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

Georgia Bar

JournalJune 2002 Volume 7 Number 6 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 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 Marisa Anne Pagnattaro Georgia Bar Journal (404) 527-8736 Editor-in-Chief Lawyer Assistance Program (770) 612-1122 (800) 327-9631 Scott Fain Bertschi Marcus D. Liner Lawyers Foundation of Georgia (404) 659-6867 Erika Birg W. Fray McCormick Law Practice Management (404) 527-8772 Erin Reynolds Chance E. Peyton Nunez Membership Records (404) 527-8777 Charles Madden Cork III Erick H. Rock 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 Rebecca Ann Hoelting Jerre Bailey Swann Jr. Unauthorized Practice of Law (404) 527-8743 Michael K. Jablonski Kristin H. West Young Lawyers Division (404) 527-8778 Michelle Wilkins Johnson Pamela Y. White-Colbert Sarah Howard Lamar Manuscript Submissions The Georgia Bar Journal welcomes the submission of Advisors unsolicited legal manuscripts on topics of interest to the State Bar of Georgia or written by members of the Theodore Harris Davis Jr. D. Scott Murray State Bar of Georgia. Submissions should be 10 to 12 pages, double-spaced (including endnotes) and on let- Editors Emeritus ter-size paper. Citations should conform to A UNIFORM D. Scott Murray, 00-01 Donna G. Barwick, 86-87 SYSTEM OF CITATION (17th ed. 2000). Please address unsolicited articles to: Marisa Anne Pagnattaro, J.D., William Wall Sapp, 99-00 James C. Gaulden Jr., 85-86 Ph.D., State Bar of Georgia, Communications Theodore H. Davis Jr., 97-99 Jarry B. Blackstock, 84-85 Department, 104 Marietta St. NW, Suite 100, Atlanta, L. Brett Lockwood, 95-97 Steven M. Collins, 82-84 GA 30303. Authors will be notified of the Editorial Stephanie B. Manis, 93-95 Walter M. Grant, 79-82 Board’s decision regarding publication. William L. Bost Jr., 91-93 Stephen E. Raville, 77-79 The Georgia Bar Journal welcomes the submission of Charles R. Adams III, 89-91 Robert H. Walling, 75-77 news about local and circuit bar association happen- L. Dale Owens, 87-89 ings, Bar members, law firms and topics of interest to 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. Franklin President [email protected]. James B. Durham President-Elect William D. Barwick Secretary Disabilities George Robert Reinhardt Jr. Treasurer If you have a disability which requires printed materi- George E. Mundy Immediate Past President als in alternate formats, please contact the ADA coor- Peter J. Daughtery YLD President dinator at (404) 527-8700 or (800) 334-6865. Derek J. White YLD President-Elect Headquarters S. Kendall Butterworth 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 E. Cannon Jr. Chairperson www.gabar.org William H. Dodson II Vice-Chairperson South Georgia Office 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Communications Staff (800) 330-0446 (912) 387-0446 FAX (912) 382-7435 Joe Conte Director Robin E. Dahlen Assistant Director Sarah I. Bartleson Administrative Assistant

Legal

14 Common Fact Patterns of Stockbroker On the Cover Fraud and Misconduct The Courthouse and the By Robert C. Port Depot is reviewed on page 74 of this Bar Journal by Justice Harold Clarke. Court- Features house photographs from the book appear on the cover. 24 2002 Legislative Session Highlights Top Legal Issues Photo credit: By Mark Middleton Wilber W. Caldwell 28 Historic Savannah Hosts the 2002 Spring BOG Meeting By Joe Conte Departments 32 An Annual Rendezvous for a Fifth of a Century: The American Law Institute and the State Bar of Georgia 4 Letter to the Editor By Dorothy Toth Beasley 6 From the President 48 Pro Bono Honor Roll 8 From the Executive Director 10 From the YLD President Annual Fiction Writing Competition 52 Bench & Bar 55 Office of the General Counsel 34 “Equitable Division” By Stephen L. Berry 57 Lawyer Discipline 59 Law Practice Management 40 “Mrs. Palsgraf’s Dream Team – A Play in One Act” By Henry W. Kimmel 63 South Georgia Office 64 Voluntary Bar 67 Professionalism Office Publisher’s Statement 68 Section News The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (bi- monthly) by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, GA 73 In Memoriam 30303. © State Bar of Georgia 2002. One copy of each issue is furnished to mem- 74 Book Review bers as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, GA. Opinions and conclusions 76 CLE Calendar expressed in articles herein are those of the authors and not necessarily those of the Editorial Board, Communications Committee, Officers or Board of Governors 80 Notices of the State Bar of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement does not imply endorsement of any product or 87 Ad Index service offered. POSTMASTER: Send address changes to same address. 87 Classified Resources A Defense of the 12-Person Jury

fer if the jury were smaller. My hope for each n March 1999, the Supreme Court of

Editor trial of which I am a part is that the verdict Georgia, by order of former Chief Justice will be reasonable under the facts and the Benham, appointed a commission of dis- I law and that common sense will be present in tinguished citizens to prepare a report with the jury room. The report in Section VI points recommendations for the improvement of the out that, since the Supreme Court of the judiciary in the state of Georgia. A report enti- United States says that a six-person jury tled “Georgia Courts in the 21st Century: The “does not prevent the jury from fulfilling its Report of the Supreme Court of Georgia Blue purpose” and that “there is nothing in the Ribbon Commission on the Judiciary” was Constitution that requires a jury of 12,” we prepared and published in the fall 2001 issue should go to six-person juries because they of the Mercer Law Review. The report, in my are legal and probably save time and money. opinion, made many excellent recommenda- If there ever was a time when the law and the tions and I commend the commission for the courts needed good public relations, it is report. There is, however, one recommenda- now. The law, and in particular the jury sys- tion that I find troubling, and the purpose of tem, has been under attack by various con- this letter is to give my reason for opposing it. stituencies for the past 25 or 30 years, but I The recommendation is that “all civil juries don’t recall the need of smaller juries as being

Letter to the be composed of six persons rather than 12.” the basis of criticism by any representative Before I give my reasons for being opposed sampling of the public. Whatever problems to six-person juries, I must say in all candor we have, smaller juries would not solve that since I am a federal judge, I am some- them. Shouldn’t we aspire to a more lofty what uneasy giving my opinion on a report goal than “a jury of six does not prevent the that deals exclusively with the courts of the jury from fulfilling its function?” This is a state of Georgia. I believe in federalism, and backdoor endorsement if there ever was one. it might seem to some fair-minded people There are many reasons why 12 people that what the courts of Georgia propose make a better jury than six, but some of the regarding jury trials is no business of a feder- most important are as follows. A 12-person al judge. That is a perfectly reasonable posi- jury is, to use a word now in vogue, more tion, but I am also a resident of the state of diverse. A 12-person jury in the Middle Georgia and for 20 years before I became a District of Georgia typically has jurors who judge I tried cases almost exclusively in the are black and white, male and female, young state courts of Georgia. I feel that I have a and old, blue collar and white collar, and legitimate interest in the matter. with different educational backgrounds. We I must also point out that the basis for the have jurors that cover the waterfront — from constitutionality of less than 12 jurors origi- plant managers to janitors, and from college nated with a local rule of court in the federal professors to college students. I believe that court. A local rule in the District of Montana when the 12 of them put their heads together, authorized six-person juries and when chal- they usually come up with a verdict that is lenged on constitutional grounds finally reasonable under the law. reached the United States Supreme Court in Over the years I would estimate that I have 1973. The name of the case was Colegrove v. disagreed with jury verdicts less than 10 per- Battin, 93 S.Ct. 2448 (1973), and the respon- cent of the time. I doubt if that would be the dent was the federal judge who authorized case with juries of six (or even eight). The 12- the rule (Justice Marshall’s dissent is a clas- person jury also teaches twice as many people sic!). Having stated my justification for enter- about our system of justice as does a six-per- ing the fray, I will now give my reasons. son jury, and I believe, based on interviews I In my opinion, 12-person juries are much have had with jurors, that a great majority of more preferable to juries of six. Although I them find the experience to be worthwhile have done no formal study of the matter, I and even inspiring. They seem to understand have been a trial court judge for more than 16 the way our laws work much better after hav- years and have formed a strong opinion that ing served on a jury. I also feel that with 12 during a trial the search for truth would suf-

4 Georgia Bar Journal people rather than six it is much ion is supported by a paper pre- members, and (3) less likely as more difficult for a domineering pared by the Administrative Office a group to recall the evidence. juror to dictate to the others or for a of the U.S. Courts in 1994, which I There are research findings lawyer to get a “ringer” on the jury quote as follows: that indicate wide variability and depend on him to sway the oth- In recent years, several in awards between the two ers. In my opinion, the deliberative studies have suggested argu- groups and a greater risk of a process of the jury is helped when ments for returning to 12- smaller jury reaching the there are 12 and harmed when there member juries. These studies wrong verdict. The studies are fewer than 12. point out significant differ- have also noted a greater risk I am constantly amazed at how a ences between six and 12- for smaller jury deliberations random collection of citizens from member juries. For instance, to be dominated by a single all walks of life can put aside their smaller juries are less likely to aggressive juror. own opinions (and they do!) and provide minority group repre- As I said earlier, all of my expe- rise to the duty demanded of them sentation and to share majori- rience as a judge has been in the when called for jury duty. It almost ty-held attitudes of the com- federal court system, but our goal seems that some “force” (for lack of munity. Also, with smaller is the same: to empanel a jury that a better word) is created in the jury juries it may be easier to will bring in a verdict that speaks room that is greater than the sum exclude a prospective juror on the truth. I submit that the time- of all their experiences allowing the grounds of race or sex . . . . tested “12 good men (and women) jury to come up with a verdict that There is literature that and true” that has served us for would not have been possible examines the sociology and hundreds of years can achieve this without this additional power. I psychology of group decisions goal better than a jury of six. can’t explain it. I can’t even under- between six and 12-member stand it, but I believe that it exists. I juries and concluded that the Yours very truly, have never been involved in a trial smaller juries are (1) less likely with six jurors, but I doubt that so to promote effective group Duross Fitzpatrick small a group can generate this deliberations, (2) less likely to Macon, Ga. force that 12 people can. This opin- overcome the biases of its

June 2002 5 been strengthened. Hopefully, during

being unitedin from the President interests ofthe mandatory bar support ofthe profession has this year, the concept ofa overall best 6 mon causeandcommongoodoflawyersthepublic. goal toseekanatmosphereinwhichwecouldcometogetherforthecom- tions thatmightattimescausedisagreementonspecificissues,itwasmy the importantissuesasGeorgialawyers.Regardlessofpersonalsitua- member ofsomesub-grouplawyers,butrathertosearchforsolutionson issues facingtheprofession,notjustfromtheirindividualperspectivesasa were practitioners,judges,prosecutorsorpublicdefenderstoapproachthe A Georgia Lawyers Coming Together as Indigent Defense: By JamesB.Franklin defense andguaranteeing therights makes usproud. have donetheirpartina way that Georgia lawyers,notsurprisingly, front thenewenemyofterrorism. our horrororinresolvetocon- could nothavebeenmoreunitedin Sept. 11.Certainly,asapeople,we have respondedtotheeventsof Georgians, indeedallAmericans, course, isthewayinwhich strengthened. interests oftheprofessionhasbeen united insupportoftheoverallbest concept ofamandatorybarbeing Second, theissueofindigent Two eventsarestriking.First,of Hopefully, duringthisyear,the or ethnicbackground,geographiclocationwhetherthey aged allmembersoftheprofession,regardlesstheirgender s myyearasStateBarofGeorgiapresidentbegan,Iencour- Yet, inthis pastyear,Georgia among thenonlawyerelectorate. enjoy muchpolitical support stituency andprobablydoes not defense hasaverynarrow con- of thematteristhat indigent profession orindividuals.Thetruth as acriticismofanysegmentthe this factshouldnotbeconsidered tortured journey.Recognitionof other states,hasbeenadifficultand with crimesinGeorgia,andmost representation toindigentscharged of Georgia.Effectivelyproviding has beenaddressedbytheStateBar nized bytheU.S.SupremeCourt the U.S.Constitutionandrecog- set forthintheSixthAmendmentto Georgia Bar Journal lawyers have come together and by accompanying commentary that indigent defense system, but over the recent action of the Board of was initially included by the the path to be taken in reaching Governors, agreed upon six aspira- Indigent Defense Committee. that goal, including the most effec- tional principles to be passed on to The Executive Committee then tive delivery system and the source the Chief Justices’ Commission on sought input from all entities of funding. The debate over these Indigent Defense for consideration with an interest in indigent issues should and will continue, as it moves toward the conclusion defense. These groups included: both within the Blue Ribbon of its study and formulation of its the Council of Superior Court Commission and in the General recommendations. Judges; the Georgia Indigent Assembly, which will ultimately The process by which we arrived Defense Council; the Prosecuting have the say as to how the system at the consensus is proof that our Attorney’s Council; the Georgia may be revamped. system of governance within the Association of Criminal Defense As I move toward the end of my Bar works. After a year of meet- Attorneys; Public Defenders; the year as president, I am appreciative ings, dialogue and debate, hopeful- Court of Appeals; and the of my fellow lawyers for the sup- ly all of the various individuals and Supreme Court. At the Midyear port they have given me through- elements of the Bar involved in the Meeting in January 2002, break- out the year. This experience has process were left with a feeling that out sessions were held by the strengthened my faith in the ability their concerns were heard and Board of Governors with repre- of members of the Bar to work there was ample opportunity to sentatives from the above groups together, compromise and finally participate in the process. This is in attendance. Following that come together and act for the bene- not to say that every Georgia meeting, the Executive fit of the profession and society as a lawyer is satisfied with every part Committee reached consensus whole. of the final recommendation. There on the principles outlined in the are some members who are not proposal approved by the Board pleased with all six principles. For of Governors at its Spring example, the recommendation for a Meeting in April. It is important commission at the state level to to note that the Council of make decisions regarding the ade- Superior Court Judges, the quacy of systems within the respec- Indigent Defense Committee, the tive circuits causes much con- Association of Criminal Defense cern — a concern that I personally Attorneys and the Prosecuting share. No doubt we have many cir- Attorney’s Council were all cuits, which have worked hard and afforded the opportunity to have successfully created effective make presentations to the Board indigent defense systems and these prior to the floor debate and vote. systems should not be arbitrarily The end product is a tribute to dismantled. the ability and willingness of For those who have not followed lawyers to work together toward a the issue over the past year, I offer common cause. It sends a strong the following brief recap. statement to the Supreme Court’s The Bar’s Indigent Defense Commission on Indigent Defense Committee, capably chaired by that the lawyers of Georgia have Wilson DuBose, presented 12 clearly spoken out in support of a recommendations to the Bar’s system of indigent defense sup- Executive Committee in May ported financially by state funds, to 2001. The Executive Committee be operated subject to uniform referred the proposal to the statewide standards. The debate Advisory Committee on and any disagreements during the Legislation, which embraced the process were not over the ultimate 12 principles without some goal of an effective and efficient

June 2002 7 By Cliff Brashier Unauthorized Practice of Law Pilot Program Bringing Results

he unauthorized practice of law (UPL) presents a growing risk to

the public with special potential for harm to our citizens who are Executive Director T using the judicial system for the first time. In the past, the State Bar of Georgia’s authority to protect the public has been limited to encourag-

ing local solicitors to enforce Georgia’s misdemeanor statute prohibiting UPL.

Last year, a pilot program was We’ve all heard the stories of peo- initiated within the Bar to assist in ple practicing law without the bene- the identification and enforcement fit of law school and, as we might

from the of UPL and I am pleased to report expect, the majority of complaints that the program is well underway have to do with the following: and is reporting positive results in Disbarred lawyers who won’t curtailing UPL. stop practicing law; The Supreme Court issued the Individuals falsely claiming that UPL Rules in February of 2001. The they are lawyers; pilot program then began in three Individuals wrongly assuming judicial districts: the First District, the identity of actual Georgia The program is which covers the southeast part of lawyers; the state; the Second District, which Individuals preparing divorce now operational at covers the southwest part of the petitions and other documents state; and the Fourth District, which for third parties (sometimes the the local level in covers DeKalb and Rockdale coun- recipient of the papers is charged ties. The program is now opera- a fee and sometimes not, such as these districts, and tional at the local level in these dis- when the preparer is simply try- tricts, and the UPL Standing ing to help out a friend); the UPL Standing Committee is in place statewide. In Nonlawyers closing real estate terms of geography, about one- transactions in exchange for a fee; Committee is in third of Georgia is now covered by Nonlawyers negotiating the set- place statewide. the program. tlement of insurance claims on

8 Georgia Bar Journal behalf of third parties in them to prosecution for deceptive serve on the district and standing exchange for a contingent fee, trade practices. committees; nonlawyer public often under the guise of being a In the areas of Georgia where a members to serve on the district “mediator,” or by virtue of hav- district committee has not been and standing committees; the ing a power of attorney that pur- appointed, the Bar continues to Superior Courts of Georgia to hear portedly allows the nonlawyer investigate and process cases in cases for injunctive relief; and the to represent the claimant relative accordance with the practices that Supreme Court of Georgia to rule to a specific matter; and were in place prior to the UPL Pilot on formal advisory opinions and Out-of-state entities that offer Project. In the two-thirds of serve its normal appellate function legal services over the Internet. Georgia not covered since on injunctive relief. Aimed at bringing these activi- September, 103 complaints have As one member of the public ties to an end, the program had its been filed. Of these, 74 have been summarized the pilot program, it kick-off meeting in Macon on Sept. closed and 29 are being investigat- works because all interested parties 6, 2001, with an orientation for ed. These statistics indicate that the get their say, nonlawyers are repre- committee members. Since then, vast majority of complaints are sented in the process and it is ulti- complaints have been handled by generated in metro Atlanta. mately up to the court to decide the each of the district committees. In As the pilot program continues, issue. total, 56 complaints have been the Supreme Court and the Bar will As always, I am available if you received. Of those, 16 have been monitor its effectiveness and via- have ideas or information to share; closed, five have been referred to bility as a statewide program. This please call me. My telephone num- the Standing Committee, and 35 new approach is a partnership bers are (800) 334-6865 (toll free), are being investigated and/or are between the entities involved. The (404) 527-8755 (direct dial), (404) awaiting a Committee vote. Bar provides: staffing; local 527-8717 (fax) and (770) 988-8080 An area that has drawn consid- lawyers throughout the state to (home). erable attention is that of notaries public acting as lawyers and prey- ing on Georgia’s increasing Latino population. In many Latin American countries, notaries are prestigious lawyers and many unsuspecting Latinos here are paying what they believe to be attorney fees to get help staying in the country. To combat this issue, Rep. Barbara Mobley (D-Decatur), a member of the UPL District 4 Committee, sponsored legislation, which was supported by the Bar, to require notaries who are not attorneys to publish the following notice in advertisements: “I am not an attorney licensed to practice in the state of Georgia, and I may not give legal advice or accept fees for legal advice.” In addition, the legislation requires notaries to list their fees and stiffens penalties for notaries who act as attorneys by subjecting

June 2002 9 By Pete Daughtery YLD Year in Review

he Young Lawyers Division (YLD) just recently put the finishing

touches on another successful year. Due to the hard work of its

committee chairs, officers, and directors, the YLD was able to once YLD President T again complete a stellar year of service to the public and to the profession.

A year ago, the officers and The YLD also sponsored compe- directors conducted a long-range titions to introduce children and planning session and decided to youth to the practice of law. The place the emphasis this year on High School Mock Trial service to children and youth. Committee, chaired by Christie

from the Those efforts got off to a quick start Barker, Candace Byrd and Rob when the Law Related Education McDonald, conducted their excel- Committee, chaired by Melissa lent mock trial program for high Anderson and Beth Ellen Dotson, school students, both in regional had its most successful golf tourna- competitions across the state and a ment ever to raise money to sup- state competition in Atlanta, with port law-related curriculum in Jonesboro High School emerging as A year ago, Georgia schools. The Community the winner and, thus, moving on to Service Projects Committee,chaired the national competition. Brad the officers by Michelle Adams and Jennifer Folsom, chair of the Youth Judicial and directors Gourley, also had several projects Program Committee, recruited designed to serve children and young lawyers to serve as judges conducted a long- youth. That committee sponsored a and conduct the annual Moot Court night at an Atlanta Hawks game in Program held in conjunction with range planning conjunction with Department of the YMCA’s Annual State Judicial Family and Children Services, a toy Program. The Kids and Justice session and sort in December to support a local Program Committee, co-chaired by Atlanta agency and, this spring, Mike McCleary and Malcolm decided to place again sponsored a day at the Wells, continued to work with fifth Atlanta Zoo for disadvantaged chil- graders to increase their knowledge the emphasis this dren. At the YLD Spring Meeting in of the criminal justice system Savannah, the YLD took an entire through the use of law-related edu- year on service to Saturday afternoon to paint the cation lesson plans. Chuck Hodges, children and youth. recreational room at a local youth who chairs the Business Law community center. Committee, has members of his

10 Georgia Bar Journal committee volunteering to speak to Profession Committee, was ener- students (K-12) about business and gized this year by the hard work of the law. co-chairs Brad Gardner and Elvin Hardest The YLD’s efforts to emphasize Sutton. Gardner and Sutton also its services to youth and children submitted a grant application to are special every year because of the American Bar Association and two outstanding programs, which their committee was awarded a continued their efforts this Bar year. grant to work with the Court The Aspiring Youth Program Appointed Special Advocates Committee held its program this Program (CASA) to develop and spring at Walden Middle School distribute a video to recruit and and young lawyers once again train volunteers to work with chil- served as positive role models dren and youth through CASA. while developing mentoring rela- The YLD did not limit its public Working tionships with the students, and service work to children and youth hopefully increasing their aspira- in Georgia, but continued to plan tion to graduate from high school and participate in a wide variety of and college by demonstrating the public service projects. One of the importance of education, hard biggest public service projects every work and commitment. The YLD is year is the Great Day of Service, particularly grateful to Malcolm which was chaired this year by YLD Wells, Vicki Wiley and Zahra Secretary Damon Elmore. Elmore’s Karinshak, who have made this committee was responsible for plan- very special program a success for ning and executing service projects several years. In addition, the in over 16 different communities in Juvenile Law Committee will spon- Georgia on April 27, 2002. The YLD’s Site sor its Celebration of Excellence to Pro Bono Committee, chaired by recognize children who grew up in Tracey Roberts, in an effort to pro- foster care and who graduated mote and develop pro bono service from high school, a GED program, on a statewide basis, developed a vocational school or college in a pro bono Web site, which contains moving ceremony held each year in comprehensive information on pro June at the Fox Theatre in Atlanta. bono services in Georgia, and the One entirely new committee of committee’s Associate Campaign for the YLD set out to make a differ- Legal Services (The Greedy for the ence in the lives of children and Needy) is once again scheduled for on the Web youth in Georgia is the Truancy the summer. Another new commit- Intervention Project chaired by tee of the YLD is the Disability Issues Kevin Snyder. Snyder’s committee Committee, chaired by Tom conducted training seminars in Mazziotti, which has focused on pro- Atlanta and Columbus to recruit viding legal services to the mentally and train volunteers to work with ill in conjunction with the National and for children suffering truancy Alliance for the Mentally Ill. problems in our juvenile court sys- The YLD also continued its long tem in Georgia. The committee was history of providing support to able to expand the program to young lawyers to aid in their pro- Columbus and will hopefully fessional development. The expand to Albany in the very near Appellate Admissions Committee, future. A long standing committee chaired by Nathan Wheat, organ- of the YLD, the Minorities in the ized and conducted a mass swear- www.gabar.org

June 2002 11 ing in for young lawyers eager to departing attorneys on potential Chandra Tutt and Malcolm Wells practice in Georgia’s appellate client conflicts. are to be congratulated on all their courts. Two separate Bridge The The YLD also provides services hard work this year. Gap seminars were planned and to young lawyers who are still in No organization can be success- conducted by Ben Finley and Tim law school. Every year the YLD ful unless all the officers work Buckley, to whom the YLD owes a conducts several successful compe- together as a team, and the YLD was special thanks for chairing these titions for law students, and this blessed this year with a group of programs for several years. The year was no exception. The hard working and dedicated team Business Law Committee, chaired Intrastate Mock Trial Competition of officers. Derek White, president- by Chuck Hodges, once again con- for the four law schools in Georgia elect; Andrew Jones, treasurer; and ducted its “Nuts And Bolts Of was completed in March, and the Damon Elmore, secretary; as well as competition Kendall Butterworth, immediate No organization can be successful was a suc- past president; and Laurel P. cess thanks Landon, newsletter editor. These unless all the officers work together to the work leaders offered the type of support of Chris that made the hard work and pres- as a team, and the YLD was blessed Kellner and sures of the Bar year a breeze. The his commit- YLD is in excellent hands for the this year with a group of hard work- tee. The future, and will no doubt continue National to break new ground in its efforts to ing and dedicated team of officers. Moot Court be the public service arm of the Bar Competi- with this dedicated group of offi- Business Law Seminar,” which is tion for law students in Region V cers. Everyone in the YLD owes a one of the best-attended seminars successfully conducted its competi- huge debt to our excellent director in the state. The Women in the tion in the fall thanks to the work of of the YLD, Jackie Indek, who has Profession Committee met more Jason Saliba and his committee. done a wonderful job, especially frequently than ever before to dis- Very shortly after this article goes considering the president she was cuss issues affecting women in our to print, the William W. Daniel forced to work with this Bar year. profession, and the YLD is indebt- Invitational Mock Trial Committee, Finally, it would not be the YLD ed to Sherry Neal and Amy under the direction of Jeremy unless we were also having a great Loggins for their efforts in making Citron, will once again host its time. Our meetings this year were sure that committee remained mock trial competition in Atlanta some of the best attended ever. strong and active. for each of the four Georgia law From the inaugural bus ride Every January, young lawyers are schools, as well as student teams “stops” on the return from given the opportunity to meet with from all over the country. Charleston at the annual meeting Georgia’s legislative and executive The Committee chairs identified in Kiawah, to bead throwing in branch leaders at the Legislative above are to be congratulated for all New Orleans from the porch of the Affairs Annual Breakfast at the start their hard work, along with the YLD hospitality suite, to the last second of the legislative session, and Steve directors. One of the largest groups loss in Athens at the fall meeting, Lowry and Mike Watson again did of directors ever came together to and to late night card games in too an excellent job of arranging for an support the YLD in all phases of its many cities to mention, the YLD impressive panel of speakers, work. The 2001-2002 directors group continued its tradition of working including Secretary of State Cathy of Christy Barker, Marc D’Antonio, hard for the public and profession Cox, who was the keynote speaker. Jay Doyle, Amanda Farahany, and playing even harder. I am The YLD’s Ethics and Profession- David Gruskin, Elena Kaplan, Zahra indebted to all of the persons who alism Committee, chaired by Karinshak, John Kennedy, Leigh have worked, and played, so hard Melissa Bodnar, has written articles Martin, Janne McKamey-Lopes, all year to make this year a success- for the YLD Newsletter to educate Jonathan Pope, Tracey Roberts, ful one for the YLD. young lawyers about the effects of Bryan Scott, Tripp Self, Dan Snipes,

12 Georgia Bar Journal

Common Fact Patterns of Stockbroker Fraud and Misconduct

By Robert C. Port

ntil recently, it seemed as though everyone had heard of a “friend of a

friend” who made a “killing” in the stock market. The late 1990s were Uespecially good to investors, with double digit returns seemingly the norm. Financial newspapers and magazines offering investment advice were every-

where, and Internet bulletin boards and chat rooms were filled with people claim-

ing to have identified the next Microsoft, Yahoo or Cisco.

