroft made a his finding that someone was an Padilla a limited right to consult his statement about Padilla. Ashcroft enemy combatant, the Justice lawyer in order to give her any facts happened to be in Moscow, and his Department argued, if the govern- bearing on his designation as an statement was broadcast on televi- ment showed “some evidence” for enemy combatant. sion to the United States. “We have the designation. Some evidence, Judge Mukasey dismissed as captured a known terrorist,” not a preponderance, and with no “gossamer speculation” the gov- Ashcroft said. “While in chance to challenge what the gov- ernment’s contention that a lawyer Afghanistan and Pakistan, al- ernment alleged because there might, wittingly or unwittingly, Muhajir trained with the enemy…. should be no evidentiary hearing. transmit advice from Padilla to ter- In apprehending him, we have dis- On the issue of the right to see a rorists. He said interference with rupted an unfolding terrorist plot lawyer, the Justice Department the process of interrogating Padilla to attack the United States by objected that lawyers could carry — the other government objection exploding a radioactive ‘dirty out messages to other terrorists. to his meeting counsel — would be bomb.’” Whether that is actually so In the Hamdi case a federal dis- “minimal or non-existent.” The we cannot tell, because there has trict judge, Robert Doumar, was government responded to that been no way for Padilla to contest skeptical of the government’s argu- point with an extraordinary motion the dramatic Ashcroft statement or ment. It produced a nine-para- for reconsideration of Judge for the press to test the case against graph statement by a Defense Mukasey’s decision. him. It was a conviction by govern- Department official, Michael H. The motion included an affidavit ment announcement. Mobbs, saying that Hamdi was an from Vice Admiral Lowell E. Jacoby, A second American citizen is enemy combatant. But Judge director of the Defense Intelligence being held in similar conditions in a Doumar said more than that was Agency. He said that successful Navy brig in Norfolk, Virginia. He required for due process of law. interrogation “is largely dependent is Yaser Hamdi, who was seized in “Isn’t that what we’re fighting upon creating an atmosphere of Afghanistan, taken to Guantanamo for?” he asked. dependency and trust between the Bay as one of the prisoners we are But Judge Doumar was over- subject and interrogator. holding there and then moved to ruled by the U.S. Court of Appeals Developing the relationship…neces- Richmond when he turned out to for the Fourth Circuit. It entirely sary for effective interrogation can be an American citizen. He, too, accepted the government’s argu- take a significant amount of time. was designated an enemy combat- ment about the need for deference There are numerous examples of sit- ant by President Bush. The exact to the president in wartime. It held uations where interrogators have circumstances of his seizure in that the Mobbs declaration about been unable to obtain valuable intel- Afghanistan are not known. Hamdi was enough evidence to ligence from a subject until months, Both Padilla and Hamdi have satisfy any case for a check on the or even years, after the interrogation been the subject of court decisions, presidential finding. And it held process began.” though they were not able to take that the president had power to Admiral Jacoby said that “even part in the cases. For all we know, hold enemy combatants in deten- seemingly minor interruptions can they may not even be aware of the tion indefinitely, because such a have profound psychological decisions. Government lawyers told wartime detention was not a crimi- impacts on the delicate subject- Padilla’s appointed lawyer, Donna nal case subject to the protections interrogator relationship…. Any

June 2003 31 insertion of counsel,” he said, “even Administration after Sept. 11 In 1971 The New York Times if only for a limited duration or for a makes the point dramatically. began publishing the secret history specific purpose, can undo months An Egyptian student, Abdallah of the Vietnam War known as the of work and may permanently shut Higazy, spent the night of Sept. 10- Pentagon Papers. The Nixon down the interrogation process.” 11 at the Millennium Hilton Hotel Administration asked the courts to There was a certain irony in in downtown New York. After the stop publication. Its lawyers said Admiral Jacoby’s affidavit and the terrorist attack a security guard in that the national security would be government motion based on it. the hotel said he had found an avi- gravely injured if the stories kept The very fact that extended interro- ation radio in the room Higazy had coming out. On the fourth day of gation in isolated circumstances occupied. Higazy denied that it publication the counsel for The may break a subject’s will is one was his. He was given a lie-detec- New York Times, Professor reason that the right to counsel is tor test and was told that he had Alexander Bickel, observed dryly guaranteed in the criminal law. It is failed it. He then confessed to own- to the judge: “The Republic still the basis of the Miranda rule. ing the radio. After weeks of deten- stands.” The Supreme Court The Washington Post hailed the tion in solitary confinement he was allowed publication to go ahead, Mukasey decision as a victory for indicted on a charge of lying when and there was no impact whatsoev- civil liberties. The judge under- he said the radio was not his. But er on national security. So we stood, it said, “that without access then a pilot came forward and said should be skeptical, I think, of the to a lawyer and at least some abili- the radio was his — he had left it in argument that, if the government ty to contest the government’s another room at the hotel. The were forced to give the courts first- claim in court, nobody’s rights are security guard admitted that he hand evidence to support its desig- safe.” But how safe would the deci- had made up the tale of Higazy nation of someone as an “enemy sion really make us? The fact owning the radio. Higazy was combatant,” it could “significantly remains that an American is in released. So a prosecution that hamper the nation’s defense.” prison for what could be the rest of looked ironclad turned out to be I have begun with what I think his life on the say-so of government based on falsehood. has been the most menacing attack officials, with no check except the The Economist magazine, which on our civil liberties since Sept. 11, rather slim possibility of a judge has kept a sharp eye on the state of 2001. But the unilateral detention finding that the government did American liberties since Sept. 11, of American citizens without not have any evidence for its claim. wrote of the Padilla case: “It is hard charge or counsel is by no means A long history has shown us that to imagine that America would look the only repressive measure taken accusations by the state against kindly on a foreign government that by President Bush since Sept. 11. individuals, even when made in demanded the right to hold some of One other area must be mentioned good faith, can be wrong. That is its own citizens in prison, incommu- at least briefly. That is the treat- why the English common law nicado, denying them access to legal ment of aliens. developed means such as cross- assistance as long as it thought nec- In the months after the Sept. 11 examination to test charges, and essary, without ever charging them attacks the Justice Department why those protections were put with a crime.” detained hundreds of aliens in into the first ten amendments to The claim of power made by secret, refusing to disclose their our Constitution in 1791. President Bush and his lawyers in names or places of detention. (The But we do not need to go back to the enemy combatant cases is the number was over 1,100 when the the 18th century to know that any most radical assertion of executive department stopped releasing the assertion by the state against an authority in memory. The claim is figure.) They were held for weeks individual must be tested by the said to be based on military neces- or months before eventually being time-honored means of the law. sity. But we must remember one deported or charged with minor Anyone who has seen a courtroom thing. Previous assertions that visa violations such as not taking drama knows that the most con- national security would be at risk if enough courses as a student visitor. vincing story can explode under courts applied the Constitution Little was known about how these the hammer of the legal process. In have repeatedly turned out to be detained aliens were treated, and fact, one case brought by the Bush wrong. interrogated, until The New York

32 Georgia Bar Journal Times published a story by David At Attorney General Ashcroft’s ently failed to report back to the Rohde on Jan. 20, 2003. It was date- order, deportation cases were held INS after 40 days; Haider said the lined Karachi, Pakistan. Rohde had in secret in cases designated by the State Department had told him he interviewed five Pakistani men government. Another Ashcroft did not have to. deported from the United States after order required visitors from 25 But he was lucky. Stephen being detained in Ashcroft’s round- countries, all predominantly Cohen, the director of Brookings’ up. One, Anser Mehmood, said he Muslim except North Korea, to be South Asia program, saw him was held for four months in solitary fingerprinted upon entry and to seized and acted at once to get him confinement in a windowless cell in a report back to the Immigration out of jail. The Foreign Minister of federal detention center in Brooklyn, Service after 40 days. Pakistan, who happened to be in N.Y. Two overhead fluorescent lights A prominent Pakistani editor, Washington that day and was a were on all the time. “No one from Ejaz Haider, ran afoul of the friend of Haider’s, took the matter the F.B.I. and I.N.S. came to interview Ashcroft order for visitors from up with Attorney General Ashcroft me,” Mehmood said. The other four Muslim countries, under menacing and Secretary of State Colin Powell; men said they had been asked only circumstances. Invited to Haider was released. Others, with- cursory questions, such as “Do you Washington by the State out those high contacts, would have like Osama bin Laden? Do you pray Department, he was walking into stayed in detention indefinitely, in five times a day?” If detainees were the Brookings Institution in late secret, and been deported. Stephen asked only such inane questions, or January to attend a conference Cohen of Brookings said, “I never none, interrogation could not have when two armed men in plain- thought I’d see this in my own been the purpose of their detention. clothes stopped him. They told him country: people grabbed on the What was it, then: to give the they were agents of the street and taken away.” American public the impression of Immigration Service and took him Now it is not unusual for civil anti-terrorist activity? to a jail in Virginia. He had appar- liberties to be crimped in this coun-

June 2003 33 try in time of war or national stress. all its commitment to freedom, can making speech in this country It has happened again and again. react to a perceived threat — phan- freer, I believe, than anywhere else Right at the beginning, in 1798, tom threat, in that case — with in the world. Congress passed a Sedition Act repression. Soon afterward nearly But of course there have been that made it a crime to criticize the everyone repented of the Sedition further episodes of repression and president. The country was Act. It was wisdom after the fact: a repentance. The one most familiar gripped by fear: fear that the pattern that would be repeated. to us, I suppose, was Franklin Jacobin revolutionaries of France In World War I, Congress passed Roosevelt’s World War II order to would export their terror to the another Sedition Act at President move 100,000 Japanese-Americans new United States. Wilson’s behest. It prohibited all from their houses on the West Though the French terror was the kinds of speech that might be Coast and detain them in desert stated reason for the Sedition Act, it thought to inhibit government prison camps. We salved our was in fact a political statute designed policy. national conscience for that, even- to suppress supporters of Thomas A. Mitchell Palmer, Wilson’s tually, by paying the survivors Jefferson in his anticipated run attorney general, rounded up sev- modest compensation. against President Adams in 1800. A eral thousand supposedly radical To glance at the episodes of number of Jeffersonian editors were aliens for deportation — the most repression in our history is to realize prosecuted and convicted of abusing sweeping action of its kind until that there is something different the president. So was a pro-Jefferson John Ashcroft’s roundup after Sept. about the threat to civil liberties Congressman, Matthew Lyon of 11. There were numerous federal today. This time a claim of executive Vermont. He had published a letter to and state prosecutions. A group of power to override constitutional the editor saying that Adams was anarchists and socialists who threw rights is being made in a war whose engaged in “a continual grasp for leaflets from the tops of buildings end we cannot predict or even power, in an unbounded thirst for in New York criticizing President define. The terrorists are not going ridiculous pomp, foolish adulation Wilson’s dispatch of troops to to board the battleship Missouri and and selfish avarice.” For that, Lyon Russia after the Bolshevik sign a surrender. That indefinite- was convicted and sentenced to four Revolution were convicted in fed- ness makes the threat to our liberty months in prison and a fine of $1,000: eral court and sentenced to 20 years more profound. And it should lead an enormous sum and one that Lyon in prison — that for criticizing a us to examine with care the legal could not pay. He remained in prison. president’s policy. propositions being advanced by When Jefferson won the election The Supreme Court upheld con- President Bush, Attorney General and took office in 1801, he par- viction after conviction. But judi- Ashcroft and the rest. doned all those convicted under cial dissent began, in the eloquent It is those propositions, those the Sedition Act. In a letter to opinions of Justice Oliver Wendell claims of power, that raise the pres- Abigail Adams, he said he “consid- Holmes Jr. and Louis D. Brandeis. ent danger. The Bush administra- ered that law to be a nullity, as The Constitution commits us to tion has not arrested a high-profile absolute and palpable as if free trade in ideas, Holmes wrote. dissident. But under cover of cases Congress had ordered us to fall “It is an experiment, as all life is an involving obscure, suspicious- down and worship a golden experiment.... While that experi- sounding persons, it is asserting image.” ment is part of our system I think legal claims that, if sustained, Isn’t it wonderful, by the way, that we should be eternally vigilant would haunt us for the indefinite that the two of them corresponded against attempts to check the future. despite their political differences? expression of opinions that we All this is happening with not For Mrs. Adams agreed with her loathe and believe to be fraught much attention from the American husband when he signed the with death.” public. I suppose it is natural for Sedition Act into law, and she We have repented, as a nation, people not to notice, or not to care, called Jefferson’s supporters “the for the repressive prosecutions of when those whose liberties are French party.” political dissidents in those years. being taken away are different from In the experience of 1798 to 1801 The Supreme Court has adopted us — when they are aliens, Muslims you can see how this country, for the views of Holmes and Brandeis, accused of a connection with terror-

34 Georgia Bar Journal ism. We may not identify our inter- courts. “Terrorism does not justify and Aharon Barak to the claim that ests with theirs. But freedom for the the neglect of accepted legal unbridled executive power is need- comfortable depends on freedom norms,” he said. “This is how we ed to deal with terrorism? We can- for the uncomfortable. It is a great distinguish ourselves from the ter- not predict. But judges are not mistake to assume that repression of rorists themselves. They act against immune from the sense of vulnera- someone different from you will the law, by violating and trampling bility, of fear, instilled in all of us by stop there. Remember what Pastor it, while in its war against terrorism, Sept. 11, 2001. Niemoller said about not caring a democratic state acts within the During the agitation over French when the Nazis came for the Jews framework of the law…. It is, there- terror and the Sedition Act of 1798, and the Communists — not caring fore, not merely a war of the State James Madison wrote Vice until they came for him. against enemies; it is also a war of President Jefferson: “Perhaps it is a Where can we look for hope of the Law against its enemies.” universal truth that the loss of lib- maintaining freedom during a war When courts defer to the execu- erty at home is to be charged to without end? The natural American tive’s claim of military necessity, provisions against danger, real or answer would be: Look to the there is a particular danger that was pretended, from abroad.” How far- courts. But through much of our identified by Justice Robert H. sighted the framers of our history courts have bent to claims Jackson when he dissented from the Constitution and Bill of Rights of presidential power in time of 1944 Supreme Court decision were. What Madison perceived war. So they did, notably, when the upholding the removal of the proved true again and again over Supreme Court upheld Roosevelt’s Japanese-Americans from their the next two centuries. But perhaps detention of the Japanese- homes. A judicial decision uphold- we should take some satisfaction Americans in World War II. The ing the president’s order, he said, from that record. For the fact is opinion was written by that great “is a far more subtle blow to liberty” that, for all the dark episodes in our libertarian justice, Hugo L. Black. than the order itself. He continued: history, and all the harm to indi- The Court must accept, he suggest- “A military order, however viduals, the United States two cen- ed, the judgment of “the properly unconstitutional, is not apt to last turies after its birth was an aston- constituted military authorities.” longer than the military emer- ishingly free country. Four years ago, when no war gency…. But once a judicial opinion The question is whether our com- was on the horizon, Chief Justice rationalizes such an order to show mitment to freedom will prove as William Rehnquist published a that it conforms to the Constitution, resilient in an endless conflict with book about courts and civil liber- or rather rationalizes the terrorism. Much depends on the ties in wartime. After looking over Constitution to show that the answer. America’s extraordinary the record, he concluded that Constitution sanctions such an strength has been produced by an judges are reluctant to enforce con- order, the Court for all time has vali- open society. American power in stitutional guarantees against the dated the principle of racial discrim- the world has been as much the government’s wishes “on an issue ination in criminal procedure and of power of its ideals — of freedom — of national security in wartime.” transplanting American citizens. The as of its weapons. If terrorism leads He hardly mentioned the suffering principle lies about like a loaded us to close down the society, then endured by victims of repression, weapon ready for the hand of any the terrorists will have won. like the Japanese-Americans in authority that can bring forward a “Freedom and fear are at war,” World War II. plausible claim of an urgent need…. President Bush said in an address A very different approach has A military commander may over- to Congress on Sept. 20, 2001. In a been urged by the president of the step the bounds of constitutionality, sense different from what he Supreme Court of Israel, Aharon and it is an incident. But if we review meant, so they are. Barak, a judge much admired and approve, that incident becomes around the world. In an article in the doctrine of the Constitution.” the Harvard Law Review last Will our judges, in the end the November he discussed the chal- justices of the Supreme Court, lenge of terrorism for constitutional speak in the spirit of Robert Jackson

36 Georgia Bar Journal GBJ feature

State Bar Navigates Legislature’s ‘Perfect Storm’ By Mark Middleton

into key positions within the exec- accept certified questions of law mid a legislative ses- utive and legislative branches. The from Federal District Courts and sion described by first Republican Governor of adding additional exemptions to Georgia since Reconstruction the real estate transfer tax. some as a political entered office with an entirely new The State Bar also supported A staff. That first legislative day also successful efforts to create a right “Perfect Storm,” the State Bar ushered in new leadership in the of discovery in juvenile court mat- achieved important, and even his- House of Representatives and in ters, and a technical bill to provide the State Senate, newly controlled authority to the Office of Bar toric, legislative success. Of the by a Republican majority. Also, Admissions to continue back- eight State Bar agenda bills that approximately one-third of the ground checks on Bar applicants. 2003 General Assembly consisted The Bar also provided leadership passed both the House and Senate, of freshman representatives and and considerable scholarship in the major accomplishment is the senators representing newly opposing several controversial tort drawn districts. As these new lead- reform initiatives. creation of a statewide indigent ers and members attempted to set- As always, the State Bar worked tle into their roles, they found diligently to support state funding defense system modeled on recom- themselves facing extremely diffi- for various judicial programs. For mendations advocated by the State cult issues such as the state flag, example, at various stages in the predatory lending, education legislative process, funding for Bar. The State Bar also successfully reform, ethics, water resource important programs such as the defended the right of access to jus- management and the worst budget Appellate Resource Center, crisis in more than half a century. BASICS, and Indigent Defense tice, and passed important legisla- Despite these uncertainties, the grants were completely gutted. tive agenda items originating in State Bar once again effectively The State Bar’s legislative repre- advanced the Board of Governors’ sentatives worked to restore fund- the State Bar’s Appellate, Business legislative proposals and funding ing for each of these programs. initiatives as several State Bar bills Law and Real Property sections. 2003 Board of were passed and await the gover- This year’s historic General nor’s signature. In addition to indi- Governor’s Agenda Election produced a unique envi- gent defense reform, the General HB 770: Indigent Defense ronment for all involved in the leg- Assembly passed bills clarifying Reform — At the urging of the islative effort. First, the legislative the corporate code’s merger provi- State Bar, the General Assembly session got off to a predictably sions, expanding the potential of created a state-wide system organ- slow start as new leaders settled the Georgia Supreme Court to ized by the 49 judicial circuits.

June 2003 37 The State Bar’s current leadership, as well as allows for a referendum for an amendment to the Georgia the many individual members who participat- Constitution during the 2004 General Election. Rep. Tom ed in this historic effort, are to be commend- Campbell, R-Roswell, authored the resolution and the companion bill. ed for this great achievement. Senator Preston Smith, R-Rome, provided leadership in the Senate. Under the bill, a state board will set Von Bremen, D-Albany; Rep. SB 97: Additional Exemptions standards and provide accounta- Stephanie Stuckey Benfield, D- from Transfer Tax — This Real bility to the local systems. The leg- Decatur; and Senator Chuck Clay Property Section proposal expands islation addressed local concerns served on the Conference the exemptions from transfer taxes by providing a narrow opt-out pro- Committee that negotiated the bill for conveyances from individuals vision and a local committee to in the final hours of the session. to entities that they control. This select the circuit public defender. “This effort benefited from the bill had a tortured existence as it “This is a landmark achievement State Bar’s historically bipartisan was amended several times in the for the state of Georgia,” said Jim approach to legislation,” stated closing days of the session. The Durham, president of the State Bar. State Bar President-Elect Bill State Bar owes a special thanks to “I am proud that the State Bar took Barwick. “We are grateful to the the bill’s author, Senator Bill a courageous stand in support of leadership of the Senate and the Hamrick, R-Carrolton, and Rep. this process.” State Senator Chuck House for their support of the bill.” Larry Walker who amended the Clay, R-Marietta, concurred: The passage of this bill follows bill on the floor of the House to “Without the State Bar’s effective the recommendations of the Chief reinsert the State Bar’s language on advocacy of the issue, the bill Justice’s Indigent Defense the exemptions. would not have passed. We’re Commission, which was supported SB 211: Corporate Code standing up and giving meaning to by resolution by the State Bar’s Revisions — This Business Law the Constitution.” Board of Governors last year. “This Section initiative conforms Many legislators played signifi- is a landmark piece of legislation,” Georgia’s merger provisions to the cant roles in the passage of this bill. said Speaker Pro Tem Dubose Delaware model act. Two of the Senator Chuck Clay gave the issue Porter. The State Bar’s current lead- legislature’s rising stars worked its early momentum as his Senate ership, as well as the many individ- diligently to ensure passage of this bill was passed almost immediate- ual members who participated in important legislation. Senator ly. At about the same time, the gov- this historic effort, are to be com- David Adelman, D-Decatur, ernor endorsed the passage of indi- mended for this great achievement. authored the bill, and Rep. Jim gent defense legislation, and on State Supreme Court Chief Justice Stokes, D-Covington, shepherded several occasions reminded the leg- Norman Fletcher applauded the the measure through the House. islature of his commitment to indi- effort. “You’ve done a great thing “We are grateful to all of our gent defense reform. In the House, for Georgia and taken a giant step friends in the legislature,” said Jeff the effort was sustained by Speaker forward toward ensuring equal Bramlett, chair of the Advisory Terry Coleman, D-Eastman, who, justice for all.” Committee on Legislation. HB 90: Bar Admissions despite the demands of his new Other Bills Awaiting role as speaker, took a personal Fingerprints — This bill by Rep. interest in the matter, and saw it Governor’s Signature Mike Boggs, D-Waycross, was through to conclusion. Speaker Pro HR 68 and HB 164: Certification requested by the Office of Bar Tem Dubose Porter, D-Dublin; of Questions of Law to the Admissions. New FBI policy Senate Judiciary Chairman Charlie Georgia Supreme Court — This requires them to have statutory Tanksley, R-Marietta; House Appellate Section proposal allows permission in order to continue Judiciary Chairman Tom Federal District Courts to certify their longstanding practice of send- Bordeaux, D-Savannah; Senate questions of Georgia law to the ing fingerprints to the FBI for back- Minority Leader Michael Meyer Supreme Court of Georgia. H.R. 68 ground checks.