In this environment, investors easily fell prey to dishonest stockbrokers, investment advisors, financial planners, insurance agents and others claiming to have the knowledge and experience to offer investment advice. Certainly, no one has a crystal ball, and not every loss results from actionable activity by a broker. Even sup- posedly “rock-solid” blue-chip stocks experience significant declines from time to time. However, in many instances, the actions of a broker or investment advisor can form the factual basis for a variety of legal claims. Federal and state securities statutes and state common-law typically govern civil liabilities arising out of the purchase and sale of securities.1 This article first reviews the duties a broker owes to his client, and then provides an overview of reoccurring fact patterns and circumstances often found when an investment advisor has engaged in actionable activity. STOCKBROKER AND BROKERAGE FIRM DUTIES TO THE CUSTOMER Pursuant to Sections 15A and 19 of the Securities Exchange Act of 19342, Congress has authorized the establishment of “self-regulatory organizations” (SROs) such as the New York Stock Exchange (NYSE), the American Stock Exchange (AMEX) and the National Association of Securities Dealers (NASD). Each of these SROs have promulgated rules which are, inter alia, “designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. . . “3 Rules promulgated by the various SROs are sent to the Securities and Exchange Commission for review and approval, following publication and an opportunity for public comment.4

14 Georgia Bar Journal The failure of a broker to comply tion before making a recommenda- tomer through any means includ- with the SRO rules does not give tion to purchase or sell a security. ing, but not limited to, direct tele- rise to a private right of action.5 Working hand-in-hand with the phone communication, the delivery However, a violation of the SRO “Know Your Customer Rule,” the of promotional material through rules can provide critical evidence “Suitability Rule”8 requires that the the mail, or the transmission of elec- that a broker or brokerage firm broker have a reasonable basis for tronic messages.”9 The NYSE has failed to exercise the requisite believing that a securities transac- adopted a similar approach. For degree or standard of care owed tion recommended to a customer is purposes of these standards, the their customer.6 suitable for the customer, in light of term “recommendation” includes The Duty to Know the the customer’s financial and other any advice, suggestion or other Customer and to Recommend circumstances. NASD has made it statement, written or oral, that is Suitable Investments. Among the clear that a “recommendation,” and intended, or can reasonably be most fundamental of SRO rules are hence the applicability of the “suit- expected, to influence a customer to the “Know Your Customer” and ability requirements,” is a fact spe- purchase, sell or hold a security. 10 the “Suitability” rules. The “Know cific inquiry. In particular, the By regulation, the Georgia Your Customer Rule”7 places a NASD has advised that “a transac- Securities Commissioner has duty upon brokers to acquire an tion will be considered to be recom- promulgated rules that similarly understanding of their customer’s mended when the member or its obligate a broker operating in financial needs, investment objec- associated person brings a specific Georgia to investigate the client’s tives and other pertinent informa- security to the attention of the cus- circumstances and only recom-

June 2002 15 mend investments suitable in light of the risks involved in purchasing such that the client follows almost of those circumstances.11 Violation or selling a particular security; (4) every recommendation the broker of these rules is a violation of the the duty to refrain from self-deal- makes. Churning can be a violation Georgia Securities Act.12 ing; (5) the duty not to misrepre- of Section 10(b) of the Securities The Duty of Good Faith, Fair sent any material fact to the trans- Act of 193421 and Rule 10b-5 prom- Dealing and Loyalty. Various SRO action; and (6) the duty to transact ulgated thereunder.22 It also is a and state regulatory pronounce- business only after receiving violation of the Georgia Securities ments require brokers and broker- approval from the customer.19 Act.23 Churning may also provide age firms to act with the utmost a basis for claims based upon good faith, fair dealing and loyalty COMMON breach of fiduciary duty,24 breach toward their customers.13 These PATTERNS OF of contract,25 negligence,26 and obligations mirror those imposed respondent superior liability.27 by Georgia common-law and MISCONDUCT Several objectively measurable 14 statute upon parties to a contract. Although each case presents a factors may suggest that an account The Duty to Supervise Brokers. different set of facts and circum- has been churned. One widely- Brokerage firms have a statutory stances, there are a number of com- accepted indicator is the turnover obligation, under both federal and mon themes and fact patterns giv- ratio. “Turnover rate is the ratio of 15 state law, to supervise their bro- ing rise to claims against stockbro- the total cost of purchases made for kers to prevent violations of the kers, brokerage firms and invest- the account during a given period of 28 securities laws. The SROs have ment advisors. Most of these claims time to the amount invested.” The courts generally recognize an annual turnover rate in an investment Under Georgia law, a confidential, fiduciary account of 6, or a ratio of purchases to the amount invested of 6:1, exces- relationship exists between a broker and a sive as a matter of law.29 Whether a particular turnover rate is excessive client. As a fiduciary, the broker has a legal depends upon the investment objectives of the customer. In long-term obligation to act in the “utmost good faith.” accounts with conservative objectives, a lower turnover ratio may be 30 imposed similar obligations by arise from the inherent conflicts deemed excessive. In trading 16 rule-making. created when a broker’s income is accounts and accounts with options Brokers Owe Their Customers a commission based, and thus direct- transactions, a higher turnover ratio 31 Fiduciary Duty. Under Georgia ly tied to the volume of transac- is expected. law, a confidential, fiduciary relations generated. Among the more Another factor to consider is the tionship exists between a broker common improper activities are “account maintenance cost,” also 17 and a client. As a fiduciary, the the following: known as the “equity maintenance broker has a legal obligation to act Churning/Excessive Trading. factor” or the “cost/equity ratio.” 18 in the “utmost good faith.” Churning “occurs when a securi- This is the rate of return the cus- As set forth by the 11th Circuit, ties broker buys and sells securities tomer must earn on the account to the fiduciary duties of an invest- for a customer’s account, without pay the commissions and other ment broker include: (1) the duty to regard to the customer’s invest- trading fees (such as margin inter- recommend investments only after ment interests, and for the purpose est). It is calculated by adding all studying it sufficiently to become of generating commissions.”20 The fees and commissions and express- informed as to its nature, price and broker churns an account by exer- ing the total as a percentage of financial prognosis; (2) the duty to cising control over it, either as a average annual equity. A high perform the customer’s orders result of having been given express account maintenance cost is indica- promptly in a manner best suited discretionary authority to trade, or tive of an account that has been to serve the customer’s interests; by developing a relationship of traded not for the customer’s bene- (3) the duty to inform the customer trust and confidence with the client fit, but for the benefit of the broker.

16 Georgia Bar Journal Also considered is the period of evidence of unsuitable activity, as Overconcentration/Failure to time a security is held from pur- is over concentration of the portfo- Diversify. It is generally accepted chase date to sale date. Short hold- lio in one stock, group of stocks, or that risk can be reduced by diversi- ing periods, with the proceeds industry, recommendations to use fying investments among a number immediately reinvested in other excessive margin to purchase addi- of different investments (such as positions, may be indicative of tional shares, and recommenda- investments in auto stocks, tech- churning.32 Another indicator of tions to purchase unregistered pri- nology stocks, retail stocks), or by churning is a comparison of the vate placements. The broker’s fail- diversifying in different types of total commissions generated by the ure to recommend suitable invest- investments (such as stocks, bonds account as compared to total comments may violate Section 10b of and mutual funds).48 A broker who missions earned by the broker the Securities Exchange Act and recommends that a client place all and/or the branch.33 Rule 10b-5,39 the Georgia Securities or substantial all of his investments Fraud and Misrepresentation. A Act,40 as well as conduct rules in one or just a few securities may broker may induce a customer to promulgated by the SROs.41 not only be ignoring sound invest- buy or sell a stock by making state- Unsuitable recommendations may ment theory, but may also be vio- ments or representations of material also give rise to state law based lating a number of legal and regu- fact that are known by the broker to causes of action under theories of latory obligations owed to his cus- be untrue, or that are made with a breach of contract,42 breach of fidu- tomer. Indeed, as a fiduciary, the reckless disregard for the truth, and ciary duty,43 and negligence.44 broker may be obligated to recom- that are relied upon by the customer Unauthorized Trading. A bro- mend a diversity of investments to following the broker’s recommen- ker is prohibited from executing a his client.49 dation. Also, a broker can commit trade in an account unless the client Excessive Margin. “Margin” fraud by an “omission” — failing to has approved and authorized the refers to the situation where a cus- reveal material facts that would trade, before the trade has been tomer borrows from the brokerage have been important to the cus- made, either by written discre- firm to purchase additional securi- tomer in making the investment tionary authority given to the bro- ties, using those securities (and decision. This conduct is prohibited ker (such as a Power of Attorney), perhaps others in the account) as by Section 10(b) of the Securities or by oral “time and place” discre- collateral.50 The Federal Reserve Exchange Act and Rule 10b-5 prom- tion granted to the broker.45 Often, sets the initial ratio of margin debt ulgated thereunder34, as well as the a disreputable broker will initiate to stock value at the time of pur- Georgia Securities Act.35 Such con- trades in the account without the chase.51 A broker cannot engage in duct also can serve as the basis for a prior authorization of the client. margin trading in a customer’s claim of common-law fraud.36 Among other claims, unauthorized account unless the customer Unsuitable Recommendations. trading in an account may violate authorizes it in writing, and is A broker must only recommend Section 10b of the Securities provided with certain credit disclo- investments that are appropriate Exchange Act and Rule 10b-546, sures.52 While many account open- for the customer’s particular cir- and is a violation of the Georgia ing agreements contain a provision cumstances, in light of the cus- Securities Act.47 authorizing and allowing margin tomer’s financial condition, level of sophistication, investment objectives, and risk tolerance. This is known as “suitability” or “know- ing your customer.”37 A common fact pattern is the broker’s recommendation to purchase excessive concentrations of low priced “penny” stocks38 or other volatile shares, suggesting that a small price rise for each share will mean significant profits. Churning is also

June 2002 17 trading, sometimes an account is An unscrupulous broker or firm The ability of a broker to engage in improperly traded on margin with- sometimes refuses to do so, because “selling away” may be indicative out any prior agreement or author- a sale might push down the price of of the brokerage firm’s failure to ization from the customer. a security they are promoting. adequately supervise its brokers. Even if a customer has author- Switching of Mutual Funds. “Cold Calls.” A cold call is a tele- ized trades on margin, a broker Although mutual funds are often phone call from a broker the cus- may improperly induce the cus- viewed as an appropriate invest- tomer has never met, trying to solic- tomer to carry an unreasonably ment option, a broker looking to it business. The brokers making large margin debt. Often, a dishon- improperly increase his commis- these calls are often very convinc- est broker will recommend that a sion may recommend that his cus- ing, and portray the stock they are customer borrow heavily to pur- tomer sell a mutual fund they own, touting as no-risk opportunities for chase low-priced, risky securities. and purchase a fund offered by a big profits. The stock is described as Sometimes, the broker fails to clear- different mutual fund company. a “phenomenal opportunity,” “the ly explain margin borrowing, Switching can generate significant next Microsoft,” or “a once in a life- including the fact that the margin commissions and sales charges ben- time opportunity.” Often, such balance cannot exceed a certain per- efiting the broker. Switching may brokers claim they have “inside” centage of the account. The broker not, however, place the investor in information, claim they have made might also fail to explain that if the a better mutual fund, and may in lots of money for other people, or value of the account falls below the fact place the investor in a lesser claim that they are out to help the required percentage, a “margin known, lower-quality fund. small investor, unlike the “big call” will be made requiring the Selling Away. “Selling Away” boys” on Wall Street. Sometimes, customer to place additional money describes instances where a broker brokers will claim (usually falsely) in the account or risk liquidation of sells securities outside of the firm that they believe in the investment the account to satisfy the margin with which he or she is associat- so much, they sold some to their debt. As the SEC has observed: ed.54 As described by the NASD, mother or other relatives. The Trading on margin increas- “[these] transactions pres- NASD’s Telemarketing Rule56 lim- es the risk of loss to a cus- ent serious regulatory con- its the calling time to between 8 tomer for two reasons. First, cerns because securities may a.m. and 9 p.m. Brokers calling the customer is at risk to lose be sold to public investors must identify themselves by pro- more than the amount invest- without the benefits of any viding their name, firm name, ed if the value of the security supervision or oversight by a address or phone number. depreciates sufficiently, giv- member firm and perhaps The “Bait and Switch.” The ini- ing rise to a margin call in the without adequate attention to tial recommendations of a dishon- account. Second, the client is various regulatory protections est broker may be for the purchase required to pay interest on the such as due diligence investi- of well known, widely traded blue margin loan, adding to the gations and suitability deter- chip stocks, or other securities con- investor’s cost of maintaining minations. In some cases, sistent with the customer’s invest- the account and increasing the investors may be misled into ment objectives. After the customer amount by which his invest- believing that the associated has invested in such companies, ment must appreciate before person’s firm has analyzed the the broker will then suggest that the customer realizes a net security being offered and such companies have little growth gain. At the same time, using “stands behind” the product potential, and pressure the cus- margin permit[s] the cus- and transaction when in fact tomer to sell the blue chip stocks tomers to purchase greater the firm may be totally and invest in small, unknown com- amounts of securities thereby unaware of the person’s par- panies, which the broker claims generating increased commis- ticipation in the transaction.”55 will bring spectacular profits. sions for [the salesperson].53 NASD Conduct Rules 3030 and Improper Marking of Failure or Refusal to Execute an 3040 prohibit, respectively, unap- Confirmations as “Unsolicited” Order. A broker also has an obliga- proved outside business activities Orders. The broker may inaccu- tion to execute sell orders if given. and private securities transactions. rately state that purchases recom-

18 Georgia Bar Journal mended by the broker were “unso- investment activity, the practition- 4. 15 U.S.C. § 78s(b)(1), (b)(2). licited.” Mismarking order tickets er should carefully review the facts 5. Spicer v. Chicago Bd. of Options Exch., Inc., 977 F.2d 255 (7th Cir. is a violation of the Securities not only in light of the legal and 1992); Hoxworth v. Blinder, Exchange Act57 and rules promul- regulatory obligations imposed Robinson & Co., 903 F.2d 186, 200 58 (3d Cir. 1990); Shahmirzadi v. gated by the SROs. upon those in the brokerage com- Smith Barney, Harris Upham & Blaming Errors on “Back munity, but also to understand the Co., 636 F. Supp. 49 (D. D.C. 1985); Room” or “Administrative” economic motivations that encour- Thompson v. Smith Barney, Harris Upham & Co., 709 F.2d 1413 (11th Problems. Unauthorized transac- aged and facilitated the broker to Cir. 1983); Jablon v. Dean Witter & tions, improperly marked confir- breach the legal and regulatory Co., 614 F.2d 677 (9th Cir. 1980); Shull v. Dain, Kalman & Quail, Inc., mations, and other difficulties a duties owed to the customer. 561 F.2d 152, 160 (8th Cir. 1977). customer is having with a broker 6. Miley v. Oppenheimer & Co., 637 will often be dismissed by the bro- Robert C. Port is a F.2d 318, 333 (5th Cir. 1981) (indus- partner with Hassett try rules are “excellent tools against ker as a problem with the “back which to assess in part the reason- room,” the administrative and cler- Cohen Goldstein Port ableness or excessiveness of a bro- & Gottlieb, LLP, ker’s handling of an investor’s ical support. Atlanta, Ga., where he account”); Lang v. H. Hentz & Co., The Manager Who Promises to 418 F. Supp. 1376, 1383-84 (N.D. practices commercial “Make it Right.” Often, a customer Tex. 1976) (NASD Rules provide litigation. He is a member of the evidence of the standard of care a who has lost substantial money as Board of Directors of the Sole member should have); Kirkland v. a result of a rouge broker gets a call E.F. Hutton & Co., 564 F. Supp. 427 Practitioner/Small Firm Section of (E.D. Mich. 1983). See also, Allen v. from the “manager” of the firm, the Atlanta Bar, and an arbitrator Lefkoff, Duncan, Grimes & Dermer, offering to make things right if the with the National Association of P.C., 265 Ga. 374, 453 S.E.2d 719 customer will let the “manager” Securities Dealers. He received (1995)(violation of a Bar Rule is not determinative of the standard of handle the account. Frequently, the his J.D., with honors, from the care applicable in a legal malprac- customer will be asked to send University of North Carolina in tice action, but it may be circum- 1983. stance that can be considered, along more money, “so we can have with other facts and circumstances, something to work with.” The in determining negligence.) “manager” might claim that the ENDNOTES 7. See NASD Conduct Rule 2310(b); NYSE Rule 405(1); AMEX Rule 1. A number of theories of liability other broker was young and inex- 411. NASD Conduct Rule 2310(b) are available to a plaintiff, includ- provides as follows: perienced, or claim that the other ing claims based upon the Prior to the execution of a transac- anti-fraud provisions of the broker has been fired. This “man- tion recommended to a non-insti- Securities Exchange Act of 1934, 15 tutional customer, other than ager” is often not the manager of U.S.C. § 78j(b) and Rule 10b-5 transactions with customers where the office, but someone working in promulgated thereunder, 17 C.F.R. investments are limited to money § 240.10b-5; the anti-fraud provi- tandem with the first broker. More market mutual funds, a member sions of the Georgia Securities Act shall make reasonable efforts to often than not, this “manager” will of 1973, O.C.G.A. § 10-5-14; com- obtain information concerning: mon law fraud; breach of fiduciary lose any new funds sent in, as well (1) the customer’s financial status; duty; breach of contract; negli- (2) the customer’s tax status; as what was left in the account. gence; control person liability (3) the customer’s investment under the Securities Exchange Act, objectives; and 15 U.S.C. § 78t(a) or the Georgia CONCLUSION (4) such other information used or Securities Act 0f 1973, O.C.G.A. § considered to be reasonable by 10-5-14(c); respondent superior lia- Unscrupulous investment advi- such member or registered repre- bility; agency; and the Georgia sors are always devising new and sentative in making recommenda- Racketeer Influenced and Corrupt tions to the customer. innovative methods to part Organizations Act (“RICO”), 8. NASD Conduct Rule 2310(a). This O.C.G.A. § 16-14-4. Other federal investors from their hard earned Rule provides as follows: statutes, such as the Employee In recommending to a customer money. Many of the patterns of Retirement Income Security Act the purchase, sale or exchange of (“ERISA”) may come into play. illicit activity summarized in this any security, a member shall have Self-regulatory organization rules, article are motivated by the eco- reasonable grounds for believing such as the NASD rules or NYSE that the recommendation is suit- nomic incentives under which bro- rules, also are relevant to the ques- able for such customer upon the tion of whether the broker has kers operate: commissions based basis of the facts, if any, disclosed breached a duty owed to a cus- by such customer as to his other on trading activity. When present- tomer. security holdings and as to his 2. 15 U.S.C. § 78o-3 and § 78s. ed with a possible claim of inap- financial situation and needs. propriate or perhaps fraudulent 3. 15 U.S.C. § 78o-3(b)(6).

June 2002 19 9. NASD Notice To Members 96-60 salesmen and employees.” The It shall be unlawful for any person, (Sept. 1996) (emphasis added). Rule sets forth various procedures directly or indirectly, by the use of 10. NYSE Supplementary Material to by which proper supervision can any means or instrumentality of Rule 472, Communications With be accomplished. interstate commerce or of the The Public No. 90-5. 16. NASD Conduct Rule 3010 provides: mails, or of any facility of any 11. Ga. Comp. R. & Regs. r. 590-4-2-.14 (a) Supervisory System. national securities exchange… (1)(a)(3) of the Georgia Securities Each member shall establish and (b) To use or employ, in connec- Commission, entitled Dishonest or maintain a system to supervise the tion with the purchase or sale of Unethical Business Practices, author- activities of each registered repre- any security registered on a izes the Securities Commissioner sentative and associated person national securities exchange or any to take action against brokers who: that is reasonably designed to security not so registered . . . any recommend[ ] to a customer the achieve compliance with applica- manipulative or deceptive device purchase, sale or exchange of any ble securities laws and regulations, or contrivance in contravention of security without reasonable and with the Rules of this such rules and regulations as the grounds to believe that such trans- Association. Final responsibility Commission may prescribe as nec- action or recommendation is suit- for proper supervision shall rest essary or appropriate in the public able for the customer based upon with the member. interest or for the protection of reasonable inquiry concerning the . . . investors. customer’s investment objectives, (b)Written Procedures. 22. See Hecht v. Harris, Upham & Co., financial situation and needs, and Each member shall establish, main- 430 F.2d 1202, 1206-07 (9th Cir. any other relevant information tain, and enforce written proce- 1970); Armstrong v. McAlpin, 699 known by the dealer, limited deal- dures to supervise the types of F.2d 79 (2d Cir. 1983)(churning may er, salesman, or limited salesman. business in which it engages and be a deceptive and manipulative 12. O.C.G.A. §§ 10-5-12(a)(1). to supervise the activities of regis- action under 10b-5). Rule 10b-5, 13. See, e.g., NASD Conduct Rule 2110 tered representatives and associat- promulgated by the Securities and (Members “shall observe high stan- ed persons that are reasonably Exchange Commission pursuant to dards of commercial honor and just designed to achieve compliance the authority granted to it by and equitable principles of trade.”); with applicable securities laws and Section 10b of the Securities NYSE Rule 401 (“Every member, regulations, and with the applica- Exchange Act, provides: allied member and member organi- ble Rules of this Association. It shall be unlawful for any person, zation shall at all times adhere to NYSE Rule 405(2) provides: directly or indirectly, by the use of the principals of good business Every NYSE member shall “super- any means or instrumentality of practice in the conduct of his or its vise diligently all accounts han- interstate commerce, or of the business affairs.”); Rule dled by registered representatives mails or of any facility of any 590-4-2.14(1) of the Georgia of the organization.” national securities exchange, Securities Commission (“Every 17. E. F. Hutton & Co. v. Weeks, 166 (a) To employ any device, scheme, dealer, limited dealer, salesman and Ga. App. 443, 445, 304 S.E.2d 420, or artifice to defraud, limited salesman shall observe high 422 (1983) (“The broker’s duty to (b) To make any untrue statement standards of commercial honor and account to its customer is fiduciary of a material fact or to omit to state just and equitable principles of in nature, resulting in an obliga- a material fact necessary in order trade in the conduct of business”). tion to exercise the utmost good to make the statements made, in 14. O.C.G.A. 11-1-203; Jackson Elec. faith.”); Gochnauer v. A. G. the light of the circumstances Membership Corp. v. Ga. Power Edwards & Sons, Inc., 810 F.2d under which they were made, not Co., 257 Ga. 772, 364 S.E.2d 556 1042, 1049 (11th Cir. 1987) (“The misleading, or (1988); see also Restatement law is clear that a broker owes a (c) To engage in any act, practice, (Second) Contracts, § 231 (1986 fiduciary duty of care and loyalty or course of business which oper- App.) (“Every contract imposes to a securities investor.”); accord ates or would operate as a fraud or upon each party a duty of good RESTATEMENT (SECOND) OF AGENCY deceit upon any person, in connec- faith and fair dealing in its per- § 425 (1957) (agents who are tion with the purchase or sale of formance and its enforcement.”). employed to make, manage, or any security. But see, Lake Tightsqueeze, Inc. v. advise on investments have fiduci- 23. Rule 590-4-2-.14(1)(a)(2) of the Chrysler First Fin. Servs. Corp., ary obligations). Georgia Securities Commission, 210 Ga. App. 178, 435 S.E.2d 486 18. O.C.G.A. § 23-2-58. entitled Dishonest or Unethical (1993)(“the failure to act in good 19. Gochnauer v. A.G. Edwards & Business Practices, authorizes the faith in the performance of con- Sons, Inc., 810 F.2d 1042, 1049 Securities Commissioner to take tracts or duties under the Uniform (11th Cir. 1987) (quoting Lieb v. action against brokers who Commercial Code does not state Merrill Lynch, Pierce, Fenner & “induc[e] trading in a customer’s an independent claim for which Smith, Inc., 461 F. Supp. 951, 953 account which is excessive in size relief may be granted.”) (E.D. Mich. 1978) aff’d, 647 F.2d 165 or frequency in view of the finan- 15. Rule 590-4-2-.08 of the Georgia (6th Cir. 1981)). cial resources and character of the Securities Commission, entitled 20. Thompson v. Smith Barney, Harris account.” Violation of the Rule is Supervision of Salesmen, Limited Upham & Co., 709 F. 2d 1413, 1416 a violation of the Georgia Salesmen, and Employees, provides (11th Cir. 1983); Costello v. Securities Act, § 10-5-12(a)(1). that “(1) Every dealer and limited Oppenheimer & Co., 711 F.2d 1361 24. See nn. 19-21, supra dealer registered or required to be (7th Cir. 1983). 25. Most customer agreements and registered under the Act shall exer- 21. Section 10(b) of the Securities Act trade confirmations incorporate cise diligent supervision over the of 1934, 15 U.S.C. § 78j(b), pro- industry rules and regulations into securities activities of all of its vides, in pertinent part that: the contract with the customer. For

20 Georgia Bar Journal example, a Bear Stearns Customer acts and omissions of those over 33. See, e.g., Smith v. Petrou, 705 F. Agreement provides: whom they hold the ability to dis- Supp. 183 (S.D.N.Y 1989)(commis- APPLICABLE LAW, RULES AND cipline or influence. See, Section sions generated by account was REGULATIONS. All transactions 20(a) of the Securities and substantial portion of broker’ s shall be subject to the applicable laws, Exchange Act, 15 U.S.C. § 78t(a); income). Accord, Stevens v. rules and regulations of all federal Harrison v. Dean Witter Reynolds, Abbott, Proctor & Paine, 288 F. state and self-regulatory authorities, Inc., 79 F.3d 609 (7th Cir. 1996); Supp. 836 (E.D. Va. 1968); Hecht v. including, but not limited to, the rules Hollinger v. Titan Capital Corp., Harris, Upham & Co., 430 F.2d and regulations of the Board of 914 F.2d 1564 (9th Cir. 1990) (en 1202 (9th Cir. 1970). Governors of the Federal Reserve banc)(control found where pri- 34. The elements of a securities fraud System and the constitution, rules and mary violator was a registered rep- action under of the 1934 Act are: (1) customs of the exchange or market resentative of the firm and had false representation or omission of (and clearing house) where such some direct means of discipline or a material fact; (2) made with scien- transactions are executed. influence over them). The Georgia ter - a mental state embracing an Violations of industry rules and Securities Act similarly provides attempt to deceive, manipulate or regulations by a broker/dealer or for liability of “control persons,” defraud; (3) in connection with the registered representative give rise subject to a “good faith” defense. purchase or sale of a security; (4) to breach of contract claims if dam- O.C.G.A. § 10-5-14(c). upon which the claimant reason- ages result. 28. Levin v. Shearson Lehman/ ably relied; (5) that proximately 26. A broker’s violation of regulatory American Express, Inc., [1984-85 causes damage. See Gochnauer v. duties, while generally recognized Transfer Binder] Fed. Sec. L. Rep. A.G. Edwards & Sons, Inc., 810 to not give rise to a private right of (CCH) ¶ 92,080 (S.D.N.Y. June 14, F.2d 1042, 1046-47 (11th Cir. 1987); action, may provide evidence in 1985). To calculate the annual rate Thompson v. Smith Barney, Harris evaluating whether the of turnover in an account, divide Upham & Co., 709 F.2d 1413 (11th broker/dealer properly exercised the total purchases in the account Cir. 1983); Diamond v. Lamotte, the required degree of care in deal- by the average amount invested in 709 F.2d 1419 (11th Cir. 1983). The ings with a customer. See, e.g., Allen the account. Then divide that fig- standard for determining materiali- v. Lefkoff, Duncan, Grimes & ure by the number of months in ty is whether “there is a substantial Dermer P.C., 265 Ga. 374, 453 S.E.2d the time period the account has likelihood that a reasonable share- 719 (1995)(violation of a Bar Rule is been open to determine the month- holder would consider it impor- not determinative of the standard of ly rate of turnover. Multiply that tant” or “a substantial likelihood care applicable in a legal malprac- figure by twelve (12) to determine that the disclosure…would have tice action, but it may be circum- the annual turnover. been viewed by the reasonable stance that can be considered, along 29. Freundt-Alberti v. Merrill Lynch, investor as having significantly with other facts and circumstances, Pierce, Fenner & Smith, Inc., 134 altered the ‘total mix’ of informa- in determining negligence.). F.3d 1031, 1032 (11th Cir. tion made available.” TCS Indus., A number of courts have held that 1998)(referring to benchmark Inc. v. Northway, Inc., 426 U.S. 438, a violation of regulatory rules may annual turnover ratio of six); 449 (1976); SEC v. Carriba Air, Inc., be the basis of a claim sounding in Craighead v. E.F. Hutton & Co., 681 F.2d 1318, (11th Cir. 1982) (The negligence. Miley v. Oppenheimer 899 F.2d 485, 490 (6th Cir. 1990); test for determining materiality is & Co., 637 F.2d 318, 333 (5th Cir. Arceneaux v. Merrill Lynch, whether a reasonable man would 1981) (industry rules are “excellent Pierce, Fenner & Smith, Inc., 767 attach importance to the fact mis- tools against which to assess in F.2d 1498, 1502 (11th Cir. 1985); represented or omitted in deter- part the reasonableness or exces- Mihara v. Dean Witter & Co., 619 mining his course of action). siveness of a broker’s handling of F.2d 814, 821 (9th Cir. 1980); 35. Georgia Code Section 10-5-14 pro- an investor’s account”); Lang v. H. Moran v. Kidder Peabody & Co., vides a cause of action against a Hentz & Co., 418 F. Supp. 1376, 609 F. Supp. 661 (S.D.N.Y. 1985), seller of securities for violating 1383-84 (N.D. Tex. 1976) (NASD aff’d, 788 F.2d 3 (2d Cir. 1986). Section 10-5-12 for making an Rules provide evidence of the stan- 30. See In re Thomson McKinnon Sec., untrue statement of a material fact dard of care a member should Inc., 191 B.R. 976 (Bankr. S.D.N.Y. or omiting to state a material fact have); Kirkland v. E.F. Hutton & 1996)(turnover rate of 2.2 creates necessary in order to make the Co., 564 F. Supp. 427 (E.D. Mich. question of fact for jury to decide if statements made, in the light of the 1983). See also, NASD Conduct activity was excessive). circumstances under which they Rule 2120 (“No member shall 31. See Thompson v. Smith Barney, are made, not misleading. Liability effect any transaction in, or induce Harris, Upham & Co., 539 F. Supp. will not be found however, if the purchase or sale of, any securi- 859 (N.D. Ga. 1982), aff’d, 709 F. 2d (1) the purchaser knew of the ty by means of any manipulative, 1413 (11th Cir. 1983) (plaintiff who untrue statement of a material fact deceptive or other fraudulent knew his account was being con- or omission of a statement of a device or contrivance.”) stantly traded, who had financial material fact; or (2) the seller did 27. Under common law agency princi- acumen to determine his own best not know and in the exercise of ples, the principal (the interests and who desired frequent reasonable care could not have broker/dealer) is liable for the trading, could not establish exces- known of the untrue statement or torts of its agents (its registered sive trading). misleading omission. O.C.G.A. § representatives) done within the 32. See Mihara v. Dean Witter & Co., 10-5-14. There is very little case scope of the principals business. 619 F.2d 814, 819 (9th Cir. 1980) law interpreting the Georgia O.C.G.A. § 51-2-2. Further, under (excessive trading established Securities Act. Its civil liability pro- both federal and state law, “control where 50% of securities held for visions are analogous to the feder- persons” may be held liable for the less than 15 days). al statutes. Although the language

June 2002 21 of the Georgia statute does not sufficiently to become informed as diversification and thereby reduce appear to require scienter, courts to its nature, price, and financial nonsystematic risk. See Edwin J. have construed the section in prognosis.” Gochnauer v. A.G. Elton & Martin J. Gruber, MODERN accordance with 10b-5 as requiring Edwards & Sons, Inc., 810 F.2d PORTFOLIO THEORY AND INVESTMENT proof of scienter. Currie v. 1042, 1049 (11th Cir. 1987) (quoting ANALYSIS 31 (3d ed., 1987). Cayman Resources Corp, 595 F. Lieb v. Merrill Lynch, Pierce, 49. “Diversification is a uniformly rec- Supp. 1364 (N.D. Ga. 1984), GCA Fenner & Smith, Inc., 461 F. Supp. ognized characteristic of prudent Strategic Inv. Fund, Ltd. v. Joseph 951, 953 (E.D. Mich. 1978) aff’d, 647 investment.” Robertson v. Cent. Charles & Assocs., Inc., 245 Ga. F.2d 165 (6th Cir. 1981). Jersey Bank & Trust Co., 47 F.3d App. 460, 464, 537 S.E.2d 677 44. See n. 7, supra. 1268, 1275 n. 4 (3d Cir. 1995), citing (2000). Georgia blue sky law does 45. See, e.g., NYSE Rule 408; NASD RESTATEMENT (THIRD) OF TRUSTS § not require proof of reliance. One Conduct Rule 2510, IM 2310-2(4)(iii). 229(d) (1992). advantage of a claimant proceed- Glisson v. Freeman, 243 Ga. App. 92, 50. As explained by the court in Walck ing under the Georgia Act is the 99 532 S.E.2d 442, 449 (2000)(“With v. Am. Stock Exch., Inc., 687 F.2d provision for recovery of attor- respect to a nondiscretionary 778, 780 (3d Cir. 1982), “[t]he mar- ney’s fees, interest, and court costs. account, . . . the broker owes a num- gin device permits a broker to O.C.G.A. § 10-5-14(a). ber of duties to the client, including extend credit to his customer to 36. Elements of fraud in Georgia are: the duty to transact business only finance the customer’s transac- (1) false representation of an exist- after receiving prior authorization tions, with the broker holding a ing fact or past event; (2) scienter, from the client. . . .”). At least one security interest in the securities (3) intention to induce plaintiff to court has held that basic principles purchased as collateral for the act or refrain from acting, (4) justi- of agency law required the broker to loan. The customer pays an agreed fiable reliance by plaintiff and (5) inform the customer of his right to percentage of the purchase price damage to plaintiff. See, e.g., Fuller reject unauthorized purchases. by depositing cash or other securi- v. Perry, 223 Ga. App. 129, 476 Merrill Lynch Pierce Fenner & ties, and the broker holds the stock S.E.2d 793, 795 (1996). Smith, Inc. v. Cheng, 901 F.2d 1124, purchased as collateral for the bal- Nondisclosure may provide the 1128 (D.C. Cir. 1990). ance. The broker in turn often basis for constructive fraud where 46. See n. 23, supra. See, e.g., Davis v. finances the purchase by using the a party is under an obligation to Merrill Lynch, Pierce, Fenner & securities purchased as collateral communicate. O.C.G.A. § 23-2-53. Smith, Inc., 906 F.2d 1206, 1212 for a bank loan.” The obligation to communicate (8th Cir. 1990). 51. Regulation T of the Federal may arise from the confidential 47. Rule 590-4-2-.14(1)(a)(4) of the Reserve Board, 12 C.F.R. § relations of the parties or from the Georgia Securities Commission, 220.1-18. A customer purchasing particular circumstances of the Dishonest or Unethical Business prac- stock on margin generally must case. See also O.C.G.A. § 23-2- tices, authorizes the Securities advance a minimum of 50% of the 51(b). Under Georgia law, a confi- Commissioner to take action purchase price in cash or in securi- dential relationship imposes a against brokers who “executing a ties. In addition, the NASD, NYSE, greater duty on the parties to transaction on behalf of a customer and brokerage firms set their own reveal what should be revealed, without authorization to do so.” “margin maintenance” require- and a lessened duty to discover Ga. Comp. R. & Regs. r. 590-4-2-14. ments, and in some instances, do independently what could have Violation of the Rule is a violation not permit certain securities to be been discovered through the exer- of the Georgia Securities Act, § used as collateral for margin bor- cise of ordinary care. Hunter, 10-5-12(a)(1). rowing. Currently, NASD and Maclean, Exley & Dunn, P.C. v. 48. See, e.g., Richard A. Booth, The stock exchange rules require 25 Frame, 269 Ga. 844, 847-48, 507 Suitability Rule, Investor percent margin maintenance, and S.E.2d 411 (1998). Diversification, and Using Spread to many firms require 30 percent to 37. See nn. 8-11 supra., “[T]he making of Measure Risk, 54 BUS. LAW. 1599 35 percent maintenance. recommendations for the purchase (1999) “One of the time-honored 52. 17 C.F.R. § 240.17a-3(a)(9)(iii); 17 of a security implies that the dealer investment maxims is that risk can C.F.R. § 240.10b has a reasonable basis for such rec- be reduced by diversification.” 53. In the Matter of Laurie Jones ommendations, which in turn, Burton Malkiel & William Baumol, Canady, Exchange Act Release No. requires that, as a prerequisite, he Redundant Regulation of Foreign 41250, (Apr. 5, 1999). shall have made a reasonable inves- Security Trading and U.S. 54. See, e.g., Martin v. Shearson tigation.” Distribution By Broker- Competitiveness, in MODERNIZING Lehman Hutton, Inc., 986 F.2d 242 Dealers of Unregistered Securities, U.S. SECURITIES REGULATION, 39, 45 (8th Cir. 1993). Exchange Act Release No. 4445, 1962 (Kenneth Lehn & Robert W. 55. NASD Notice to Members 85-21. WL 69442 (Feb. 2, 1962). Kamphuis, Jr. eds., 1992). “The sin- 56. NASD Conduct Rule 2211. 38. “Penny” stocks are generally con- gle most important step most 57. Securities Exchange Act, Sec. 17(a) sidered to be those whose market investors can take to immediately and Rule 17a-3(a)(6). price is less than $5.00. improve the long range perform- 58. NYSE Rule 440. 39. See nn. 23-24, supra. ance of their portfolios … is to 40. See n. 25, supra. properly diversify their common 41. See n.28, supra. stock investments.” Norman G. 42. See n. 27, supra. Fosback, STOCK MARKET LOGIC: A 43. See nn. 19-21, supra. As set forth by SOPHISTICATED APPROACH TO PROFITS the Eleventh Circuit, the fiduciary ON WALL STREET 252 (1985). There is duties of an investment broker general agreement that it takes at include “the duty to recommend least 10, and usually 15-20, non-cor- [investments] only after studying it related stocks to achieve adequate

22 Georgia Bar Journal “and justice for all!” 2002 State Bar Campaign Georgia Legal Services Program The Georgia Legal Services Program (GLSP) offers hope and help to those who would otherwise go without.

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2002 Legislative Session Highlights Top Legal Issues

By Mark Middleton legislative proposals and funding Council for Indigent Defense initiatives as an unprecedented received a significant increase of eight bills were passed and await $900,000 in the supplemental and he longest General the governor’s signature. The FY 2003 budgets. General Assembly passed various Assembly since 1885 Bills Awaiting State Bar endorsed bills clarifying provided the State Bar of the Limited Liability Company Governor’s Signature T Act, conforming the foreign Service SB 253, LLC Revision: This bill, Georgia with another year of legisla- of Process to the federal rule, which revises Section 601.1 of the tive success as many items of the allowing trustees to delegate finan- Limited Liability Company Code, cial management functions, recog- passed the House by Committee legislative package received favor- nizing renunciation of succession Substitute. The measure clarifies the rights and revising Article Five of current law by explicitly stating that able consideration. The session also the Uniform Commercial Code. an LLC member cannot withdraw previewed significant issues such as The General Assembly also without authority from the LLC passed other initiatives endorsed operating agreement. Chuck indigent defense and domestic and supported by the State Bar, Beudrot, Michael Wasserman and including a loan forgiveness pro- the other members of the appeals, which will require future gram for public interest attorneys, Partnership Sub-Committee of the State Bar attention and involvement. and an important bill regarding Business Law Section deserve cred- notaries engaged in the unautho- it for their two-year effort to achieve This legislature will be remem- rized practice of law. the passage of this bill. Sen. Greg bered for having to deal with the Also, the State Bar worked dili- Hecht (D-Morrow) and Sen. Mike crematorium tragedy in Walker gently to support state funding for Boggs (D-Waycross) handled the County and for the seemingly various judicial programs. This bill in their respective chambers. never-ending redrawing of the leg- was an extremely tight budget year SB 346, International Service of islative maps. The legislature also in which the governor required Process: This Tort & Insurance passed important bills relating to each agency to propose 10-percent Practice Section proposal conforms predatory lending, natural gas and reductions in their annual requests. the state statute to the federal rule domestic terrorism. In this environment, the State Bar that allows for international service The State Bar once again was very fortunate that none of its by mail. Section Chair Ken Shigley advanced the Board of Governors’ initiatives were cut. In fact, the was particularly effective in testify-

24 Georgia Bar Journal ing on behalf of this and other bills. HB 1253, UCC Article 5: The friend, Rep. Robert Reichert (D- Sen. Seth Harp (R-Columbus) and Business Law Section followed Macon), and Sen. Michael Meyer Sen. Jim Stokes (D-Covington) pre- their 2001 success with Article Von Bremen (D-Albany) champi- sented the bill to their colleagues. Nine with this proposal, which oned this cause for us. SB 465, Loan Forgiveness revises Article 5 of the UCC relat- HB 1256, Prohibition of Program: This program initiated by ing to letters of credit. The revised Notaries Practicing Law: This bill the state’s prosecutors, and spon- Article 5 will promote improved addresses a problem in the interna- sored by the governor, provides international trade by providing tional community where notaries loan repayment assistance to cer- uniformity with other states and by are thought to have broad powers. tain public interest attorneys. recognizing standard practices not The bill explicitly prohibits notaries Albany District Attorney Ken contemplated under the old Article from the practice of law, and Hodges chaired the task force that 5. This was another huge effort by requires them to provide notices recommended this pro- that explain their func- gram to the governor. tions do not include HB 639, Delegation of the practice of law. Trustee Powers: This Rep. Barbara Mobley Fiduciary Law Section (D-Decatur) is to be proposal allows trustees commended for to appoint agents to han- expertly shepherding dle certain management this bill through the and investment func- legislative process. tions. It is designed to HB 1582, Functions assist small banks and of Clerk’s Authority: individuals that serve as The Real Property trustees. Jack Sawyer, Section’s original pro- Mark Williamson and Bill posal to limit the use of Linkous of the Fiduciary the $5.00 real estate fil- Law Section worked dili- ing fee by the Superior gently to revise and Court’s Clerk’s Auth- improve this proposal as ority was addressed by it worked its way this bill, which codifies through the legislative the functions of the process. We owe a special Authority. The com- thanks to Rep. Tom promises in this bill Campbell (R-Roswell), allow the Clerk’s Rep. Wendell Willard (R- Authority extended Dunwoody) and Sen. temporary funding Harp for their extraordi- while providing some nary efforts in passing assurances that the this bill. funding will be used HB 646, Renunciation of Dana Kull, Roger Martin and the for the indexing and images proj- Interests: This Fiduciary Law Business Law Section. These bills ects that benefit practicing real Section bill states that a renuncia- seeking uniformity are generally estate attorneys. tion of future interests can vest more difficult to pass because the State Bar Bills during the lifetime of the renounc- strength of uniformity is only ing life estate holder. This bill enjoyed if the bill passes without That Did Not Pass addressed an appellate court deci- significant amendment. For the Ironically, the session’s extraordi- sion to the contrary. This bill had second year in a row, the State Bar nary length only worsened the usual passed the House last year, and the fought sustained efforts to amend last minute crush of legislation. Senate acted this session. its UCC initiatives. Our long-time Many meaningful bills, including

June 2002 25 the following State Bar bills, died in Major Issues the legislature looked favorably the closing days of the session. on the Horizon upon our judicial programs in this HB 1238, Identification of Bills very difficult budget process,” said for Treatment of Injury or Disease: Two issues are looming on the ACL Chairman Tommy Burnside. horizon to be dealt with by the leg- This Tort & Insurance Practice Other Bills of Interest Section proposal conforms the law islature and courts. relating to the identification of med- First, indigent defense is expect- to the State Bar ical bills with the current eviden- ed to be an important issue next In addition to implementing the tiary statute relating to the identifi- year. The legislature must address State Bar agenda, the legislative cation of medical narratives. The bill the source of funding and the representatives also tracked has passed the House and Senate mechanism for delivery of services. numerous bills relating to the prac- Judiciary without controversy, but This year, Speaker Murphy tice of law. Several bills of interest did not receive further action. weighed into the debate with HB passed, and now await the gover- SB 393, Appellate Procedure 1505 that would have dedicated 25 nor’s signature. For example, Revision: This is the appellate pro- percent of local fines and forfei- House Judiciary Chairman Tom cedure legislation recommended tures to indigent defense costs. The Bordeaux (D-Savannah) authored a by our Appellate Practice Section chief justice has a commission that bill that waives sovereign immuni- and Chief Judge Blackburn of the is expected to make recommenda- ty of local government entities for Georgia Court of Appeals. The bill tions this summer. injuries arising out of the negligent explicitly lists all known direct Direct appeals in domestic cases use of motor vehicles. Another appeals in 5-6-34, amends O.C.G.A. are another issue that surfaced this interesting bill is HB 917 by Rep. 5-6-35 to include interlocutory year. The House tacked on floor Willard, which allows terminally ill appeals. The bill received a contro- amendments to at least two bills. parents to appoint a temporary versial amendment on the House The chief justice has promised to “Stand-by Guardian” for their chil- floor and agreement between the review the issue and make recom- dren. Senate Judiciary Chairman various parties could not be mendations in time for next year’s Rene Kemp (D-Hinesville) reached in time for passage. session. “The State Bar will be authored SB 517, which restricts SR 600, Certification of extremely active this year in antici- the discretionary powers of a Questions of Law to the Georgia pation of a monumental legislative trustee who is also a beneficiary of Supreme Court: This proposed session next year,” said State Bar the trust. amendment to the Georgia President Jimmy Franklin. Bar Section Program Constitution would allow federal Appropriation district courts to certify questions Agenda Items The Bar continues to rely on its to the Georgia Supreme Court. The Bar Section Legislative Tracking resolution was not placed on the Judicial programs important to Program in which Bar section mem- House Debate Calendar by the the Bar were spared the budget ax. bers monitor bills of importance to House Rules Committee. The Georgia Indigent Defense the Bar during the legislative ses- SB 383, Motor Vehicle Report Council received a total increase of sion. Bar members tracked bills Disclosure: The Tort & Insurance $900,000 in the FY 2002 and FY 2003 through the GeorgiaNet Web site, Practice Section withdrew this pro- budgets. This brings the total FY and numerous bills were sent out to posal to require local law enforce- 2003 spending to some $6.2 million. the sections for review and comment to provide unredacted acci- The State funding for the ment. Our thanks goes out to all Bar dent reports when law enforce- Georgia Court Appointed Special members who provided timely ment raised concerns about federal Advocates remained at $1,095,000, responses to the legislative repre- requirements to protect social secu- the spending on Domestic Violence sentatives regarding issues affect- rity numbers. The issue will be representation at $2.2 million and ing the practice of law. “The partic- studied further in anticipation of the Appellate Resource Center held ipation of the various Sections is the next legislative session. steady at $800,000 for FY 2003. “We vital to the success of the State Bar are grateful that the governor and legislative program,” said Tom

26 Georgia Bar Journal Boller, legislative representative. “Their expertise gives us tremen- dous credibility as we present the State Bar’s views to the legislature.” Conclusion This has been another produc- tive and successful legislative session for the State Bar. The State Bar thanks Speaker Tom Murphy and Lt. Gov. Mark Taylor, two lawyers who were once again supportive of the State Bar’s legislative efforts. We also owe special debts of grati- tude to the chairmen of the House and Senate Judiciary Committees, Session Notables Rep. Tom Bordeaux (D-Savannah) and Sen. Rene Kemp (D- The following bills of interest passed in the 2002 session and await Hinesville), and Special Judiciary signature by the governor: Committee chairs, Sen. Charles SB 320: The Homeland Defense Act, authored by Minority Leader Tanksley (R-Marietta) and Rep. Eric Johnson (R-Savannah) enhances the penalties for domestic ter- Curtis Jenkins (D-Forsyth). rorism. The coming year promises to be SB 330: The Transportation Security Act, authored by Sen. Greg a year of great challenges as sim- Hecht, creates state sanctions for crimes relating to airport security. mering issues, such as indigent SB 517: This bill, authored by Chairman Kemp, limits the powers of defense and domestic appeals, are trustees that are also the beneficiaries of the trust. debated. Changes will undoubted- SR 520: This Resolution created a committee to study the public ly occur as the election year pro- funding of judicial elections. An amendment to the resolution was duces new members to the House passed, which places the State Bar president on the committee. and Senate. We encourage every HB 84: The Uniform Fraudulent Transfers Act passed the House State Bar member to participate in last year and awaits the governor's signature after passage in the the State Bar’s legislative activities Senate. The bill modernizes the law relating to fraudulent transfers. by supporting candidates, making HB 130: This bill would allow parties in litigation to disinter the donations or even offering them- bodies of decedents for DNA testing. The bill passed the House selves as candidates. With the con- and Senate and awaits the governor's signature. tinued interest and participation of HB 337: This bill dramatically impacts the process of private sales our members, we look forward to of tax liens. another successful year. HB 1104: This bill, proposed by the Superior Court Clerks, extends by two years the sunset provision relating to the $5 fee currently The State Bar of Georgia legisla- collected on real property filings. tive representatives are Tom HB 1116: This measure allows the judge discretion in adding addi- Boller, Rusty Sewell, Wanda tional witnesses after a pretrial order has been entered. The sub- Segers and Mark Middleton. stance of the bill was added as an amendment to SB 346. Please contact them at HB 1128: This bill, authored by House Judiciary Chairman Tom (404) 872-2373 or (770) 825-0808 Bordeaux, addresses sovereign immunity issues related to munici- for further legislative information pal motor vehicles. or visit the Bar’s Web site at HB 1320: This bill strengthens the continuance laws for legislators www.gabar.org. Bar members during the period that they are in legislative session. can track bills through the GeorgiaNet Web site at HB 1575: This bill would require juries of 12 when the damages www.ganet.org/services/leg. claim is greater than $25,000.