38 Georgia Bar Journal SB 116: Juvenile Discovery — Bills Opposed missal rule change that reduces the This bill initiated by the Indigent by the State Bar number of times a plaintiff can dis- Defense Committee provides for miss a lawsuit, and language allow- discovery in juvenile court pro- SB 133: Tort Reform — Senate ing for structured settlement. “This ceedings. The bill was authored by Bill 133 contained numerous tort compromise tort reform package Sen. Bill Hamrick, an emerging reform measures that were support- addresses many of the concerns Senate leader. Rep. Stephanie ed by the medical and business com- expressed by the business and med- Stuckey Benfield, a recognized leg- munities. In opposing the bill as ical communities, and does so with- islative expert on children’s issues, originally filed, the State Bar focused out limiting a citizen’s constitutional handled the bill in the House. on the rights of Georgians to have right of access to the courts…and Appropriations — Fortunately, access to our judicial system. This that’s the key,” said Jim Durham. the judiciary suffered less pain position was very similar to the State SB 195, HB 810, 811: Clerk’s than other state programs. Indigent Bar’s position in 1986, the last major Authority Fee — Once again, the Defense received approximately $2 tort reform effort. This year, the Superior Clerk’s Authority sought million in new funding. All other State Bar produced a comprehensive an elimination or extension of the State Bar endorsed funding pro- paper addressing each of the issues sunset provision affecting the $5 grams such as CASA, Appellate raised by SB 133. Many of the State real estate transfer fee that funds Resource Center, and Victims of Bar’s guidelines and suggestions in the deed indexing project. The Domestic Violence were spared that paper were followed by the leg- State Bar has effectively main- th budgetary cuts beyond the “across islature as they passed an 11 hour tained that the sunset provision the board” cuts received by all modified tort reform package. The provides accountability for the use agencies. The State Bar provided final package included class action of the funds, which are designed assistance on returning funds to reform as supported by the State for the indexing project. the BASICS and the Appellate Bar, forum non conveniens lan- HB 91: Arbitration Appeals — Resource Center, which had been guage that will make it more diffi- HB 91 amends the arbitration code totally eliminated by the Senate. cult for an out of state plaintiff to to provide for an appeal if the arbi- maintain a suit in Georgia, a dis- trator ‘manifestly disregards’ the

June 2003 39 law in making a decision. This leg- authored by Rep. Mack Crawford, leaders Lynn Westmoreland, R- islation addresses a Georgia R-Pike County, received favorable Sharpsburg, and Jerry Keen, R- St. Supreme Court ruling in consideration from the House Simons. We also owe special debts Progressive Data v. Jefferson Ways and Means Committee, but of gratitude to old friends like the Randolph Corp., 275 Ga. 420 (2002). was held because of concerns that chairmen of the House and Senate The bill was held by the Senate the bill will receive unfriendly Judiciary Committees, Rep. Tom leadership in the closing hours of amendment relating to the sale of Bordeaux and Sen. Charlie the session, but the bill’s author, a tax FIFAs. Despite Rep. Crawford’s Tanksley, and Special Judiciary member of the tort reform confer- procedural skill in adding the lan- Committee Chairs, Sen. Rene ence committee, worked effectively guage to a related Senate Bill, the Kemp, D-Hinesville, and Rep. to have the language added to the measure did not pass before the Curtis Jenkins, D-Forsyth. tort reform package. end of the session. Also, several new lawyers in the State Bar Bills Carrying Bar Section Program Capitol supported the State Bar as well. Freshman legislators such as Over to 2004 Session The Bar continues to rely on its Rep. Nick Moraitakis, Senator Progress was made on the fol- Bar Section Legislative Tracking Preston Smith and Senator David lowing State Bar bills, which will Program in which Bar Section Adelman quickly came to the aid of be taken up again in the 2004 ses- members monitor bills of impor- the State Bar. In the Governor’s sion. tance to the Bar during the legisla- office, Executive Counsel, Harold HB 229: Guardianship Code tive session. Bar members tracked Melton, a former Assistant Revision — The Fiduciary bills through the Georgia General Attorney General, and Deputy Section’s bill reorganizes and Assembly Web site, and numerous Executive Counsel Robert updates the Guardianship Code. bills were sent out to the sections Highsmith, a former member of the The bill ran into delays in the for review and comment. Our State Ethics Commission, stepped House, where some members thanks goes out to all Bar members forward at critical times to support wanted to hear more from fiduci- who provided timely responses to the State Bar. ary practitioners on the bill. The the legislative representatives Clearly, this session will be legislative representatives antici- regarding issues affecting the prac- remembered by many as a frustrat- pate a busy summer discussing the tice of law. “The participation of ing and confusing session. merits of this bill with members of the various Sections is vital to the However, for the State Bar, 2003 the legislature. “Legislation of this success of the State Bar legislative will stand as a year of extraordi- magnitude is rarely accomplished program,” said Tom Boller. “Their nary accomplishment. With a con- in one year,” stated legislative rep- expertise gives us tremendous tinued commitment to our biparti- resentative Rusty Sewell. credibility as we present the State san approach and with the ongoing HB 322: Appellate Code Bar’s views to the legislature.” support of the many participating Revision — This bill, authored by Conclusion lawyers, the State Bar looks to Rep. Nick Moraitakis, D-Atlanta, build upon this success in the would cross-reference all statutory Despite the unpredictable ses- future. rights of appeal, and provide a safe sion, this has been an extraordinar- harbor for interlocutory appeals ily productive and successful leg- The State Bar legislative represen- tatives are Tom Boller, Rusty that are mischaracterized by practi- islative session for the State Bar. Sewell, Wanda Segars and Mark tioners. The bill passed the House The State Bar is grateful to Gov. Middleton. Please contact them at of Representatives and will be con- Sonny Perdue for his support of (404) 872-2373 for further legisla- indigent defense reform and other sidered again next year. tive information, or visit the State State Bar initiatives. Also, many HB 654: Recordation of Notices Bar’s Web site at www.gabar.org. of Foreclosure of Right to Redeem individual legislators played sig- — This Real Property Section pro- nificant roles in support of the State posal would require a public notice Bar. The State Bar thanks Speaker that the third party right to redeem Terry Coleman, Speaker Pro Tem has been exercised. This bill Dubose Porter, and the Republican

40 Georgia Bar Journal GBJ feature

BOG Meets in Masters Territory for Spring Meeting By Daniel L. Maguire

t wasn’t quite the Master’s tournament, but members of Ithe Board of Governors came close at their 190th meeting in Augusta. President James B. Durham oversaw a successful weekend, where attendees enjoyed the celebratory meals of past tour- nament winners at the “Feast on the Fairway” at Augusta Golf and Gardens. Although the members didn’t make it to Augusta National, BOG member Sam Matchett takes a practice swing during the Friday evening Feast on the Fairway. they did manage to play a round at assessments for the Bar Facility The complete report is available on the River Golf Club and examine a and Clients’ Security Fund for new the Bar’s Web site at collection of Southern artwork at members, a $20 legislative check www.gabar.org. the Morris Museum of Art. off, solicitation for Georgia Legal Elections Committee Services Program charitable giving During the BOG meeting, with a suggested contribution of Following Deputy General President Durham recognized $125 and sections dues ranging Counsel Bob McCormack’s report, William Zachary Sr. in memoriam, from $10 to $25. the Board unanimously approved as well as the past presidents of the The Board set dues for 2003-04 the following amendments to State Bar, members of the judici- at $190 with indexing annually Article VII, Nominations and ary, and other special guests in thereafter at 4.5 percent, subject to Elections: attendance. Other highlights of the ratification by the Board each year. Sections 2 (a), 7, and 9 removed meeting include: Multijurisdictional the set dates for nominations, Treasurer’s Report and incumbent petitions, ballots, and Practice reporting results in anticipation of Finance Committee Following a report by Dwight the protocol set by new Section 14. After a discussion on the 2003-04 Davis and Chris Townley, the Section 14 was added, determin- Bar dues and the concept of dues Board approved the committee’s ing that the Elections Committee indexing, the Board approved final report and recommendations. should publish a schedule with deadlines for nominations, election

June 2003 41 notices, etc., at least 15 days prior to the Executive Committee meet- ing immediately preceding the Fall board meeting. Real Property Law Aasia Mustakeem gave a report on revising title standards, and the President-Elect Bill Board granted unanimous Barwick visits with approval to the proposed changes BOG member to Georgia Title Standards, Leland Malchow. Chapters 9, 10, 12, 13 and 15. Young Lawyers Division Derek White reported on the YLD’s activities, including its new YLD Director, Deidra Sanderson, and Operation Enduring Lamp, a President Jim pro bono project providing legal Durham and his assistance to military families. wife, Kathleen, take a leisurely Advisory Committee stroll to the on Legislation Friday event. Following a report by Jeffrey O. Bramlett on proposed legislation, the Board approved three legisla- tive proposals: Q Endorsement of Executive Comm- ittee’s Response in Opposition to Tort Reform (S.B. 133) Q Frivolous Litigation (S.B. 225) Q Class Action reform (H.B. 792) BOG member Q The Board also voted to oppose Gary Allen and his H.B. 91, a bill that would allow wife, Mary Lynn, for appeal from arbitration on enjoy the Augusta the basis of a “manifest disre- Golf and Gardens. gard” of the law. For a legisla- tive summary for this session, see the article on page 37. Standards of the Profession Committee Chair John Marshall reported on the mentor program proposed by President Durham the Bar’s Standards of the presents a check Profession committee; the proposal to Georgia Legal Services Program recommends the establishment of Executive Director a mandatory “Transition into Law Phyllis Holman. Practice Program” for beginning 42 Georgia Bar Journal lawyers in Georgia. The program From left: would provide professional guid- Tommy ance and counsel for attorneys who Burnside, are practicing law in Georgia for George the first time and will be considered Mundy, Jeff by the BOG at its Fall meeting. Bramlett and Gerald Georgia Legal Services Edenfield Program discuss the Advisory President Durham presented Committee Georgia Legal Services Executive on Legislation. Director Phyllis Holmen with a check for $307,000 representing contributions received for the Georgia Legal Services Program’s Justice Campaign. Kathleen Durham, left, and Fay Foy Franklin Daniel L. Maguire is the adminis- talk about their hus- trative assistant for the Bar’s com- bands’ respective munications department and a years as president of contributing writer to the Georgia the State Bar. Bar Journal.

June 2003 43 GBJ feature

Diversity CLE and Luncheon Bring Issues to Light By Sarah I. Bartleson

eorgia legal profession- als interested in diver- Gsity gathered at the Hyatt in Atlanta on March 27, 2003, for a CLE conference and luncheon held by the State Bar of Georgia Diversity Program. The CLE included a presentation titled, “A Candid Conversation with the Bench.” The panelists included judges J. Antonio DelCampo, Susan B. Forsling, M. Yvette Miller, Pictured left to right: The panelists included Judge Alvin T. Wong, Chrisna Linda T. Walker and Alvin T. Jones Walker (moderator), Judge Susan B. Forsling, Judge Linda T. Walker, Judge M. Yvette Miller and Judge J. Antonio DelCampo. Wong.

The panel of judges spent the tion is African-American, and we that “We need to hear from all seg- morning discussing important don’t have an African-American ments of the population. Not just in diversity issues. They pointed out state court judge here,” said Judge terms of gender and race, but also that Atlanta has changed over the Wong, the first Asian-American to life experiences. Diversity increases years, and expressed their beliefs be elected judge in the Southeastern the dialogue and helps you get to a that those changes need to be United States. “I got to the bench by more thoughtful decision. The way reflected in the jury panel. running, which has its pluses and to increase the trust and confidence Initially, the panel discussed the minuses,” he said. “You might be a in the public is to make the bench importance of a diverse jury pool, very good politician, but not a very diverse.” diverse counsel and a diverse judi- good lawyer. How do we change The importance of having a jury ciary. With so many minorities that that? If you have a desire to be a of peers was also discussed at come before the bench, the panel judge, build your network, get length. Panelists agreed that when believes it’s important to bring involved in the Bar and volunteer you are in a courtroom, it is com- these issues to light and make an in your community. Then, if you forting to see a face that looks like effort to improve the current state. decide to run, you have a commu- yours in the jury. “I believe there is Diversity in the judiciary was a nity base to run on.” a fundamental lack of using Batson. topic that caused the judges to have Judge Miller, the first African- It’s sensitive. No one wants to a heartfelt discussion. “In DeKalb American woman to serve on the stand in front of their judge, and County, 50 percent of the popula- Georgia Court of Appeals, added other lawyers, and raise a Batson

44 Georgia Bar Journal charge,” said Judge Forsling, State Court of Fulton County. “I am a judge that is not afraid of Batson. The most you will see in Batson is replacing a few jurors. It needs to be utilized more, with sensitivity.” The second half of the program included a luncheon and discus- sion of “The Role of Race and Other Factors in University Admissions,” by keynote speaker Ted Spencer, the director of under- graduate admissions at University of Michigan. An awards presentation was Pictured left to right: Tim L. Williams, Michelle Staes (Diversity also part of the luncheon, and the Director) and Ted Spencer, who was introduced by Williams following Diversity Program before his presentation. awards were given: the Distinguished Service Award to Brent L. Wilson; the Exceptional Service Award to Constangy, Brooks & Smith, LLC; and the Corporate Service Award to Equifax Inc. State Bar Past President Sarah I. Bartleson is the assistant Charles T. Lester director of communications for Jr. and BOG the State Bar of Georgia. member Judge Patrise Perkins- Hooker were among the many attendees at the CLE conference and luncheon.

46 Georgia Bar Journal GBJ feature

IOLTA Wins Monumental Victory By Len Horton

all the dinner tables in America, no the work to set up a separate lmost half a decade after one would ever go hungry.” account to pay net interest to you IOLTA’s 5-4 loss in the “A little known charity actually costs your attorney money. Maybe Phillips decision by the A has figured out how to save what I $20 or more after employee time is U.S. Supreme Court, Interest On call legal table scraps to help thou- charged. Would you want that 83 Lawyer Trust Account programs sands of poor people throughout cents interest if you had to pay in every state in the union won the nation. It’s called IOLTA, more than $20 for it? I don’t, and I their most impressive and signifi- which stands for Interest On bet you don’t either.” cant victory. This time, the U.S. Lawyer Trust Accounts. Here’s “More importantly, when your Supreme Court decided in a 5-4 how it works. You need to see a $1,000 is combined in an IOLTA vote that IOLTA was not an uncon- lawyer because you have a legal account with scores of other small stitutional taking of client proper- problem. After talking with him, amounts from other clients han- ty. The victory was made possible he asks you for money to pay filing dled by that same attorney, the by convincing Justice Sandra Day fees and other future expenses of sum may generate enough interest O’Connor. She had previously representing you. You write him a to pay for account costs and still voted against IOLTA in the Phillips check.” have money left over. That leftover case. “By law he is required to do one money is then sent to a legal chari- The Phillips case taught us that of two things with your money. If ty to help provide legal assistance IOLTA is very difficult to under- it is a lot of money that can be to the poor, to fight child abuse, to stand. IOLTA’s opponents did a invested long enough to earn net educate our children about gov- better job of attacking IOLTA interest, the lawyer will open a ernment, etc.” before the Phillips decision than separate bank account for you. If it IOLTA programs did of explaining is a small sum, say $1,000, and the and justifying IOLTA. This time legal work should be finished the IOLTA community decided it quickly, say within one month, would be better explainers of investing that $1,000 at one IOLTA than ever before. The percent (current world might not agree with us, but rates) for one year it was going to understand us. would bring $10, or 83 Steve Melton, president of cents for one Columbus Bank & Trust Company month.” and the Georgia Bar Foundation, “You probably explained it clearly for everyone in want your 83 an editorial in The Atlanta Journal- cents. Unfortun- Constitution. ately, bank fees “I feel guilty,” he wrote, “when I on the account think about the table scraps we probably will be throw away that could feed people much more than less fortunate. If only there were a that, and doing way to collect all the scraps from

June 2003 47 one. His willingness to put himself on the line got the program started. And he continues to be active today as a member of the Board of Trustees of the Georgia Bar Foundation. When I presented the facts about what could happen to IOLTA rev- enues if Georgia’s program were mandatory, several Bar leaders As a full-time banker, Steve went boding, Justice Kennedy encour- pitched in. They had learned that, on to say, “Lawyer clients cannot aged a future attack on IOLTA if voluntary IOLTA revenues can be helped by killing IOLTA. In that using the First Amendment, even be represented as 1X, then opt-out event we bankers will just keep though he thought the Fifth IOLTA could be 3X and mandatory more money. Before IOLTA we Amendment assault should have IOLTA 8X. In other words, the kept that money, and, if IOLTA succeeded. Basking in the spring $50,000 per month in voluntary dies, we will keep it again.” sunshine of a favorable IOLTA IOLTA could become $400,000 per The charity in Georgia that decision, our supporters realize month in a mandatory program. receives IOLTA account interest is that the legal war may continue. As Even with ridiculously low interest the Georgia Bar Foundation. of mid April, the Washington Legal rates on IOLTA accounts in 2003, Thanks to efforts of many IOLTA Foundation has not said whether it we currently are averaging more supporters all over the country, intends to pursue any First than $400,000 per month. including Melton’s article in the Amendment claim. Jim Elliot made it his personal AJC, IOLTA was beginning to be In Georgia, the news of victory mission to sell the world on understood. Would you as a spread like dogwood blossoms in mandatory IOLTA, and he suc- lawyer’s client insist on getting an Easter wind. I talked individual- ceeded. Cubbedge Snow did the your 83 cents if you had to pay ly with many of the Bar leaders behind-the-scenes negotiating that more than $20 for it? Not even a who supported IOLTA from its created the basic understanding lawyer for the Washington Legal inception and who did the hoeing that still exists today. His efforts, Foundation would want to do that. and tilling necessary to make it combined with those of Foy What apparently carried the vic- grow. I interrupted John Chandler Devine, were the basis for work by tory was the realization by Justice from a meeting to tell him the Chief Justice Harold Clark to reach O’Connor and four other justices news. “This had better be good,” an agreement with Speaker of the that a client had to lose something he said. He forgave me and was House Tom Murphy and the that could be calculated to be greater almost as excited as I was. Georgia legislature to send 40 per- than zero. Since a client’s loss from Bob Brinson, who let me use “A cent of net IOLTA revenues to the IOLTA is never greater than zero, no Painless Way To Give” as our mar- Georgia Indigent Defense Council. compensation was due. If no com- keting slogan during the voluntary In 2002 that amounted to about $2 pensation is due a client, then there days, was ecstatic. He was with me million. To this day, many lawyers is no way for IOLTA to violate the every step of the way during the and certainly many legislators do Fifth Amendment of the United rocky start-up time when limited not know that, in addition to their States Constitution. bank branching made our first rev- time, Georgia lawyers through If client money is mistakenly put enues pitiful. He never gave me IOLTA have contributed more than in the lawyer’s IOLTA account anything other than encourage- $17 million to criminal indigent when it could have been profitably ment. defense through their IOLTA invested for the client, IOLTA pro- Former Chief Justice Tom accounts. grams will refund the interest. No Marshall, who signed the letters Leading the way in educating interest that could have gone to the that went to every Georgia attor- the legislature about IOLTA, for- client is kept for IOLTA. ney as part of the kickoff of volun- mer Superior Court Judge Beth In a dissent both brief and fore- tary IOLTA, was as happy as any- Glazebrook played a vital role in

48 Georgia Bar Journal making IOLTA’s future in Georgia lawyer concerns and created inno- Hines came to IOLTA’s defense secure. vative ways of dealing with those when many lawyers favored shut- As part of the agreement facili- concerns. Out of the feedback it ting down IOLTA immediately tated by Cubbedge and Foy and received came the IOLTA exemp- after the Phillips decision by the negotiated by Chief Justice Clark, tions that made mandatory IOLTA U.S. Supreme Court. 10 percent goes to the Georgia Civil acceptable to most Georgia Always ready to help no matter Justice Foundation. GCJF, under lawyers. what the challenge du jour, Charlie the able leadership of Fred Smith, One person who assisted our Lester and the resources of funds the Layman’s Lawyer televi- Court and facilitated the meetings Sutherland Asbill & Brennan are sion program and the People’s Law and collated the materials and pro- awesome support for IOLTA and School. vided other invaluable support the Georgia Bar Foundation. Almost forgotten are the contri- was Nanci Caldwell, who has Thank you to every Georgia butions of scores of Bar leaders assisted both Chief Justice Thomas lawyer who has or has ever had an who participated in meetings O. Marshall and Chief Justice IOLTA account. And thank you to devoted to IOLTA and whether Norman S. Fletcher. Both chiefs Georgia’s bankers who have and how it should be developed. provided critical leadership at crit- helped IOLTA grow. To you this is As early as the late 1970s and con- ical points in IOLTA’s growth. a major victory. To the thousands tinuing until the Supreme Court of Chief Justice Marshall was instru- of people helped by IOLTA it is a Georgia ordered the creation of mental during the beginning monumental victory. voluntary IOLTA in 1983, regular phase, and Chief Justice Fletcher discussions were held about how along with Justices Sears, Benham, Len Horton is the executive direc- to implement IOLTA. Frank Love, Hunstein, Carley, Thompson and tor of the Georgia Bar Foundation. John Graham, Bo Bradley, Jule Felton, Hon. Duross Fitzpatrick, Lit Glover, David Gambrell, Kirk McAlpin, Evans Plowden, Hon. Adele Grubbs and Bob Reinhardt, to name a few, gave freely of their time. Doug Stewart was omnipresent and always the advocate for IOLTA. He assumed leadership roles everywhere he served, and he served everywhere, including helping IOLTA nationally. Many people do not realize the important role played by Gene MacWinburn. During oral argu- ment to consider whether to con- vert IOLTA in Georgia to mandato- ry, he provided valuable reassur- ance to the Supreme Court of Georgia as it wrestled with argu- ments both for and against. The Supreme Court of Georgia did much more than issue the orders creating and expanding IOLTA. It debated and discussed and held a public hearing about IOLTA. It sincerely listened to