June 2002 27 GBJ feature

Historic Savannah Hosts the 2002 Spring BOG Meeting

By Joe Conte bylaws for the Military/Veterans Law Section. A new ixing business Government Attor- with pleasure isn’t neys Section was formed in recogni- tough to do in M tion of the significant beautiful Savannah, the site of the number of attorneys 185th meeting of the Board of engaged in government service. The Governors of the State Bar of purpose of this sec- Georgia. President James B. tion is to provide a State Bar Past President Bill Cannon (left) and forum for govern- current President Jimmy Franklin visit during the Franklin presided over a produc- ment attorneys and “Taste of the South” dinner event Saturday evening. tive board meeting, which includ- to promote their interest before and ed action on the long-standing participation in the State Bar of Board of Trustees. He will serve a issue of indigent defense. In addi- Georgia. Dues were set at $10. three-year term. tion, attendees enjoyed the tradi- New Members/ Rule/Bylaw Changes tional Friday evening welcoming Appointments Following a report by Aasia Mustakeem on the organization of reception and a “Taste of the The Board welcomed three new members. Tom Stubbs replaces the Bar, the Board approved two South” dinner event Saturday Bryan Cavan as the Stone amendments affecting Bar elec- evening. The mild Savannah Mountain Post 6 representative. tions. First, an amendment to Rule Cavan resigned that post to accept 1-304 requires a write-in candidate weather allowed for plenty of an appointment to Atlanta Post 31. for the Board to declare his or her recreational activities to complete For Brunswick Post 2, Alexander intent to run at least 10 days before Johnson replaces Jim Benefield, the deadline to declare. An amend- the weekend. who resigned as the representative. ment to Bylaws Article VII, to conform the rules for electronic voting, Sections Judge Robert Mallis is the new representative to Stone Mountain Post was approved with one revision. Highlights of the Board meeting 8, replacing Michael Sheffield. The Indigent Defense included the approval of new logos Board unanimously approved the for the Eminent Domain, Environ- appointment of Rudolph N. The Board, at the start of the mental Law and Family Law Patterson to the Institute for Board meeting, adopted by majori- Sections, and a revision to the Continuing Judicial Education ty voice vote a proposed special

28 Georgia Bar Journal order outlining the debate format tives in all civil jury trials, then gath- 5. Strive to fully answer deliberat- of this topic. Following reports by er feedback from the participants at ing jurors’ questions and meet C. Wilson DuBose and Terry trial, particularly jurors. The pur- their requests. Jackson, and subsequent floor pose was to seek ways to improve 6. Encourage the parties in civil debate, the Board voted to support juror satisfaction and improve the cases to consent to use six-per- the State Bar of Georgia Proposal in delivery of justice to litigants. son juries. support of the Supreme Court Following are the eight initia- 7. Upon prior consent of counsel, Commission on Indigent Defense. tives. The initiatives and a full allow alternate jurors to partici- The full text appears on page 31 of digest of the feedback received on pate in jury deliberations, but this Bar Journal. each is available on the State Bar’s not to vote. Court Futures Web site at www.gabar.org. 8. Upon prior agreement of coun- 1. Have counsel give a mini-open- sel, allow civil juries to proceed Committee ing statement prior to voir dire. with less than a full panel when Judge Ben Studdard provided a 2. Allow use of juror notes during one member is disqualified. report of the Court Futures deliberations. Multijurisdictional 3. Provide the jury with written Committee of the State Bar. The Practice Committee Committee concluded its Jury copies of preliminary instruc- Initiative Pilot Project. The Project tions and the final charge. Dwight J. Davis provided a consists of eight initiatives. Judges 4. Give the final charge to the jury report on the activities of the MJP were asked to implement the initia- prior to closing argument. Committee, including its Town

June 2002 29 Hall Meeting held April 5, 2002, in George R. Rein- Savannah. Another Town Hall hardt Jr. provided an meeting is planned for 2 p.m. on update on the State June 14, as part of the Bar’s Annual Bar Building budget Meeting in Amelia Island, Fla. and provided the Income Statement by department for the seven months ending Jan. 31, 2002. YLD Report Peter J. Daughtery reported on the vari- BOG member Dennis O’Brien (center) with his wife, ous activities of the Hedwig (left), and Bonne Cella (right), from the YLD including two State Bar’s Tifton office, pose during the meeting. American Bar Assoc- iation (ABA) grants recently award- governmental priorities adopted at ed to its Advocates for Special the February 2002 ABA Board of Needs Children and Minorities in Governors meeting. In addition, he the Profession Committees, the reported that Paula Frederick of the Incoming State Bar President-Elect Aspiring Youth Program Comm- State Bar of Georgia Office of Bill Barwick and Judge Louisa General Counsel has been nominat- Abbot mingle at the Friday evening ittee’s after-school programs, the ed to the 37-member Board of welcoming reception. community service project in conjunction with the Spring meeting, Governors of the ABA. She will be and the Great Day of Service. elected at the August meeting in the Bar Center and woman-at-large position. Stewart is Treasurer’s Report Advisory Committee the Board nominee from Georgia’s on Legislation district and will become one of the 18 James B. Franklin provided an district representatives. He will also Thomas R. Burnside Jr. provided update on the Bar Center and tree be elected at the August meeting. appeal. Bar staff has moved into an update on the Bar’s legislative the building; however, leasing and agenda. A recap of this year’s ses- Lawyers Foundation renovations have been halted until sion is on page 24 of this Bar Journal. of Georgia the matter is resolved. 2002 Annual Lauren Barrett provided a report Meeting on the activities of the Lawyers Foundation of Georgia, including a James B. Franklin grant to the Atlanta Voluntary highlighted the activ- Lawyers Foundation for firefight- ities scheduled for ers and police and the annual the 2002 Annual Service Juris project for which vol- Meeting, June 13-16, unteers are still needed. Contact at Amelia Island Lauren Barrett for more informa- Plantation, Amelia tion at (404) 659-6867 or via e-mail Island, Fla. at [email protected]. ABA Update Joe Conte is the director of State Bar Deputy General Counsel Paula Frederick J. Douglas Stewart communications for the State Bar (left), BOG member Joseph Roseborough (center) provided a report on of Georgia. and Cliff Holt, of Insurance Specialists Inc., share a the legislative and laugh during the Saturday evening dinner.

30 Georgia Bar Journal Board Approves Indigent Defense Proposal

Following is the full text of the indigent defense requests the Commission to consider the following proposal passed by the Board: conclusions and recommendations as part of its evaluation of Georgia’s indigent defense system: STATE BAR OF GEORGIA Indigent defense is a constitutionally mandated public responsibility. PROPOSAL IN SUPPORT OF Indigent defense is a state responsibility, and SUPREME COURT COMMISSION should be fully funded by the state at a level that ON INDIGENT DEFENSE adequately protects the constitutional right to effective assistance of counsel in criminal proceedings. WHEREAS, the Georgia Supreme Court’s In order to ensure a uniform quality of representa- Commission on Indigent Defense was created for tion throughout the state, Georgia should adopt a the purpose of evaluating Georgia’s indigent public defender system, organized by judicial circuits, defense system and recommending needed that relies upon appointed counsel for conflict and improvements to that system; and, overflow work and is subject to discernable profes- WHEREAS, the Commission is presently con- sional standards administered uniformly on a ducting the fact finding phase of its evaluation and statewide basis by an independent oversight commis- has invited interested persons and organizations sion. The commission should be authorized to permit from throughout the state to present their respective judicial circuits to implement alternative delivery sys- views on the reform of Georgia’s indigent defense tems if the commission determines that the alternative system prior to the Commission’s preparation of its system is designed to meet or exceed the quality of final report and recommendations; and indigent defense representation provided by public WHEREAS, the State Bar of Georgia endorsed defender systems and that the alternative system the creation of the Commission as the proper complies with all applicable uniform state standards method for evaluating Georgia’s indigent defense relating to indigent defense representation. system; and The process for selecting and compensating indi- WHEREAS, the Board of Governors and various gent defense counsel should assure that indigent committees of the State Bar have held discussions defense counsel and prosecutors are comparably and meetings regarding the work of the compensated and that indigent defense counsel are Commission and proposals for reforming Georgia’s accorded the same degree of professional independ- current indigent defense system; and ence as that of privately retained criminal defense WHEREAS, the State Bar of Georgia, through its counsel. Board of Governors, should provide leadership and Indigent defense counsel should be provided guidance in matters affecting Georgia’s criminal jus- investigators, paralegals and expert witnesses nec- tice system, especially when the protection of essary to make an independent assessment of the important constitutional rights, such as the right to case and to assure fairness and due process effective assistance of counsel and the right to a fair throughout each stage of the proceeding. trial, are at stake. Georgia should provide indigent defense counsel NOW, THEREFORE, the State Bar of Georgia, in capital post conviction proceedings and in other through its Board of Governors, expresses its strong post conviction proceedings that involve a sentence of support for the work of the Supreme Court’s life or other substantial period of imprisonment. Commission on Indigent Defense, and respectfully

June 2002 31 GBJ feature

An Annual Rendezvous for a Fifth of a Century: The American Law Institute and the State Bar of Georgia

By Dorothy Toth Beasley

n Feb. 26, 2002, the 20th Annual Breakfast, co- Osponsored by the American Law Institute (ALI) and the State Bar Judicial Procedure and Administration Committee, was held at the Commerce Club in Atlanta. Highlighting the event was Michael Traynor, president of the ALI, who is a partner in the San Francisco law firm Cooley Pictured (left to right): Dorothy Toth Beasley, senior judge, State of Georgia; Michael Traynor, president, The American Law Institute; Janice Godward LLP, where he special- Griffin, dean, Georgia State University College of Law; R. Lawrence izes in intellectual property, busi- Dessem, Walter F. George School of Law, Mercer University; and Thomas W. Malone, chair, State Bar of Georgia Judicial Procedure and ness and First Amendment litiga- Administration Committee. tion. Traynor also serves as a mediator in the federal court in San The evening before the breakfast, the Georgia State University Francisco and has served as advis- Traynor was entertained at an ele- College of Law, had lunch with er on a number of ALI restatement gant dinner in his honor at the home Dean Janice Griffith and others of Debbie and Tommy Malone, with from the law school, and enjoyed a projects. Among many other con- judges, lawyers, law professors and tour of the new Federal Reserve tributions to the development and spouses in attendance. Malone is Bank of Atlanta, arranged by Senior practice of the law, Traynor teaches chair of the State Bar of Georgia co- Vice President and General Counsel sponsoring committee. Earlier that Richard A. Jones and conducted by periodically at the School of Law day, Traynor spoke to the contracts Jess Palazzolo, public information (Boult Hall) at U.C. Berkeley. class of Professor Marjorie Girth at director.

32 Georgia Bar Journal President Traynor’s intriguing resolution of various issues of part of the raw material the ALI topic at the breakfast was “That’s products liability,” Traynor noted. tried to synthesize. Debatable: The ALI as a Public Perhaps the work of the ALI Other examples of debates, Policy Forum.” He reviewed sever- bears on the development of public which drew in public policy, were al historic ALI debates and consid- policy in part because of the public presented, such as the wait-and-see ered issues involving the ALI as a roles, which many of its members approach to the vesting require- public policy forum. His starting undertake. Traynor pointed out ment of the Rule against point was “the working formu- Perpetuities, and public nui- la” for the ALI, as penned by sance in the law of torts for pri- former Director Herbert vate redress and not just in the Wechsler: “We should feel The ALI became “the vital public criminal law. These, obliged in our deliberations to and the 1959 debate concern- give due weight to all of the national forum for the ing the roles of judge and jury considerations that the courts, resolution of various issues in the law of capital punish- under a proper view of the ment, illustrated what Traynor judicial function, deem it right of products liability,” concluded with: “A precious to weigh in theirs.” resource of the Institute is its Director Wechsler’s state- Traynor noted. ability to apply deliberative ment “made it clear that the processes to the central object ALI, like the courts, need not of clarifying and simplifying be bound by a mere prepon- the law and adapting it to derance of precedent in restating that in 1978, for example, those social needs.” (An annotated ver- the law,” said Traynor. elected to the ALI Council were sion of the speech may be found at Accordingly, for example, in the Ruth Bader Ginsburg, Louis H. www.ali.org.) Restatement Second of Torts, the Pollak, Patricia M. Wald and A report on the meeting would ALI approved the minority princi- William H. Webster. not be complete without acknowl- ple of strict liability to persons The restatements, Traynor said, edging the expert facilitation of other than users and consumers for “now reflect significant and sub- arrangements by Michelle Priester, defective products. Case law devel- stantial statutory material as build- State Bar of Georgia director of oped along this line, leading to the ing blocks in the evolution of the meetings, and Helene Cohen and adoption of the principle in the common law.” He gave as an Jane Giacinto of the ALI in Restatement Third. Although example the Restatement Third, Philadelphia. efforts to reform product liability Unfair Competition, which inte- law were made in Congress, they grates both strands of law. He Dorothy Toth Beasley is a senior repeatedly failed. The ALI became explained that the precedents, judge for the State of Georgia. “the vital national forum for the whether judicial or statutory, are

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June 2002 33 GBJ fiction contest

Equitable Division

By Stephen L. Berry mane was also a lot like her long- She’d wear the black Donna Karan dead daddy’s, the tips flecked with dress bought at Saks Fifth Avenue gray, the strands now curling in the last summer when they’d spent enise Hardigan stared moist sea air. four days in New York. A lace veil His face was striking, the fea- would shield her face and she’d at her husband and tures seemingly chiseled into a can- force herself to cry uncontrollably. Dcame to the same con- vas of deeply tanned skin. His For effect she’d toss herself on the expression always conveyed a coffin as old Edgar hinged the lid clusion she’d arrived at months solemn sense of authoritativeness, closed and she’d cry out in desper- before. one she’d immediately liked. Edgar ation on the trials and tribulations Reubens, owner and operator of that the blessed Lord had unwit- He would make a handsome Reubens & Sons Funeral Home, tingly forced upon her. corpse. Cobb County Georgia’s largest In short, she’d do everything a Frank was six foot one, with a mortuary, was going to have an bereaved widow was expected to do. pair of warm green eyes she’d easy time preparing the body. Everything the people of admired from the first day they There’d be no wounds to mask Georgia would want to see from met, eight years ago. They remind- with make-up. No teeth to replace. Mrs. Frank Hardigan, the wife of a ed her of her father’s, that indiffer- No bones to reset. She was intent justice to the Supreme Court of ent soul who’d cared far more on him looking quite proper Georgia. The press loved a lively about the weather for weekend framed out by an expensive bronze funeral and she’d make sure her fishing than he did for his three casket. She’d spend three thousand dear departed husband’s was one daughters. Her husband’s tawny dollars. No. Four would be better. to remember. It was the least she

ANNUAL FICTION WRITING COMPETITION The Editorial Board of the Georgia Bar Journal is proud to present “Equitable Division,” by Stephen L. Berry of St. Marys, Ga., as the winner of the Journal’s 11th Annual Fiction Writing Competition. In addition, the Journal would like to recognize the contest’s runner-up, “Mrs. Palsgraf’s Dream Team – A Play in One Act,” by Henry W. Kimmel of Decatur, Ga. The purposes of the competition are to enhance interest in the Journal, to encourage excellence in writing by members of the Bar and to provide an innovative vehicle for the illustration of the life and work of lawyers. 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 Berry, Kimmel and all of the other entrants for their participation and excellent writing.

34 Georgia Bar Journal could do for him. But she was get- “And you’ll give ting ahead of herself. them to him. After First things first. all, what are loving She turned toward Frank and husbands for?” She said, “Darling, could you help me planted a soft peck with my air tank?” on his two-day Before Frank could respond to stubble. One of the her plea, one of the chocolate-brown luxuries of a vaca- deck crew shot over, lifted the steel tion, Frank liked to cylinder, and slid the coarse black say, was not having straps over her shoulders. to shave. Supreme “Thank you, son. Careful now, Court Justices were my shoulders are a little red.” expected always to The boy gently settled the back- look their best, but pack down on the dive cozumel T- being nearly two shirt that sheathed her thin frame. thousand miles from home came worry about a decompression stop She adjusted the waist belt and with certain intangible privileges. on the way up. Be conscious of turned to her husband. “You need She grabbed her mask and fins your time. Start for the surface after to move faster.” from the bench and again surveyed thirty-five minutes. I’ll remind you Frank smiled back and she the boat. Her best estimate was that by flashing my blue light at the half caught a glimpse of his pearly the vessel stretched forty feet. Its hour mark. Any questions?” white teeth in the bright moonlight. open decks and benches were spe- “What about the terrain?” asked They glowed with an almost fluo- cially outfitted to accommodate a middle-age man in pink bathing rescent shine, like the wax ones divers and their bulky equipment. trunks. kids wore at Halloween. “Those Three crew members and a dive “We’re anchored over one of the boys just know what it takes to gar- master rounded out the boat’s com- most beautiful spots in the world. ner a good tip. If I received a dollar plement, and she watched as The locals call this section of the every time sometime shouted my everyone busily prepared them- reef Santa Rosa. Big mounds of name, I’d hustle too.” selves for night diving. coral everywhere. Lots of caverns She turned to her young helper. “While you suit up, let me go and tunnels full of stuff. Don’t be “Son, could you put those bags over the routine,” the dive master bashful. If you find a big opening, somewhere for me so they won’t said from the stern. swim in and have a look.” get wet?” He was a burly, oversized The dive master continued his “Yes, ma’am. They’ll be in the American with thick, sun-bur- orientation. While he spoke, she forward cabin when we get back to nished blond hair. He looked about again studied the assortment of shore.” forty and doled out his words in a people on board. She’d listened The boy grabbed the green plas- heavy Dixie drawl. She wondered if intently to the chitchat on the cruise tic shopping bags and scampered the accent was real or part of an act out. Several of tonight’s participants toward the front of the boat. Before to make the tourists feel at home. had accompanied them the past two they’d left the dock, while waiting “Ya’ll are in for a treat. Usually days, apparently also booking the for darkness, she’d done a little May here in Mexico is full of four-days-and-three-nights-dive- shopping in San Miguel, particu- storms, but its gorgeous tonight. Cozumel-tour through their own larly enjoying the Ralph Lauren We’re about two hundred yards off travel agents. Four hundred and store where she filled three sacks the southwestern tip of Cozumel. fifty dollars, including air fare and with Polo clothes for herself and The bottom is sixty feet down. I’ll two meals a day. Not bad. A real Frank. go first. After everybody gets in the bargain if recreation and relaxation Frank drew close, adjusting the water, I’ll count heads, then we’ll was what a person sought. straps to his own tank. “He’ll want move out. At tonight’s depth There was an Illinois doctor, per- more than a couple of dollars when you’ve got about forty minutes of haps a surgeon from what little we get back to the dock.” bottom time without having to she’d overheard, who was at least

June 2002 35 She stopped and shined She started her Movement out of the corner of descent and remem- her eye caught her attention. The her light inside. It was a bered what she dive master was leading the way learned three days into black ink. Frank kicked his fins tunnel. Thirty to forty feet ago about the strong and followed and she fell in behind. underwater currents. Their combined lights slowly long, her light fading into As streams blew in brought the spectacle into focus from the open and she saw they were in a valley blackness on the far side. Caribbean a steady between two gigantic coral flow of warm water mounds, each rising at least thirty sixty, along with his trophy wife. A followed, so her changing depth feet, a miniature Grand Canyon at car salesman traveling alone from had no effect on temperature. Fifty the bottom of the Cozumel Straight. Pennsylvania or New Jersey, she feet felt the same as ten. And the She checked her depth gauge. Sixty could never learn for sure. A group clarity was unsurpassed. A trans- feet and dropping. Her compass of young, bearded Canadians indicated they were moving west, who chatted incessantly, mostly away from shore, toward the in French. A couple from open channel. Alabama, on their first trip out After a short swim the dive of the country and not enjoying master stopped and indicated Mexican hospitality. And six this was the designated area. He college kids from Minnesota signaled for the group to fan out who definitely were savoring and explore. the tropical heat. One in partic- Frank needed no further prod- ular caught her eye. His wash- ding and immediately led the board tummy was flat and hard way. She liked that about him. and his genitals bulged through He was a take-charge-kind-of- a skimpy piece of black nylon, guy. A local cracker, born and the kind she’d seen in the mall bred in Bainbridge, Georgia. that came in clear plastic cylin- Well respected. A major player in ders and could easily be mistak- the State Bar of Georgia. A close en for a head band. friend of the Governor. An “See you on the bottom,” the Associate Justice for the past dive master said as he finished twelve years and leading candi- his spiel. date to become chief justice next Frank stepped close, mask year. and fins in hand. “Should be fun.” parent, tepid aquarium, available They negotiated a narrow pas- She smiled at him. “You keep an for viewing to anyone with four sage between two coral walls. She eye on me, okay?” hundred and fifty dollars, air fare traced the escarpment upward and He wrapped an arm around her and two-meals-a-day included. calculated the precipice reached half waist and hugged her. She nestled On the bottom the dive master way to the surface. Its face was a rut- her head into his shoulder and counted heads and signaled if each ted mass of coral polyps. Purplish savored the feel of his warm body. person was okay. She and Frank sea fans dotted the sides and She watched as the dive master carried a main light and backup, all swayed in the current like leaves stepped onto the platform and provided by the tour. The moon bending in a breeze. A few of the jumped from the stern. A light sud- added an additional degree of com- other divers approached from denly appeared, then faded in the fort, along with an easy point of behind, their lights setting the scene dark transparent water. One by one reference. She took a moment and ablaze. Tropical fish smeared in others followed. glanced up. A pockmarked lunar scarlet, sapphire, and gold drifted in At their turn, she and Frank disk rippled over the surface. every direction, some feeding, oth- eagerly stepped off. ers suspended trance-like, apparent-

36 Georgia Bar Journal ly out for the night. Crabs hustled They were alone. Frank’s body swayed in the like roaches and Frank’s light caught Finally. a glimpse of an octopus sweeping She kicked her fins gentle current, and he across the sandy bottom, its color and followed her hus- constantly changing in camouflage. band inside. seemed totally unaware of Frank kicked in pursuit. Frank floated weight- She followed and deliberately less in the crystal clear any contact. slowed her progress, giving the water. He purged air others time to swim ahead. She from his buoyancy vest and slowly She jerked her arm away, won- then thrust her fins forward against descended, landing on bare knees, dering what he was doing. His air the canyon wall and stared a a cloud of silt rising then drifting valve was open. His breathing was, moment longer at the rainbow of away. He traced the path of anoth- as yet, unobstructed. A second later coral feasting on a steady stream of er octopus with his light and she she realized that her unsuspecting microorganisms brought by the used the distraction to move close, husband had merely swum farther warm current, the colorful hues careful to blend her light with his into the tunnel, a little closer to the starkly illuminated against a caligi- so nothing betrayed her move- fleeing crabs who continued to hold nous sea. The whole thing had the ments. She settled on the soft sand, his undivided attention. look and feel of an Impressionist fixing her eyes on his head, then She propelled herself back into painting, surely calming and com- gently grabbed the black knob that position behind and slightly above forting, and hopefully distracting. opened and closed his air tank. She him. This time, without delay, her She continued to drift along the twisted the narrow threads clock- hand moved to the knob. wall and, as the dive master pre- wise, closing the valve. She’d prac- Three seconds and the final two dicted, periodically there were ticed with a similar knob for weeks turns were made. openings. Some were small — no and knew eight turns would be She immediately pushed on the more than a foot or two across — required to fully close. water and propelled herself back, mere crevices and indentations. Conscious of that fact, she halted listening as he sucked his last But some were larger. Suddenly, her effort at six. breath. Bubbles rumbled out the she came upon a huge one. Frank’s body swayed in the gen- side ports of his regulator and per- She stopped and shined her light tle current, and he seemed totally colated to the tunnel’s roof. inside. It was a tunnel. Thirty to unaware of any contact. She timed He then tried to take another forty feet long, her light fading into her movements well since, just as breath and instantly rolled over blackness on the far side. She judged she withdrew her grip, Frank when nothing was there. He franti- the diameter at eight to ten feet, the swam forward into the heart of the cally slashed his right index finger inside teeming with crabs and fish. tunnel. She took the opportunity to across his neck, the universal signal Swaying sea anemones made the glance back one last time, black- that his air was gone. All of the train- walls look alive. She tested the bot- ness outside confirming they were ing taught four years earlier when tom. The silt should not cloud visi- still alone. she became a certified diver bility. She turned toward Frank and A hiss vibrated the water as motioned with her light. His gaze Frank added air to his buoyancy locked on hers and she pointed, ask- vest. She refocused on him and ing if they should swim through. watched as he flattened his body He nodded. and floated up, his light fixed ahead She knew him well. on a group of feeding crabs. She She fell back and let him take his maneuvered back into position and, familiar place in the lead. She took as Frank concentrated on the specta- the opportunity to glance behind. cle, reached again for the valve. The lights of the other divers drift- But just as she made contact, he ed in the distance, the distinctive lurched forward with a sudden- blue tint of the dive master’s ness that startled her. nowhere nearby.

June 2002 37 required her to spring to his aid and She waited. He had to be dead. She’d made sure of that. share a regulator. They would each No chance for revival. No CPR by Being a lawyer herself helped. A take repeated breaths and slowly that damn Illinois doctor. No hero- divorce lawyer actually. A partner make their way to the surface, one ics from the dive master. Just a in a respectable downtown Atlanta arm intertwined around the other corpse Edgar Reubens could dress firm. forming a single unit of cooperation. and decorate for fools to gawk at. Unfortunately, Frank had been The buddy system at its most prodi- After nearly a minute, and before uncharacteristically diligent. He’d gious self. The kind of hero story the current moved the body toward hired his own private investigator dive magazines liked to proclaim the tunnel’s exit, she swam close and learned about her several while at the same time hocking ads and shined her light into his mask. affairs. for overpriced equipment and four- A wild look of terror stared back That would have been a problem hundred-and-fifty-dollar dive pack- from his open eyes. For an instant at trial. ages, meals and air fare included. she thought him alive, but there Unfortunately, too, Frank had But she did nothing. was no blinking, no pupil contrac- also remained monogamous. The Instead, she simply sought com- tion, nothing. Strangely, the horri- irritating bastard had not strayed fort within the warm blanket of fied gaze did not frighten her, and once. water that enveloped her. Yet a all she could recall was how those That too would have been a chill suddenly swept past, one that eyes once viewed her with love. problem. made her spine shiver. Was that She rolled his body over and Georgia has never subscribed to a Frank’s fear rushing by as he final- reopened the air valve. She then community property theory regard- ly realized his fate? reached up to remove the regulator ing assets acquired during a mar- He kicked toward her and she from his mouth, but stopped. riage. Our principles are governed pushed herself back. She pointed Instead, she purged the mouth- by equitable division. The trier of her light toward him. He shielded piece by simply pressing the button fact is free to divide assets and lia- his eyes from the bright glare and in front. A burst of bubbles explod- bilities as appropriate to the con- tried again to signal that his air was ed from the exhale ports and out duct and contribution of the parties. gone. The confines of the tunnel the sides of Frank’s mouth, the air Frank himself laid out that legal provided little room to maneuver. having nowhere to go in his lifeless principle in Ruffin v. Yates, a case Frank was a trained diver and a throat and lungs. which involved another second good swimmer — he’d been in the She savored one last look inside marriage and another cheating wife. Navy — and if this was open water the mask. No remorse. No guilt. She knew the decision well. That he might have made it to the sur- Just a sense of relief. wife received little in the way of face. But the element of surprise Marriage number two was over. equitable division. and the choice of location gave her The private investigator she’d One other principle of Georgia all the advantage. hired three months back had law, though, was clear. If two par- A few seconds later his move- proven invaluable. His discreet ties own something jointly with a ments stopped. reports made clear that this would right of survivorship, at the death have been her last trip as Mrs. of one the other would own the Frank Hardigan. Her husband had property entirely. No questions already retained a lawyer and was asked. No legal challenges. Just preparing to file for divorce. sole ownership. Though their marriage produced She stared again at Frank. no children, the seven-year union A joint owner no longer. had generated some valuable real He’d agreed to the Cozumel trip estate purchases, a substantial stock without much debate. Surely a way portfolio, a respectable amount of for him to physically enjoy her one jewelry, and most sacred, two tick- last time. After all, sex had never ets to the Masters. Nearly six mil- been a problem for them. She’d lion dollars in assets, all held jointly encouraged the excursion as some with rights of survivorship. quality time between the high

38 Georgia Bar Journal court’s sessions where they both A casual flip of her hand to a man Stephen L. Berry is a could unwind. Just a long weekend that had proven a great disappoint- 1980 graduate of in Mexico — scuba diving and ment. A tiny part of her would miss Mercer University sex — who could resist? him. Weak men were easy to con- School of Law. Prior When they returned to Atlanta trol. Weak men who thought them- to attending law school, Berry attend- there would have been the selves smart were even simpler to ed Valdosta State College, where inevitable meeting. Probably his dominate. And weak men who he earned a bachelor’s degree in lawyer coming to her office and dis- believed themselves clever were the political science. Since 1980, Berry creetly informing her of the infor- frailest of all. has been in private practice in St. mation they possessed and suggest- None of them ever realized their Marys, Ga. He also served on the ing an amicable divorce. Because of vulnerability. Camden County Board of Frank’s position on the Supreme Like tonight. Education and is presently chair- Court, and her partnership in a firm She swam through the tunnel man of the Camden County Board always sensitive to image, the best into open water. The dive master’s of Commissioners. Berry has been course was the quiet course. A blue light was off in the distance. writing since 1990 and has recent- small cash payment would be Frantically, she waved her light in ly sold two novels to be published offered to satisfy her immediate the darkness and attracted the by Ballantine. Berry was also the needs, but she’d be expected to attention of other divers. winner of the Journal’s 10th Annual Fiction Writing support herself on her six-figure Lights started heading toward Competition for his story, “The salary. Forget about the millions in her. House.” assets, most of which she accumu- Good. lated since Frank was financially Frank needed help. challenged simply by the balancing of his checkbook. Don’t concern yourself with alimony or any type of substantive property settlement, the publicity wasn’t worth it. Watch the Masters on television, CBS does a great job with their telecast. In short — no equitable division. Just a simple, uncontested divorce accompanied by a press release that the parties ‘are sad- dened by the dissolution of their marriage but are intent on remain- ing friends.’ The type of words expected when a public official — especially a justice of the state’s PostScript Picture West Group Ad p39.EPS highest court — was involved. Enough information to dispel unseemly rumors. But none of that carefully chore- ographed staging was to be. Her marriage was over, the equitable division one hundred percent. To her. She nearly smiled, but caught herself. There’d be time enough later for accolades. So she waived goodbye to Frank.

June 2002 39 GBJ fiction contest

Mrs. Palsgraf’s Dream Team – A Play in One Act

By Henry W. Kimmel of the men. The package falls on the track. It apparently… (A store-front law office. Long Island, New York. A PALSGRAF …Not apparently, it… cold autumn day, 1924. A MIDDLE-AGED WOMAN LAWYER …contains fireworks. When the train sits beside a desk. A YOUNG LAWYER paces.) goes, it runs over the package, causing an explosion and a stampede of people LAWYER And then you said a scale tipped over that tips over a scale at the point of the and hit you on top of the head? platform where you and your daugh- PALSGRAF That’s right. ter are waiting to go to the beach. LAWYER A scale? PALSGRAF Yes, that’s exactly what happened!! PALSGRAF Uh huh. LAWYER It certainly wasn’t intentional, and I’m LAWYER One of those big scales that you weigh not sure you can say it was negligent. yourself with? The explosion would seem to be the PALSGRAF A penny scale. proximate cause of your injuries, but LAWYER At the East New York train station? you were outside the orbit of danger, PALSGRAF On the platform. and I’m not sure that a judge would LAWYER It tipped over and hit you on top of the say that the railroad had a duty to you. head? PALSGRAF I don’t know what you just said. PALSGRAF You don’t believe me? LAWYER I feel bad that you’re hurt, but... LAWYER It’s not that I don’t believe you. It’s just PALSGRAF What? that the whole thing seems… LAWYER I’m not sure I can help you. PALSGRAF Far-fetched? PALSGRAF Is it because I’m a cleaning lady? LAWYER Let me get this straight: You’re waiting LAWYER No. for a train at the East New York station. PALSGRAF Then why not? PALSGRAF Yes. LAWYER I don’t know if I have the resources to LAWYER A Sunday. help you. PALSGRAF The holiest day of the week. PALSGRAF “Resources”? LAWYER Two men are running to make another LAWYER This morning I had to take two paper train. clips from the bank — not that I don’t PALSGRAF Italians. intend to replace them, it’s just that LAWYER The doors to that train are about to payments are slow coming in, and I’ve close, so the conductor pushes these got to make sure I don’t over-extend men onto the train. As the conductor myself. pushes, he knocks a package from one

40 Georgia Bar Journal PALSGRAF In other words, you don’t think you could win. LAWYER We’re talking about a tenuous chain of events. PALSGRAF Not too “tenuous” or it wouldn’t have happened. LAWYER Still… PALSGRAF (interrupting) The conductor was the one who pushed the men who dropped the fireworks that caused the stampede that knocked over the scale that hit me on top of the head there, you might say I referred you to and prevents me from “consorting” them. They may not know who I am, with my husband. but you can tell them I’m the young LAWYER “Consorting” with your husband? lawyer with the store-front office on PALSGRAF It means… the boardwalk. One block over from LAWYER …I know what it means. the train. And please remind them that PALSGRAF Then why can’t you do something I’m specializing in residential house about it? closings — nothing that’ll conflict with LAWYER You would think I could, wouldn’t their general practice. you? PALSGRAF You’re kicking me out? PALSGRAF You strike me as a very intelligent boy. LAWYER I really need to get on with the business LAWYER I’m not as intelligent as you think. of things. PALSGRAF You’re a lawyer, aren’t you? PALSGRAF Business? LAWYER Yes, but not all lawyers are smart. In LAWYER You see that woman standing outside fact, some of them are pretty dumb. my window? She wants to come in, PALSGRAF Then it’s a good thing I came to you. but she thinks I’m busy. LAWYER Mrs…. PALSGRAF You’re going to help her but not me? PALSGRAF Palsgraf. LAWYER (to the woman outside the window) LAWYER I think you’ll be better off going to one Ma’am. It’s okay. You can come in. I’m of those big firms up the street. not busy. PALSGRAF I don’t want one of those big firms; I (The woman, unseen to the audience, walks away.) want you. LAWYER That’s very flattering, but there’s a firm LAWYER Nuts. They always walk away when I up the street that does personal injury approach. Maybe it was a mistake to cases — (writing it down) Gumbert, get an office on the boardwalk. All I Handfinger & Kaplan. They’re well- seem to attract are curiosity seekers dressed, they golf with a lot of judges, who want to see a lawyer in action — and they all went to good schools. as if there’s a lot to see. Maybe I should Here’s their address. And here’s my get a shade — or an office in a high-rise name and number. When you get facing the ocean. Or maybe I should

June 2002 41 hook up with another lawyer. A secre- LAWYER You see that couple outside my win- tary. A paralegal. A clerk. Anyone dow? It would be good if I could go who’d realize that in 30 years this place out to greet them. Because, let’s face it, is going to be one big subdivision. a lot of lawyers do house closings, and PALSGRAF I don’t think it helps that you’re locat- I need to do everything I can to get ed between the Ferris Wheel and a business. Palm Reader. The first time I went by, I PALSGRAF Fine. Invite them in. I don’t care. thought you were with the carnival. LAWYER You’re just going to sit there? LAWYER Mrs….. PALSGRAF Yes. PALSGRAF Palsgraf. LAWYER For how long? LAWYER I don’t mean to be rude, but could you PALSGRAF For as long as it takes. leave? LAWYER What? PALSGRAF Leave? PALSGRAF A satisfying response. LAWYER I need people to think I’m free. It’s LAWYER Hey, I’m not saying don’t come to me nothing personal — in fact, it may be when it’s time to buy a house. good for people to see me talking to a PALSGRAF All right. Fine. I’ll leave. (She takes her prospective client — but the 4:15 is coat.) But I’m going to sit on that bench about to arrive from the city and and tell anyone who comes up to your maybe, with good fortune, I can hook window what I think about you — in one of the passengers….Here’s your which isn’t very much. coat. I appreciate the chance neverthe- LAWYER Excuse me. less. PALSGRAF I’ll tell them to go up the street. To a PALSGRAF I’m not leaving. better lawyer. LAWYER Excuse me. LAWYER Wait a minute. You’re gonna sit in PALSGRAF I’m not leaving until I’m convinced front of my office and tell people to go you can’t help me. away? LAWYER I said… PALSGRAF Yes. PALSGRAF I don’t care what you said. You’re a LAWYER I’ll report you to the police. lawyer, aren’t you? PALSGRAF What for? LAWYER Specializing in house closings. LAWYER Defamation. PALSGRAF Bah! PALSGRAF I’ll be telling the truth. LAWYER It pays the bills. LAWYER Trespassing. PALSGRAF So does mopping the floor. PALSGRAF The sidewalk is on public property. LAWYER I don’t have to take any case I don’t LAWYER Then I’ll report you for being a public want — especially if someone up the nuisance. street can do a better job. PALSGRAF Fine. Report me to the police. But I’ll PALSGRAF Who says they can do a better job? make such a fuss that everyone will LAWYER Just walk into their office and tell me know you’re not a very good lawyer. you’re not impressed. They have an LAWYER Don’t open that door. autographed picture of Judge Cardozo PALSGRAF Then you’re ready to talk about my — and Judge Stevens. case? PALSGRAF That means absolutely nothing to me. LAWYER Sit. LAWYER Once they get involved in your case, it PALSGRAF You mean it this time? will. LAWYER Mrs. Paslgraf. If I can show you that I PALSGRAF And how can you be so sure they’ll am not the right lawyer for this job — want me? or, conversely, that your case is with- LAWYER Mrs… out merit — will you then leave with- PALSGRAF Palsgraf. Helen Palsgraf. Why can’t out saying anything to anyone outside you remember my name?! my door?

42 Georgia Bar Journal PALSGRAF All right. Fine. It’s not exactly what I’m PALSGRAF And make sure it’s hot, but not too hot. looking for, but at least I’m starting to LAWYER I think I can handle a cup of coffee. get someone’s attention. PALSGRAF You don’t strike me as the most confident person in the world. (She sits.) LAWYER It’s a big thing to sue the Long Island LAWYER Coffee? Railroad — especially at a time when PALSGRAF Only if it’s strong. the government is doing everything LAWYER I can’t promise you anything — but if possible to help trains. you don’t like it, you don’t have to PALSGRAF To me, that would be more of a reason drink it. to go after them. To show them that PALSGRAF Is the mug clean? they can’t take our safety for granted. LAWYER Yes, Mrs. Palsgraf. LAWYER You think it’s their fault you got tram- PALSGRAF It doesn’t look clean. pled? LAWYER Then I’ll put it into this glass — and PALSGRAF When you put too many people on a don’t say the glass isn’t clean because train, bad things are going to happen. I’m borrowing it from the diner. LAWYER Bad, but not foreseeable. PALSGRAF Isn’t that theft? PALSGRAF And what’s that supposed to mean? LAWYER Do you want cream and sugar? LAWYER You can’t expect the railroad to be PALSGRAF I want it black. responsible for everything that might LAWYER Yes, Mrs. Palsgraf. happen.

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June 2002 43 PALSGRAF We’re not talking about a hurricane. PALSGRAF Because of my dizziness. LAWYER Only something less likely. LAWYER Dizziness? PALSGRAF Less likely, but within their control. PALSGRAF I keep losing my balance and dropping LAWYER Debatable. things. PALSGRAF But arguable. LAWYER What kind of things? LAWYER Assuming you’ve got the resources. PALSGRAF Last week, when I was cleaning house PALSGRAF Why don’t you just say money? for Mrs. Socolof, I broke three glasses LAWYER Because I’m not talking about money. she saved from the Titanic. I’m talking about litigating a case LAWYER And you think the Long Island against a company that has a full-time Railroad is responsible for that? legal staff consisting of the best gradu- PALSGRAF The sinking of The Titanic? ates of the best schools. LAWYER Maybe if they had better trains, people PALSGRAF And you don’t think you’re up to that? wouldn’t take boats. LAWYER I’m not sure I can afford to work on a PALSGRAF At least now you’re thinking. contingency. LAWYER And how do we know your dizziness PASLGRAF How do you expect to go anywhere if is related to the “incident”? you’re not willing to take a chance? PALSGRAF Are you calling me a liar? LAWYER I’ve got a wife and a child. A mortgage. LAWYER I’m not — but someone will. Vacuum cleaner payments. PALSGRAF And you’d just accept that? PALSGRAF I’ve got three children and a husband LAWYER I just want to help people move into out of work. I use a broom. It doesn’t their first homes. prevent me from standing up for my PALSGRAF So your reputation means nothing to dignity. you? LAWYER This is my first time making coffee. I LAWYER I intend to do a good job. hope it’s okay for you. PALSGRAF As long as it’s not too hard? PALSGRAF It needs to be stronger. LAWYER Closing a real estate deal is very LAWYER You haven’t even tasted it. hard — especially if you’ve never done PALSGRAF I can tell. it before. LAWYER Mrs. Paslgraf. PALSGRAF You? PALSGRAF You’re not listening to me. LAWYER I’m talking about my clients. LAWYER I’m afraid this is the best I can do. PALSGRAF Where? PALSGRAF And I’m afraid that it isn’t. LAWYER They’re waiting to come in. LAWYER I told you I’m specializing in house PALSGRAF They’re not going to come in until you closings. have a reputation. And you’re not PALSGRAF Something safe? going to have a reputation until you LAWYER I’m not ashamed to admit it. help me. PALSGRAF You don’t want to work for your (She pulls cigarette from the pack.) money? LAWYER I don’t see you offering to pay me any- LAWYER Mrs. Palsgraf, I don’t mean to be insen- thing. sitive, but there’s no smoking in here. PALSGRAF I’ll give you 50 percent of whatever I PALSGRAF Then why do you have two ashtrays? get. LAWYER Those are decorative. LAWYER That’s still not much of a guarantee. PALSGRAF For the wealthier clientele? LAWYER I’m going to ask you to put out that cig- (PALSGRAF pulls out a pack of cigarettes.) arette. PALSGRAF I’ll give you 60, 70 percent, I don’t care. PALSGRAF I’m afraid that I can’t. Because this isn’t about money — it’s LAWYER What do you mean you can’t? about pride. Although money is an PALSGRAF You’ve never smoked, have you? issue. I’ve already lost three jobs. LAWYER I generally try not to do things that are LAWYER Three jobs? bad for me.

44 Georgia Bar Journal PALSGRAF Who says smoking is bad? LAWYER Then maybe I can help you. LAWYER It’s nothing personal, Mrs. Palsgraf. (He tries to grab her package of cigarettes, but before he But I don’t want my clients coming into can, she pushes him hard into a nearly empty book a smoky office. shelf. Books and diploma hit LAWYER on the head.) PALSGRAF Clients? LAWYER Yes. PALSGRAF I’m sorry. But I don’t think you realize PALSGRAF Where? how embarrassing it is to walk down LAWYER (pointing to his files) Here. the street in my neighborhood and PALSGRAF Let’s see. have everyone stare. Sure, they express concern to my face, but when my back (She grabs the files on his desk. Starts thumbing is turned, they can’t wait to tell their through them.) friends that they know the woman who LAWYER Don’t touch my files….Mrs. Palsgraf got bopped on the head by the Long …The names are confidential. Island Railroad. And how do you think PALSGRAF These are all blank. Empty. I feel when all the kids on the block LAWYER Amazing, isn’t it? I get the biggest sign come up to me and say, “A penny for on the boardwalk, but I can’t get any- your thoughts”? Which is not as bad as one to come in. I felt when I was told by Gumbert, PALSGRAF So I’m your first customer? Handfinger & Kaplan that the best they LAWYER Not if you don’t put out your cigarette. could do was get me free passes for the PALSGRAF I said I can’t help it. train. As if I want to ride the train ever

June 2002 45 again. I’ll walk first. In fact, I walked LAWYER I’ll pay for the dry cleaning. eight miles to your office, and I’ll walk PALSGRAF Aahhhhhh. eight miles home. But before I do, I’m LAWYER Mrs. Palsgraf. Come on. going to make sure I find someone who PALSGRAF You shouldn’t have served something believes in my cause. so hot into a glass. LAWYER You went to G, H & K? LAWYER You’re the one who wanted it hot. PALSGRAF I hate to say it, but you’re the only PALSGRAF Hot, but not too hot. There’s a differ- lawyer within walking distance who’ll ence. A big difference. A difference that even talk to me. those lawyers down the street — your LAWYER You tried other firms? competition — might be willing to PALSGRAF Yes. explore to the fullest extent of the law. LAWYER What did they say? LAWYER A ridiculous claim. PALSGRAF They either work for the railroad or said PALSGRAF Maybe to you. But your life hasn’t been my case was not “feasible.” One lawyer treated with utter contempt. thought I could win except for the fact LAWYER Wait. that I wasn’t a “sympathetic plaintiff.” PALSGRAF Anything from this point on should LAWYER What do you mean you’re not a sym- probably be directed to my attorney. pathetic plaintiff? LAWYER I am your attorney. PALSGRAF I’m old. I smoke. I’m pushy. PALSGRAF Excuse me. LAWYER Those could be good things. LAWYER I am your attorney. PALSGRAF Then why won’t you take my case? PALSGRAF Are you? LAWYER I’m just out of a law school — not a LAWYER Do you think I can sue myself? very good law school — and I was no PALSGRAF No. But how about the Long Island where near the top of my class. In fact, Railroad? I was at the bottom. LAWYER It’s a long shot, but it may be worth a PALSGRAF I don’t care about your lousy credentials. try. I just need someone to represent me. PALSGRAF You think so? LAWYER You did assume the risk. LAWYER Sit, Mrs. Palsgraf. PALSGRAF You think I wanted to get bopped on PALSGRAF And what about those people outside the head?! your window? LAWYER I’m trying to be realistic. LAWYER They’ll have to wait. PALSGRAF You know what your problem is? You (She sits. He pulls out a file.) have no imagination. You only want to do things that have already been done. PALSGRAF Any problem if I smoke? LAWYER Here. This is as strong as I can make it. LAWYER I’m afraid we’ll have to save that for another day. (He moves toward her, holding a mug of coffee. He PALSGRAF My husband thinks I can’t stop. Of hands her the mug. The mug is hot, hot, hot. So hot that course I can stop. I will stop. she spills the coffee all over herself.) Tomorrow!!! PALSGRAF Ahhhhh…Ohhhhhhhhhh….. LAWYER (starting to perform) So you were Ahhhhhhhhhhhhh. standing on the platform of the East LAWYER (overlapping her lines) Mrs. Palsgraf. New York train station — a platform Mrs. Palsgraf. Are you all right? that was crowded with hundreds of HELEN!!! people — with really no clear way to PALSGRAF I’m scalded. Burnt. get out? LAWYER Can I get you something cold? PALSGRAF That’s right. PALSGRAF Don’t touch me. LAWYER On the platform there was a scale. A LAWYER What can I do for you? big, heavy steel scale. Secured by noth- PALSGRAF Hot, scalding coffee. All over my new ing, but clearly meant to entice passen- dress. gers of the Long Island Railroad?

46 Georgia Bar Journal PALSGRAF Exactly. PALSGRAF I think you’re beginning to get this. LAWYER And when the conductor saw the man (He has opened a file and has started taking notes. She drop the package, he still had a chance lights her cigarette. Lights fade to blackout.) to stop the train, pick up the package and prevent the explosion that caused Henry W. (Hank) Kimmel is a founding the commotion that led to severe member of Working Title Playwrights and injuries to your head? mediates domestic, real estate and other PALSGRAF You would think so. disputes through Nedra L. Wick, Esq., LAWYER (gaining speed, as a train) And if there LLC, Mediation Services. He is a graduate was no explosion, there would have of Emory University School of Law and been no stampede, and if there was no serves on the board of Georgia Lawyers stampede, the scale wouldn’t have fall- for the Arts. en on your head, and if the scale didn’t fall on your head, you wouldn’t have been dizzy, and if you hadn’t been dizzy, you would be able to consort with your husband, and if you could consort with your husband, well, maybe then we could say the Long Island Railroad wasn’t negligent.

June 2002 47 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 2001.