June 2003 49 GBJ feature

Lawyers Foundation to Award Challenge Grants By Lauren Larmer Barrett have provided free legal assistance increase support for legal services he Lawyers Foundation to more than 350,000 low-income for low-income Georgians. This of Georgia will award its clients throughout rural Georgia. project took many hours of effort Twelve offices across the state from the staff and volunteers of 4th Challenge Grants T serve clients in 154 counties, Georgia Legal Services. The project this year. These grants have been excluding only the five-county is now being rolled out across the metro Atlanta area. state, resulting in many more low- awarded to a variety of organiza- Each GLSP office provides legal income Georgians learning about tions around the state over the past services to clients living at or below how they have the support of three years. 15 grants have been 125 percent of the poverty level. Georgia Legal Services for their GLSP attorneys provide legal rep- unmet legal needs. awarded, totaling more than resentation, advice and counsel, 2002 – Georgia Legal Services, an $90,000. In addition, these grants and educational programs to organization that strives to expand clients on legal issues involving access to justice throughout the have been used to generate at least family, housing, employment, con- state of Georgia, was awarded a $90,000 more in contributions to sumer and health care problems. grant in the amount of $8,500 for Many of those clients are members the High-Tech Self-Help Office for the organizations which received of working families. Two-thirds of rural southwest Georgia. The pur- the grants. GLSP clients are women, many of pose of the pilot project is to utilize them mothers. technology and the Internet to These grants have served to GLSP is the only source of legal make legal information and self- inspire and motivate many lawyers assistance to low-income clients help resources available to a very around the state to reach out to and organizations serving low- poor rural circuit. The project will their community and their profes- income clients in many areas out- focus on two specific legal areas, sion, resulting in direct and indi- side metro Atlanta. With a 29-year which include the legal needs of rect benefits to everyone involved. history of service to low-income victims of disasters and aiding con- Each of the projects described communities, GLSP possesses sumers in the completion of appli- below illustrates a need in the com- unparalleled access to and familiar- cations for United States munity met by the lawyers of ity with rural Georgia. Department of Agriculture Section Georgia. The following is a sum- 2000 & 2001 – The Individual 502 homeownership loans and mary of these grants, their recipi- Rights Section and Access to Justice Section 504 repair grants. ents and their results. Committee received challenge A Business Georgia Legal Services grants for the public awareness campaign, Promoting Equal Justice Commitment Georgia Legal Services Program Program of Georgia Legal Services. Committee was founded in 1971 to provide The grants were used to prepare free legal assistance to low-income In collaboration with the State materials to implement the cam- persons in the 154 counties outside Bar of Georgia, GLSP’s Pro Bono paign to raise awareness of and the Atlanta metro area. GLSP staff Project recruits volunteer attorneys

50 Georgia Bar Journal to represent low-income clients on purpose of the literacy program is needs and interests of black a variety of poverty law issues. to enhance AJP clients’ self-esteem, women attorneys. The Civil Pro With the assistance of the State Bar, improve AJP clients’ employment Bono Project is a joint effort by they currently serve more than 25 skills and opportunities for pro- GABWA and the Georgia Access to community-based organizations ductive living, and encourage legal Justice Project to assist imprisoned engaged in affordable housing professionals to help indigent peo- mothers with civil legal matters development, micro-enterprise, job ple in their efforts to gain the edu- involving their children. GABWA creation and training activities, cation and skills needed to live pro- and GAJP have received funding development of community recre- ductive, crime-free lives, thereby from the Georgia Bar Foundation ation and service facilities, and reducing recidivism. for this initiative. Through the Civil other ventures. One of the Pro Western Circuit Bar Pro Bono Project, GABWA and Bono Project’s programs is A GAJP seek to: (1) link women to Business Commitment Project. Association information on their parental rights 2001 & 2002 – The ABC commit- 2000 – The Western Circuit Bar and to attorneys for legal represen- tee allows business lawyers to pro- Association Student Literacy tation; (2) train lawyers to repre- vide pro bono legal services to Project provided each child in sent mothers in family law matters; groups and non-profit organiza- Gaines Elementary School with a (3) help clients make informed tions serving the needs of low- book for his or her birthday, and decisions and choices about their income Georgians. One of the will enlist judges and attorneys to parental rights and responsibilities; many projects they have completed read to the students twice a week. and (4) disseminate information is tax appeal training for attorneys, about the project so that others can allowing the volunteer attorneys to Cobb Justice learn from their efforts. To imple- help many groups with their tax Foundation for ment these goals, the Civil Pro issues. Legal Aid Bono Project hopes to collaborate with other local bar associations, Athens Justice Project The Cobb Justice Foundation and other organizations through- provides legal representation for The Athens Justice Project helps out the state. low income individuals in Cobb indigent persons charged with 2001 – GABWA received a chal- County. crimes in their commitment to lead lenge grant for their Civil Pro Bono 2001 – The Cobb County Bar crime-free lives as self-supporting, Project to provide direct legal serv- Association received a grant for the productive citizens. It combines ices to incarcerated women with Cobb Justice Foundation for Legal legal representation and social sup- family issues that effect the rela- Aid. Legal Aid has represented port for its clients. The AJP staff tionship between the mother and Cobb’s poor in civil legal cases for works with each client to address her children. decades. Their work helps their the causes of their involvement with clients deal with some of life’s most Georgia Diversity the system, including substance basic needs – a safe home, enough abuse and the need for vocational Program food to eat, a decent education, training. It has strong support from The State Bar of Georgia protection against fraud and per- the Athens community, including Diversity Program represents a sonal safety. The grant from the the University of Georgia’s Schools major commitment to increase Lawyers Foundation of Georgia of Law, School of Social Work and opportunities for ethnic minority enabled them to continue this valu- the Western Circuit Bar Association. attorneys in the assignment of cor- able work and helped to strengthen 2002 – The Western Circuit Bar porate and governmental legal the relationship between the Bar Association was awarded a grant work. Participating corporations and Cobb Legal Aid. in the amount of $7,200 for the and government entities seek to Adult Literacy Project of the AJP. Civil Pro Bono Project forge a lasting working partnership The AJP is the only program pro- The Georgia Association of Black with minority lawyers throughout viding holistic indigent criminal Women Attorneys is a bar associa- Georgia. This program is open to defense and supportive social serv- tion formed in 1982 to serve the all minority- and majority-owned ices in the Athens community. The law firms as well as corporations

June 2003 51 and governmental agencies in their leadership skills and learn to which is the first of its kind in the Georgia. think on their feet and to think ana- state of Georgia, will help to reduce 2000 – The State Bar of Georgia lytically. turnover among attorneys Diversity Program Small Practice 2000 – The High School Mock employed by public service organi- Development Center assists new Trial Program received a grant zations and thereby provide crimi- attorneys in their efforts to start a which it used to produce two nal defendants and the citizens of small practice through start-up videos: a one-hour training video Georgia with qualified and experi- loans, mentoring and business and a 27-minute motivational enced public service attorneys. planning. video. The training video is a teach- Douglas County Augusta Conference ing tool to assist in preparation for team mock trial competitions, and Bar Association of African-American the shorter tape is used to encour- 2000 – The Douglas County Bar Attorneys age participation by students, Association Community Action teachers and attorney coaches. It The Augusta Conference of Project purchased law related mate- shows the general public how a African-American Attorneys is a rials for elementary, middle and competition of this nature works, 37-year-old organization com- high schools to expand opportuni- and provides information on how posed primarily of lawyers of color ties for children to learn about the to become active in the program. who are located in Augusta and its legal system, and to promote respect The video was submitted to the surrounding areas. Through its for the law and knowledge of career New York Film Festival competi- members, ACAAA is active in a opportunities in the legal field. tion, and was one of four finalists. wide array of political, civic and The materials distributed were It also captured an Award of religious activities, and is strongly prepared by the Georgia Law Distinction at the Communicators committed to the youth of the com- Related Education Consortium, an Awards Ceremony in Arlington, munity. association of institutions, agencies, Texas. 2000 – The Augusta Conference organizations and individuals with of African-American Attorneys Public Interest a belief that law-related education is Scholarship Competition provides Lawyers Fund an essential element in helping law school scholarships to those in Georgia’s youth to develop into pro- need, in addition to promoting an Last year, the Georgia ductive and law-abiding citizens. understanding of the history of the Legislature created the Public The purposes of the Georgia LRE legal principles and judicial ration- Interest Lawyers Fund, which will Consortium include initiating, al behind equal access to education. provide educational loan forgive- encouraging, developing and sup- ness for attorneys entering public porting LRE programs in Georgia High School Mock Trial service in a variety of areas. and promoting and implementing Instructional Video However, funding has not yet been the inclusion of LRE in pre-school, established by the state. kindergarten through twelfth grade, The High School Mock Trial 2002 – The Georgia Indigent post-secondary and adult curricula. Program is a national program in Defense Council and the A majority of the members rep- which attorneys, as coaches, work Prosecuting Attorneys Council of resent primary and secondary with high school students and their Georgia received a joint grant in school education, both public and teachers. The students are taught the amount of $5,000. In a com- private; higher education; the legal how to conduct a trial, and high bined effort, the two entities will community; the judiciary; govern- schools compete against one anoth- use the funding for the Public ment (including law enforcement); er at the state, regional and nation- Interest Lawyers Fund, which pro- business; and community organi- al level. The students who partici- vides educational loan forgiveness zations. Other members are indi- pate learn through experience how for qualified lawyers entering pub- viduals who head state LRE pro- the legal system actually works lic service either as prosecuting grams or have an active commit- and how they fit into the system. attorneys, public defenders or ment to LRE. Law becomes real; the legal system attorneys working for the Georgia The Consortium was officially is demystified. They also exercise Department of Law. The fund, organized March 1990. It meets

52 Georgia Bar Journal twice a year with its activities con- cal program and various outreach variety of projects. It is also the only ducted through committees and programs. statewide non-profit governed sole- task forces. Participation on these is 2002 – In response to the tragedy ly by attorneys from around the not limited to voting Consortium of Sept. 11, Atlanta Volunteer state. Its board of trustees is chosen, members. Projects include a Lawyers Foundation created a proj- not by another entity, but by the statewide newsletter, The LRE ect by which all emergency services lawyers who donate to the founda- Circuit; a state conference; promo- personnel in Atlanta could have tion. These same attorneys and the tion of LRE Week activities; a wills and advance directives com- Board of Trustees choose its proj- poster contest; awards to outstand- pleted for them and their spouse or ects. Its purpose is to enhance the ing LRE teachers, supporters and partner at no cost. This project is system of justice, and to support students; the Georgia LRE available for duplication by other and assist the lawyers of Georgia Resource Directory; minority- bar associations through the and the communities they serve. directed workshops and materials; Lawyers Foundation of Georgia. Without the Lawyers Foundation, teacher training; youth at risk pro- These projects touched many, the attorneys of Georgia would gram training and materials; and many lives throughout the state of have no organization that exists support of LRE activities through- Georgia, and most can be duplicat- solely to serve the charitable activi- out the state. ed by other groups. If your local or ties of state, local and voluntary Atlanta Volunteer voluntary bar is interested in repli- bars of Georgia, to support educa- cating any of these projects, please tion designed to enhance the pub- Lawyers Foundation contact the Lawyers Foundation. lic’s understanding of the legal sys- The Atlanta Volunteer Lawyers Every local and voluntary bar is tem and to support the profession’s Foundation, Inc., was created encouraged to apply for a Lawyers efforts to increase access to justice. through the joint efforts of the Foundation Challenge Grant. For more information, contact Atlanta Council of Younger These grants can help attorneys Lauren Larmer Barrett at the Lawyers, the Gate City Bar accomplish a great deal in their Lawyers Foundation of Georgia, Association and the Atlanta Legal communities. 104 Marietta St. NW, Suite 630, Aid Society in 1979 to offer lawyers The Lawyers Foundation of Atlanta, GA 30303; (404) 659-6867; an opportunity to provide civil Georgia serves a vital and unique Fax (404) 225-5041; e-mail legal representation for the poor. role in the legal community of [email protected]; web Since then, AVLF has provided Georgia. As the philanthropic arm www.gabar.org/lfg.asp. representation for indigent clients of the State Bar of Georgia, it is the Lauren Larmer Barrett is the through the efforts of volunteer only statewide law-related non- executive director of the Lawyers private attorneys, its student clini- profit that can fund such a wide Foundation of Georgia.

June 2003 53 2003 CHALLENGE GRANT ANNOUNCEMENT The Lawyers Foundation is pleased to announce that it will again award Challenge Grants. The challenge grant program will match, dollar for dollar, up to an amount to be designated at a future date, funds raised by State, local and voluntary bars of Georgia, including bar sections and other law related organizations for projects that meet the criteria of the Foundation.

There will be at least three such grants, and the recipients will be identified by November 15, 2003. $2500 of the Challenge Grant would be paid out at the time of the award notice. The balance of the grants will be paid out shortly after the recipients meet the challenge and raise the required funds. 25 percent of the chal- lenge must be met by January 1, 2004, and the entire amount of the challenge must be raised within 1 year of receipt of the award notice.

The challenge funds: Y Must be derived from sources other than the project grantee Y Must be raised and dedicated specifically for the project in question Y Must be applied only to the Foundation grant. Deadlines The deadline for submitting the completed grant application is September 30, 2003

Guidelines The Foundation shall, in decisions as among otherwise qualifying and meritorious applications for grants or loans, give preferential weight to: matters affecting residents of the State of Georgia and activities which would ameliorate widespread or recurrent serious conditions.

In making grants or loans, the Board of Trustees shall consider, inter alia, as factors entitled to weight: Y whether the funds would be used to fulfill the purposes of the Foundation Y whether the project duplicates other existing programs, Y whether the project offers a multiplier effect for the Foundation’s financial contributions; and Y whether the proposed activity, if continuing in nature, might subsequently be supported by other funds.

The Foundation also considers funding for new and innovative programs which may be of an experi- mental nature and that need assistance in the form of “seed money.”

No grant or loan shall be made to any organization of which any member of the Board of Trustees is an employ- ee or contractor; provided, however, that service by a member of the Board of Trustees as a voluntary attorney with an organization shall not be deemed employment by that organization.

The Foundation is dedicated to the principles of duty and service to the public, improving the administration of justice and advancing the science of law. The Foundation seeks to enhance the system of justice, to support the lawyers who serve it and assist the community served by it. All grants must further one or more of these principles.

The Foundation will provide the Board of Governors of the State Bar of Georgia with an annual report contain- ing a breakdown of each loan or grant made, its purposes, its amount, and the name and address of the recip- ient organization.

The Grants Criteria are valid and applicable for the 2003 Challenge Grants. If any changes are made to the grant making criteria, all applicants will be given an opportunity to amend their application to comply with the changes.

For More Information For more information and grant applications, please contact: Lauren Larmer Barrett, Lawyers Foundation of Georgia, 104 Marietta St., NW, Suite 630, Atlanta, GA 30303 (404) 659-6867; Fax (404) 225-5041; [email protected] "AndState Bar Campaign Justice for the Georgia Legalfor Services All" Program

Your campaign gift helps low-income families and children find hope for a better life. GLSP provides critical legal assistance to low-income Georgians in 154 counties outside the metro Atlanta area. The State Bar of Georgia and GLSP are partners in this campaign to achieve "Justice for All." Give because you care! Check-off the GLSP donation box on your State Bar Association Dues Notice, or use the campaign coupon below to mail your gift today!

Yes, I would like to support the State Bar of Georgia Campaign for the Georgia Legal Services Program. I understand my tax deductible gift will provide legal assistance to low-income Georgians.

Please include me in the following giving circle:

„ Benefactor’s Circle ...... $2,500 or more „ Sustainer’s Circle ...... $250-$499 „ President’s Circle ...... $1,500-$2,499 „ Donor’s Circle ...... $125-$249 „ Executive’s Circle ...... $750-$1,499 „ or, I’d like to be billed on (date) ______„ Leadership Circle ...... $500-$749 for a pledge of $______

Pledge payments are due by December 31st. Pledges of $500 or more may be paid in installments with the final install- ment fulfilling the pledge to be paid by December 31st. Gifts of $125 or more will be included in the Honor Roll of Contributors in the Georgia Bar Journal.

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Please check one: „ Personal gift „ Firm gift

GLSP is a non-profit law firm recognized as a 501(c) (3) by the IRS. Please mail your check to: State Bar of Georgia Campaign for Georgia Legal Services P.O. Box 78855 Atlanta, Georgia 30357-2855 Thank you for your generosity. GBJ feature

Volunteerism in the Profession By Sarah I. Bartleson

opportunities through n his 2002 State of the Union State Bar Sections, the address, President George W. Young Lawyers Division IBush called on all Americans to and the Pro Bono Project, make a lifetime commitment and along with many others. devote the equivalent of at least two Sections years of their lives — 4,000 hours — The State Bar has 35 sec- to service and volunteerism. tions specializing in partic- ular areas of law. Section In the Georgia Rules of membership facilitates the Professional Conduct, Rule 6.1, exchange of ideas, affords Voluntary Pro Bono Publico networking opportunities, Service, states: provides community A lawyer should aspire to ren- involvement opportunities der at least 50 hours of pro bono and social activities. The publico legal services per year. extent to which sections In fulfilling this responsibility, are active is completely at the lawyer should: the discretion of its leader- (a) provide a substantial portion ship and membership. of the 50 hours of legal services “The work of the without fee or expectation of fee organized Bar, including to: its sections, depends on (1) persons of limited means; or volunteers,” said Laurie (2) charitable, religious, civic, Webb Daniel. “I, along community, governmental and with other leaders of the educational organizations in Appellate Practice matters which are designed pri- Marc D’Antonio, a YLD volunteer, and daugh- Section, have helped marily to address the needs of ter, Kate, help paint a room for the communi- advance the goals of this persons of limited means. section by meeting with ty services project that was part of the YLD’s Although there is no disciplinary appellate judges to find Spring Meeting activities last year. penalty for a violation of this rule, all out their views on how Georgia attorneys should consider our section can be of service to the do community service, become bet- the rule and take it to heart, as many courts, by implementing projects ter acquainted with your area of of their colleagues do each and based on those discussions, and by law and build professional rela- every day. putting together quality CLE pro- tionships. Of the more than 27,000 Attorneys in Georgia are grams.” active members of the bar, more involved in many different volun- Through being a member of a than 15,000 belong to a section. teer endeavors. There are a number section and volunteering on special “I have been impressed by the of ways to get involved and volun- projects, there are opportunities to number of other attorneys who teer within the Bar. There are volunteer so much of their time

56 Georgia Bar Journal and talent,” said Thomas F. law. After World War II, however, Allgood Jr., chair of the Family a change in attitude occurred. What is your Law Section. “Volunteers in our The Younger Lawyers Section most memorable section leadership, without excep- was created on May 31, 1947, at the section volunteer tion, seem to consist of the best State Bar’s Annual Meeting. When experience? lawyers from throughout the state the YLS was first enacted, all mem- in the area of family law. Frankly, it bers of the State Bar who had not My most memorable experi- is fun to mingle with the best and reached their 36th birthday were ence was as chair of the the brightest!” automatically members of the YLS. Creditor’s Rights Section when When asked why he volunteers It was later added that attorneys, it received a Section Award of his time in the Intellectual Property regardless of age, who had been Achievement for the year Section, Jeff Kuester, chair, replied, admitted to their first bar less than 2000-01. Considering the sec- “Networking with other attorneys three years were also considered tion is made up of small firms in my practice area helps me build members of the YLS. The basic and sole practitioners, recogni- professional relationships with structure and purpose of the tion of the work that the sec- other attorneys who may potential- organization remain the same tion did was not only surprising ly oppose me on a client matter, today, however, in June of 1998 the but gratifying. which ultimately helps my clients. section was renamed the Young – Jan Rosser In addition, recent cases and Lawyers Division. changes to our practice are often The YLD has 31 hard-working My greatest memory is when discussed at any section event, committees that provide service to an award was established in my which also helps my clients.” the public and the Bar through an honor in 1992 by the Family Alan Clarke, chair of the array of projects and programs. Law Section of Georgia. Entertainment & Sports Law Through the years, the YLD has – Jack P. Turner Section, agrees with Kuester. “In also gained national recognition by My most memorable section addition to being a selfless act, vol- winning several American Bar volunteer experience was glid- unteerism with the Bar enables the Association awards for its projects ing through the rain forests of volunteer to reap tangible rewards and publications. Costa Rica on the “Canopy in his or her own practice,” he said. “Through my volunteer experi- Tour” with Justice Carol “The friendships I have made with ence I have met people from very Hunstein, after she and I led a other attorneys through section diverse and different back- panel on ethical issues for events have eased my negotiations grounds,” said Marc D’Antonio, entertainment lawyers. I think with these lawyers when they are YLD member and co-chair of the she still laughs remembering on the opposing side in a case or Great Day of Service. “I am how pale I was following behind transaction. This has occurred reminded that deep down, we all her, while she boldly rose to countless times.” are more alike than different. My the occasion, bravely leaping experience has been that most peo- YLD from tree to tree on a rope ple I have worked with, regardless several hundred feet in the air. The YLD’s moto is, “Working for of ethnic background or social-eco- – Alan Clarke the Profession and the Public.” nomic class, want to ‘do good’ and When the Georgia Bar Association help others.” The IPL Section provided me was organized in 1883, there was Douglas R. Kertscher, a YLD vol- the first opportunity to prepare no section or division devoted to unteer on the Aspiring Youth and present a discussion at a the interests of young lawyers Program committee, was asked CLE seminar, and as a young because there were no young what he has learned through his patent practitioner, that oppor- lawyers practicing in the state of volunteer experience and replied, tunity meant a great deal to me Georgia. Prior to 1946, the “This is hard to quantify, and it and will always be a memorable Constitution of Georgia and the may sound like a cliché, but I have experience. State Bar rules prohibited anyone learned the little things like the – Jeff Kuester under the age of 40 from practicing office won’t collapse if I leave for a