Georgia Legal Atlanta Steven L. Morgan Columbus Cordele Services Program Robert Brazier Richard H. Simpson Jr. (Sponsored by Clifford Harpe Pete Duitsman Charles G. Spalding The Columbus Bar Abbeville Michael Evans Rita Spalding Association) Covington Hannibal Heredia Richard H. Taylor W illiam Arey Ronnie Cowan David G. Morgan Robert Huestis Holle Weiss-Friedman Jacob Beil John Degonia Amy MacEwen Mary Buckner Reed Edmondson Albany Canton Joyce Bussey James Millsaps (Sponsored by The Augusta David L. Cannon Jr. Richard A. Childs Mario Ninfo Dougherty Circuit Bar Thomas M. Alford Leslie L. Cohn John Strauss Association) Benjamin Allen Carrollton Alan W. Connell Michael Waters Valerie Brown-Williams J. Patrick Claiborne Michael Flinn Andrew Dodgen Cawthon Custer Douglas J. Flanagan Faye McCord W illiam Edwards Cumming B. Samuel Engram Jr. Jeanne D. Harrison Thomas Parmer W alter Fortson Charles G. Haldi W illiam Erwin Stanley C. House Greg Shadrix Milton Hirsch Thomas P. Knox Gregory Fullerton Pamela S. James Allen T rapp Ronald S. Iddins Johnnie Graham J. Benjamin Kay III Ruben Word Paul Kilpatrick Dallas W alter Kelley Leon Larke Bemon McBride Jana Evans Rodney M. Keys W illiam J. Marcum Cartersville Elizabeth McBride Herbie L. Solomon Angela Morelock Garland Lea W illiam Nash Dalton Joseph Vaknin Richard T. Pacheco Faye McCord John H. Nix III (Sponsored by The Michael Meyer Evita A. Paschall Anthony Perrotta John P. Partin Conasauga Bar Von Bremen Charles C. Stebbins III Christina Stahl Houser Pugh Association) Henry Williams Stephen H. Steinberg Pedro Quezada J. Raymond Bates Cedartown Alan F. Rothschild Jr . Steve Bolding Alma Bainbridge Jean Crane Hillman Toombs Dianne Cook Frank Gonzalez W . Paul Fryer Dorothy Williams Scott Cunningham Barnesville Chattanooga, Tenn. Richard Zimmerman Tommy Goddard Americus Arthur English IV Scott Johnson Michael D. Hurtt Donald L. Lamberth Charles G. Wright Jr . Conyers Robert Jenkins Cavan Perry Bremen (Sponsored by The John T. Minor IV David Smith Clarkesville Rockdale County Ashburn Douglas L. Henry BarAssociation) Donalsonville Stephen L. Ivie Brunswick Nancy Bills W illiam M. Shingler Dorothy R. Avera Colquitt W illiam Lavigno Athens Carlton D. Gibson Danny C. Griffin Garland Moore Douglas Brian S. Carney Denise S. Esserman Clyde W. Royals Stan R. Durden Eugene Highsmith M. Kim Michael Douglasville John Hawk J. Hamrick Gnann Jr. W illiam Camp Susan Chiapetta Christopher Bennett W . W. Hemingway Joyce Marie Griggs Rodney Davis Han C. Choi V ictoria Embs Roxanne Hinson Stephen H. Harris Danielle Hynes Jeremy E. Citron Sherry Kelly Eisenman Thomas Jarriel W illiam F. Hinesley III Gail Robinson James A. Clark Andrea Moldovan Richard Katz George (Terry) Hubbard Randy Wynn Rebecca W. Cuturic Lucinda Perry A. G. Knowles W illiam T. Hudson Lynn Yount-Hamilton Kim Dammers Charles A. Landford Jr. Martin S. Jackel Aaron Danzig Dublin J. Wayne Moseley Charles V. Loncon W ashington John S. Darden Carolyn Hall Stacey Nestor Donald B. Lowe III Chip Hardin W illiam de Golian Jacquelyn D. Sanders Ann Parman Malcolm Mackenzie III Patrick Deering W illiam D. Phillips Lawrence E. Madison W aycross Mike Demming Eastman Robert A. B. Reichert Albert Mazo W illis H. Blacknall III Jennifer DeSimone Jeffrey W. Cacioppo Rhonda Roell-Taylor Zena McClain Mary Jane Cardwell Catherine E. Diamond Carmel Sanders Richard C. Metz William R. Little III Gregory J. Digel Ellenwood Joy Webster Burton F. Metzger W. V incent Settle III Alex J. Dolhancyk Betty Williams-Kirby Carl Westmoreland Kelly Miller Huey W. Spearman Robert F. Dow Erica Woodford Patricia M. Murphy Talethia R. W eekley Sterling P. Eaves Fayetteville Gary Michael Newberry Deborah Ebel Michael Maxwell Madison Gerald L. Olding W inder Susan Edlein Jef frey Davis Carl S. Pedigo Jr. Robert M. Gardner Rachel Elovitz Fitzgerald Krannert R. Riddle Kevin Elwell Robert Chasteen Millen Christopher L. Rouse W interville Mirtha I. Estrada R. H. Reeves III Michael G. Schiavone Tracy Murray Katherine Evans Glenville Leonard Trosten Michael Evans B. Daniel Dubberly III Montezuma Janice Wahl Atlanta Volunteer Sarah Evans Plez Hardin Gwendolyn Fortson Lawyers Guanming Fang Gray G. Leonard Liggin W aring Joe Farrell Allen Lawson Blake M. Whisnant Foundation Laura Fenn Moultrie W allace W illiams Clinton Fletcher Griffin Mickey E. Waller Willie T. Yancey Jr. Alpharetta Jonathan A. Fligg W illiam Johnson Stephen R. Yekel Elyse Aussenberg Alex Fonoroff Newnan Tara McNaull Teri Forehand Hawkinsville Jimmy Harmon St. Marys W enda D. Murphy Charles Forlidas David L. Venable Ike Hudson John S. Myers Joseph H. Rosen Benjamin E. Fox Alan Jackson Amy Waggoner W endell B. Franklin Hazlehurst Statesboro J. Kevin Franks John B. Brewer III Peachtree City James Kelley Kidd Atlanta Paula J. Frederick Lisa Richardson Lorenzo C. Merritt Ronni S. Abramson David E. Friedman Hiram Tamera Alexander Robert B. Friedman Donald Donovan Pooler Summerville T racey Allen Karen D. Fultz Charles C. Grile Albert Palmour Joel Arogeti T ina Galbraith Jackson Julie Arp Sara E. Galloway Swainsboro W ilson Bush Richmond Hill D. Burt Arrington Carol Geiger Jesse Collins Stone Mark Schaefer Robert J. Augustine Dena Grace George Jefferson Sylvania Paul M. Baisier Anne E. Gerry Joseph H. Booth Ringgold Evelyn S. Hubbard Kelly J. Baker David Gevertz Donna S. Golden Kimbrell Sawyer Gracy Barksdale David F. Gieg Juli W isotsky Lawrence Stagg Tallahassee, Fla. Robert Barnaby Leanne Gilbert Randolph Giddings Deanne M. Barney Jim Gober Nancy Baughan Jesup Rome Thomaston Dale R. F. Goodman W. Jef ferson Hires (Sponsored by The R. Daniel Beale Karlise Y. Grier Alan W. Connell Kathryn Cater Bergquist Rome Bar Association) Donald Snow Nancy Levy Grossman LaGrange Paul Cadle Betty Green Berman Annette Gutermuth David Fowler Scott Callan Christopher Berney Amy Haas Thomson Karen Bernstein W . Luther Jones Paul T. Carroll III Robert H. Cofer Christopher W. Hamlin Richardo Samper Timothy Crouch Matthew Berry Lauren D. Hammer Jimmy D. Plunkett Gregory Scott Bianchi Frank Thornton W . Gene Richardson John P. Wills Patrick J. Hannon James Satcher Joseph O. Blanco John Harbin Lakeland W illiam Stoll T ifton Maria Blanco Susan Hargus John W. Strickland Jr . Render M. Heard Andrew D. Block Sheryl Harrison Savannah Melissa Blum Peter Hasbrouck Lexington (Sponsored by The Toccoa Lisa Branch Sarah Hawk Susanne F. Burton Savannah Bar Joshua D. Huckaby Regina Bronson Terry D. Hawkins Association) Frank O. Brown Andrew C. Head Macon Kathleen Aderhold Valdosta John Patterson Laurel E. Henderson (Sponsored by The Solomon A. Amusan H. Burton Baker Brumbaugh R. Charles Henn Macon Bar Association) Thomas R. Bateski Laverne L. Gaskins Pat Brumbaugh Lanna R. Hill Danny Akin Charles W. Bell J. E. Jarvis Jr . James F. Brumsey Howard S. Hirsch Nancy Atkinson James B. Blackburn Jr. V ernita L. Lee Stephen L. Camp Rebecca Hoelting Lesley Beaty Dolly Chisholm James G. Tunison Jr. Sally Cannon W. Todd Holleman Stewart Brown Harold J. Cronk Jane Williams Thomas Hauser Castelli W illiam Holley John Carter Brian L. Daly Jay Castle James L. Hollis Shelley Davidson Richard M. Darden V idalia David L. Cates Sarah T. Holloway Jeanna Fennell Robert J. Duf fy Sarah M. Tipton-Downie Roger Chalmers Phillip E. Hoover Diane Flynn Paul H. Felser John Chandler David Hopkins Kathleen Hall W ade R. Gastin W arner Robins Aaron Chausmer Alicia Hunter Shymeka L. Hunter Brian Rogers Lauren G. Alexander Darrell Reynolds Alec Galloway Nick F. Ivesic Pam Roper Linda Borsky Margot Roberts Sims W. Gordon Jr. Alan R. Jenkins F. Valerie Rusk Janis L. Rosser Shana M. Rooks H. Darrell Greene German Jimenez Pumpian Ryan Eileen Thomas A very T. Salter Jr . David P. Hartin Barry Johnson Stephen Schaetzel T racy Trite Lee Sexton Samuel D. Hicks James Johnson Chris Schwab Stone Mountain Kevin W. Sparger Douglas A. Hill Kristen L. Johnson Joseph L. Scibilia Jamie V. Hollimo Janet M. Taylor James D. Hogan Timothy V. Johnson Sabrina R. Scott Robert W. Hughes Jr. Leslie Miller-Terry W illiam P. Holley III W eyman T. Johnson Jr. Carolyn A. Seabolt Louise Thomas Robert Ingram Leigh Jones Debbie Segal Tucker Joseph M. Todd M. Scott Kimbrough Samira Jones Sean Sennely J. Henry Norman David Joseph Walker Candace M. Kollas Dora H. June Shelley Senterfitt Harold Watts David J. Koontz Loren Kalish Stanley A. Seymour Clayton County Jan Watts Constance McManus Christopher Kellner Rita A. Shef fey Pro Bono Project Stephen White Jack J. Menendez Dawn King Julie Simmermon C. Keith Wood Courtney H. Moore Jennifer Kirk Jeven R. Sloan Fred Zimmerman Richard L. Moore Atlanta W illiam Kitchens Randall R. Smith Melissa Mullin Gracy Barksdale Paul Knowlton Rachel Snider McDonough Dennis C. O Brien Gary Flack Paula H. Krone John C. Spinrad Faye W. Hayes G. Cleveland Payne III Jill Kuhn Ashley Steiner Debbie C. Pelerose College Park Patrick Lail Jenifer Stephens Morrow Carmen V. Porreca Valrie Abrahams Lisa Grif fith Lake Howard L. Stopeck Carl Adcock Dorine Pries Judy Lam Greg Studdard Josie Redwine Decatur Frank Landgraff Elvin J. Sutton Riverdale Bart W. Reed Matthew Collins Bill Lankous David Tetric Hillman J. Toombs Morgan Robertson Andrew Williams Jerome D. Lee Daniel Thompson Scott P. Semrau Michael Lef f Torin Togut Stockbridge Brian D. Smith East Point Richard Lindsey Darren Traub W illiam W . W est Hansell L. Smith Glen E. Ashman Edward H. Lindsey Jr. David G. Valentino Mary A. Stearns W illie G. Davis Jr . Aaron W. Lipson Frank Virgin James R. Whitfield Karen Robinson Cobb County Pro James Long Ronit Walker Scott Walters Jr . Bono Project Gaston P. Loomis Zachary Ward DeKalb Volunteer Deborah Lubin James Washburn Fayetteville Atlanta Lawyers Kerry Mainini E. Adam Webb Muriel B. Montia Mark A. Basurto Michael Marshall Roger Weitkamp Foundation Charles Chesbro Adrienne Marting Linwood Neal Wheeler (Sponsored by The Forest Park Gary Flack Jim Maxson Charmaine Williams DeKalb Bar Emily George Arthur Marateck Brendan McCarthy Karen Brown Williams Association) Sylvia Goldman Michael E. McLaughlin Corin McCarthy John Williams Jr . Rosalind Watkins Jody A. Miller Jerry McNalley Chassidy A. Winestock Atlanta Charles Vrono Michael Phillips Laurin M. McSwain W . Swain Wood Samuel Appel Brian D. Pierce Christopher L. Meazell Laura Woodson Ivory T. Brown Jonesboro Carol B. Powell Fiason Middleton Teresa Wynn R. Peter Catlin Emmett J. Arnold IV Lynn Stevens Karen Mills Roseborough David U. Crosby Allen W. Bodiford Michael B. Syrop Steve Moore Bettina Y ip Melvin Drukman James Bradley Melinda D. Taylor Bruce F. Morriss Peter York Lori Eldridge Barbara Briley Tamara Mosashvili- Leslie Zacks Richard Farnsworth George Brown Dallas Shevardnadze Alana B. Zielinski George R. Ference Johnny Castaneda Martin E. Valbuena Darryl R. Moss Jef fery Zitron D. Joseph Girardot Lynette Clark Sharon E. Murphy Edwin L. Hamilton Billy J. Dixon Decatur Sherri Neal Buford Charles F. Hicks Charles (Chuck) Driebe Karen Jackson Kenneth M. Neighbors Samantha Cardwell Mary J. Huber Fred Eady Jef frey J. Nix H. Martin Huddleston Bobby Farmer Hiram Chinwe Obianwu Clarkston Robert N. Katz Monroe Ferguson Dean C. Bucci Jessica K. Orbock Tamara Rorie Mark D. Lefkow Pam Ferguson Hayden Pace Graham G. McMurray Suellen Fleming Kennesaw Jean E. Padberg Columbus Charles M. Medlin Don Foster Grant R. Booker W illiam A. Palmer III Sally Haskins Gregory R. Miller Richard Genirberg Stephen M. Parham Sidney L. Moore Jr. Ethenia King Grant Marietta Trevor Parssinen Decatur Paige C. Norwood Leslie Gresham Nicholas E. Bakatsas Stefan Passantino Mereda Johnson Kathy Jarman Puls Yvonne Hawks Frank Bradford Russell Patterson Diana McDonald Meredith Ragains Kathryn A. Heller W illiam E. Brewer Peter J. Pawlak Jr. Uma Nagaraj Randie H. Siegel Darrell L. Hopson Michael J. Brewster Jacqueline L. Payne Katrina V. Shoemaker Theodore A. Speaker Pandora Hunt Lawrence E. Burke Jeffrey Plowman Angelyn M. Wright Michael Standish Glen B. Icard Jr. David A. Canale George Prothro Richard T. Taylor Jonesboro Scott Key David J. Casey Meredith H. Ragains W endell K. W illard Richard Genirberg Rolf Jones Kenneth Clark Charles Raynal Kay Y. Young Dorothea McCleon Randall L. Keen Kelli Cross Samantha M. Rein Anthony Zezima Arlene LeBrew-Sanders Kenneth R. Croy Richard Rice Kennesaw Joel Montgomery David P. Darden A vondale Estates W illiam M. Rich Orrin Walker Bryon Morgan C. Lee Davis Rachel Susan Kezh Eric A. Richardson Rickey Morris Joan P. Davis Joe A. Weeks Melody Richardson Lawrenceville V incent C. Otuonye Jeffrey A. Daxe Hayley B. Riddle David Genirberg Jerry L. Patrick Robert I. Donovan Chamblee Coral A. Robinson Gloria Reed James W. Friedewald Chris Palazzola Shawn D. Rodda Roswell Samuel N. Werbin Thomas Affleck III Sandra W. Thornton Lawrenceville Conyers Susan Rebecca Bailey Georgia Law Dennis (Trip) Collins Felita W eldon Prince A. Brumfield Jr. Center for the Norcross Mark G. Burnette Mary Galardi Decatur Kenneth W. Carpenter Homeless John O. Adams Jr. JoAnn D. Collins Savannah L. Katherine Adams C. Glenn Cook Jr. Atlanta Colin McRae John P. Cross, II Karima Al-Amin Mary Powell Evatt Lisa Roberts Gwinnett County Andy Shovers Henry D. Frantz Jr. Pro Bono Project Michael M. Gabel Brad Wolff M. Ayres Gardner Atlanta Ross M. Goddard Jr. Roswell Clark and Washington Edward R. Golden Michael Sheffield David C. Wil C. Benjamin Guile III Anthony M. Zesima W illiam V . Hall Jr. Smyrna Alan C. Harvey Gracy Barksdale Buford Adella D. Hill Marian E. Ellington Jr. Donald Hillsman Georgia Lawyers Dianne Frix W illiam T. Hudson Jr. for the Arts Nelle M. Funderburk Deborah Johnson Mereda Davis Johnson Atlanta Duluth David L. G. King Jr. Brian Anderson Stephen P. Fuller Cary Langston Robert Bennison Tyrone Hodnett Calvin Leipold Carol Berg David S. Lipscomb Gregory J. Lohmeier Michael Dailey Mary A. Prebula Johnny N. Panos Robert Denham Kathryn M. Schrader Lisa A. Patrick Steve Dorvee Michelle Vereen Bette Elaine Rosenzveig John Doughty John Wesley Spears Stephen Drahos Lawrenceville Allen F. Townsend Steve Dubner Christopher T. Adams Harvey M. Whiteman Kendre Eades Bruce Bennett Mary Walton Whiteman John Eaton Barbara Bishop Joseph Eugene Williams Peggy Eisenhauer Tom Cain W illiam G. W itcher Jr . Beryl Farris Jerry A. Daniels Manolo Galinanes Doraville Larry Duttweiler W illiam (Bill) Gignilliat Lou Ella B. Jenkins Joseph M. McLaughlin W alt Hamberg Hugh Richardson Powell Mark Merritt Jennifer Hardy Jr. Phyllis Miller Shannon Jackson Tom Pye Kip Shepherd Jennifer Jenkins Macklyn A. Smith, Sr. Dunwoody Jennifer Johnson Tony A. Taylor Stephen J. Sasine Lorraine Johnson Jessica R. Towne Carl Johnston Nelson H. Turner Lilburn Baxter Jones David L. Holbrook W ad Kadabva Lilburn Scott Kinily Lithonia Anne Marie Lugo Hank Kimmel Mack E. Layng E. Noreen Banks-Ware Lisa Kincheloe Teri E. Brown Stephanie Lindsey Lithonia Norcross Peter Pawlak Robert L. Mack Jr. Sabrina A. Parker Mark Plotkin Evan Pontz Loganville Roswell Kurt Powell Chester A. Dettlinger Chandler R. Bridges Kim Prior Robert Michael Sheffield John Renaud Norcross Lisa Samuels Richard Campbell Scottdale Michael Schroder Glenn E. Cooper Gerard D. Hegstrom Candace Thurmond The Deming Law Firm Nikki Weisburd Fred Stokes Stone Mountain Frank White Larry Tatum Mark Gaffney Mark Williamson N. Wallace Kelleman Amanda Wit Snellville Robert (Bob) Woodland Douglas Daum Tucker Tim Wooten Charles P. Giallanza W illiam H. Arroyo Charles (Chuck) Young Clint Rhodes G. Phillip Bramlett Carole M. Wright David Courtney Decatur James Russell Gray Andrew Coffman Stone Mountain Cynthia L. Horton Steven Ashby Tahira P. Piraino Dunwoody Robert W. Hughes Jr. Mark J. Siskin Justin Deasy W illiam L. Skinner John J. Tarleton Jonesboro Denise McLeod Thomas Amy Abrams firm, has been recognized by Atlanta magazine in KUDOS its annual “Women Making a Mark” awards issue. Segal was the only attorney selected for the award, which honors 12 other notable Atlanta Judge Thomas B. Wells, who practiced law in women including Mayor Shirley Franklin and Bar Atlanta and Vidalia, Ga., until he was appointed WSB-TV’s Monica Kaufman. to the bench in 1986, has been reelected as chief judge of the United States Tax Court to serve a Intellectual Property Today ranked Kilpatrick

& two-year term beginning June 1, 2002. Stockton LLP 54 out of 371 top trademark firms across the nation. The rankings for Intellectual Kilpatrick Stockton LLP attorney, W. Randy Property Today’s “Top Trademark Firms” list are Eaddy, was appointed to the U.S. House of determined by the number of U.S. trademark reg- Representative’s Oversight and Investigations istrations issued in 2001. Subcommittee Chairman James C. Greenwood’s Business Advisory Group. The group, comprised King & Spalding announced the creation of two of business leaders from around the country, has new positions in the firm: director of knowledge been asked to develop accounting, auditing and management and director of professional devel- financial practice reforms for Congress to review opment. The director of knowledge management Bench and consider. position was created to assure systematic access to and use of the firm’s intellectual capital to support The international law firm of Jones, Day, Reavis the firm’s strategic marketing objectives and & Pogue has been ranked No. 1 among legal advi- improve its operational effectiveness. The director sors by Thomson Financial in the category of of professional development position grew out of worldwide merge and acquistion deals completed the firm’s long-term commitment to substantive in 2001. In addition, the firm was ranked No. 8 attorney training. Bradley D. Robbins will serve among all firms for aggregate value of completed as director of knowledge management and Derek worldwide deals. J. Hardesty will serve as director of professional development. The following attorneys have been named a Life Fellow of the American Bar Foundation: Linda A. The Year 2001 Awards for Outstanding Public Klein, Atlanta; V. Nathaniel Hansford, Service in Child Advocacy in Georgia honors Dahlonega; William J. Linkous Jr., Atlanta; and bestowed by the State Bar of Georgia Younger A. Stephens Clay, Atlanta. The Fellows is an hon- Lawyer Division Juvenile Law Committee were orary organization of practicing attorneys, judges presented in April to honor the legal community’s and law teachers whose professional, public and commitment and obligation to improving juvenile private careers have demonstrated outstanding law’s on children. This year’s awards are present- dedication to the welfare of their communities and ed to: The Truancy Intervention Project; Judge the highest principles of the legal profession. Nina Hickson; Judge Duncan Wheale; Joseph Ferguson; Doris Walker; Orlando Martinez; Several Georgia attorneys were recently named to Allyson Anderson; Mike Randolph; and Cynthia hold positions in a new state alumni association Tucker. for their law school alma mater, the Thomas M. Cooley Law School. Vaughn Fisher (Steere Class, 1995) of the Atlanta firm of Weizenecker, Rose, et al. P.C., was elected president; Karen D. Fultz ON THE MOVE (McDonald Class, 1998) of Lackland & Associates, L.L.C., Atlanta was elected the vice president; In Atlanta Michelle Pollok (Flannigan Class, 1999) of Pollok & Associates P.C., in Conyers was elected the sec- Hunton & Williams announced that Jerry B. retary; and Steven G. Weizenecker (Steere Class, Blackstock has become a partner with the firm. 1995) also with Weizenecker, Rose, et al. was The office is located at Bank of America Plaza, elected treasurer. Suite 4100, 600 Peachtree St., NE, Atlanta, GA 30308-2216; (404) 888-4298; Fax (404) 888-4190. Gov. Roy Barnes announced that he has appointed Robert S. Highsmith, The law firm of Ford & Harrison LLP announced Atlanta, to the State Board of Ethics that Andrew D. McClintock and Jeffrey D. and F. Sheffield Hale, Atlanta, to the Mototoff have become partners of the firm; John Judicial Nominating Committee. F. Allgood has become of counsel with the firm; Both Highsmith and Hale were and Kimberly D. Degonia, Amy J. Karch, Thomas L. McDaniel Jr. and Sean R. Mikula Highsmith sworn in by Barnes in ceremonies held at the state capitol in February. have become associated with the firm. The Atlanta office is located at 1275 Peachtree St., NE, Suite Kilpatrick Stockton attorney Debbie Segal, the 600, Atlanta, GA 30309; (404) 888-3800; Fax (404) first pro bono counsel ever hired by a Georgia law 888-3863.

52 Georgia Bar Journal George H. Connell announced the relocation of Hudnall, Cohn & Abrams, P.C., announced the Bench his office to 5881 Glenridge Drive, Plaza 400, Suite opening of four new offices in the metropolitan 160, Atlanta, GA 30328; (404) 943-9700; Fax (770) Atlanta area over the past year: Cobb County, 394-8840. Suite 350, Building 3, 1827 Powers Ferry Road, Atlanta, GA 30339, Roy Ames, attorney, (770) 859- Powell, Goldstein, Frazer & Murphy LLP hired 0560; Tucker, Suite 350, 4550 Hugh Howell Road, Leslie K. Bender Jutzi as a senior associate for the Tucker, GA 30084, Elvira Malenky, attorney, (770) environmental practice group. The office is locat- 939-3664; Cumming, Suite 300, 104 Pilgram ed at 191 Peachtree St., 16th Floor, Atlanta, GA Village Drive, Cumming, GA 30040, Lori Jolliff,

30303; (404) 572-6600; Fax (404) 572-6999; attorney, (770) 889-6262; Peachtree City, Suite 210, & www.pgfm.com. 500 Westpark Drive, Peachtree City, GA 30269, Kimberly Hicks, attorney (770) 631-6620. The AFC Enterprises Inc., announced the promotion Peachtree City office is in association with William of Harold M. (Sonny) Cohen to AFC’s newly cre- A. Wehunt & Associates, P.C., and will be operat- Bar ated position of deputy general counsel. The office ing under the name of Hudnall Wehunt, LLC. is located at Six Concourse Parkway, Suite 1700, Atlanta, GA 30328-5352; (866) 551-AFCE. Lord, Bissell & Brook announced the following new additions to their Atlanta office: Brian T. The Atlanta offices of Jones, Day, Casey, partner; Patrick J. Hatfield, of counsel; Reavis & Pogue announced the Allison Wade, of counsel; Jim Comerford, of admission of Douglas M. Towns to counsel; Scott Wharton, of counsel; Edei Pippin the partnership. The office is located Ledet, associate; and Marianne Boston, associate. at 3500 Suntrust Plaza, 303 Peachtree The Atlanta office is located at 1170 Peachtree St., St., Atlanta, GA 30308-3242; (404) Suite 1900, Atlanta, GA 30309; (404) 870-4600; Fax 521-3939; Fax (404) 581-8330. (404) 872-5547; www.lordbissell.com.

Duane Morris LLP announced that it has expand- The Law Firm of Fine and Block announced that ed its office in Atlanta, Ga., with the addition of 10 Lisa Steinmetz Morchower, former city of Atlanta lawyers, including Joseph D. Wargo, Michael D. senior assistant city attorney, has become a mem- Kabat and Michael S. French, who have joined ber of the firm. The office is located at 2060 Mt. the firm as partners. Christen C. Carey and J. Paran Road, NW, Atlanta, GA 30327; (404) 261- Scott Carr have joined the firm as special counsel 6800; Fax (404) 261-6960; [email protected]. and C. Celeste Creswell, Jeanine L. Gibbs, Joseph W. Ozmer II, David M. Pernini and In Dalton Jeremy E. White have become associated with the L. Hugh Kemp, F. Gregory Melton Jr., H. Greely firm. The office is located at 945 East Paces Ferry Joiner Jr. and John Davis announced the forma- Road, Suite 2440, Atlanta, GA 30326-1378; (404) tion of Davis, Kreitzer, Kemp, Joiner & Melton 495-4900; Fax (404) 495-4901. with offices at 100 N. Selvidge, Dalton, GA 30720; (706) 277-4000; Fax (706) 275-6566. Kenneth M. Neighbors, J. Martin Lett and Donna L. Johnson, each formerly of Holland & In Rossville Knight LLP, announced the formation of John Davis, senior member of the firm Davis & Neighbors, Lett & Johnson, LLC, a corporate and Kreitzer, announced the formation of Davis, business law firm. The firm is located at The Kreitzer, Kemp, Joiner & Melton. The office is Candler Building, Suite 555, 127 Peachtree St., located at 898 Chickamauga Ave., Rossville, GA Atlanta, GA 30303; (404) 653-0881; Fax (404) 30741; (706) 866-7977; Fax (706) 861-6188. 653-1171. In Savannah Harvey Weitz was recently reap- pointed to the State Bar of Georgia Commission on Continuing Lawyer Competency and elected to serve as its chair. The 16-person Commission administers the continuing legal Arbery Johnston Taylor education requirement for Georgia lawyers, which mandates a minimum of 12 hours Hunton & Williams elected three attorneys to of instruction in approved activities each calendar partnership in their Atlanta office: W. Christopher year. Weitz is one of six Supreme Court Arbery; Derek C. Johnston; and Eric Jon Taylor. appointees. Weitz, a partner in the firm of Weiner, The firm is located at Bank of America Plaza, Suite Shearouse, Weitz, Greenberg & Shawe, LLP, is 4100, 600 Peachtree St., NE, Atlanta, GA 30308- also a member of the State Bar of Georgia 2216; (404) 888-4000; Fax (404) 888-4190. Executive Committee and Board of Governors.

June 2002 53 Ellis, Painter, Ratterree & Bart LLP announced that Paul D. Meyer became a partner with the firm in January. The firm is located at 2 East Bryan St., 10th Floor, Savannah, GA 31401-2802; (912) 233-9700. Bar The law firm of Savage, Turner, Pinson & Karsman announced that R. Scott Kraeuter has become a partner with the firm. The office is locat- & ed at 304 East Bay St., P.O. Box 10600, Savannah, GA 31412; (912) 231-1140; Fax (912) 231-0133. In Washington, D.C. Smith, Gambrell & Russell, LLP, announced the election of Dennis O. Doherty, a partner formerly resident Law Related Education Day at the Capitol in the Atlanta office, to the position On Jan. 29, 2002, the LRE Consortium organized of managing partner of the firm’s a LRE Day at the Capitol. Pictured with Gov. Washington, D.C., office. The Barnes and Executive Committee members of the Bench Washington, D.C., office is located at LRE are mock trial team representatives from 12 1850 M St., NW, Suite 800, Washington, D.C., schools. 20036; (202) 263-4300; Fax (202) 263-4329. In Jacksonville, Fla. CORRECTIONS Wood, Atter & Associates, P.A., announced that In the April 2002 issue of the Georgia Bar Robert L. Cowles has become of counsel with the Journal, State Bar of Georgia Board of firm. The office is located at 333-I East Monroe St., Jacksonville, FL 32202; (904) 355-8888; Fax (904) Governors member Althea L. Buafo’s 358-3061. undergraduate education was inaccurately In Miami, Fla. noted. Buafo received her B.A. from Eckerd College in 1983. The Journal apolo- Spencer Eig, former assistant U.S. attorney, announced the formation gizes for any confusion this may have of Law Offices of Spencer Eig, P.A. caused. The firm is located at 407 Lincoln Road, Suite 708, Miami Beach, FL 33139; (305) 672-2770; www.florida- lawyers.net. In Charlotte, N.C. Todd W. Cline announced the opening of his general law practice. Todd W. Cline, P.A., is located at 1800 Camden Road, Suite 104, Charlotte, NC 28203; (704) 334-7779; Fax (704) 373-1206; www.carolinaattorney.com. In Chattanooga, Tenn. The partners of Foster, Allen, Durrence & Ward, P.C., announced the move to their new location at 555 River St., Chattanooga, TN 37405; (423) 266-1141. In the April 2002 issue of the Georgia Bar In Lake Junaluska, N.C. Journal, a photo of the late Col. Robert P. Jones was inadvertently run with a feature William E. Cannon Jr, formerly with Cannon & Meyer von Bremen, LLP, story about the late professional golfer of Albany, is now vice-president for Bobby Jones. The photo above should have development with the Foundation accompanied the article. The Journal apolo- for Evangelism, an affiliate of the United Methodist Church, P.O. Box gizes for any confusion this may have 985, Lake Junaluska, NC 28745. caused.

54 Georgia Bar Journal The Advisor is In

Dear Ethics Advisor, I do so that she can juggle the paperwork. I am sure that she could handle the closing I am a solo practitioner with a general without me. If that’s not allowed under the practice. I have worked with Angie, my trust- UPL rules, I could be available by tele- ed paralegal, for 12 years. She probably phone in case she has any questions. knows more about certain areas of law than I do. In fact, before she became a paralegal she Thanks in advance for your help, worked as an adjuster for a large insurance Frantic in France company.

General Counsel I got word yesterday that my grandmoth- er is very ill. As I write, I am en route to Provence to be with her. I expect to be gone for two weeks. I am confident that Angie is capable of handling most anything that comes up in my absence, but I don’t want to run afoul of the rules governing the Unauthorized Practice of Law. Please answer the following questions about what I may delegate to Angie while I’m gone. 1. I have dictated letters to clients and adverse counsel for several of my cases. Is it appropriate for Angie to review the letters and sign them for me?

Office of the 2. In one PI case, I have been waiting for the defendant insurance company to respond to my offer of settlement. I doubt they will accept my offer, and expect them to come back with a counter-offer. I’d like to have Angie convey the counter offer to the client and keep the negotiations going while I’m gone. 3. There’s an arraignment next week that I hate to have postponed. Can I send Angie to court, just to enter the “not guilty” plea? The appearance should not involve anything substantive. 4. I handle a few residential real estate matters, and I have a closing on Friday. Angie typically prepares all of the documents in advance and sits through any closings that

June 2002 55 Dear Frantic, your absence. Even if the letters con- lawyer provide “direct and contain legal advice, presumably it’s stant” supervision of nonlawyer Lucky for you, the Rules of YOUR legal advice and not Angie’s. staff, Opinion 00-3 finds that the Professional Conduct permit broad It’s probably wise to add a notation lawyer must be physically present delegation of responsibility to at the bottom of each letter such as to ensure proper supervision. paralegals and other nonlawyer “dictated but not read,” or some- Real estate closings aside, the assistants. Generally, a lawyer may thing similar to let the recipient wonders of modern communication delegate to a paralegal tasks such know that you formulated the con- make it possible for you to provide as interviewing clients, conducting tent of the letter. When she is sign- supervision to Angie while you are legal research, drafting pleadings ing your name, Angie should indi- away. With your help, she can pro- and correspondence, and routine cate that it is with your knowledge vide valuable information to clients communication with opposing and permission. She should include and keep the office running smooth- counsel.1 On the other hand, Bar her initials after the signature to ly in your absence while still com- Rules strictly prohibit a lawyer avoid misleading the recipient. plying with the UPL statute. from “assisting a person who is not The Ethics Advisor is more con- a member of the bar in the per- Sincerely, cerned about your second ques- formance of any activity that con- The Ethics Advisor tion. While it’s fine to have Angie stitutes the unauthorized practice serve as the conduit of information of law.”2 As a rule of thumb, do not ENDNOTES during settlement negotiations, she put Angie in a situation where she can’t actually negotiate or make a 1. Formal Advisory Opinion 21 has to exercise independent profes- includes a laundry list of tasks, legal judgment about the advisabil- sional judgment. Always be sure which may be delegated to a ity of accepting an offer. She her role is that of a legal assistant. paralegal. The Opinion can be should make it clear in her commu- To determine where to draw the found at page H-74 of the State nication with adverse parties that Bar of Georgia 2001-2002 line, look first at Georgia’s she is simply conveying informa- Directory & Handbook. Unauthorized Practice of Law tion and isn’t making decisions 2. Rule 5.5(b) of the Georgia Rules (UPL) statute, O.C.G.A. §15-19- herself. She should not counsel of Professional Conduct. 50ff. The law is premised upon the 3. Opinion 00-2 can be found at with the client about the potential concept that only a licensed attor- page H-110 of the State Bar of legal ramifications of any offer or ney can lawfully provide legal Georgia 2001-2002 Directory & otherwise give the client legal Handbook. advice or render an opinion about advice. Most importantly, you 4. The exception is those tribunals the law. Therefore, the statute and must maintain strict supervision of which specifically allow non- Rule 5.5 prohibit a lawyer from del- Angie’s verbal dealings with others lawyer representation, as may egating to a paralegal any task that be the case with state and fed- to be sure she understands and requires the paralegal to make her eral administrative tribunals. complies with the rules. own decisions about how the law 5. Found at pages H-87 and Whatever you do, don’t sent H-112 of the State Bar of Georgia should be applied to a particular Angie to the arraignment! Any 2001-2002 Directory & client’s situation. appearance in court by a paralegal, Handbook. The Bar’s most recent discussion no matter how non-substantive, is Amazing Secret Brings In... of these issues appears in Formal a violation of the UPL statute.4 “300 PERSONAL INJURY Advisory Opinion 00-2, issued by CASES IN LESS THAN Angie can’t handle the real estate the Supreme Court of Georgia on 18 MONTHS...!” closing either. While it is fine to young lawyer from a small mid-west Feb. 11, 2000.3 The opinion clari- A town has successfully used this secret have her prepare the documents to bring in 10 to 30 new P.I. cases per fies that a lawyer aids in UPL when month for close to 3 years. While (under your supervision, of he or she allows a paralegal to spending little to NO money attracting course), she cannot conduct a clos- these lucrative cases! “prepare and sign” correspon- Call for a FREE 24 Hour Recorded ing on her own. Formal Advisory Message at 1(800) 639-3419. dence that threatens legal action or =FREE audio taped interview to the first Opinions 86-5 and 00-35 clarify that 100 lawyers who respond - reveals how provides legal advice. this new attorney does it! Call NOW the closing of a real estate transac- So, it’s fine to have Angie review before another lawyer beats you to it... tion constitutes the practice of law. Remember, both the call and the tape are your dictated correspondence and FREE so call right NOW! Just listen to a Since the rules require that a Free Recorded Message! send it out under your signature in © 2002 ELPDG, Inc.

56 Georgia Bar Journal Discipline Notices (Feb. 16, 2002 – April 18, 2002)

By Connie P. Henry

SUSPENSIONS defendant. Harvey failed to respond and the case was dismissed. Harold Michael Harvey In Docket No. 3913, a client paid Harvey Atlanta, Ga. $760 to represent her in a discrimination case. Discipline The Supreme Court, by order dated Feb. The client obtained a right-to-sue letter and 21, 2002, has suspended Harold Michael Harvey told her he would file the action Harvey (State Bar No. 335425) from the prac- within the requisite 90 days. Harvey’s legal tice of law in Georgia for two years. Prior to assistant worked on the case until she left his reinstatement, Harvey must complete a ses- employ. She updated Harvey on the case sion of the State Bar’s ethics school and must before she left, but Harvey failed to take any undergo a law practice management review further action and the filing deadline passed. program within six months of reinstatement. In Docket No. 3947, Harvey agreed to rep- The Court had seven matters to consider resent a client in an employment discrimina- against Harvey. In Docket No. 3857, Harvey tion case, for which he received $2500 in fees Lawyer accepted $300 to represent a client in a hous- plus $100 for filing fees. Harvey filed a law- ing discrimination matter. He corresponded suit on the client’s behalf. Although the with the Georgia Commission on Equal client’s employer expressed a willingness to Opportunity and obtained the client’s file, resolve the case, Harvey never solicited an but did nothing further in the representation. offer from the employer. The employer filed Harvey admitted he “dropped the ball,” but a motion for summary judgment to which did not return the file until much later. Harvey did not respond, so the court granted In Docket No. 3858, Harvey agreed to rep- the motion. resent a client in a personal injury case In Docket No. 3949, Harvey represented a against her residence, the Clairmont Lodge. client in a personal injury case. Harvey’s legal The client moved from the Clairmont Lodge assistant prepared a claim form for the client and gave Harvey her new address. He sent a to pursue her claim through the Claims letter to the Clairmont Lodge attempting to Advisory Board of the State Tort Claims Act. settle the matter, but did nothing further on The client refused to sign the form. When she the case for two years. The client was unable failed to return the form, Harvey sent her a let- to reach Harvey to discuss her case and the ter requesting that she do so, but the client did statute of limitation expired. not respond to that letter or to a subsequent In Docket No. 3912, Harvey agreed to rep- one in which he advised her that if she did not resent a client in a personal injury case and a return the form he would close the case. discrimination case. He filed an appearance In the last matter, Docket No. 4027, Harvey in federal court in the discrimination case but agreed to review documents for a client con- despite receiving the opposing party’s cerning a discrimination matter and give her motion for summary judgment, he failed to advice about a possible telephone interview. file a response and the case was dismissed. The client gave him a $2,000 retainer. She Harvey filed the personal injury action but sent him voluminous documents but became never served the defendant, although he pro- concerned when he did not contact her and vided a copy of the lawsuit to the insurance would not return her phone calls. The client company, whose attorney attempted unsuc- sent Harvey a certified letter and terminated cessfully to acknowledge service on behalf of his services and requested the return of her the defendant. The attorney filed a motion to files and retainer. Harvey never claimed the dismiss due to Harvey’s failure to serve the letter and despite his assertion that he

June 2002 57 reviewed the files, when she months of his reinstatement. Ross Shaw, Jr., (State Bar No. 638600) retrieved the files, she found them did not do so, and the Court again and ordered him to receive a in the same order as when she left suspended Ross on March 25, 2002, Review Panel reprimand. A client them. until he pays restitution. hired Shaw to handle a legal matter involving settling the estate of her Franklin H. Davidson Cheryl S. Champion husband and paid him a fee of Macon, Ga. Atlanta, Ga. $750. Shaw would not return the On March 25, 2002, the Supreme The Supreme Court, by order client’s telephone calls and did not Court of Georgia accepted the dated April 15, 2002, has suspend- work on the case. After the client Petition for Voluntary Surrender of ed Cheryl S. Champion (State Bar terminated the attorney/client License of Franklin H. Davidson No. 120101) from the practice of relationship with Shaw, Shaw (State Bar No. 206575). Davidson law in Georgia. Champion was sus- would not return the funds or the violated his duties as a fiduciary, pended for 12 months with condi- client’s documents. commingled client funds with his tions for reinstatement. Champion own, and failed to account for agreed to represent a client in a DISMISSAL funds he held in a fiduciary capaci- personal injury case. The case was Eric B. Reuss ty. Davidson represented a client in settled for $8,000. Champion Mobile, Ala. a personal injury lawsuit arising received the settlement funds and In an earlier matter, Eric B. Reuss from an automobile accident. The deposited them into her escrow (State Bar No. 601300) was sus- court awarded his client damages account in August 2000. Champion pended by the Supreme Court of and ordered that the funds be withdrew those funds for her own Georgia in 2001 for a period of two placed in a trust for his client. use and did not remit the funds to years for obtaining fees from a Davidson wrote checks from his her client or her client’s medical bankruptcy without following client’s trust for his personal use care providers until January 2001. bankruptcy court procedures. The and failed to make an accounting to Champion did not admit that she court determined that the alleged the client of the funds held in a used client funds for her own use violation of Standard 64 in this fiduciary capacity. Davidson even- until she was asked by the discipli- matter grew out of the same fact tually resigned as trustee of the nary counsel to produce her trust situation that formed the basis of trust, closed his law office and account records. She has since the prior discipline. Accordingly, enrolled in an in-patient drug treat- repaid the funds and sought reha- the Supreme Court held that no ment program. He claimed he ten- bilitation. Prior to reinstatement, further disciplinary action was dered full restitution to the trust in Champion must attend Ethics warranted in this matter. the amount of $47,926 which School and within 120 days of rein- included the principal amount mis- statement submit to an evaluation INTERIM appropriated together with interest by the Law Practice Management at the rate of 12 percent through the Program or by an independent SUSPENSIONS date of tender, but that tender was consultant selected by the Law Under State Bar Disciplinary not accepted by the trust represen- Practice Management Program. Rule 4-204.3(d), a lawyer who tatives. Davidson contended that Within 120 days of reinstatement, receives a Notice of Investigation he has continued, through counsel, she must present satisfactory proof and fails to file an adequate to tender said amount as of the of her continued counseling and response with the Investigative date of his petition. the results from her present thera- Panel may be suspended from the pist/counselor or a psychologist practice of law until an adequate Eric Vann Ross approved by the State Bar’s response is filed. Since Feb. 16, Redan, Ga. Lawyer’s Assistance Program. 2002, four lawyers have been sus- The Supreme Court, by order pended for violating this Rule. dated March 25, 2002, has suspend- REVIEW PANEL ed Eric Vann Ross (State Bar No. Connie P. Henry is the clerk of the 615218) from the practice of law in REPRIMAND State Disciplinary Board. Georgia. Ross was suspended for John R. Shaw Jr. 12 months by Supreme Court order Loganville, Ga. dated March 30, 2000. According to On March 25, 2002, the Supreme the Court’s order, Ross was obli- Court accepted the Petition for gated to make restitution within six Voluntary Discipline of John R.

58 Georgia Bar Journal LPM’s Guide to Mobile Lawyering Devices – Part I By Natalie R. Thornwell

Remember that communications technology

Management t’s a fact. We are a mobile society. The evolves and changes at a rapid pace. At the need for us to constantly be in touch is time of your reading, the features and pricing of these devices might be different. prevalent in each of our everyday lives. I Handheld/PDAs I only know a handful of people who don’t Brands — Handhelds or PDAs (personal use a cell phone or a pager for keeping in digital assistants) are becoming a staple among lawyers. The basic contact and calen- touch. For lawyers, it’s the need of their daring features, along with more wireless con- clients to be in touch, and their need to be nectivity options for browsing the Web and checking and sending e-mail, make these able to get work done while away from the small, “carry it all in your pocket” devices office that has created “mobile lawyering.” some of the most interesting and useful devices for mobile lawyering. The most com- To become an effective “mobile lawyer,” mon brands of handheld PDAs are the Palms

Law Practice you will need certain tools in your “take- (those manufactured by Palm Inc. and/or along toolbox.” What devices can you effec- running on the Palm operating system [OS]) tively use while away from the office? How and Pocket PCs (those devices that typically does one procure such items? What is the utilize the Windows CE operating system best way to use these devices? Below is a instead of the Palm OS). Handheld PCs don’t guide to help you on your way to becoming really fall into this category because they a legal “road warrior.” attempt to include more applications and Let’s begin by sorting out the tools a have an interface that places them more on the mobile lawyer might use. Categories for level of “mini-computers.” You can, however, mobile devices include: also include some wireless devices like the Handhelds/PDAs Blackberry by RIM (Research in Motion) in Cell Phones/smart phones/pagers this category. The main difference between Laptop computers the Blackberry and other Palm or Pocket PC Portable printers/scanners/copiers units is that the Blackberry boasts a wireless (digital senders) connection that delivers e-mail to your unit Dictation devices wherever coverage is available (usually in Below is a listing of some of the key brands most major cities and metropolitan areas). available in each of the mobile device cate- Some of the second-generation Palms and gories. You will also find information on Pocket PCs have added this functionality, too. where and how to purchase these devices, Palms are currently sold in the following fla- and practical tips for their effective use. vors: i705 for $449; m500 for $299; color m515

June 2002 59 for $399; m125 for $199; color m130 camera, MP3 player or other type attached database or address book. for $279; and the m105 for $149. unit. Will you need to be able to This ensures that you will not miss Another Palm OS solution is the download digital camera photos on any important deadlines or events, Visor line by Handspring. Visors your device? Look at the unit’s dis- and that you keep your internal are available in these fla- play. Is it gray scale or is it information up to date. vors: Visor Pro for $299; color? Does Cell Phones/Smart Visor Edge for $199; this matter to color Visor Prism for you? Find Phones/Pagers $299; Visor Platinum out if the unit Brands — The major national for $169; and the Visor is recharge- vendors of cellular phones, smart Neo for $169. able or if you phones and pagers are AT&T Some widely will need to Wireless, Voicestream, Nextel, used Pocket stock up on Sprint PCS, Cingular Wireless and PCs are made batteries in Worldcom Wireless. Because the by Compaq, order to keep pricing for the devices and the Hewlett-Packard the unit in good service plans that accompany them and other major computer working order. are so varied, this article will not vendors. Compaq’s iPaq units Finally, if you want a cover them. include the iPaq 3865 (color) for wireless connection to send and Should you purchase a cell $599; iPaq 3765 (color) for $499; and receive e-mails on the fly, find out phone? That is becoming more of the iPaq H3135 for $399.99. how much the monthly fee for this the question these days. In fact, Hewlett-Packard offers the Jornada additional service will cost. To many folks have opted to drop 548; Jornada 565 (color) for $449.99; learn even more, check out their home telephone service in and the Jornada 568 (color) for www.palmtops. about.com/. lieu of the “always with me” cell $599.99. Tips on Effective Use — Shop phone that might have “free long Where and How to Purchase — for additional software applica- distance.” This can be beneficial in As you might have guessed, the tions and peripheral or add-on some circumstances. However, for best place to pick up a Palm or products for your Palm or Pocket mobile lawyers, this may not be a other Pocket PC device is online. PC. Go to www.handango.com very viable option if you frequent- Portal sites like ZDNet.com and and www.palmgear.com to get ly travel to locations that have cnet.com (using mysimon.com) started. You can find useful tools “spotty” or no service at all. each have shopping sites within for enhancing your device usage. Another phenomena that has their pages that lead to the best One of my favorites is Vindigo. occurred with the advent of the cell deals and vendors for purchasing This $25 downloadable application phone and these other devices is these units online. You can also will enable your Palm to locate the “toolbelt overload.” You carry a purchase handhelds at local com- nearest restaurants, movie theaters, cell phone, a pager, a PDA and puter and electronics stores. museums and even draw out maps anything else that looks cool. The When shopping for a handheld, to get there. marketplace’s answer to this play close attention to how much Secondly, be sure to keep addi- “uncool” look is the smart phone. space or memory the unit has. This tional batteries with you at all The smart phone is a device that is key to being able to store as times if your unit is found not to be operates as both a cell phone and much information as possible on rechargeable. This practice can PDA. Some of the most popular the device. You will also want to save critical information that units are the Kyocera QCP6035 notice whether or not expansion always seems to be in danger of (Sprint PCS); the Handspring Treo cards/sticks can be used with the loss at the most inopportune times. 180 PDA phone; and the Samsung device to increase the amount of If you are using a rechargeable SPH – I300 (Sprint PCS). The folks storage space on the unit. device, don’t forget to actually put at RIM decided to upgrade the Handspring became popular for its the device in the cradle to recharge. Blackberry to make it phone many modules that transforms the Finally, make sure that you reg- enabled, and for $500 the 5810 Visor unit into a cell phone, digital ularly synch your device with any wireless phone/handheld can do

60 Georgia Bar Journal most of what smart phones do. When shopping for cell phones, that you are on a cell phone and Another sort of hybrid unit is the smart phones or pagers, look for that the service may drop the call. Motorola V60T Phone (AT&T the popular units and service Giving a simple warning will help Wireless), which makes good use plans to match. Does your unit folks on the other end understand of two-way text messaging. and plan cover the areas you that you did not intentionally dis- Two-way radio communication will travel to most frequently? connect their call, if and when a call is also making a comeback. But, Are the minutes of airtime ade- is dropped. again, this is not necessarily a quate for your usage? What Charging batteries or keeping viable option for those lawyers service contracts are involved spares is necessary for keeping who travel great distances. The and what penalty or price to these devices going, so don’t forget ranges of two-way units is current- do you pay to switch units your charger units and batteries ly very limited, and even with and plans? Will one type of when packing for your next the hope of free “long dis- device work better for you “mobile lawyering” adventure. tance” radio connections, than the others? Remem- In Part II, our focus will turn to the service will probably ber that wireless technolo- laptop computers, portable print- continue to be very “spot- gy is a burgeoning area of ers/scanners/copiers (digital ty.” This option is proba- communications right senders) and dictation devices. bly not the best one for now, and just when you mobile lawyers. thought it couldn’t get Natalie R. Thornwell is the Paging is another area any smaller or smarter, director of the Law Practice that deserves some attention, you’re proved wrong. Management Program of the even though traveling Tips on Effective State Bar of Georgia. lawyers are more likely to use Use — To get the cell phone and smart phones most out of your cell these days. Paging can be or smart phone numeric, alphanumeric or two- make sure that you way. The prices for the units and drive safely in the the service are relatively low process. Don’t think compared to the other categories. of getting one of these Service can be had for $14 per units without the “cool” hands-free month and you can purchase a two- sets that accompany them. Many way unit for less than $150. units are voice activated. You can Where and How to Purchase — call phone numbers and use speak- Enjoy the upscale accommodations of Embassy Suites Orlando Downtown Unlike the PDA/handhelds cate- er phone to carry on conversations located in the Central Business gory, you should look to the local while keeping your eyes on the District of Downtown Orlando. market for some of the best deals road. This “hands-off phone” Only 10 miles from Orlando International on cell phones, smart phones and approach will make our roads Airport and in walking distance of the Federal Buildings and Orange County pagers. Local vendors can assist much safer. Court House. Located across from Lake you with finding the units and If you decide to use any of these Eola, Embassy Suites Orlando Downtown service plans that will work for devices, make sure that you set and offers two-room suites, your individual needs. If you seek follow some etiquette rules. Turn complimentary full cooked to order breakfast, manager’s reception and help online, one of my favorite these devices off or set them to complimentary shuttle to the courthouse. places to check for cell phones is vibrate in public places or meet- Stay a minimum of 3 nights and receive a www.point.com. This comprehen- ings. If you do forget, and receive a $25.00 food credit for room service or “Concha Me Crazy” Restaurant. sive site allows you to search for call or page, then leave the room or Call 1-800-609-3339 and ask for the local service plans and devices to area as fast as you can so as not to “State Bar of Georgia” rate. get the best deal. Also, don’t forget disturb others. Available June 1-November 30, 2002 to look at price comparison sites If you are the victim of “spotty” 191 East Pine Street Orlando, Florida 32801 like www.mysimon.com to get the service, then make sure that you www.embassyorlandodowntown.com most for your money. indicate at the beginning of calls

June 2002 61 Jonesboro High Wins State Title The Jonesboro Mock Trial team is the 2002 Georgia State Champion. The two finalists in the competition were Jonesboro High and North Forsyth High. The four semi-finals were Jonesboro, North Forsyth, Jenkins and Norcross. Jonesboro will now represent the state of Georgia at the National High School Mock Trial Championship in St. Paul, Minnesota. The results will be published in the August issue of the Bar Journal. The following teams were named regional champions: Central High School, Macon (Central GA) — Melisa Bodnar, coordinator North Forsyth High School, Cumming (Cherokee Co.) — Meredith Ditchen, coordinator Ware Magnet School, Waycross (Coastal GA) — Donna Crossland, coordinator Decatur High School, Decatur (Dekalb Co.) — Katie Hung, coordinator Grady High School, Atlanta (Fulton Co.) — Claire Dorchak, coordinator Norcross High School, Norcross (Gwinnett Co.) — William M. Coolidge, III, coordinator Paideia School, Atlanta (Metro Atlanta) — Faison Middleton & Jim Manley, coordinators Northwest Whitfield High School, Tunnel Hill (North GA) — Rick Brown, coordinator Clarke Central High School, Athens (Northeast GA) — Roy Manoll, coordinator Trion High School, Trion (Northwest GA) – Mark Webb, coordinator Jenkins High School, Savannah (Southeast GA) — Christy Barker, Leslie Pickett, Stephen Lowry coordinators Jonesboro High School, Jonesboro (Southern Crescent) — Shawn Story, Brian Dempsey, Bridget Palmer coordinators The Walker School, Marietta (West GA) — Jeff Richards & Linda Spievack, coordinators

For information on how your bar association, firm or legal organization can help the new Georgia champion defray competition expenses, contact the Mock Trial office at (404) 527-8779, (800) 334-6865 (ext. 779) or [email protected] Special thanks to those who donated during our Annual Fund Drive, including the Criminal Law Section General Practice and Trial Law Section School & College Law Section Bankruptcy Law Section Labor & Employment Law Section Administrative Law Section a full list of donors will be published in our 2002 Annual Report, Fall, 2002

JOIN THE MOCK TRIAL COMMITTEE visit our Web site www.gabar.org/mocktrial.htm or contact the mock trial office for a registration form (404) 527-8779 or [email protected] Make an impact in your community! The

Office Right Move. American National Lawyers Insurance Reciprocal (Risk Retention Group) Offers The Legal Professional Liability The State Bar of Georgia’s Investigative Panel Insurance Coverage Your recently hosted a reception at the historic Tift Practice Needs. House in Tifton, Ga. Panel member Joseph Carter and his wife, Rebecca, dressed in attire from the At American National Lawyers Insurance 1880s, were on hand to greet guests. Panel mem- Reciprocal (RRG) (ANLIR), we understand bers met the following day at the Bar’s Satellite Office in Tifton. that every practice has individual concerns South Georgia and coverage needs. We are committed to meet those needs with comprehensive and flexible coverage solutions.

Benefits of ANLIR include: endorsement by the State Bar of Georgia, local office, During the reception at the Tift House, numerous limits and deductible options Superior Court (including our $0 deductible), defense costs Judge Harvey Davis was encouraged to outside policy limits, prior acts coverage, try his hand at the free tail upon retirement (if qualified), guitar. Music at the reception was remi- part-time policies, and professional claims niscent of the late handling by attorneys. 19th century.

Barbara Evans, Esq. (770) 576-1948 1-888-889-4664 The South Georgia Office is [email protected] available to assist local bars. If your bar association needs assistance with programs, contact the Satellite Office of the State Bar of Georgia at (800) 330-0446 and they will facilitate the program for you.