June 2003 57 few hours, or I really have more What is your most memorable YLD time to give than I thought I did. Volunteer experience? And I’ve learned big things like I get every bit as much out of the Perhaps the most memorable YLD volunteer experience I have had community service as I give.” There are so many reasons to was working with my then 5-year-old daughter, Kate, at the community volunteer, said Michelle Adams, a services project that was part of the YLD’s Spring Meeting activities last YLD executive council member. year. We had fun painting a room at a community center in Savannah. “I’ve always been involved in vol- This was also an opportunity to emphasize to Kate the importance of unteer efforts. But I’ve found as a helping others and that doing so is often a pleasant experience. lawyer, it is a particularly good – Marc D’Antonio idea to get away from my desk and see there is a world out there other It would be a mix of watching the students and parents bubble with than nameless and faceless docu- pride and excitement at the first aspiring youth awards ceremony in ments. Getting some hands on time 1997; the shared sense of purpose and accomplishment among the 20 is a great way to stay sane!” or so strangers at the YLD Great Day of Service in 2000 and 2001; and Pro Bono then Chief Justice Benham’s visit to the aspiring youth program in 2000. – Douglas R. Kertscher The State Bar of Georgia’s Pro Bono Project is also another great way to volunteer your time. The Pro The zoo days with Fulton County DFACs foster kids have by far been Bono Project, created by the State my favorite volunteer times. The kids and the attorneys all have a ball Bar in 1982 in conjunction with the at Zoo Atlanta. The most memorable was one of the children saying Georgia Legal Services Program, is a during a past zoo day, “Hey, I didn’t know lawyers were this cool!” project which assists local bar associ- – Michelle Adams ations, individual private attorneys and communities in developing pro I have most enjoyed working with my committee this year to put on bono private attorney/bar involve- our first CLE seminar. ment programs in their areas for the – Sherry Neal delivery of legal services to the poor. The project also receives support One Saturday, I volunteered to help paint a room at Oak Hill Homes. from the Chief Justice’s Commission Oak Hill Homes is a residential facility for kids in the Fulton County of Professionalism and the Georgia foster care system. One of the children that lives in the facility helped Bar Foundation. me with my painting. His excitement and enthusiasm about helping me Lawyers unable to provide direct legal services to the poor are urged was amazing. It was great fun showing him how to paint and to see to consider alternatives, including how much he enjoyed learning something new. the provision of legal services at a – Leigh Martin reduced fee. Importantly, in recog- nition of the vital role legal services Helping paint a room in a historic school in Savannah has been my most programs play in ensuring access to memorable experience. It is my understanding that Justice Clarence the courts, all lawyers are encour- Thomas attended that school so I thought it was a really worthwhile aged to contribute financially to project. Some of the children came out to watch and help and they legal services programs serving the were totally pleased with our work. It felt good to work on such an poor whether or not they are able to important historical building and to do so with members of the genera- volunteer. tion who are currently reaping benefits from being in the building. There are about one million poor – Tonya Boga people in Georgia, with about 70 percent of the poor living in small cities and rural areas outside

58 Georgia Bar Journal Atlanta. Over 70 percent of Georgia’s lawyers work in the Want to get involved? Here’s a place to start! metro Atlanta area, where only 30 percent of the poor reside. The great Sections majority of those living in poverty Visit any of the 35 section web pages for a variety of useful content at in Georgia are women and children. www.gabar.org/sections.asp. Or contact Johanna Merrill, section liason, Considering that a full time mini- at (404) 527-8774 or [email protected]. mum wage worker earns only $11,960 per year to cover rent, trans- YLD portation, food and clothing, there Lawyers can join a committee of the YLD by completing a form on the isn’t much left to retain a lawyer. Bar’s Web site at www.gabar.org/yldcom.asp or learn how to volunteer When faced with choosing between by contacting Deidra Sanderson, YLD director, at (404) 527-8778 or paying the rent or medical bills and [email protected]. hiring a lawyer, the poor pay their Pro Bono bills and go unrepresented in court You can learn more about Georgia pro bono programs and by visiting unless they are eligible for a legal the Web site at www.gabar.org/GeneralLinks.asp?Header=ProBono. To services program. The Pro Bono learn more about the various programs throughout Georgia you can Project focuses on providing servic- click on www.legalaid-ga.org and look under “Directory of Legal es to those most vulnerable, includ- Programs.” Or call Mike Monahan, the director of the State Bar Pro ing abused women and children, Bono Project, at (404) 527-8763 or [email protected]. families about to lose their home or income source, and people with to the coordination of its pro bono with a YLD project or helping to very special vulnerabilities such as activities. Debbie Segal accepted represent the poor through the Pro the elderly, persons with disabilities the position. When asked how Bono Project, the benefits you and people in institutions. many hours per year Kilpatrick receive will greatly outweigh the In a Pro Bono/Private Attorney Stockton attorneys volunteer, she hours of time you dedicate to help- Involvement Program, lawyers vol- replied, “We expect every attorney ing others. President Bush has unteer their time to represent indi- to do 50 hours of pro bono work asked every American to give up viduals who cannot afford to pay for each year. We’re not quite there 4,000 hours of time, and the Bar has legal services. A variety of different yet. Out of some 450 attorneys, the asked for 50 hours a year. With a activities are considered Pro preliminary totals were around 37 profession as important as the law, Bono/PAI contributions, including: hours on the average last year.” every attorney should want to help Q Lawyers representing individu- “Volunteers get the benefit of the out in some way. als who cannot afford represen- knowledge that they are using their “I volunteer my time because it tation; legal skills to help someone who, was a learned trait,” said Jan Q Lawyers providing advice at without their help, could suffer a Rosser, a director for the Creditor’s specific locations or to certain great loss. They could lose custody Rights Section. “Volunteerism is groups on a regular basis; of their kids, their home or their often a concept that is taught at Q Lawyers counseling the elderly jobs,” said Segal. “Knowing that home or by an employer. Once at Senior Citizens Centers; you have a skill and you can help done, you are hooked on the Q Lawyers addressing low-income someone, and if you don’t nobody benefits!” groups on legal topics; and else will, is a tremendous feeling of Q Lawyers offering training in satisfaction. Even if you don’t win, Sarah I. Bartleson is the assistant legal or quasi-legal matters. you will have given that person director of communications for Big firms in Atlanta have taken faith in the system.” the State Bar of Georgia. the initiative and are doing their part for pro bono too. Two years Conclusion ago, Kilpatrick Stockton felt there Whether you choose to volunteer was a need to dedicate one partner and spend your time in a section,

June 2003 59 Pro Bono Honor Roll

he Pro Bono Project of the State Bar of TGeorgia salutes the following attorneys, who demonstrated their commitment to equal access to justice by volunteering their time to represent the indigent in civil pro bono programs during 2002.

Georgia Legal Services Atlanta Buena Vista Joyce Bussey Conyers Program Sharla Adams Barlow Wayne Jernigan Richard A. Childs (Sponsored by Abbeville Jason Allen Cooper Barbara Barnett Claridge The Rockdale County David G. Morgan David S. Crawford Buford James C. Clark, Jr. BarAssociation) Kimberly D. Degonia Marion Ellington, Jr Leslie L. Cohn William W. Lavigno Adel Michael S. Evans Bradley Coppedge Albert A. Myers Tom Thomas, Sr. Richard B. Herzog Carrollton Robert A. Cowan Calvin Michael Walker Robert S. Huestis T. Michael Flinn Jason Crawford Albany James M. Kane James J. Hopkins Stephanie Crosse Cordele (Sponsored by The Vicky L. Norrid Thomas E. Parmer Pete Daughtery Clifford Harpe Dougherty Circuit Bar Patrise M. Perkins-Hooker Christopher B. Scott Darrell Dowdell Association) Lisa A. Redlin Reuben M. Word Michael Eddings Covington Valerie Brown-Williams Jackie L. Volk William Edwards John B. Degonia Cawthon Custer Cartersville Gregory S. Ellington Reed Edmondson, Jr. Augusta B. Samuel Engram, Jr. Hannibal F. Heredia Rick Flowers James E. Millsaps Thomas M. Alford William Erwin Mary Faye McCord Clay Fuller Mario S. Ninfo J. Patrick Claiborne James Finkelstein Judson Grantham John L. Strauss Jean M. Colohan Gregory Fullerton Cedartown William B. Hardegree William J. Cooney Johnnie Graham Billie Jean Crane Morton Harris Cumming Peter Flanagan Kevin Hall Kenneth Henson Kathy Hedden Allen Johnson Walter Kelley Chattanooga, TN Ronald S. Iddins Thomas P. Knox Kipler S. Lamar Rodney M. Keys Charles G. Wright Paul Kilpatrick Jean C. Shiry Leon Larke Rudolph Patterson Bemon McBride Christopher S. Thurman William J. Marcum Herbie L. Solomon Clarkesville Elizabeth McBride Lauminnia F. Nivens Willie Weaver Douglas L. Henry William Nash Dallas Evita Paschall John H. Nix, III James O. Hindmon Catherine V. Ryan Alma Cohutta John P. Partin Jana L. Evans Terrance Sommers Frank Gonzalez Todd Johnson Pedro Quezada Lee R. 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Sasine Leslie Luck GBJ fiction contest

The Devil Came Down By Brad Elbein

Whether he had a tail hidden was not completely sur- under the suit that fit him like snakeskin. prised when the Devil The Devil sat in one of my client showed up in my office on a chairs. “So,” he began, “let’s get I down to business.” His voice was hot Georgia afternoon. After all, as gentle and as warm as his hand clients from the corporate group and completely without accent. He sounded just like a news anchor- got lost and wandered into my man. His breath smelled sweetly of cinnamon spice as he continued. office all the time. And since it was “You come highly recommended August, the weather was certainly by my clients.” His cologne was subtle: Aramis, perhaps; certainly appropriate for him to make an not anything sulfurous. “Wait a minute,” I protested. I appearance. To top it off, at that was damned if I would take this moment I was on the phone, lying down. “I’m a God-fearing man! Twice a week I go—” engaged in a hell of an argument He waved my protest aside. “I know, I know, twice a week you go with a client who didn’t want to to church. Or is it the Mosque? pay her bill. Temple?” He touched his temple and waved his hand like a movie There was no puff of smoke or producer who can’t remember a clap of thunder or anything super- name. “I keep forgetting the little natural. Suddenly, there he was. Just details. But details aside, I think we as suddenly, I knew who he was. can do business, don’t you? I mean, I hung up in the middle of a sen- you know all about me,” he tence and sat down heavily. “Oh grinned, “and I certainly know all my God,” I said. about you.” “Not quite,” he said with a A lawyer’s stock and trade — chuckle, reaching out across the contrary to Lincoln’s belief — is his desk to offer his hand. reputation. I’d worked hard to Without thinking I took it. The build a reputation. Now I wasn’t hand was gentle and soft, maybe a entirely happy that I was so widely little warmer than you’d normally known. expect a hand to be. I wondered if Like a thunderbolt, terror seized he had horns hidden under his me. If the Devil knew me . . . I carefully coiffed hair. Whether his slumped down in my chair. Sweat tasseled loafers hid cloven hoofs. trickled down my shirt. The sour

64 Georgia Bar Journal taste of fear rose in the back of my The Devil frowned and raised defamatory to me. “Because the throat. My voice trembled as I said: his voice. “Someone wrote some- song says that you were looking for “You’re here to take my soul.” thing about me — ” a soul to steal?” I’m afraid my The Devil laughed. It was a glo- “A book?” I asked. A chill came incredulity was not well hidden. rious, melodic sound that made over me. Tell me, I prayed, tell me “Hell no,” he snapped. “Back you want to laugh along with him. please that he doesn’t want to sue then — before the high-tech bubble “Oh, please — not that. Those old God over the Bible! — that was how we operated. No, myths die hard, don’t they? We “A song,” he sniffed, looking out it’s because of the other thing.” His don’t do things like that. Not any the window. “It contains a faced turned inscrutable, his eyes more. Business is so much more damnable lie about me, if you will darkened. He made an obvious complex and subtle nowadays. As pardon my language. I want the effort to control himself and after a you know.” perpetrator punished.” time said, “It’s the thing about me I waited for him to explain. A song about the devil? I could losing.” Intuition warned me that it doesn’t think of a whole bunch of phrases Apparently the outrage was too pay to get out in front of the devil. from a whole bunch of songs, but much and his control faltered. He Besides, he hadn’t actually said nothing I’d advise suing over. sprang to his feet and towered over that he wasn’t after my soul. I was- There was A Friend of the Devil is me, a hundred feet tall. “The thing n’t inclined to be cordial until we a Friend of Mine and The Silver- about the Devil losing a fiddle con- got that out of the way. tongued Devil and Got a Black test,” he hissed. “It’s outrageous!” The Devil continued, as clients Magic Woman and — He leaned toward me over the desk. will when the lawyer falls silent. “I “The Devil Went Down to “The Devil,” he confided in a whis- find myself in the odd position of Georgia!” I said, sitting up and per, “never loses. Never. Ever.” needing a lawyer.” When I didn’t snapping my fingers. “Never ever loses a fiddle con- say anything, he continued. “I He cringed at the sound. “Don’t test?” I asked from where I’d want to sue someone. For libel. Or do that!” It was the first cross thing shrunk back into the depths of my slander.” He waved the distinction I’d heard him say. His eyes flashed chair. into irrelevance. “I can never keep as he spat: “Damn Charlie Daniels! I “Never loses anything.” He blew it straight.” want to make Charlie Daniels pay!” out his breath. “Particularly not a The idea struck me as humorous, When the Devil says he wants to fiddle contest with a cracker.” He even hysterical. “Someone make someone pay, you wouldn’t spun on his heel and walked two defamed . . . you?” I spluttered. normally think in terms of civil angry steps away, then turned How could you possibly defame damages. But that was apparently back. “You know I taught the Devil Himself? How could you exactly what the Devil wanted. Toscanini?” hold the King of Hell up to “Sue Charlie Daniels,” I said, flab- “I heard that,” I admitted cau- ridicule? What could you say to bergasted. tiously. Clients love to name-drop; damage the reputation of Evil “That’s right. For slander. Libel. usually once the name was out Incarnate? I started to chuckle and Whatever.” there, they shrugged it off like the I am afraid the sound rose quickly I knew the song, of course. There famous person was just one of the to uncontrolled laughter. was only one line that seemed guys. Sure enough, the Devil dis-

Annual Fiction Writing Competition The Editorial Board of the Georgia Bar Journal is proud to present “The Devil Came Down,” by Brad Elbein of Dallas, Texas, as the winner of the Journal’s 12th Annual Fiction Writing Competition. The purposes of the competition are to enhance interest in the Journal, to encourage excellence in writing by mem- bers of the Bar and to provide an innovative vehicle for the illustration of the life and work of lawyers. As in years past, this year’s entries reflected a wide range of topics and literary styles. In accordance with the competition’s rules, the Editorial Board selected the winning story through a process of reading each story without knowledge of the author’s identity and then ranking each entry. The story with the highest cumulative ranking was selected as the winner. The Editorial Board congratulates Elbein and all of the other entrants for their participation and excellent writing.

June 2003 65 missed the great violinist with a “I’m sorry to say that I don’t do “Don’t worry. The managing part- wave. “He had some talent, of that kind of work,” I said with my ner and I have a complete under- course. It was I who gave him fire!” best sorry-I-can’t-help-you expres- standing. In fact, the whole man- He moved his fingers rapidly sion. agement committee and I are like through the air as though they The Devil met my smile with one this.” He held up his hand to show were flying satanically up and just as calm and twice as nice. “In me his intertwined fingers. “Which down violin strings. fact you do!” he said happily. has been, I believe, your contention Then he went back to the issue at “Didn’t you handle that National since you became a partner here.” hand. “I certainly wouldn’t lose a Enquirer case?” He patted his sport coat pockets. fiddle contest to an uneducated The smile melted from my face. “That reminds me. Here’s your country boy,” he sniffed. “To imply Just how much did this guy know retainer.” The Devil pulled a thick that I would is outrageous. about me? Indeed, ten years ago I’d wad of cash out of his pocket. Ridiculous. And you should note,” handled a case against the Now, there are certain styles in he enunciated slowly as he stalked Enquirer, a case my partners still the way clients pay their bills. toward my desk, “that Mister ribbed me about. The paper falsely Construction clients, for example, Daniels doesn’t say who the boy claimed that my client was a hook- will tell you to bill them and then file was. He doesn’t even give me a er. She was really an actress who the invoice with all the other invoic- chance to confront my accuser!” specialized in playing hookers, in a es they don’t intend to pay. Criminal I thought about college and series of adult movies. I didn’t defendants will cry and whine and about my class in Milton and about expect the Devil to know that and pay as little as possible because the Devil losing once. Losing big. I’d practically forgotten about the guilty or innocent, they don’t really But here was the Devil himself case, myself. So now I forced think they owe you anything. Drug looming over me. It seemed myself to breathe deeply and to dealers will throw the money on impolitic to mention what was, think carefully. “That was a long your desk with disgust, like they’re after all, just one side of the story. time ago,” I tried. “I haven’t done throwing slop to the pigs. So I swallowed hard and didn’t say that kind of work in years.” The Devil placed the money on anything at all. “Oh, please. No false humility. the polished mahogany surface He glared at me for a minute or You know, too much humility can gently, exactly between my orna- two, simmering. Then he seemed to be a sin, too.” He must have seen mental scales of justice and my shake himself and pull himself the horror on my face, because he daily billing log. together, as I have often seen clients held up his hand in apology. “I haven’t told you what my do after a blow-up. He sat, crossed “Sorry. Not my business. However, retainer is,” I stammered. his legs and waited for me to speak. didn’t you just yesterday tell some- “Don’t worry about it. Whatever I’ve been in practice for quite a one that you never lose a case? You your retainer is, it’ll be there.” He while. I’ve been fired by my share of remember, I’m sure. You were just winked at me. “There are advan- clients and I’ve fired my share. Now out of the shower at the gym, tages to being the Devil: one of them that I knew what he wanted — now telling that gentleman at the next is that I’m a wizard with money. By that I knew that we were playing in locker all about your nearly the way, that client you were talking my ballpark, not his — I knew just unbeaten record in trial.” to when I walked in? She’s just paid how to handle it. These things need I felt the blood drain from my her bill in full. In fact, all of your to be done with a certain finesse. It face. My arms and legs felt dead, my clients will be bringing their has to be obvious to the client that body empty and weightless. The accounts up to date. Your collec- the representation won’t work out. Devil had overheard my conversa- tions will be so good this month, So I asked him a question to set tion? The Devil had seen me naked? you won’t have to do anything cre- him up. “You want me to sue “Okay,” I said, thinking fast. “I ative with your time sheets.” Charlie Daniels for defamation admit I think I’m pretty good. But I “Look,” I pleaded, desperate for because his song says that some don’t think my law firm would a way out, “isn’t this really a crimi- unidentified country boy beat you want me to take this kind of case.” nal matter? Why don’t you go in a music contest.” He dismissed this objection with down and see the DA?” “Correct.” a laugh, a man totally at ease.

66 Georgia Bar Journal After a pause he confessed: ever met: more than a plaintiff’s stock just before the corporation “Actually, I tried to get in to see the lawyer in front of an Alabama jury. went — what’s your phrase, ‘belly DA. He wouldn’t see me. Something I said, “Everyone deserves repre- up’? — and ruined all those share- about ‘getting behind him.’” He sentation. It’s the way our system holders.” He tsked. brightened. “What a difference with works.” I shook my head, unable to you!” He beamed a smile at me that The Devil remained silent. speak. The Devil knew his busi- I did not find comforting. Restless, I added: “I don’t ness. That was my case, all right. I was running out of objections. endorse the cause of every client I “Then I seem to remember a The truth was simple and since I’d represent. I provide my clients with couple of HMOs you represented. run out of excuses, I thought I’d try advice and representation, not . . . The ones that denied care to cancer it out on him. “I hope my being not . . . approval.” My voice trailed patients, you remember? The sur- honest with you doesn’t offend off, but it echoed hollowly in the vivors sued your clients. As I recall, you,” I said with what I hoped was office. This was what I always said you tore the poor survivors up on a disarming frown. “The truth is when people asked me how I could witness stand.” He shook his head that I don’t really want to represent represent criminals. Something told in admiration. someone of your character.” me that it wasn’t quite the right “It was a simple matter of con- His face fell. He did not glower, argument here. But the Devil didn’t tract law,” I croaked out, looking or scowl, or sneer. His expression give me time to think about it. away. became perfectly blank, his body “Didn’t you represent that offi- “Then there were the drug deal- perfectly still. “Is that a fact?” he cer in that corporation — what was ers who sold crack to the children in asked quietly. Suddenly along with its name?” The Devil tapped his that suburban school. I think you the hint of cinnamon and the smell forehead, trying to remember. got them probation. And that man of Aramis, a wave of profound cold “You remember, the audit commit- who would have killed his wife if wafted over the desk. tee chairman, the one who sold her the gun had been loaded. Probation “So,” I said, clearing my throat and standing. I thought he was taking it well, all things considered. I held out my arm to usher him toward the door. “Thank you for coming by.” I was wondering whether, when my colleagues saw the Devil leaving my office, they’d be impressed. I’d walked two steps toward the door before he spoke again. He sat still in the client chair behind me. “If I remember correctly,” he mused, “didn’t you represent those gentleman from the American Nazi Party? The ones who wanted to march down to the synagogue on Holocaust Memorial Day?” “Yes,” I said slowly, not sure of his point. He remained in my client chair, legs crossed, arms resting comfort- ably on the armrests. Only his head was turned as he stared at me in silence. A slight smile played at the corner of his lips. The Devil smiled more than almost anybody I had

June 2003 67 again.” The Devil slapped his The Devil stood. He held out his You could read it that way, it was hands on his knees and grinned. “I hand, palm up, toward the book- true. could name a whole list of cases just shelf. The volume entitled Rules of Something seemed wrong with like those. In every one, there you Professional Conduct flew across his argument, but … I wished I’d were.” He made an atta-boy ges- the room and landed, open, in his paid more attention to grammar in ture with his fist. “Right in the thick palm. By themselves the pages sixth grade. of the fight. Fighting for justice.” turned as if an unseen thumb were The Devil continued calmly. “I “Fighting for my clients,” I riffling them. He handed the book haven’t asked you to do anything muttered. to me, open to Rule 1.3. “According unethical. Nor would I.” Butter Suddenly the Devil’s voice grew to your own Code of Ethics you wouldn’t melt in his mouth. “I sharp. “Yet you would represent all must represent me.” haven’t given you a single one of those fine upstanding characters—” I scanned the rule quickly, con- the reasons mentioned there” — I flinched at his tone. “Even cealing a grin. Nobody knew the indicating the book — ”for you to obnoxious clients are entitled—” I Rules of Professional Conduct bet- decline my representation.” stopped, recognizing the trap too ter than I. Nobody used them more “But—” late. effectively in litigation. If we were “You yourself told me that every “Whereas I?” He patted himself going to argue the code of ethics, I client is entitled to his day in court. If on the chest with spread-eagled had him. I answered quickly: “This you would willingly represent your fingers. His nails were carefully rule doesn’t require me to repre- Nazi, your drug dealer, your white- shaped and lightly polished. “I am sent you. It only says that if I repre- collar thief, but not me, it would be not entitled to the same considera- sent a client, I have to do it with an indication of the most naked prej- tion. How is my character worse diligence. That’s subjunctive: if. udice on your part. Would it not? than theirs?” Meaning ‘on the condition that.’ That rule in your hand says that you “You’re the Devil! Everybody And that’s a condition that isn’t are supposed to act ‘despite person- knows—” going to happen.” al inconvenience,’ never mind preju- Calmly he interrupted. “Surely The devil smiled — that damn dice. It would be unethical for you to you are not judging me purely by smile was wearing on me — and refuse to represent me based on reputation, counselor. I believe waved a finger at me. “You will your personal convenience or that’s inadmissible.” undoubtedly not be surprised, sir, worse, because of your prejudice.” Silence sizzled heavily around that I am a master of grammar in I stared at him. There was some- us. I sought desperately for a way general and the subjunctive mood thing wrong with his reasoning. I out. After too long a pause, I said: in the particular. You should take a knew that. I knew that you couldn’t “Fine. You’re entitled to represen- look at comment one.” trust the Devil. But just what it was tation. I can refer you to someone.” I read it aloud as I read it to that was wrong I couldn’t quite tell. I crossed quickly to my desk and myself. “‘A lawyer should pursue a The code of ethics floated in front of started fanning through the matter on behalf of a client despite me — the rule was clear, right there Rolodex. Who did I know that opposition, obstruction or personal in black and white — and there was deserved this referral? inconvenience.’” He started to a lot more stuff about access to jus- “I don’t want someone,” the speak but I interrupted. “That only tice and zealous advocacy and the Devil snapped. “I want the best. I means that if I were to represent right to representation that we had- want you.” The Devil gestured to you I’d have to do it with diligence. n’t even gotten to yet. For the first the stack of money. “I’ve already But since I’m not—” time in all my years of litigation the paid your fee, whatever it is. You He waved the objection away. Rules of Professional Conduct failed can’t refuse to represent me.” “As you are no doubt aware, coun- me. “I do refuse,” I said with the selor, the use of the word ‘should’ “I can just refuse to represent stubbornness born of desperation. indicates a positive injunction. That you,” I insisted stubbornly. “Just “It would not be ethical for you rule says that you should represent because I don’t want to.” Even to to refuse.” a client, as long as he doesn’t ask me my voice sounded thin and “It has nothing to do with ethics you to do anything unethical.” As weak. I was grasping at straws. I and I refuse!” he spoke I looked down at the rule. certainly couldn’t cite any legal

68 Georgia Bar Journal authority for that proposition. I “‘The law,’” the Devil said in a I have to confess that, early on, I wasn’t entirely sure I was correct. voice that made it clear he was suffered some doubts. On the day The pages of the book turned in quoting, “‘is not always clear.’” I that I headed down to the court- his outstretched hand as he shook looked down at the rulebook and house to file that very first suit, I his head in disagreement. as if by magic the words were high- felt… well, itchy. I couldn’t shake a “According to Rule 1.16 you can’t lighted as he spoke them. It was nagging feeling. A nagging feeling just refuse.” He returned to his comment one to Rule 3.1. that the Devil had, after all, gotten seat. The book hung in the air. “‘Accordingly, in determining the a piece of my soul. I just couldn’t Not really wanting to look, unable proper scope of advocacy, account figure out how. I mean, I hadn’t to resist, I turned my eyes toward the must be taken of the law’s ambigu- done anything that violated the text. Despite the fact that the Devil ities and the potential for change.’ Code of Professional himself was standing in my office The law doesn’t explicitly prohibit Responsibility — either the and that the pages of the book were the Devil from suing, does it?” Georgia Code or the Model Code. moving magically, the text of the rule I shook my head weakly. And now that I handle so much wasn’t written in fire and brimstone. “Well, then,” he said, a note of of the Devil’s legal work, I just In plain black and white I read triumph sneaking into his voice. don’t worry about it anymore. words I knew well: “A lawyer shall “That settles it.” He clapped his Author’s Note not represent a client… if the repre- hands together like a man who’s sentation will result in a violation of won his argument. He had won, The characters in this story bear the law or the lawyer’s physical or too: I couldn’t see how I could no intentional resemblance to any individuals, beings, or entities, mental condition materially impairs refuse to represent him. Not under either living, dead or transcendent. the lawyer’s ability to represent the the rules. I was thinking wildly, but No reflection is intended on any of client or the client is discharged.” no other answer occurred to me. those lawyers with whom I’ve “I could be wrong,” the Devil The Devil laughed lightly. “I’m worked. In fact, I should note that said, “but I don’t think that any of glad we had this little chat. I find it since I have never practiced in pri- those excuses apply to you.” really helps to clear the air at the vate practice in Georgia, this story must be entirely fictional. Of “No,” I conceded, hanging my beginning of a professional rela- course, the narrator’s comments head. My mental condition wasn’t tionship. Don’t you?” He took a about trial judges are strictly the benefiting from the Devil’s cross- couple of quick steps toward me opinions of the Devil and not the examination, but none of the rule’s and clapped me on the back. “I’ll public views of the author, the State exemptions applied to me. Then a be in touch,” he said. And then he Bar of Georgia or this publication. thought occurred to me. I blurted it disappeared. The book hung in the Finally, I am obligated to confess out in desperation. “There’s no air, rocking a little in his Aramis- that the first line of this story was created by my son, a young writer precedent for the Devil to have and-cinnamon flavored wake. I of great promise. I promised him standing to sue!” physically caught it and returned it that I would not steal this line, but The Devil smiled and the pages to its place in the dust between obviously I have used it prominent- riffled in a whisper. “There is no Legal Ethics and Persuading Juries. ly. I can offer no excuse for my con- precedent yet. Our case would be a That was how I came to repre- duct, except to say that I’ve been a case of first impression. Rule 3.1,” sent the Devil. He isn’t a bad client, trial lawyer for more than 20 years and a writer for longer. Perhaps the he said helpfully. “Part B.” all things considered. He pays all of Devil made me do it. I read it with a chill. “‘A lawyer his bills on time, as do my other shall not . . . knowingly advance a clients now. He answers all of my Brad Elbein is director of the claim under existing law, except questions promptly. He speaks the Federal Trade Commission’s that the lawyer may advance such same language as the firm’s man- Southwest Region. He has pub- a claim ... if it can be supported by agement committee. He gets along lished several law review articles, good faith argument . . .’” really well with judges, with whom including articles in the San Diego “But look,” I objected, “a litigant he seems to share a peculiar under- Law Review and the South has to be a ‘natural person.’ I’m not standing. All in all, it hasn’t been Carolina Law Review. He is a grad- sure you are. I don’t even know if it any more difficult a professional uate of the University of Texas can be done!” relationship than most. School of Law.

June 2003 69 Smith Moore LLP introduced the Smith Moore KUDOS LLP Scholarship, a minority scholarship program. The firm will award two $5,000-per-year law school scholarships to outstanding minority stu- dents with Georgia or North Carolina ties who are Bar entering law school in fall 2003 and who anticipate practicing law in the Southeast after graduation.

Dara Mann of Faegre & Benson was & named the winner of the annual Themis Award by the DuPont Women Lawyers Network at the organization’s Fifth Annual Conference on Women and the Practice of Law. The annual award recognizes a woman in the DuPont legal network who creates opportunities for women lawyers to The Office of the Fulton County District grow in leadership skills. Attorney was recently honored by the Atlanta

Bench Needle & Rosenberg, P.C., was this year’s second City Council for its Community Prosecution place recipient of two “Your Honor” Awards for Program. The council proclaimed Feb. 17, 2003, as Web Site and Identity Launch. The winners of “Community Prosecution Day.” The program, Legal Marketing Association awards are chosen implemented in 2000, has focused on closing for their innovative approaches to marketing and down and seizing crack houses, targeting “open- for the example they set in the legal community. air” drug markets and securing serious jail time for repeat offenders. Chamberlain Hrdlicka’s first-ever advertising campaign garnered one of the top awards at the Martin L. Pierce of Husch & Eppenberger, LLC, 2003 Addy Awards, presented by the Houston became the 18th attorney in Tennessee to be certi- Advertising Federation. In the category of fied as an estate planning law specialist by the Campaign: Black & White, the law firm’s overall Tennessee Commission on Continuing Legal “Chamberlain Hrdlicka Campaign” received a Education and Specialization. His areas of practice gold Addy. include estate and trust taxation, estate planning, business succession planning, wealth preservation Both Atlanta Legal Aid Society and Georgia planning and ERISA. Legal Services Program are in the finals for Fulton County recently dedicated the TechBridge’s Advancing Community Through Judge Romae T. Powell Juvenile Technology Award for their joint Web site, Justice Center. The late Judge Powell LegalAid-GA.org, and for the Georgia served as a Fulton County juvenile Technology Exchange Program. LegalAid-GA.org court judge from 1973-90. She was provides over 700 resources to help Georgians the first African-American to be represent themselves. appointed to a court of record in Alston & Bird LLP is the first law Georgia, and the first to serve as president of the firm in Atlanta to join LifeBoard, a National Council of Family and Juvenile Court program of the American Red Cross’ Judges. The five-story justice center also houses Southern Region that manages blood the Mechanicsville Branch Library. collections at metro Atlanta’s largest companies. Partner J. Vaughan Kilpatrick Stockton LLP is the 2002 winner of the Curtis was named the LifeBoard prestigious Logan Cup Award. The cup is award- Corporate Champion for the firm. The LifeBoard ed to the Atlanta law firm that demonstrates the program is designed to help ensure the adequacy highest generosity of spirit and civic commitment of the region’s blood supply through a well- in their annual United Way campaign. Kilpatrick planned blood collection system that works with Stockton increased their contributions by 49 per- recognized corporate leaders. Its 14 members each cent this year. sponsor four to six blood drives in their compa- Smith, Gambrell & Russell, LLP, was named to nies every year. American Banker’s list of Top Lead Legal Advisors for bank and thrift merger deals in 2002. The firm McGuireWoods LLP was ranked as one of the handled several client transactions listed in the nation’s leading corporate law firms for 2002 by magazine’s 2002 recap of the “top bank and thrift The American Lawyer. The list was published in merger bids,” “line-of-business deals” and “top the magazine’s April 2003 issue. bank and thrift mergers.” SGR represents its finan- cial institution clients in all aspects of their business. Ford & Harrison was ranked among the leading labor and employment firms in the country by the Marc D. Glenn of Powell, Goldstein, Frazer and Chambers USA Guide to America’s Leading Murphy LLP was named Honorary Vice Consul Business Lawyers. The firm was listed first in of Iceland. He will assist the Atlanta office of the Florida under the “Employment: Defendant” cate- Icelandic Consulate General in cultural and educa- gory, and it shared third place in Georgia and sec- tional exchanges and provide support for Icelandic ond in Tennessee in the same category. nationals living in the southeastern United States.

70 Georgia Bar Journal Bench Powell, Goldstein, Frazer & Murphy LLP elected ON THE MOVE Robert C. MacKichan Jr. as counsel. MacKichan’s practice focuses on federal real estate; he often In Atlanta teams with the firm’s government relations group to assist clients in navigating the real estate acqui- Smith & Carson, Inc., has acquired Barnes & sition process of the federal government. The firm Associates, an investigation services company is located at 191 Peachtree St. NE, Sixteenth Floor, based in Los Angeles, Calif. The combined enter- Atlanta, GA 30303; (404) 572-6600; Fax (404) 572- prise will continue to specialize in providing 6999. investigation services to corporate, governmental and legal entities in North America. The firm’s Jeffrey W. Melcher has joined Buker, Jones & & office is located at 375 Northridge Road, Atlanta, Haley, P.C., as a member. The firm is located at GA 30350; (770)350-2550; Fax (770) 399-2770. South Terraces, Suite 170, 115 Perimeter Center Place, Atlanta, GA 30346-1238; (770) 804-0500; Fax Leslie B. Zacks and (770) 804-0509. Bar Bradley W. Grout have joined the law firm of Alston & Bird LLP announced that Luis A. Hunton & Williams as Aguilar has joined the firm’s Atlanta office as a associates in the Atlanta partner in the International and Financial Services office on the Litigation, Groups. He will focus on corporate governance, Intellectual Property mergers and acquisitions, and various aspects of Zacks Grout and Antitrust team. federal and state securities laws and regulations. Zacks’ practice focuses The firm’s Atlanta office is located at One Atlantic primarily on intellectual property litigation Center, 1201 West Peachtree St., Atlanta, GA including patent, trademark and trade secret mat- 30309-3424; (404) 881-7396; Fax (404) 253-8465. ters. Grout’s practice concentrates on intellectual property litigation and commercial litigation. The Michael L. Mason has joined the Legal Services firm’s Atlanta office is located at Bank of America Group of the Federal Home Loan Bank of Plaza, Suite 4100, 600 Peachtree St. NE, Atlanta, Atlanta. The office is at 1475 Peachtree St. NE, GA 30308-2216; (404) 888-4000; Fax (404) 888-4190. Atlanta, GA 30309; (404) 888-5338; Fax (404) 888- 5304. Chamberlain Hrdlicka announced that Mark D. Halverson has joined the law firm to help expand Levine & Smith, LLC, announced that Jon W. its labor and employment department. Hedgepeth has become associated with the firm. Halverson’s former practice involved represent- The office is located at One Securities Centre, 3490 ing management in labor and employment dis- Piedmont Road NE, Suite 1150, Atlanta, GA putes. The firm’s Atlanta office is located at 191 30305; (404) 237-5700; Fax (404) 237-5757. Peachtree St. NE, 9th Floor, Atlanta, GA 30303- 1747; (404) 659-1410; Fax (404) 659-1852. In Columbus Thomas, Kayden, Horstemeyer & Risley, LLP, Page, Scrantom, Sprouse, Tucker & Ford, P.C., announced the hiring of Todd Deveau as a part- announced that J. Ronald Mullins Jr. has become ner. Deveau brings chemical and biotechnology a partner. Mullins will continue his practice in experience to TKHR’s intellectual property prac- civil litigation, local government law, and estate tice. TKHR’s Atlanta office is located at 100 and probate law. The firm is located at 1043 Third Galleria Parkway NW, Suite 1750, Atlanta, GA Ave., Columbus, GA 31901; (706) 324-0251; Fax 30339; (770) 933-9500; Fax (770) 951-0933. (706) 323-7519.

Macey, Wilensky, Cohen, Wittner & Kessler, In Decatur LLP, announced that Todd E. Hennings and Louis G. McBryan have become partners, and Glen D. Rubin has joined the Andrew S. Ree has become of counsel. Lee M. Decatur firm of McCurdy & Mendelson has also become associated with the Candler, LLC, as a partner practicing firm, which practices in the areas of bankruptcy, in the areas of creditors’ rights, bank- real estate, collections, financial institutions and ruptcy and foreclosures. The office is family law. The office is located at Suite 600 located at 250 E. Ponce De Leon Ave., Marquis Two Tower, 285 Peachtree Center Ave. Decatur, GA 30030; (404) 373-1612; NE, Atlanta, GA 30303-1229; (404) 584-1200; Fax Fax (404) 370-7237. (404) 681-4355. In Marietta James D. Comerford has been appointed senior Philip A. Holloway, formerly with the Cobb vice president of McGuireWoods Consulting. He County District Attorney’s Office, announced that will lead the Atlanta office, which provides clients he has entered the private practice of law. He will with a full range of state, local and federal gov- focus on general civil, criminal and domestic liti- ernment relations and public affairs services. gation. His office is located at 399 Washington Comerford will also be a partner in Ave. NE, Marietta, GA 30060; (770) 428-3433. McGuireWoods LLP’s Atlanta law office. The offices are located at 1170 Peachtree St. NE, Suite 2100, Atlanta, GA 30309; (404) 443-5500; Fax (404) 443-5599.

June 2003 71 In Thomasville High School Mock Trial Stephanie B. Tillman was promoted to vice pres- ident and associate general counsel of Flowers Foods. The company has also expanded its legal Bar team to include A. Ryals McMullian Jr. as associ- ate general counsel and Holland C. Kirbo as asso- ciate counsel. The company’s corporate offices are located at 1919 Flowers Circle, Thomasville, GA & 31757; (229) 226-9110.

The Jonesboro team is pictured with attorney coaches Judge John Carbo, Bonnie Smith and Tasha Mosley, along with teacher coaches Matt Ford, Crystal Wessinger and Katie

Bench Powers (GSU student assistant). Jonesboro High Wins State Title for 2nd Year in a Row! The Jonesboro Mock Trial team is the 2003 Georgia State Champion. The two finalists in the competition were Jonesboro High School (Jonesboro) and Clarke Central High School From left: Jones Day attorneys Cathy (Athens). The four semi-finals were Jonesboro Eastwood, Doug Towns and Theresia Moser. HS, Lee County HS (Leesburg), Jenkins HS (Savannah) and Clarke Central HS. Jonesboro will now represent the state of Georgia at the Not-for-Profit Organizations: National High School Mock Trial Championship What You Don’t Know CAN to be held May 6-11, 2003, in New Orleans. Hurt You For information on how your bar association, firm or legal organization can help the new The Bar’s A Business Commitment Committee, in association with the Atlanta Georgia champion defray competition Volunteer Lawyers Foundation, Atlanta expenses, contact the Mock Trial office at Neighborhood Development Partnership, and 404/527-8779, 800/334-6865 (ext. 779) or the Georgia Law Center for Homelessness, [email protected] recently sponsored a seminar on the legal pit- falls not commonly encountered by not-for- profit organizations. The event was held at the Special thanks to those who donated during State Bar of Georgia’s headquarters in down- our Annual Fund Drive, including: town Atlanta. Jones Day co-sponsored the event; partner Doug Towns moderated the sem- Young Lawyers Division inar, and several of the firm’s attorneys spoke Council of State Court Judges on a range of topics. Sterling Spainhour addressed the crowd on Criminal Law Section different corporate and fiduciary issues, includ- General Practice and Trial Law Section ing cutting-edge changes to company by-laws School & College Law Section and articles of incorporation to protect organi- Bankruptcy Law Section zations. Sheldon Blumling lectured on the latest Labor & Employment Law Section tax and benefit issues, covering protection of 501(c) (3) status and compliance with ERISA A full list of donors will be published in our 2003 obligations. Annual Report, Fall, 2003. Relevant employment law issues, including applicable state and federal discrimination laws, JOIN THE MOCK TRIAL COMMITTEE were reviewed by Theresia Mosier, and Anne Johnson spoke about litigation topics such as the visit our Web site www.gabar.org/mocktrial.asp need for a registered agent for service of or contact the mock trial office for a registration process, protecting trademarks, and general lia- form (404) 527-8779 or [email protected] bility issues. Make an impact in your community!

72 Georgia Bar Journal Is it Really a Contingency Fee Agreement?

our newest client, Angel General Counsel Lansdale, is convinced that her Y soon-to-be ex-husband is hiding assets from the divorce court. “I know his

company gives out huge bonuses every fall,”

she tells you. “Somehow they classify it so it

doesn’t look like income to Uncle Sam, but

it’s cash money. I also think he owns proper-

ty in the mountains,” she adds. “He bought a Office of the couple of undeveloped plots last year so he

could build his retirement home.”

“I’ll do some more digging, but we may need to hire a private investigator to track from the property we recover from Charlie. down exactly what Charlie is hiding,” you I’ll tell you what…if we don’t uncover any advise Ms. Lansdale. “I’ve got just the guy. additional assets, you don’t have to pay me. He’ll find whatever is out there — but he If we do find something, you can give me a doesn’t come cheap.” one-quarter interest in it as my fee.” “Oh goodness! I don’t know how I’m “Sounds suspiciously like a contingency going to pay you as it is,” Ms. Lansdale fee agreement,” your paralegal comments exclaims. “Charlie has everything titled in his when you ask her to draw up a new fee name. If you can’t prove how rich he is, the agreement for Ms. Lansdale. “I didn’t think court isn’t going to award me anything!” you could do those in domestic cases.” “Don’t worry,” you assure Ms. Lansdale. “I’m sure I’ve heard about other lawyers “It may be that the Court will make Charlie getting paid this way,” you reply. “And any- pay your legal expenses. At this point I can way, it’s not a contingency fee! She’s paying advance you the money for the investigator my hourly rate for the work I’ve done up until the case is over1. You can pay my fee until now.”

June 2003 73 Who is right? in this case, upon finding hidden Endnotes assets for the property settlement. 1. Georgia Rule of Professional Rule 1.5 of the Georgia Rules of Georgia Formal Advisory Conduct 1.8(e)(1) allows a lawyer Professional Conduct deals with 3 Opinion 36 presented the question to advance court costs and expens- issues related to fees. The rule pro- of whether it is ethically proper for es of litigation for a client. The pri- vides in part: an attorney to enter into a contin- vate investigator’s fee is a litigation (d) A lawyer shall not enter into gency-fee agreement in a divorce expense. an arrangement for, charge or collect: case. Citing the historical rationale 2. Georgia Rule of Professional (1) any fee in a domestic relations Conduct 1.5(c)(1). forbidding these arrangements for 3. Formal Advisory Opinion 36 may matter, the payment or amount of 4 public policy reasons , the Formal be found at p.H-79 of the State Bar which is contingent upon the secur- Advisory Opinion Board found of Georgia 2002-2003 Directory and ing of a divorce or upon the amount such agreements improper5. Handbook. It is also available on of alimony or support, or property So what are your options? You the Bar’s Web site, www.gabar.org. 4. The ABA Annotated Model Rules settlement in lieu thereof. can charge Ms. Lansdale a flat fee Your proposal to waive your fee of Professional Conduct state the or an hourly rate for handling the prohibition as reflecting “public if you do not recover any property case, but your plan to charge based policy concerns promoting recon- from Charlie Lansdale is a contin- upon the assets you find will not ciliation and protecting against gency agreement — whether or not pass muster. overreaching in highly emotional you recover a fee and how much Don’t forget to call the Office of situations.” ABA Annotated Model Rules of Professional Conduct, 4th the fee is depends upon what the General Counsel’s Ethics Angel recovers in her property set- Edition, 1999. p.61. Helpline Monday through Friday 5. Note that Advisory Opinion 47 tlement. The fee is “contingent on with your ethics questions. You can allows contingency fees to collect the outcome of the matter for reach us at (404) 527-8720 or (800) past due alimony or child support. 2 which the service is rendered ” — 334-6865. Lawyer Assistance Program This free program provides confidential assistance to Bar members whose personal problems may be interfering with their ability to practice law. Such problems include stress, chemical dependency, family problems and mental or emotional impairment. The program also serves the families of Bar members, law firm personnel and law students.

If you have a personal problem that is causing you significant concern, the Lawyer Assistance Program can help. Please feel free to call one of the volunteer lawyers listed below. All calls are confidential. We simply want to help you. Area Committee Contact Phone Albany H. Stewart Brown (229) 420-4144 Athens Ross McConnell (706) 369-7760 Atlanta Melissa McMorries (404) 688-5000 Atlanta Brad Marsh (404) 874-8800 Atlanta/Decatur Ed Furr (404) 284-7110 Atlanta/Jonesboro Charles Driebe (770) 478-8894 Cornelia Steve Adams (770) 778-8600 Fayetteville Wiley Glen Howell (770) 460-5250 Hazelhurst Luman Earle (478) 275-1518 Macon Bob Berlin (478) 477-3317 Macon Bob Daniel (912) 741-0072 Norcross Phil McCurdy (770) 662-0760 Savannah Tom Edenfield (912) 234-1568 Valdosta John Bennett (229) 333-0860 Waycross Judge Ben Smith (912) 449-3911 Waynesboro Jerry Daniel (706) 554-5522 Hotline: (800) 327-9631. All Calls are Confidential.

74 Georgia Bar Journal Discipline Notices (February 10, 2003 through April 21, 2003)

By Connie P. Henry

DISBARMENTS/ Georgia by Supreme Court order dated Feb. 10, 2003. The State Bar of Georgia filed a VOLUNTARY SURRENDER Notice of Discipline seeking disbarment of Carolyn E. Craig for her violation of Rule 9.4 Patrick T. Beall

Discipline of the Georgia Rules of Professional Conduct. Athens, Ga. Rule 9.4 provides for reciprocal discipline Patrick T. Beall (State Bar No. 043950) has when another jurisdiction disbars or suspends been disbarred from the practice of law in a lawyer. Craig was disbarred in South Georgia by Supreme Court order dated Feb. Caroline for multiple offenses. Craig admitted 10, 2003. The State Bar of Georgia filed a Notice that she misappropriated client funds; that she of Discipline seeking the disbarment of Patrick failed to communicate with clients; that she T. Beall. Beall was served by publication. The failed to obey a court order; and that she did facts deemed admitted by Beall’s failure to

Lawyer not cooperate with disciplinary authorities. reject the Notice of Discipline show that a Craig did not respond to the Notice of client retained Beall in November 2000 to rep- Discipline seeking her disbarment in Georgia. resent her in a divorce matter and paid him $1,700 in installments. At the time Beall agreed Luther McDaniel to represent the client, he was suspended from Augusta, Ga. the practice of law due to his failure to respond Luther McDaniel (State Bar No. 488125) has to a Notice of Investigation in another discipli- been disbarred from the practice of law in nary matter. Beall never filed the client’s Georgia by Supreme Court order dated Feb. divorce action, did not return any of her phone 10, 2003. The State Bar of Georgia filed several calls, and did not respond to letters inquiring Notices of Discipline seeking to disbar Luther about the status of the case. In April 2001, the McDaniel. McDaniel was served by publica- client sent Beall a certified letter terminating tion. McDaniel did not reject the Notices of his services and requesting a refund of the fee Discipline in accordance with Bar Rules. paid and her file. Beall neither responded to In Supreme Court Docket No. SO3Y0319 the letter nor returned the file. After receiving the facts as deemed admitted show that a a copy of the grievance filed with the State Bar, client hired McDaniel to represent him in a Beall refunded the fees paid by his client. Over dispute with a former employer; that a $15,000 the past several years Beall has been the sub- settlement was reached and McDaniel ject of several disciplinary actions, including deposited the check in his escrow account and two interim suspensions for failing to respond issued a $13,500 check to the client (taking the to disciplinary authorities. One case resulted in agreed upon $1,500 fee); that the check was the imposition of a Review Panel Reprimand. returned for insufficient funds; that McDaniel The Review Panel Reprimand was preceded commingled the funds with his own and used by a suspension from the practice of law for them for his own benefit; that McDaniel twice having failed to appear for the adminis- agreed to pay his client $20,000 in compensa- tration of the reprimand. tion but paid only $3,000, and that McDaniel Carolyn E. Craig disconnected his telephone service and vacat- Surfside Beach, S.C. ed his office without a forwarding address. Carolyn E. Craig (State Bar No. 192834) has SO3Y0320 – A client filed a grievance been disbarred from the practice of law in against McDaniel because, after she hired

June 2003 75 McDaniel to represent her in a legal assured his client that he was pursu- plinary offenses in Florida, that she matter, he did not return her phone ing her claim, but he did nothing to was currently under suspension in calls. He negotiated a settlement but pursue the claim. The client subse- Georgia in a prior matter, and that did not inform the client he had quently terminated McDaniel’s she failed to respond to disciplinary received a check, which he deposit- services and asked for a refund of authorities. ed in his escrow account, commin- unearned fees. McDaniel failed to gled with his personal funds, and return the client’s calls, failed to B. Renee’ Edwards Snead used for his own benefit. appear at scheduled meetings, and Macon, Ga. SO3Y0321 – McDaniel represent- never refunded her money. B. Renee’ Edwards Snead (State ed a client in a criminal case. The SO3Y0324 – McDaniel agreed to Bar No. 240124) has been disbarred client pled guilty on McDaniel’s defend a client in a criminal case but from the practice of law in Georgia advice and asked for his file and for the client, who was incarcerated, by Supreme Court order dated Feb. McDaniel to file a petition for sen- never was able to reach McDaniel. 24, 2003. The State Bar of Georgia tence review. McDaniel did not McDaniel effectively withdrew from filed a Notice of Discipline seeking respond to his client’s requests and, representing the client. McDaniel to disbar B. Renee’ Edwards Snead. although he personally acknowl- did not respond to the Notice of Snead was served by publication. edged service of a Notice of Investigation in this matter. She did not reject the Notice of Investigation filed in this matter, Discipline in accordance with Bar McDaniel was suspended from the Lynn J. Barrett Rules. Snead closed a real estate practice of law in Georgia for failing Fort Lauderdale, Fla. transaction in which she received to respond to it. Lynn J. Barrett (State Bar No. fiduciary funds to pay off the sell- SO3Y0322 – McDaniel was hired 039700) has been disbarred from the er’s first mortgage. The check Snead by a client in an employment dis- practice of law in Georgia by issued to pay off seller’s first mort- crimination matter for which the Supreme Court order dated Feb. 24, gage was returned for insufficient client paid him a $3,500 retainer that 2003. The State Bar of Georgia filed funds. Despite numerous attempts McDaniel assured her would cover a Notice of Discipline seeking to by the seller and his counsel to con- all fees and expenses. McDaniel disbar Lynn J. Barrett. Barrett was tact Snead, she failed to respond to assigned the case to an associate served by publication. She did not the inquiries or account for the who later had to withdraw for reject the Notice of Discipline in funds. Snead removed the funds health reasons leaving McDaniel to accordance with Bar Rules. On or from her account, commingled take sole responsibility for the case. about Aug. 31, 2001, Barrett submit- them with her personal funds, and McDaniel did not inform his client ted a Petition for Disciplinary converted them for her own use. that he had received discovery Resignation to the Supreme Court requests and repeatedly canceled of Florida, resigning her member- Thomas L. Burton meetings scheduled with the client ship in the State Bar of Florida for Brunswick, Ga. to discuss discovery and her deposi- “ethical misconduct.” Barrett was Thomas L. Burton (State Bar No. tion. The court ultimately granted convicted on three charges of grand 097950) has been disbarred from the defendant’s motion to dismiss the theft and one charge of carrying a practice of law in Georgia by case, due to McDaniel’s failure to concealed firearm in Palm Beach Supreme Court order dated March respond adequately to discovery. and Broward Counties, Florida, in 10, 2003. Burton represented a client McDaniel did not inform his client June and September 2001. Barrett’s in December 2000 in the client’s of the dismissal and, upon termina- Petition for Voluntary Resignation defense against criminal charges in tion by the client, failed to refund was accepted and an order entered the State Court of Cobb County. The the unearned fees or return her file. Sept. 26, 2001. Barrett’s resignation Court conducted calendar calls on SO3Y0323 – A client hired was tantamount to disbarment. In Jan. 8, Feb. 19, and April 2, 2001, at McDaniel in connection with an aggravation of discipline to be which neither Burton nor his client employment discrimination case for imposed in Georgia, the Supreme appeared. Although Burton’s which the client gave McDaniel a Court of Georgia noted that Barrett license to practice law was suspend- $3,500 retainer. McDaniel repeatedly had a lengthy history of prior disci- ed for 36 months on Feb. 16, 2001, he

76 Georgia Bar Journal did not inform the Court that his judge to hold the criminal cases REVIEW PANEL license had been suspended and did pending Respondent’s arrival. In not withdraw from representing the the meantime, Respondent’s recep- REPRIMAND client. In May 2001, the tionist submitted a second conflict Shannon Williams Investigative Panel initiated a griev- letter to the judge claiming Macon, Ga. ance against Burton. Although he Respondent was to appear in On Feb. 24, 2003, the Supreme was personally served with the municipal court that morning. Court of Georgia accepted the grievance, he failed to file an ade- Respondent did not know his recep- Petition for Voluntary Discipline of quate response and on Oct. 31, 2001, tionist had submitted the second Shannon Williams (State Bar No. the Court suspended Burton. conflict letter and did not appear in 764130) for a Review Panel municipal court as claimed. When Reprimand. A client hired Williams Woodson Terry Drumheller Respondent finally arrived at the in a child support action and paid Richmond, Va. State Court, the judge conducted a the requested fee. Williams filed the Woodson Terry Drumheller hearing and held Respondent in complaint, attaching a verification (State Bar No. 231110) has been dis- contempt. In mitigation of disci- to which he signed the client’s name barred from the practice of law in pline, the Supreme Court took into and also signed as the notary public. Georgia by Supreme Court order account that Respondent had no The Court noted in mitigation of dated March 27, 2003. Drumheller prior disciplinary record, that he discipline that Williams had no surrendered his license to practice cooperated with disciplinary prior disciplinary record, he had no law in Virginia on Dec. 15, 2000, in authorities, that he was subject to selfish or dishonest motive, he the face of disciplinary charges the imposition of other penalties made a timely good faith effort to involving multiple incidents of and that he was remorseful for his rectify his action, he made full dis- client neglect and failure to commu- actions. closure to disciplinary authorities, nicate. He failed to respond to the and showed a cooperative attitude. State Bar of Georgia’s Notice of R. Scott Cunningham Discipline which resulted in his Dalton, Ga. reciprocal disbarment. R. Scott Cunningham (State Bar INTERIM No. 202225) has been suspended SUSPENSIONS from the practice of law in Georgia SUSPENSIONS William Henry Toler, III for one year by Supreme Court Under State Bar Disciplinary Atlanta, Ga. order dated March 27, 2003. Rule 4-204.3(d), a lawyer who William Henry Toler, III (State Cunningham filed a Petition for receives a Notice of Investigation Bar No. 714238) has been suspend- Voluntary Discipline admitting that and fails to file an adequate ed from the practice of law in from November 2000 to June 2001, response with the Investigative Georgia for one year by Supreme while holding $2,000 belonging to a Panel may be suspended from the Court order dated Feb. 10, 2003. client in his attorney trust account, practice of law until an adequate Respondent was supposed to he commingled client funds with response is filed. Since Feb. 9, 2003, appear before a State Court judge to his personal funds and allowed the one lawyer has been suspended for represent clients in two criminal account to fall below $2,000. violating this Rule. cases. He had previously submitted Cunningham cooperated fully with a conflict letter to the court that disciplinary authorities, although Connie P. Henry is the clerk of the inaccurately stated that he was a he previously received a public rep- State Disciplinary Board. sole practitioner. Another attorney, rimand in 1993. who identified himself as Respondent’s associate, appeared for the State Court matters. Respondent’s associate was inca- pable of proceeding in the matters without supervision and asked the

June 2003 77 10 Cool Summer Time-Saving Tips By Natalie R. Thornwell

Perfect Your Policies and ith summer upon us, Procedures now’s the time to see if From how much vacation your secretary we are on track with our can have to your policy on office use of the W copier, you should have all of your office New Year’s resolutions. Remember those? policies and procedures in writing. If you don’t have a written policies and procedures Management But wait, you say, there’s only so much time manual or it’s in your top assistant’s head, these days. How can you get it all done in then give our department a call to get a sam- ple manual to help develop your own, and your busy law office? Well, here are some yes, it’s even on disk. Remember to keep your policies and procedures realistic for pretty cool tips for what just might be a very your firm. hot summer! Automate Your Practice Do Time Management Contrary to popular belief, automation can’t fix everything. But, it Understand that everyone can help to begin the has the same amount of cure for most ills of time every day — 24 an inefficiently Law Practice hours! Pay attention run law prac- to the times that tice. Make you are most pro- sure com- ductive and plan puters are to make the best net- use of that time worked. when faced Upgrade with complet- right ing big projects before it’s and the like. necessary. Force yourself to Realize that include the upgrade life things you don’t cycle is now at like to do too! Get about every two that “dog file” back on to three years. Get track by calendaring it for a head start whenever review or making a call on the you can! Evaluate your matter. And don’t forget to do a hardware and your software. time entry for your work! Determine whether or not tracking each and every little expense Get “Gadgety” With It is wasting too much of your and your staff’s Save your valuable time by getting a PDA time and charge a flat expense fee instead. (personal digital assistant), smart phone or

78 Georgia Bar Journal some other convergent device. You will then have more time for Manage Your Stress Track your time and expenses on billing and/or relaxing! Eat well-balanced, healthy meals client matters and even look up Control E-mail contact information from any- and exercise. Take real vacations where with these palm-held “Take Back Your Inbox” is a ses- with out being “connected” in any devices. The latest devices allow sion I’ve seen put on at the ABA way to your office. Take breaks you to take digital pictures, dictate, Techshow. Be proactive when read- throughout the day to rest your scan and more! ing and responding to e-mail. eyes, neck, wrists and back. Stretch and walk. Laugh (a lot), play (a lit- Streamline Telephone Incorporate your practice/case management system’s task or to do tle), and SMILE! Communications lists and calendars to make sure you Fall In Love All Over Keep phone tag and emergency get things done. Filter out spam or Again (With Your use a popular spam killing utility. client calls at bay with a new phone Practice) call policy. Make your office the Have a policy that outlines what center for all client telephone com- will, can and can’t be done with Think back to why you chose to munications — not your cell or your e-mail system. Save important go to law school, and why you home phone! Define an emergency e-mails and get rid of all others as chose the practice area(s) in which to your clients in the policy, and you read them. Have a set time for you practice. Would you trade your introduce your staffers who will reading and responding too! practice in to do something else? provide clients with basic, non- Market Smart The practice of law is very challeng- legal information over the tele- ing and very rewarding. Participate phone. Let clients know you WILL Take business cards with you in CLE programs and other events return their phone calls in a timely wherever you go. Write newspaper that complement the work you do. manner and at set times of the day and magazine articles. Design a Join and work hard in local and with emergencies and special cases useful and attractive Web site. Do specialty bar associations that can excepted of course. client-focused seminars. Deliver appreciate your practice. Tell a client newsletters. Develop a firm complete stranger what you do and Use Practice/Case brochure. Keep all your marketing why you love it so much! Dig out Management, Time ideas fresh and up-to-date with an those client thank you cards and Billing and Accounting annual overhaul of your marketing notes, and realize you are helping! Software efforts. Don’t forget to track and Have a happy and safe evaluate how much time you summer! Completely automate your front spend on business development and back office systems and do and the return you’ve gotten on Natalie R. Thornwell is the everything you have been trying to your time investment. director of the Law Practice do manually for years! Make more Management Program of the money and save valuable time in State Bar of Georgia. the process. Get training on these systems from a certified consultant and maximize your productivity and profitability almost immedi- ately. Don’t buy it? How much time do you and your staff waste looking for a correct phone number or address? Looking for a file and then returning a phone call on that file? Doing the billing in your word processor? To remedy some of your main office inefficiencies, run out today and get these programs.

June 2003 79 Bar

The Georgia Asian Pacific American Bar Association Voluntary By Tara Adyanthaya

he Georgia Asian

Pacific American T Bar Association was born 10 years ago in

Atlanta, the brainchild of sev-

eral local attorneys, including

the Honorable Alvin T. Wong,

now a judge in the State Court

of DeKalb County; Professor GAPABA Board Members (from left to right). Standing: Sam Choy, John Wu and Li Wang. Seated: Naho Kobayashi, Tara Natsu Saito Jenga, of Georgia Adyanthaya, Judy Kim and Han Choi. State University; and Attorney Linda Klein, Chinese, Filipino, Asian Indian, Japanese, Korean, Vietnamese, or Pacific Islander past president of the State Bar of Georgia (which includes Guamanians, Hawaiians and (there were actually 10 founding members, Samoans). Asian Americans have come to the United States from over 20 countries, repre- and Judge Wong and Professor Jenga pored sent more than 60 different ethnicities, and speak a multitude of languages. Our organi- over the Georgia Bar directory to find Asian zation brings together lawyers of extremely names). different backgrounds. I myself am half- Indian and half-Irish. As there is not, to my As the current president of GAPABA, I am knowledge, an Irish American Bar struck by the diversity of our organization. Association or an Irish-Indian American Bar According to the United States census, an Association, I am pleased to be a part of an Asian Pacific American is described as a per- organization that embraces at least part of son of one of the following ethnicities: my heritage.

80 Georgia Bar Journal Which brings me to an impor- American Law Students’ Social Services in providing assis- tant point about our organization: Association. Recently, our member tance to minors who were victims you do not need to be of Asian Judith Kim was active in organiz- of human trafficking who arrived descent to be a member. All that is ing a showing of the documentary in the U.S. without documents and required for membership is that “Who Killed Vincent Chin” at unable to speak English. We also you are a member of the Bar and Emory University, a film that are working with the Center for share Asian American interests. In examined the racially motivated Pan-Asian Community Services to fact, you do not even have to be a slaying of a Chinese American in develop a legal hotline to provide member to attend our events. I Detroit during the American referrals for Asian immigrants or invite everyone who reads this arti- Automobile industry crisis of the Asian Americans who need legal cle to our upcoming 10th 1980s. After the movie, we partici- advice. The project will provide Anniversary Banquet, which will pated in a discussion led by an referrals to bilingual attorneys and take place on Thursday, June 26, at Assistant United States Attorney in will provide access to pro bono 7 p.m. We are in the process of the hate crimes unit and an attor- attorneys or affordable attorneys securing a location and a speaker, ney from the Lambda Legal based on the party’s resources. but I can promise tasty food and Defense Foundation. We have Since 1999, together with CPACS, interesting conversation to all who hosted dinners at Chinese and we have sponsored classes for attend. Please contact me if you are Korean restaurants on Buford Asians and Asian Americans on interested in attending, and I will Highway and Indian Restaurants topics such as Criminal Law, provide you with more specific in Doraville. We also have spon- Constitutional Law and Civil information when we have it. sored a number of lectures and Justice, Immigration, Business One of the main focuses of our educational programs to assist our Law, Torts, Labor and organization is to promote net- membership in developing their Employment Law, Real Estate, working opportunities and cultur- professional skills. Wills, and Family Law. The al/political/legal education for our GAPABA members have volun- People’s Law School recruits legal membership. We hold bi-monthly teered their talent and language practitioners, both Asians and non- happy hours and have functions skills to organizations that provide Asians, to teach in English, while that include student members of pro bono legal services. Our mem- an interpreter translates it into the APALSA, the Asian Pacific bers have worked with Catholic classes’ native language for those who do not speak English. GAPA- GAPABA’s 2003 Board of Directors: BA members also have volunteered to assist Asian immigrants in President applying for citizenship and to Tara Adyanthaya, Morris Manning & Martin assist Asian Americans in register- Vice President ing to vote. Cindy Wang, Georgia Indigent Defense Council In November of 2002, GAPABA Treasurer hosted the Fourteenth Annual Shaney B. Lokken, Sutherland, Asbill & Brennan Convention for our national Secretary umbrella organization, NAPABA Li K. Wang, Arnold Golden & Gregory (the National Asian Pacific American Bar Association). Hosted Board Members for the first time in Atlanta, the Han Chun Choi Nelson Mullins Riley & Scarborough Samuel S. Choy Seyfarth Shaw Convention was held at the Quyen Kiet Kiet & Associates Swissotel in Buckhead and chaired Isidor Kim Powell Goldstein Frazer & Murphy by our very own Lisa Chang (Jones Judith Kim Board Member at Large Day), the 2001-2002 NAPABA Naho Kobayashi Powell Goldstein Frazer & Murphy President. Deputy Attorney Amy Woo Weber Moore Ingram Johnson & Steele General Larry D. Thompson (for- John Wu Consumers’ Utility Counsel Division merly of King & Spalding) addressed over 300 attendees as

June 2003 81 the keynote speaker at the annual Museum; Judge Alvin T. Wong Looking for a gala banquet. In another conven- (DeKalb State Court), Partner’s new position? tion highlight, Robert K. Woo Dinner coordinator; Jeannie Lin (King & Spalding) received the (Georgia Lottery), Convention NAPABA Trailblazer Award for Treasurer; Jessy Lall (Office of State Outstanding APA Attorney for the Admin, Hearings), Publications; Looking for Southeast Region. Diane LaRoss (Powell Goldstein a qualified The participation of key GAPA- Frazer & Murphy), Exhibit and the BA members also actively ensured Job Fair coordinator; Robert Woo, professional? the success of our convention. Han CLE programs coordinator; and Choi (Nelson, Mullins, Riley & Bonnie Youn (Dixit & Youn), Scarborough) served as Registration & volunteer coordina- Look no further Fundraising Chair and organized tor. Crucial to the event was the than the State Bar the annual golf tournament (one support of dozens of local attor- that did not inspire any protests!). neys and students, too numerous of Georgia’s Corporate sponsors included such to name. Online Career Fortune 100 companies as In a separate effort to provide Mercedes-Benz USA, Federal improved services to our member- Center Express, Anheuser-Busch, Coca- ship and the community at large, Cola and Wal-Mart. Han was so GAPABA is revamping its Web site www.gabar.org successful in garnering sponsor- (www.gapaba.org). The new Web ship that GAPABA received signif- site will serve as a portal to the icant funds from convention pro- legal community, where attorneys Post jobs ceeds to assist us in our future com- and laypersons may exchange Post resumes munity projects. information. The new Web site is I organized the Annual Thomas scheduled to go online in summer, Search jobs Tang National Moot Court and users will be able to search for Search resumes Competition, hosted at my firm, bilingual attorneys. The new Web Morris Manning & Martin. Begun site will also provide information in 1993, the competition honors the in different Asian languages. Powered by the Legal late Judge Thomas Tang, who Though GAPABA is a relatively Career Center Network served on the U.S. Court of new local bar organization, we Appeals, 9th Circuit from 1977-95. have accomplished much in our He was one of the highest ranking brief tenure. We look forward to APA jurists at the time the compe- many more years of serving the tition was formed. Over 64 attor- community. Please feel free to con- neys from various firms and gov- tact me if you would like more ernmental agencies volunteered as information about our organization judges. Law students from all over or would like to participate in any the country argued a problem of our upcoming activities. modeled after the recent University of Michigan case involving the Tara Adyanthaya is an attorney in school’s discretion in promoting the litigation group at Morris diversity in its admissions prac- Manning & Martin, LLP. For more tices. information concerning GAPABA events, she can be reached at Other GAPABA convention [email protected]. Li Wang leaders included: Chong Kim (Solo (Arnall Golden & Gregory) and practitioner and Fulton County Bonnie Youn assisted in drafting magistrate judge), organizer of the this article. Trailblazer Reception at the High

82 Georgia Bar Journal Page Officers of the Court By Paul W. Bonapfel Editor’s note: This is the second part in a three part series.

style? Is it possible to practice in the grand here are two things that stand out style today? Will it be possible to practice in the grand style 25 years from now? in my mind from my law school The concept of what is “professional” con- career. One is my first day of law duct in terms of ethical standards has cer- T tainly changed in 25 years. I turned to my school when property law professor Roger law school casebook on legal ethics and found some things that many will now find Groot walked in and, with no introduction or curious. In the early 60s, a lawyer in Wisconsin other comment, stated, “Judgment only has shared office space with his non-lawyer spouse who had a tax-preparing business. I Professionalism one ‘e.’” Isn’t it strange that I remember that imagine this setting as being a two-story more than the Rule in Shelley’s Case, the rule walk-up of some sort in a small town with windows facing Main Street. On one window against perpetuities, or the intricacies of is a sign for the spouse’s office that states “Income Tax Returns Prepared” and on the cross-alternative contingent remainders? other is a neon sign with the lawyer’s name. The second is the last day of my Federal Is there an ethical issue here? Well, we Courts class taught by Professor Ray might think that a lawyer’s shingle should be Forrester. I can’t give you a biography on something other than in neon lights, Professor Forrester or tell you whether he although that is apparently no problem for was or was not a “giant” in the law, although accountants, at least in Los Angeles, where he did write our Federal Jurisdiction case- there are two skyscrapers with the names of book, which qualified him in my mind as a accounting firms at the top. renowned scholar that we were lucky to have The neon light sign was a problem, but not at Georgia. the only one. The other problem was the In any event, on the last day of our class, “Income Tax Returns Prepared” sign. This which consisted mostly of third-years in their sign was for the non-lawyer spouse’s income final quarter of law school, he wished us well tax preparation service, but the problem was and exhorted us, whatever we did, to practice that the spouses shared office space and so it law in the “grand style.” I thought I wanted to was possible that the public might think the do that — to practice law in the “grand style.” sign related to the lawyer’s practice. Putting I didn’t know what the “grand style” was, up such a sign by a lawyer was a no-no under maybe still don’t, and I’m not sure that I’ve prevailing standards. The ethics committee done that, but that was what I wanted to do. complained that, given the shared space, the As I have reflected on that exhortation, I lawyer violated ethics rules by permitting the have thought that maybe Professor Forrester spouse to put up the sign because it amount- was really talking about “professionalism.” ed to solicitation of business by a lawyer. My son is now applying to law school and The Supreme Court of Wisconsin found hopes to become a lawyer. Will someone both of these things to be unprofessional encourage him to practice law in the grand conduct.1 This is what the court said:

June 2003 83 “Solicitation of business by a American Bar Association then in like the Life magazine article lawyer is unprofessional conduct.” effect and it prohibited “advertis- offended the traditions and low- Let me repeat that. “Solicitation of ing.”3 ered the tone of our profession and business by a lawyer is unprofessional The first line of Canon 27 was as was reprehensible. Today, law conduct.” follows: firms have “marketing depart- The court then went on (empha- It is unprofessional to ments” that may employ as many sis added): solicit professional employ- people as the “big” firms had as With very narrow excep- ment by circulars, advertise- attorneys 25 years ago.4 They turn tions, largely limited to sim- ments, through touters or by out things like a 16-page supple- ple identification of the personal communications or ment to the Fulton County Daily lawyer’s office, proper use of interviews not warranted by Report published in January by a professional cards and let- personal relations. national Atlanta law firm and Big terheads, and proper listing Canon 27 thus prohibited adver- Five accounting firm, complete in directories, advertising in tising, but it went even further with photographs and complimen- any form is deemed solicita- (emphasis added): tary material about the firms. tion of business, and unpro- Indirect advertisements Think for a moment about how fessional conduct. for professional employ- those activities would have been There was nothing unusual about ment such as furnishing or seen under Canon 27. that statement 25 years ago. inspiring newspaper com- Now take a look at Rule 7.2 of Although some were beginning to ments, or procuring his pho- the Georgia Rules of Professional challenge enforcement of the rule on tograph to be published in Conduct (2001), which expressly free speech, due process and right to connection with causes in permits advertising through public counsel on constitutional grounds, which the lawyer has been media such as a newspaper or peri- that was the prevailing view. or is engaged or concerning odical, outdoor advertising, radio As another example from the the manner of their conduct, or television, or other written, elec- 60s, there was the New York firm the magnitude of the interest tronic, or recorded communica- that permitted itself to be inter- involved, the importance of tion.5 viewed for a Life magazine article the lawyer’s position, and all There is an article in a recent edi- about the practice of law by a firm other like self-laudation, tion of the ABA Journal entitled “Law in Manhattan. The article actually offend the traditions and at the Crossroads.”6 The author had flattering things to say about lower the tone of our profes- examines trends and developments the lawyers, their practices, what sion and are reprehensible; in the practice in a much broader and they did and how they helped their but the customary use of more authoritative manner than I clients. The article was even accom- simple professional cards is have done here. The article notes the panied by photographs of some of not improper. growth in the size of law firms and the lawyers. What would the authors of these makes this observation: The New York ethics gendarmes statements think about billboard Probably the most signifi- found a bar violation and this is advertising by lawyers? Ads on tel- cant change accompanying what the court said (emphasis evision? Newspaper advertise- the huge growth [in the size added):2 ments? At a different level, “spon- of national law firms] has Where, as here, there has sorships” of public radio or televi- been the evolution from law been a deliberate encourag- sion programs or Atlanta as a profession to law as a ing or fostering by attorneys Symphony concerts by law firms business. Profits per partner of self-interest publicity to whose name is prominently dis- and revenues are the new be afforded by a news medi- played or announced? “Beauty measures of success. um or magazine article, and contests” and “requests for propos- I mentioned this to a partner in a the personal and laudatory als” as a means for clients to choose large national firm headquartered aspects of the article have a counsel? Web sites with descrip- in Atlanta who thought this assess- tendency to promote their tions of firms, their lawyers, their ment is correct. “Profits per partner private interests, there is practices, their experience, their and revenues” are measures for a unquestionably a violation of other clients and even the dreaded lawyer’s success? Canon 27. photographs? The ABA article contains an even Canon 27 was one of the ethical Twenty-five years ago, a court more stunning observation canons promulgated by the ruled that “indirect advertising” (emphasis added):

84 Georgia Bar Journal One observer, Russell G. Lawyers are indispensable to the It is from this commitment, this Pearce of Fordham administration of justice and vital duty as officers of the court, that University School of Law in to the well-being of the court. our responsibility to comport our- New York, says he believes We throw this concept of attor- selves as professionals arises. We the emphasis on money was neys as “officers of the court” do things in certain ways not mere- inevitable. He says the focus around a lot, but do we ever stop ly because we are required to do had to change once the legal and really think about it? What them in that way, not merely profession finally jettisoned the does it mean to be an “officer of the because there are punishments if vestiges of the 19th century ideal court?” We spend so much time in we do not, not merely because we of lawyers as a governing class and around courts that we over- or our clients will benefit. who practiced law but also were look the miracles that happen there We do things in certain ways — concerned with the public good.7 everyday. A dispute is presented, a we act as professionals — because Have we jettisoned the 19th cen- judge makes a decision and enters our society, our civilization, our tury ideal of lawyers as a “govern- an order on a piece of paper — or freedom, in the final, ultimate, ing class” who practiced law but through a combination of electrical analysis, depends on how we func- also were “concerned with the pub- impulses, perhaps, in the digital tion as attorneys. lic good?” world we’re in — and we expect that Do I exaggerate the importance Our Georgia Rules of order to be followed. of attorneys? Are lawyers, as the Professional Conduct certainly We take it for granted in our Georgia Supreme Court has stated, don’t think so. Here is a portion of country that when a court makes a “indispensable to the administra- the preamble to these rules: decision, it will be obeyed — tion of justice?” A lawyer is a representa- whether the issue is who shall be Shakespeare certainly thought tive of clients, an officer of the president of the United States or so. We are all familiar with the line the legal system and a citizen whether a creditor must return a “The first thing we do, let’s kill all having special responsibility repossessed car to a Chapter 13 the lawyers.” Our detractors quote for the quality of justice.8 debtor. In a very real sense, our this line to prove how frustrating In 1969, in a case challenging the legal system is at the core of our and unproductive lawyers are, relatively new requirement that all freedom, and it is our impartial and how lawyers get in the way, and attorneys in Georgia be members independent judiciary that is at the how the world would be better off of the State Bar of Georgia, foundation of that legal system. without them. Georgia’s Supreme Court This is what gives us, as is often Yet this phrase was not uttered expressed a lawyer’s position and said, the rule of law and not of men. by a citizen tired of dealing with responsibilities in this way It is our courts that protect our lawyers or who thought them (emphasis added):9 liberties and our property. Other unproductive. Rather, the proposal An attorney does not hold regimes have set up governments is made by a potential despot dedi- an office or public trust, in on paper that promised freedom for cated to subjugating the people the constitutional or statuto- the people. History has shown that and depriving them of their liber- ry sense of that term, but is those protections are meaningless ties. His plan is that, if there are no an officer of the court. He is, without the institution of an inde- lawyers, the people will have no however, in a sense an offi- pendent, impartial judiciary that one to assert their rights and pro- cer of the state, with an obli- can protect the rights of citizens. tect them in the courts; he and his gation to the courts and to the And lawyers are officers of that insti- cohorts will be able to rule without public no less significant than tution. Officers. Officers carry out the challenge. He wanted to eliminate his obligation to his clients. mission of the body that appoints lawyers, certainly, not because The office of attorney is them. Officers are the agents through lawyers are evil, but because they indispensable to the admin- whom an appointing body does its protect the people. istration of justice and is inti- work. Officers protect and defend John Adams thought lawyers mate and peculiar in its rela- the appointing body. were indispensable, too. Our sec- tion to, and vital to the well- This special status as lawyers, ond president wrote in one of his being of, the court. this position as officers of the court, letters: “No civilized society can do Lawyers are officers of the court. imposes on us a commitment to the without lawyers.”10 Lawyers have an obligation to the courts in which we practice to This hasn’t changed. Courts public that is no less significant than assist them in their work in the can’t protect the innocent, convict their obligation to our clients. administration of justice. the guilty, enforce due process and

June 2003 85 equal protection of the law, in 2. In re Connelly, 18 App. Div.2d 466, 4. See T. Carter, Law at the Crossroads, short, do justice, without the assis- 240 N.Y.S.2d 127 (1963). 88 ABA Journal 29, 34 (January 3. Canon 27 of the American Bar 2002). The author writes: tance of lawyers. Lawyers bring the Association Canons of Professional Back in the late 1970s, when spe- issues to the courts, advocate the Ethics (1966) provided as follows: cialized legal affairs reporting rights of their clients, explain the It is unprofessional to solicit pro- became a mainstay, reporters had fessional employment by circulars, to chase after lawyers to get sto- law to their clients and counsel advertisements, through touters or ries. Now they run from them. them about the court’s decisions. In by personal communications or A lot of lawyers suddenly realized reality, the courts can only be as interviews not warranted by per- that press is good. It gave them good as the lawyers practicing sonal relations. Indirect advertise- name recognition, even made ments for professional employ- some of them famous. It brought before them. ment such as furnishing or inspir- them clients. I don’t mean to suggest that our ing newspaper comments, or It wasn’t long before lawyers and freedom hangs in the balance procuring his photograph to be law firms were hiring people sole- published in connection with caus- ly to answer reporters’ questions, because of a lawyer’s unprofes- es in which the lawyer has been or get the word out about their cases, sional or unethical behavior. is engaged or concerning the man- and control the spin when things Surely, it’s a stretch to think that ner of their conduct, the magni- went awry. tude of the interest involved, the In 1985 the Legal Marketing the preservation of our liberties importance of the lawyer’s posi- Association was created. Today it depends on one lawyer being cour- tion, and all other like self-lauda- has 1,250 members. According to teous to another or that our repub- tion, offend the traditions and the association, three-fourths of the lic is threatened by the submission lower the tone of our profession largest 250 law firms in the coun- and are reprehensible; but the cus- try now employ LMA members. of a sloppy brief. tomary use of simple professional 5. Rule 7.2, GEORGIA RULES OF At the same time, however, the cards is not improper. PROFESSIONAL CONDUCT provides as strength of our judiciary is built, bit Publication in reputable law lists follows: in a manner consistent with the (a) Subject to the requirements of by bit, piece by piece, on the confi- standards of conduct imposed by Rules 7.1 and 7.3, a lawyer may dence that our citizens have in it these canons of brief biographical advertise services through: (1) and the respect they have for it. and informative data is permissi- public media, such as a telephone ble. Such data must not be mis- directory, legal directory, newspa- Citizens gain confidence in the leading and may include only a per or other periodical; (2) out- legal system through their daily statement of the lawyer’s name door advertising; (3) radio or tele- interactions with lawyers like you and the names of his professional vision;(4) written, electronic, or and me. Confidence and respect associates; addresses, telephone recorded communication. numbers, cable addresses, branch- (b) A copy or recording of an are reinforced when there is fair lit- es of the profession practiced; date advertisement or communication igation on the merits according to and place of birth and admission shall be kept for two years after its the rules and an impartial and to the Bar; schools attended, with last dissemination along with a dates of graduation, degrees and record of when and where it was independent judge makes a fair honor; legal authorships; legal used. and impartial decision after listen- teaching positions; memberships 6. T. Carter, Law at the Crossroads, 88 ing to both sides. Confidence and and offices in bar associations and ABA JOURNAL 29, 30 (January committees thereof, in legal and 2002). respect are denigrated when the scientific societies and legal frater- 7. Id. at 31. rules are broken or abused, when nities; the fact of listings in other 8. Preamble to Georgia Rules of the adversary or opposing counsel reputable law lists; the names and Professional Conduct. is maligned, when the court is not addresses of references; and, with 9. Sams v. Olah, 225 Ga. 497, 504, 169 their written consent, the names of S.E.2d 790 (1969). independent or impartial or clients regularly represented. A 10. See D. McCullough, JOHN ADAMS appears biased or prejudiced. certificate of compliance with the 591 (2001) It is the lawyers, in their dealings Rules and Standards issued by the Special Committee on Law Lists with each other, their clients, and may be treated as evidence that the courts, who are responsible, as such list is reputable. much as anyone else, for the quali- It is not improper for a lawyer who is admitted to practice as a ty of justice in our society. It is the proctor in admiralty to use that lawyers who will, piece by piece, designation on his letterhead or strengthen or weaken our judicial shingle or for a lawyer who has system. complied with the statutory requirements of admission to prac- tice before the patent office to use Endnotes the designation ‘patent attorney’ or 1. State v. Willenson, 20 Wis.2d 519, ‘patent lawyer’ or ‘trademark 123 N.W.2d 452 (1963). attorney’ or ‘trademark lawyer’ or any combination of those terms.

86 Georgia Bar Journal 2003 LAW SCHOOL ORIENTATIONS NEED YOU!

The Orientations on Professionalism conducted by the State Bar Committee on Professionalism and the Chief Justice’s Commission on Professionalism at each of the state's law schools have become a permanent part of the orientation process for entering law students. The Committee is now seeking lawyers and judges to volunteer from across the state to return to your alma maters or to any of the schools to help give back part of what the profession has given you by dedicating a half day of your time this August.

< Purpose of the program: To introduce the concept of professionalism to first-year students < Minimal preparation is necessary for the leaders < Review the hypos and arrive at the school 15 minutes prior to the program < Committee will provide leaders with a list of the hypos including annotations and suggested questions < Two (2.0) hours of CLE credit will be offered, including 1.0 hour of Ethics and 1.0 hour of Professionalism < Pair up with a friend or classmate to co-lead a group (Please note, if you are both recent graduates we will pair you with a more experienced co-leader)

Please consider participation in this project and encourage your colleagues to volunteer. Please respond by completing the form below or calling the Chief Justice's Commission on Professionalism at (404) 225-5040; fax: (404) 225-5041. Thank you.

ATTORNEY VOLUNTEER FORM 2003 LAW SCHOOL ORIENTATIONS ON PROFESSIONALISM Full Name (for name badge) (Mr./Ms.)______Nickname:______Address:______Telephone:______Fax:______Email Address:______Area(s) of Practice:______Year Admitted to the Georgia Bar:______Bar#:______Reason for Volunteering:______(Please circle your choice) LAW SCHOOL DATE TIME RECEPTION/LUNCH SPEAKER Emory* August 22, 2003 (Fri.) 10:00 a.m. - 12:00 noon Noon - 1:00 p.m. TBA *(SORRY - NO ADDITIONAL VOLUNTEERS NEEDED FOR EMORY SESSION)

Georgia State August 12, 2003 (Tues.) 3:00 p.m. - 5:00 p.m. 5:00 - 6:00 p.m. Judge C.J. Becker John Marshall August 23, 2003 (Sat.) 9:00 a.m. - 11:30 a.m. 8:30 - 9:00 a.m. Judge Tonny S. Beavers Mercer August 15, 2003 (Fri.) 2:00 p.m. - 4:00 p.m. 4:00 - 5:00 p.m. TBA UGA August 15, 2003 (Fri.) 2:00 p.m. - 4:00 p.m. TBA TBA

Please return to: State Bar Committee on Professionalism; Attn: Mary McAfee • Suite 620 • 104 Marietta Street, N.W. • Atlanta, Georgia 30303 • ph: (404) 225-5040 • fax (404) 225-5041 • email: [email protected]. Thank You! he Lawyers Foundation Inc. of Georgia sponsors activities to promote charitable, scientific T and educational purposes for the public, law students and lawyers. Memorial contribu- 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. L. Clifford Adams Jr. Emma A. Monroe America Cade and Atlanta, Ga. Smyrna, Ga. Christopher Gaines Admitted 1960 Admitted 1945 Dempsey; and daughter, Died April 2003 Died February 2003 Mary G. Holmes. Jimmy J. Boatright F. Robert Raley Charles Latimer Alma, Ga. Macon, Ga. Gowen, 99, of Admitted 1973 Admitted 1960 Atlanta and St. Died February 2003 Died February 2003 Simons Island, Memoriam Knox Bynum Hughes Spalding Jr. Ga., died on Clayton, Ga. Atlanta, Ga. March 31, 2003. Admitted 1951 Admitted 1941 He served as president of the State Bar of Georgia for In Died March 2003 Died April 2003 the 1945-46 term. Gowen Rebecca Helene Cruse Charlie Thurmond practiced law in Brunswick Stone Mountain, Ga. Gainesville, Ga. for 36 years and also served Admitted 1993 Admitted 1935 in the state legislature from Died April 2003 Died April 2003 1939 through 1961. He was a Thomas J. Dickey Jr. Robert H. Walling senior partner in the law Brunswick, Ga. Decatur, Ga. firm of King & Spalding Admitted 1938 Admitted 1956 since 1962 and, according to Died February 2003 Died February 2003 their history, the first politi- cian invited to join the firm. Nancy W. George Eva J. Wilson Gowen’s notable courtroom Alexandria, Va. Atlanta, Ga. appearances included his Admitted 1979 Admitted 1984 successful argument before Died February 2003 Died February 2003 the United States Supreme Charles Gowen Geraldine Court in 1968 representing Brunswick, Ga. “Gerry” the Presbyterian Church in Admitted 1925 Edmonds the United States in a prece- Died March 2003 Holmes, 55, of dent-setting case involving H. Darrell Greene Cedartown, Ga., church-state conflict and his Marietta, Ga. died on April 9, successful defense in 1972 of Admitted 1965 2003. She was a practicing the Coca-Cola Company in Died March 2003 attorney in the Cedartown an anti-trust jury trial. area since 1974, serving with He is survived by two Gerry E. Holmes daughters, Anne Spalding Cedartown, Ga. the James M. Parker Law Firm, the Mundy and of Atlanta and St. Simon’s Admitted 1975 Island and Mary Evelyn Died April 2003 Gammage Law Firm and the Holmes Law Firm. Holmes Wood of St. Simons Island; a John J. Howard was appointed to serve as sister, Gladys Fendig of St. Columbus, Ga. the new district attorney for Simons Island; a stepsister, Admitted 1995 the Tallapoosa Judicial Jean Smith of Fort Died April 2003 Circuit in July 2002. Lauderdale, Fla.; three step- brothers, Erroll Gowen of George D. Lawrence Sr. Holmes was preceded Pompano Beach, Fla., Eatonton, Ga. in death by her father, Richard Gowen of Admitted 1964 Joseph L. Edmonds. She is Jacksonville and James Died February 2003 survived by her husband, Calloway “Cal” Holmes of Gowen of Cane Hill, Ark.; 8 John W. Minor Jr. Cedartown; mother, Clara grandchildren; and 15 great- Hilton Head, S.C. Taylor Edmonds; son, grandchildren. Admitted 1970 Joseph Calloway Holmes III; Died February 2003 daughter and son-in-law,

88 Georgia Bar Journal CLE Note: To verify a course that is not listed, please call the CLE Department at (404) 527-8710. Also, ICLE seminars only list total CLE hours. For a breakdown, call (800) 422-0893. Calendar 18 June 2003 NATIONAL BUSINESS INSTITUTE Damages in Georgia Civil Trial Practice 3 Atlanta, Ga. NATIONAL BUSINESS INSTITUTE 6 CLE with 0.5 ethics and 6 trial hours Road and Access Law in Georgia Atlanta, Ga. LORMAN BUSINESS CENTER 6 CLE with 0.5 ethics Title Examination Atlanta, Ga. NATIONAL BUSINESS INSTITUTE 6 CLE with 1 ethics Hot Topics in Georgia Retirement Asset Planning LORMAN BUSINESS CENTER, INC. Atlanta, Ga. Financial Statement Analysis 6.7 CLE with 0.5 ethics Savannah, Ga. 6.7 CLE LORMAN BUSINESS CENTER 19 Nuts and Bolts of 401(k) in Georgia Macon, Ga. LORMAN BUSINESS CENTER 6.5 CLE Basic Accounting Principles Atlanta, Ga. 5-8 6.7 CLE ICLE Georgia Trial Skills Clinic LORMAN BUSINESS CENTER Athens, Ga. Workers’ Compensation in Georgia 24 CLE Athens, Ga. 6.7 CLE 6 ICLE LORMAN BUSINESS CENTER HIPAA for Dummies Nuts and Bolts of 401(k) Plans in Georgia Atlanta, Ga. Atlanta, Ga. 6 CLE 6.7 CLE 24 LORMAN BUSINESS CENTER Collection Law for the Health Care Industry NATIONAL BUSINESS INSTITUTE in Georgia Keeping Pace with Intellectual Property Law Athens, Ga. and the Internet 6.5 CLE Atlanta, Ga. 6 CLE with 0.5 ethics 9 26 NATIONAL BUSINESS INSTITUTE Getting Successful Results in Georgia NATIONAL BUSINESS INSTITUTE Eminent Domain Actions Medical Records for Georgia Attorneys Atlanta, Ga. Atlanta, Ga. 6 CLE with 0.5 ethics and 6 trial 6 CLE with 0.5 ethics

16 LORMAN BUSINESS INSTITUTE NATIONAL BUSINESS INSITUTE LLC’s Advising Small Business Start-Ups Adoption Law in Georgia and Larger Companies in Georgia Atlanta, Ga. Atlanta, Ga. 6 CLE with 0.5 ethics 6.5 CLE with 1 ethics

June 2003 89 NATIONAL BUSINESS INSTITUTE July 2003 Predatory Lending: What Georgia is Doing to Stop It 2 Atlanta, Ga. 3 CLE ICLE Bridge the Gap (Video Replay) 30 Atlanta, Ga. NATIONAL BUSINES INSTITUTE 11 Employment Discrimination Update in Georgia Savannah, Ga. NATIONAL BUSINESS INSTITUTE 6 CLE

Calendar Georgia Construction Defect and Mold Litigation NATIONAL BUSINESS INSTITUTE Atlanta, Ga. Medical Records for Georgia Attorneys 5.5 CLE with 0.5 ethics Savannah, Ga. 6 CLE 15

CLE NATIONAL BUSINESS INSTITUTE Georgia Sales and Use Tax for Manufacturers August 2003 Atlanta, Ga. 6.7 CLE 1-2 17-19 ICLE ICLE Environmental Law Summer Seminar Fiduciary Law Institute Amelia Island, Fla. St. Simons Island, Ga. 8 CLE 12 CLE 6 17 NATIONAL BUSINESS INSTITUTE NATIONAL BUSINESS INSTITUTE Real Estate Contracts in Georgia Mastering Real Estate Titles and Title Atlanta, Ga. Insurance in Georgia 6 CLE with 0.5 ethics Atlanta, Ga. 7 6 CLE with 0.5 ethics NATIONAL BUSINESS INSTITUTE 18 Georgia Wage and Hour Update NATIONAL BUSINESS INSTITUTE Atlanta, Ga. A Practical Guide to Estate Administration in 6 CLE with 0.5 ethics Georgia 13-14 Atlanta, Ga. 6.7 CLE with 0.5 ethics ICLE Real Property Law Institute (Video Replay) 21 Atlanta, Ga. NATIONAL BUSINESS INSTITUTE 12 CLE Land Use Law Update in Georgia 22 Atlanta, Ga. 6 CLE with 0.5 ethics ICLE Nuts & Bolts of Family Law 29 Savannah, Ga. PROSECUTING ATTORNEYS COUNCIL 6 CLE OF GEORGIA 2003 Summer Conference ICLE Jekyll Island, Ga. Law of Contracts 20.5 CLE with 1 ethics, 1 professionalism Atlanta, Ga. and 6 trial 6 CLE

90 Georgia Bar Journal UPL Advisory Opinion customers in matters incidental to banks or banking.…” O.C.G.A. §15-19-52. A title No. 2003-2 insurance company “may prepare such ssued by the Standing Committee on the papers as it thinks proper or necessary in IUnlicensed Practice of Law on April 22, connection with a title which it proposes to 2003. Note: This opinion is only an interpre- insure, in order, in its opinion, for it to be tation of the law, and does not constitute willing to insure the title, where no charge is final action by the Supreme Court of Georgia. made by it for the papers.” Id. Nonlawyers Unless the Court grants review under Bar may examine records of title to real property,

Notices Rule 14-9.1(g), this opinion shall be binding prepare abstracts of title, and issue related only on the Standing Committee on the insurance. O.C.G.A. §15-19-53. O.C.G.A. §15- Unlicensed Practice of Law, the State Bar of 19-54 allows nonlawyers to provide attor- Georgia, and the petitioner, and not on the neys with paralegal and clerical services, so Supreme Court of Georgia, which shall treat long as “at all times the attorney receiving the opinion as persuasive authority only. the information or services shall maintain full professional and direct responsibility to QUESTION PRESENTED his clients for the information and services received.” Is the preparation and execution of a deed In addition to the acts of the Georgia legis- of conveyance (including, but not limited to, lature, the Supreme Court of Georgia has a warranty deed, limited warranty deed, made it clear that the preparation of deeds quitclaim deed, security deed, and deed to constitutes the practice of law, and is to be secure debt) considered the unlicensed prac- undertaken on behalf of another only by a tice of law if someone other than a duly duly qualified and licensed Georgia attorney. licensed Georgia attorney prepares or facili- For example, the Court has issued the Rules tates the execution of said deed(s) for the Governing Admission to the Practice of Law benefit of the seller, borrower and lender? in Georgia. Under Part E of those rules, an SUMMARY ANSWER individual can be licensed as a “foreign law consultant,” and thereby be authorized to Yes. Under Georgia law, the preparation of “render legal services and give professional a document that serves to secure a legal right legal advice on, and only on, the law of the is considered the practice of law. The execu- foreign country in which the foreign law con- tion of a deed of conveyance, because it is an sultant is admitted to practice....” Since such integral part of the real estate closing process, an individual has not been regularly admit- is also the practice of law. As a general rule it ted to the State Bar of Georgia, the Court pro- would, therefore, be the unlicensed practice hibits foreign law consultants from provid- of law for a nonlawyer to prepare or facilitate ing any other legal services to the public. For the execution of such deeds. purposes of this discussion, it is noteworthy OPINION that Part E, §2(b) states that a foreign law consultant may not “prepare any deed, mort- In answering the above question, the gage, assignment, discharge, lease, trust Committee looks to the law as set out “by instrument, or any other instrument affecting statute, court rule, and case law of the State title to real estate located in the United States of Georgia.” Bar Rule 14-2.1(a). of America.” “Conveyancing,” “[t]he preparation of legal The Committee concludes that, with the instruments of all kinds whereby a legal right limited exception of those activities expressly is secured,” “[t]he rendering of opinions as to permitted by the Georgia legislature or the validity or invalidity of titles to real or courts, the preparation of deeds of con- personal property,” “[t]he giving of any legal veyance on behalf of another within the state advice” and “[a]ny action taken for others in of Georgia by anyone other than a duly any matter connected with the law” is con- licensed attorney constitutes the unlicensed sidered the practice of law in Georgia. practice of law. O.C.G.A. §15-19-50. Moreover, it is illegal for The Committee turns its attention to the a nonlawyer “[t]o render or furnish legal execution of deeds of conveyance. Pro se services or advice.” O.C.G.A. §15-19-51. handling of one’s own legal affairs is, of There are certain exceptions to these statu- course, entirely permissible, and there is tory provisions. For example, “no bank shall nothing in Georgia law to “prevent any cor- be prohibited from giving any advice to its poration, voluntary association, or individ-

June 2003 91 ual from doing any act or acts set “[t]he lawyer must be in control of view consistent with those opin- out in Code Section 15-19-50 to the closing process from beginning ions is that one who facilitates the which the persons are a party….” to end. The supervision of the para- execution of deeds of conveyance is O.C.G.A. §15-19-52. The legal must be direct and constant.” practicing law. Committee instead focuses on The Court held that “[e]ven though Accordingly, the Committee “notary closers,” “signing agents,” the paralegal may state that they concludes that, subject to any rele- and others who are not a party to are not a lawyer and is not there for vant exceptions set out by the the real estate closing, but nonethe- the purpose of giving legal advice, Georgia legislature or courts, one less inject themselves into the clos- circumstances may arise where one who facilitates the execution of a ing process and conduct, for exam- involved in this process as a pur- deed of conveyance on behalf of ple, a “witness only closing.” A chaser, seller or lender would look another within the state of Georgia “witness only closing” is one in to the paralegal for advice and/or is engaged in the practice of law. which an individual presides over explanations normally provided by One does not become licensed to the execution of deeds of con- a lawyer. This is not permissible.” practice law simply by procuring a veyance and other closing docu- A lawyer who aids a nonlawyer in notary seal. A Georgia lawyer who ments, but purports to do so mere- the unauthorized practice of law conducts a witness only closing ly as a witness and notary, not as can be disbarred. Georgia Rule of does not, of course, engage in the someone who is practicing law. Professional Conduct 5.5. unlicensed practice of law. There The Supreme Court of Georgia The Committee finds that those may well exist, however, profes- periodically issues advisory opin- who conduct witness only closings sional liability or disciplinary con- ions relating to attorney conduct. or otherwise facilitate the execution cerns that fall outside the scope of Under Court rule, such opinions of deeds of conveyance on behalf of this opinion. have “the same precedential others are engaged in the practice Refinance closings, second mort- authority given to the regularly of law. As noted above, “con- gages, home equity loans, construc- published judicial opinions of the veyancing” is deemed to be the tion loans and other secured real Court.” Bar Rule 4-403(e). It would practice of law, and the very pur- estate loan transactions may differ in be proper, then, for the Committee pose of a deed is to effectuate a certain particulars from purchase to turn to any relevant advisory conveyance of real property. In transactions. Nevertheless, the cen- opinions for guidance. reviewing the foregoing opinions terpiece of these transactions is the In Formal Advisory Opinion 86- of the Supreme Court of Georgia, conveyance of real property. Such 5, the Supreme Court of Georgia the Committee concludes that the transactions are, therefore, subject to interpreted the word “conveyanc- execution of a deed of conveyance the same analysis as set out above. ing” as set out in O.C.G.A. §15-19- is so intimately interwoven with 50, and considered what the term the other elements of the closing UPL Advisory Opinion meant in relation to the closing of a process so as to be inseparable No. 2003-1 real estate transaction. The Court from the closing as a whole. It is ssued by the Standing viewed a real estate closing “as the one of “the entire series of events Committee on the Unlicensed entire series of events through through which title to the land is I Practice of Law on March 21, 2003. which title to the land is conveyed conveyed from one party to anoth- Note: This opinion is only an inter- from one party to another er party.” To view the execution of pretation of the law, and does not party….” That being the case, the a deed of conveyance as something constitute final action by the Court concluded “it would be ethi- separate and distinct from the Supreme Court of Georgia. Unless cally improper for a lawyer to aid other phases of the closing the Court grants review under Bar nonlawyers to ‘close’ real estate process—and thus as something Rule 14-9.1(g), this opinion shall be transactions,” or for a lawyer to other than the practice of law— binding only on the Standing “delegate to a nonlawyer the would not only be forced and arti- Committee on the Unlicensed responsibility to ‘close’ the real ficial, it would run counter to the Practice of Law, the State Bar of estate transaction without the par- opinions of the Court. Such an Georgia, and the petitioner, and ticipation of an attorney.” interpretation would mean that a not on the Supreme Court of In Formal Advisory Opinion 00- nonlawyer could lawfully preside Georgia, which shall treat the opin- 3, the Court restated its view that over the execution of deeds of con- ion as persuasive authority only. the real estate closing is a continu- veyance, yet an attorney who ous, interconnected series of allowed an unsupervised paralegal QUESTION PRESENTED events. The Court made it clear to engage in precisely the same that, in order for an attorney to activity could be disbarred. An Attorney representing the credi- avoid possible disciplinary sanc- interpretation of Court opinions tor on an account files a lawsuit tions for aiding a nonlawyer in the that leads to such an incongruous against the debtor. The attorney unauthorized practice of law, result cannot be proper. Rather, the receives a letter and agency power

92 Georgia Bar Journal of attorney from a company stating effect a reasonable settlement attorney licensing procedures that it has been authorized to act as with” the plaintiff. Once the com- established by the Supreme Court the agent for the debtor in settle- pany obtains the power of attor- of Georgia. The potential for public ment negotiations. Is the company ney, its employee contacts the harm under such circumstances is engaged in the unlicensed practice plaintiff or, if represented by coun- clear, and those inclined to enter of law? Is the individual directing sel, the plaintiff’s attorney. The into such agreements should keep the company engaged in the unli- company’s employee provides a in mind that “[n]o rights shall arise censed practice of law? copy of the power of attorney to to either party out of an agency cre- the plaintiff, then attempts to settle ated for an illegal purpose.” SUMMARY ANSWER the lawsuit through negotiation. O.C.G.A. §10-6-20. Yes. Under the circumstances set The company sometimes charges In addition to any unlicensed out above, the company is repre- the debtor a fee for its negotiation practice of law issues, the senting one of the parties to a law- services, while at other times pro- Committee notes, without further suit in settlement negotiations. vides its services free of charge. comment, that O.C.G.A. §18-5-1 et Since such representation can only The decision as to whether to seq. generally prohibits “the busi- be lawfully undertaken by an indi- charge a fee is a matter of discre- ness of debt adjusting.” vidual who is duly licensed to tion, to be determined by the finan- practice law, and cannot legiti- cial plight of the debtor. The com- mately arise out of an agency pany makes it clear to all involved power of attorney, the company that it is not a law firm, and that and its personnel are engaged in none of its employees are licensed the unlicensed practice of law. Georgia attorneys. Because the company’s employees are non- OPINION lawyers, they are not bound by the Georgia Rules of Professional The Committee held a public Conduct or otherwise subject to hearing concerning the question set disciplinary regulation by the State out above. It heard testimony from Bar of Georgia. the owner of one such company, A company operating in the who described his business opera- manner described above is engag- tions. The company routinely ing in the unlicensed practice of obtains from Georgia court dockets law. The company’s activity neces- the names and addresses of debtors sarily involves the delivery of legal against whom suit has been filed. services, because it is advocating The amount of the alleged indebt- the legal position of another rela- edness typically ranges from $500- tive to a pending lawsuit. O.C.G.A. $8,000. The company contacts the §10-6-5 states that “[w]hatever one debtors by means of a direct mail may do himself may be done by an solicitation, which contains the fol- agent, except such personal trusts lowing introductory language: in which special confidence is “Dear ____: I may have some good placed on the skill, discretion, or news concerning your civil case. judgment of the person called in to You will soon be served with a act….” The Committee finds that Court Summons [emphasis in orig- negotiating a settlement to a law- inal] and time is very important. suit on behalf of another involves Please contact me as soon as possi- precisely the “special confidence” ble….” When the debtor responds and “skill, discretion, or judgment” to the solicitation, he is informed that can only be lawfully exercised that the company, if retained, will by a duly licensed attorney. An contact the plaintiff and attempt to individual cannot confer upon negotiate a settlement of the out- another the right to practice law standing indebtedness. If the simply by entering into a private debtor agrees to the representation, agreement that purports to allow he executes a power of attorney in the representation. Such agree- favor of the company, appointing it ments, if they had force and effect, as the debtor’s “attorney-in-fact,” would allow literally anyone to with the stated authority “[t]o represent another in a legal matter, mediate creditor’s claim(s) and to thereby circumventing the rigorous

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