June 2002 63 Bar Lookout Mountain Bar Association: Striving to Make a Difference During the Second 50 Years

By Clifton M. Patty Voluntary

Catoosa County, the only county in the cir- n Jan. 26, 1950, the Lookout cuit that does not have the physical presence of Lookout Mountain within its borders, has Mountain Judicial Circuit was Ringgold, the site of the Civil War battle of created. The circuit was Ringgold, as its county seat. Catoosa County O is bounded on the north in part by formed by taking Walker and Chattooga Chattanooga, Tenn., and is the first county in counties from the Rome Judicial Circuit and Georgia on the Interstate 75 corridor, giving rise to its nickname, “Gateway to Georgia.” joining these counties with Catoosa and Walker County sports the west brow of the northern most part of Lookout Mountain pro- Dade counties from the Cherokee Judicial viding spectacular views of Chattanooga Circuit, thus creating the new circuit. These Valley. Walker County also has Pigeon Mountain, the very first state land preserva- four counties, located at the southern end of tion property acquired by the state of Georgia. The county seat of Walker County is the pic- the Appalachian Mountain chain, are turesque town of Lafayette. Chattooga wedged in a triangle created by the south line County, the southern most county in the Lookout Mountain Circuit is dissected by of the state of Tennessee and the east line of Lookout Mountain and Taylor’s Ridge. Its

the state of Alabama. Breathtakingly beauti-

ful Dade County is located in the apex of the Lookout Mountain Bar

triangle with its county seat, Trenton, nestled Association Officers President: Melissa Gifford in the valley formed between Lookout Vice President: Thomas Weldon Mountain on the east and Sand Mountain on Treasurer: Don Thompson Secretary: September Guy the west.

64 Georgia Bar Journal county seat of Summerville has the Mountain Bar Association. oldest courthouse in the circuit, Grady Head, a former which was built in 1909. The land- mayor of Ringgold, also scape of the Lookout Mountain became a justice of the Judicial Circuit is mountainous, Supreme Court of Georgia. rugged and hard and not unlike the The annual meetings of practice of law used to be in the the Lookout Mountain Bar Circuit. One of the Circuit’s most Association were held on famous lawyers, Bobby Lee Cook, the last Saturday in May of once said if you could practice law each year until the 1980s. in the Lookout Mountain Circuit, At that time, the annual you could practice anywhere. One meeting was traditionally may presume that Bobby Lee would hosted by the late Robert Lookout Mountain Bar Association President know, but the circuit has mellowed Coker, a superior court Melissa Gifford and Judge Jon B. Wood take with its growth over the years. judge, at his farm in Walker a break from the action during Casino Night The Lookout Mountain Judicial County. Judge Coker was a activities. Circuit was reputedly birthed the gifted and enthusiastic gar- controversy created when H. E. dener and his farm was a show refined environ of Superior Court Nichols, a former court reporter, place of blooms and vegetables Judge Jon Boling Wood’s house on was appointed judge of the superi- when the late May meeting of the City Lake in LaFayette and the meal or courts in the Rome Judicial association was held each year. became catered. Circuit. The story goes that some Younger lawyers were expected to By 2000, the membership of the well positioned, but disappointed, appear at the farm on Friday association had grown and the lawyers from Walker County evening with lawn mowers and leadership then considered a reor- objected to a court reporter judge rakes to help Judge Coker spruce ganization that would facilitate and caused the Lookout Circuit to up the grounds and cook bar-be- educational and fellowship goals of be formed from two counties of the que on an open pit all night before the founders of the association. The Rome Circuit and two counties of the meeting on Saturday. Copious leadership also wanted to revitalize the Cherokee Circuit. The Lookout liquid refreshments for the meeting the association to give back to the Mountain Bar Association was arrived early Friday evening to be community and serve the people of formed shortly after the circuit was guarded by the assisting young the circuit. One of the goals was to established in 1950 for the fellow- lawyers and complaints of involun- improve the image of the circuit’s ship and education of the estimat- tary servitude were few. When attorneys. In 2001, Mike Giglio, the ed 22 lawyers, all of whom were Judge Coker’s health prevented president of the association, pro- male, practicing in the circuit. him from hosting the meeting it posed an executive committee to be H. E. Nichols later became a jus- moved to the more civilized and appointed by the president elect to tice of the Supreme Court and if he held a grudge regarding the formation of Lookout Mountain Circuit it was never evident. Justice Nichols became a regular fixture at the meetings of the Lookout Mountain Bar Association. The circuit is proud that presiding Justice Norman Fletcher of the Supreme Court and Court of Appeals Judge Gary B. Andrews came to the state bench directly from the Lookout Mountain Circuit and still hold memberships in the Lookout

June 2002 65 ation to solicit their views The Lookout Mountain Bar regarding the direction that Association gives a Liberty Bell the association should take. Award each year in each county of These acts generated new the circuit. interest in the association The Lookout Mountain Bar becoming a community Association is coming together in leader in the circuit. The its second 50 years to continue the first of the quarterly meet- fellowship and spirit that begin ings was held in February when it was created. With new 2002 and was well attended leadership and goals, the associa- by association membership. tion will do even more to help the The association agreed to community and promote govern- sponsor Casino Night, a ment of laws in its second 50 years Robert L. Stultz deals Blackjack to Walker fund raiser for the of service. County State Court Solicitor Charles Children’s Advocacy Cen- Clements at the Lookout Mountain Bar ter of the Lookout Mountain Skip Patty practices law with Association’s Casino Night. Judicial Circuit and Four Chad Young in Ringgold, Ga. He is Points Inc., a nonprofit that a past president of the Lookout assists abused women and Mountain Bar Association and a life-long resident of Catoosa children. On Feb. 22, 2002, County. Patty has been a member the event was held at the of the Lookout Mountain Bar brand new Catoosa County Association for 28 years. Civic Center and featured gaming tables to earn chips that could be used to purchase goods donated by Judge Jon B. Wood deals Blackjack to sponsors. The association Ringgold attorney Kevin Silvey and his paid the expenses of the wife. event and provided the dealers to man the blackjack tables, the roulette wheel and the craps table. Notable among those serving were Judge Wood and Walker County Juvenile Court Judge Bryant Henry on the blackjack tables, while Mike Giglio ran the roulette. John Wiggins, substituting for a Ringgold attorney John Wiggins oversees conflicted Bobby Lee Cook the Craps table. (who also knows a lot about meet monthly to plan quarterly craps), did a sterling job on the meetings and the annual meeting of craps table. While the turnout was the association. Melissa Gifford, the less than expected, the event raised 2002 president of the association, $1,800 for the two charities. The appointed the members of the first event did garner media coverage executive committee at the first and hopefully next year even more meeting following her election. citizens will turn out for this fund Gifford followed up with a ques- raiser to raise need funds for these tionnaire to members of the associ- worthwhile programs. In addition,

66 Georgia Bar Journal 2002 Law School Orientations Seek Assistance

he Orientations on Professionalism, conducted by the State Bar Committee on Office Professionalism and the Chief Justice’s Commission on Professionalism at each of T 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 from across the state

to volunteer 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 ATTORNEY VOLUNTEER FORM introduce the concept of professionalism to first-year stu- 2002 LAW SCHOOL ORIENTATIONS dents. ON PROFESSIONALISM Minimal preparation is necessary for the leaders. Full Name (Mr./Ms.): ______ Review the hypos and arrive Nickname: ______at the school 15 minutes prior

Professionalism Address: ______to the program. Telephone: ______ Committee will provide lead- Fax: ______ers with a list of the hypos Area(s) of Practice: ______including annotations and Year Admitted to the Georgia Bar: ______suggested questions. Bar Number: ______ Two (2.0) hours of CLE credit will be offered, including Reason for Volunteering: ______1.0 hour of Ethics and 1.0 Please circle your choice: hour of Professionalism. Law School Date Time Reception/Lunch Speaker *Emory 8/23/02 10 a.m. - 12 noon 12 noon - 1 p.m. Pair up with a friend or class- Judge Herbert E. Phipps mate to co-lead a group. Georgia State 8/13/02 3:30 - 5:30 p.m. 5:30 - 6:30 p.m. (Please note, if you are both Judge John H. Ruffin Jr.

recent graduates, we will pair John Marshall 8/24/02 (Sat.) 9 a.m. - 11:30 a.m. 8:30 - 9:00 a.m. you with a more experienced Jimmy D. Berry, Esq. co-leader.) Mercer 8/16/02 2 - 4 p.m. 4 - 5 p.m. Justice Hugh P. Thompson Please consider participation in this project and encourage UGA 8/19/02 To Be Announced To Be Announced Chief Justice your colleagues to volunteer. Norman S. Fletcher Please respond by completing *No additional volunteers are needed for the Emory Orientation sessions - Thank you. the form below or calling the Please return to: Chief Justice’s Commission on State Bar Committee on Professionalism, Attn: Mary McAfee Professionalism at (404) 225- Suite 620 • 104 Marietta Street, N.W. • Atlanta, Georgia 30303 ph: (404) 225-5040, fax: (404) 225-5041. 5040; fax (404) 225-5041. Thank You!

June 2002 67 Appellate 373080 (Ga. 2002). Brown won a jury verdict, including attorneys' fees for stubborn liti- Practice Section giousness; following Kent's unsuccessful Recent developments in the law. appeal, court held a second hearing, at which Consideration of Evidence Outside jury awarded additional attorneys' fees to Record: Brown for defending appeal. Poetter v. State, 244 Ga. App. 675, 536 S.E. Court of Appeals held that attorneys' fees News 2d 576 (2000). under O.C.G.A. §13-6-11 were not available Poetter appealed from the transfer of his for defending an appeal: (1) appellate courts probation to Douglas County. Attorney have their own penalties for filing frivolous General as “friend of the Court” attached to appeals; and (2) might result in appellate its brief a copy of an order in Poetter's sepa- court denying attorneys' fees for an appeal, rate habeas corpus case, finding that the but trial court granting them. transfer had already occurred, and suggested Showing Judicial Bias by Inflection or that the appeal was moot. Tone of Voice. The Court of Appeals considered this “evi- Hines v. State, 248 Ga. App. 752, 548 S.E. dence,” stating that: (1) “an appellate court 642 (2001). Section may hear and consider evidence outside the Criminal defendant argued that judge's record that an appeal has become moot”; and “use of voice tone, inflection and pauses” (2) the appeal would be dismissed if the during jury charge constituted an expression appellant either admitted that the appeal was of opinion and comment on the evidence; moot, or failed to deny the “existence of the appellant submitted court reporter's audio fact of mootness.” tape of the jury charge as evidence. Time for Objection to Closing Argument. Court of Appeals held that the tape was a Butler v. State, 237 Ga. 380, 541 S.E. 2d 653 permissible means of satisfying the require- (2001); Mullins v. Thompson, 274 Ga. 366, 553 ment that the appellant create a record of the S.E. 2d 154 (2001). judge's conduct, even though that was usual- In a criminal case (Butler) and a civil case ly done by the testimony of people who were (Mullins), Court stated in dicta that objection in the courtroom regarding the judge's to closing argument had to be made during demeanor. argument (not after the argument was com- Corporate pleted) or it was waived. Dissent in Mullins argued forcefully that Court gave no basis for Counsel Section overturning cases allowing objections after From Enron to the economy and the argument, and stressing the difficulty of impact of Sept. 11, this has been an eventful objecting during argument, and a court's year for Corporate Counsel. The section has ability to address the problem by curative focused on these and other matters of interest instructions. to its members and provided education, sup- Circumventing Appeal Procedure. port and a forum for discussion of these and Smith & Wesson Corp. v. City of Atlanta, 237 other issues affecting its members. Ga. 431, 543 S.E. 2d 16 (2001). At the Annual Corporate Counsel City sued firearms manufacturers, who Institute, held in December 2001, CLE speak- defended on the ground that state law pre- ers focused on these very topics, discussing cluded such suits. State Court refused to dis- the most recent accounting developments miss case or to certify ruling on dismissal for and providing economic forecasting for the interlocutory appeal. Manufacturers sought Georgia and national economies. A large por- declaratory judgment, and writs of man- tion of the program was dedicated to the damus and prohibition to force State Court to impact of Sept. 11 on corporate concerns, dismiss case. ranging from contract provisions to insur- Supreme Court held that such writs could ance and employment. Theodore Jackson, an not be used to seek review of trial court rul- FBI Special Agent in charge of the Atlanta ings, including claims that trial court had office, also provided unique insights on ter- misapplied the law. rorism concerns and their handling in Attorneys' Fees for Defending Appeal. Atlanta and the state. Kent v. David G. Brown P.E, Inc., 248 Ga. “Ethics for Corporate Counsel” was also App. 447, 545 S.E. 2d 598 (2001), aff'd by the subject of a CLE program on Sept. 14, David G. Brown P.E., Inc. v. Kent, 2002, WL 2001, and was sponsored by the section.

68 Georgia Bar Journal During “Corporate Counsel in the for Emory University. He has The present O.C.G.A. § 18-2-22 Hotseat,” speakers devoted a full planned programs ranging from the entitled “Conveyances by Debtors day to ethical issues unique to in- next Corporate Counsel Institute, to Deemed Fraudulent” consists of 18 house attorneys. These ranged be held on Dec. 12-13, 2002, to the lines divided into three sections. It is from attorney/client privilege Annual Holiday Reception, sched- followed by 32 pages of annotations, questions, such as when an in- uled for Dec. 18, 2002. which evidence the inadequacy of house attorney may have business- the section. The Creditors Rights related roles, to provisions of Creditor’s Section believes that the clarity of Georgia’s new Rules of Rights Section the act will greatly reduce litigation. Professional Conduct as they affect The act has addressed with corporate counsel. Georgia became the 41st state to unambiguous language definitions Alternate dispute resolution adopt the Uniform Fraudulent of key words. Insolvency will exist issues have been the subject of sev- Transfer Act during the 2002 when the sum of the debtor’s debts eral important recent Supreme General Assembly. This was the is greater than its assets at fair val- Court decisions and the section third appearance of the act in the uation, and a presumption of insol- sponsored a special CLE program legislature and this time a home run vency will arise when a debtor is on this topic in May. This update was hit. By writing, emailing, phon- generally not paying debts as they ranged from the impact of these ing and personally visiting legisla- become due. A transfer may be decisions on employment arbitra- tors, members of the section were fraudulent when made even before tion to international arbitration instrumental in securing the bill’s a creditor’s claim arises. There are practices. passage. Section Chair-Elect Frank 11 badges of fraud which describe Multijurisdictional practice (MJP) B. Wilensky was present when the circumstances, which could result is now an important issue for Senate Subcommittee on Banking in avoidance of a transfer. Transfer lawyers across the country, particu- and Finance considered it. Roger by a debtor to an insider to pay an larly among corporate counsel who Martin and Morris W. Macey, uni- antecedent debt is fraudulent if the represent clients in matters across form laws commissioners of insider had reasonable cause to the country. The section presented Georgia were also present. Macey know of the insolvency but such testimony to the American Bar had been chairman of the commit- action must be brought within one Association’s (ABA) MJP committee, which drafted the act. Jim year of the transfer. The act lays out tee in support of MJP rights for in- Martin, now commissioner of the when a transfer is made and when house counsel earlier in the year. Department of Human Resources, an obligation is incurred. Remedies The ABA committee has recom- steered the act through the House and defenses are described. The mended that the ABA support a when he was former chairman of statute of limitations is clearly “safe harbor” for in-house counsel the House Judiciary Committee. established to be four years from admitted in one state, but repre- Robert Reichert, a member of the the date of the transfer except for senting a corporation based or House Judiciary Committee, pre- the one-year statute to an insider operating in another. The ABA is sented the bill to the Senate Banking for an antecedent debt. expected to act on this and other and Finance Committee, which was The act parallels closely §§ recommendations in August. A chaired by Donald Cheeks. The act 547(b) and 548(a) of the Bankruptcy number of states have already was supported by the Georgia Code. Now these causes of action taken steps of one type or another Bankers Association and many are available without initiation of to open the door to MJP in response Georgia lawyers. The act will bankruptcy proceedings against a to the ABA’s raising of the issue. become effective on July 1, 2002. debtor. The act makes clear to both Several states have initiated business courts for the handling of complex business litigation in recent years. As a result of the experience by one section member before one such court, the section is undertak- ing a study of the concept for consideration in Georgia. The results of the work will be reported to the members and used for future discussion of the concept in this state. The next chair of the Corporate Counsel Section will be Kent Alexander, who is general counsel

June 2002 69 a debtor and a creditor the conse- Environment investigations. The industry has quences of their behavior. complained loudly that legitimate Law Section providers are facing criminal expo- Elder Law Section The Environmental Law sure for noncompliance with health The Elder Law Section of the Section’s summer CLE program care regulations which are often State Bar of Georgia was created in will be held at the Hilton San complex, contradictory, and con- 2002. At present, the section has 332 Destin, Aug. 2-3, 2002. fusing. Health care-related crimi- members. The section promotes the The section conducted two very nal actions have resulted in jail development of substantive skills well attended brown bag luncheons time for providers and very sub- of attorneys working with older this spring. The March program, stantial monetary settlements. For clients by offering continuing edu- hosted by Troutman Sanders, fea- example, in 2001, TAP cation programs. Through a tured John Palmer, the new region- Pharmaceutical Products, Inc. newsletter, the section reports on al administrator for the United entered into a record-breaking $875 legislation, case law and regula- States Environmental Protection million settlement with the United tions related to elder law, as well as Agency, Region 4, Atlanta. Section States government to end an inves- providing information about local members met again in April at tigation relating to the company's bar and elder law sections. Kilpatrick Stockton to hear pan- sales and marketing of a prostate During the 2001-2002 Bar year, elists from the Georgia cancer drug. Over $200 million of the section has co-sponsored three Environmental Protection Division, the total settlement amount con- ICLE programs: Adult Guardian- the environmental community and sisted of criminal fines. ship — A View from the Bench; industry discuss the latest develop- Approximately $600 million was Basic Elder Law; and Advanced ments concerning the “General paid to settle Federal Civil False Elder Law. The section partnered NPDES Permit for Stormwater Claims Act allegations that the with the Georgia Advocacy Office Discharges Associated with company had filed false and fraud- in November 2001 to provide a Construction Activity” and the new ulent claims with the Medicare and continuing legal education prostate stream buffer variance rules. Medicaid programs. Several indi- gram in Albany, Ga., regarding vidual physicians were criminally adult guardianship. Health Law Section charged in connection with the investigation. The section was a co-sponsor of One of the major trends in health the Annual Meeting in June 2001 Very recently, health care care law over the last several years providers were given some com- and will be a co-sponsor again for has been an intense focus by state the 2002 Annual Meeting at Amelia fort and guidance with respect to and federal governmental agencies the circumstances under which Island. on health care fraud. There have The section also monitors legisla- they might face criminal liability in been many large scale fraud inves- connection with a health care fraud tion affecting older adults. Among tigations of health care providers the many bills passed during the matter. That guidance came in the (doctors and hospitals), health care form of an Eleventh Circuit Court 2002 General Assembly, HB 1585 suppliers, health care companies, was passed, which expands the of Appeals decision in United States and pharmaceutical companies. of America v. Robert Whiteside et al., crime of cruelty to a person 65 and Often, these actions are pursued older to include the will depriva- Case Nos. 99-15197, 00-12759, Slip under the Federal Civil False Op., March 22, 2002. tion of health care or shelter to the Claims Act, either by the govern- existing willful deprivation of nec- In Whiteside, two health care ment itself or by the government in facility executives challenged their essary sustenance by a guardian or cooperation with an individual other person supervising the wel- criminal convictions for making whistleblower (known as a qui tam false statements in Medicare/ fare of a person who is 65 or older. relator) who brings allegations of Some exemptions are included in Medicaid reimbursement cost fraud to the government's atten- reports. The Eleventh Circuit the statue. In addition, HB 1361 (the tion. In part because of the substan- governor’s bill to prohibit predato- reversed the defendants' convic- tial potential liability faced by tions, holding that the government ry lending practices) was passed. health care providers in connection Predatory lenders have targeted failed to prove that the alleged false with these matters, they often statements were, in fact, knowingly older homeowners because of the result in large settlements pursuant equity in their homes. HB 1413 pro- and willfully false. The defendants to which the provider agrees to pay argued that the government failed vides for criminal records checks back millions of dollars to the state for all personal care home (assisted to prove beyond a reasonable doubt or federal government. that the cost reports were not true living facility) employment appli- The health care industry also cants who would handle resident under a reasonable interpretation of faces potential criminal liability in the law. The court held that the funds or provide personal services. connection with health care fraud

70 Georgia Bar Journal government did not meet its bur- Stat. 6) (Nov. 9, 2000) it is the hope Atlanta, chair; Peggy Brockington den because it failed to prove that of the section that veterans will be of Atlanta, vice-chair; and Mel Hill Medicare regulations, administra- more versed in the claims process. Jr. of Athens, editor of the section tive rulings, or judicial decisions Since the adoption of the act, veter- newsletter. clearly required the expenses at ans have received letters notifying Mark your calendars for the 33rd issue to be claimed as the govern- them about their rights in the VA Annual Conference on Higher ment alleged. Indeed, the court claims process. In these letters, the Education and the Law, scheduled noted that one of the government's veterans were asked the following: for July 15-16, 2002, at the Georgia witnesses had testified that the reg- what evidence is necessary to Center for Continuing Education in ulations at issue in the case “can be establish entitlement to the benefit Athens. This conference is designed interpreted different ways.” wanted and what information or to serve the needs of college and The Whiteside decision consti- evidence will the VA obtain for the university presidents and vice- tutes a major victory for health care veteran?; what information or evi- presidents, deans, faculty, student providers and for common sense. dence does the VA need from the affairs administrators, consulting Providers have long contended veteran?; what can the veteran do attorneys and other individuals that they should not be subject to to help with the claim?; and who concerned with the legal aspects of sanctions because they misinter- can the veteran call if he or she has student, faculty and administrative preted Medicare and Medicaid reg- any questions or needs assistance? behavior. CLE credits are offered ulations that are complex and often It is the VA’s duty to make reason- for this program, including subject to varying interpretations. able efforts to help the veteran in ethics/professionalism hours this The Whiteside case should prove obtaining the evidence necessary to year as well. Sponsored by the helpful to providers as they seek to support the claim. It is the veter- Institute of Higher Education of the comply with the complex rules and an’s responsibility to provide the University of Georgia, and support- regulations which govern them VA enough information about nec- ed by the School and College Law and avoid civil or criminal liability essary records so that the VA can Section, this year’s conference for health care fraud. request them from the agency or focuses on “Preventative Law in The State Bar of Georgia Health person. It remains the veteran’s Action.” Confirmed speakers to Law Section recently co-sponsored responsibility to support his or her date include: Parker Young, the Fifth Annual Health Care claim with appropriate evidence. Institute of Higher Education, Fraud Institute. The TAP Veterans are able to visit the VA’s “Current Issues in Student Life and Pharmaceuticals settlement and the Web site at www.va.gov for more Academic Affairs;” Gary Pavela, Whiteside case discussed above information about benefits. University of Maryland, “Law and were just two of the major develop- The section encourages sugges- Policy Quiz;” the Honorable ments in health care fraud which tions and new ideas from current Harold Clarke, former chief justice, were addressed and analyzed by members and is actively recruiting Georgia Supreme Court and an experienced, knowledgeable new members to jump-start this Professor Anne Proffitt Dupre, group of speakers. The program new section. University of Georgia Law School, was well attended and useful to “Professionalism, Ethics and participants who practice in the The School and Civility in Higher Education;” area of health care fraud and abuse College Law Section Mary Anne Connell, University of matters. Mississippi, “Affirmative Action, Are you a school or college/uni- Minority Hiring, and Race-based Military/Veterans versity attorney? Have you been Preferences in Admissions and Law Section asked to represent parents in an education lawsuit? Are you inter- The Military/Veterans Law ested in education law? If so, you Expert Witness Law Enforcement and Corrections. Section of the State Bar of Georgia may want to consider joining the 35 Years of academic, training and is currently planning a seminar for School and College Law Section of practical experience. the summer. Several renowned the State Bar of Georgia. The School speakers will update section mem- and College Law Section provides >Pursuits bers on recent case law pertaining members with opportunities to >Control Techniques to both military and veterans law interact with those actively >Cell Extractions and regulations, and information engaged in the practice of school >Contemporary Strategies on beginning and maintaining an and college law. More information >Tactics active military/veterans practice. on the section, including a roster of With the adoption of the members, can be found at Use-of-Force.com Veterans Claims Assistant Act of www.gabar.org/sclaw.htm. 912.634.6362 2000, (Pub. L. #No.106-475, 114 Section officers are: Pat McKee of

June 2002 71 Financial Aid;” and Kim Novak, ing technology commonly used on Section Meeting: August 2002 Texas A&M, “The Aftermath of the the Internet. British Telecom previ- (Date To Be Announced) Texas A&M Bonfire — Reducing ously submitted demands to Annual Technology Law Institutional Liability through the Internet Service Providers such as Institute: Oct. 3-4, 2002 Development of a Proactive Risk Prodigy and America Online for Management Plan.” For more infor- royalties arising from use of hyper- In Other News mation, contact Mel Hill at text links. Following a cold recep- As the Bar year comes to a close, [email protected] or (706) tion to these demands, British sections will be submitting annual 583-0048; Nancy Breme at (706) 542- Telecom appears to have settled on reports of activity to the Board of 1272; or Anne Jarvis at Prodigy, the oldest commercial Governors for their June meeting. [email protected] or (706) ISP, as the subject of a test case to At present, over 13,103 Bar mem- 542-0579. gauge the strength of its claims. If bers are members of the various the case is successful, it is expected Technology sections. that British Telecom will pursue Achievement Awards will be Law Section royalty claims against other ISPs presented to four outstanding sec- and other companies utilizing links There have been some interest- tions. These awards will be pre- on the Internet. sented during the Plenary Session ing developments in the area of The U.S. District Court issued a technology law in recent months. at the 2002 Annual Meeting at preliminary ruling on March 13, Amelia Island Plantation. Keep an In Georgia, Senate Bill 214 (the 2002, that construed many of “Database Bill”) failed to come to a eye out for future Georgia Bar British Telecom's key patent claims Journal articles to see the winners. vote before the Georgia House of narrowly. One view is that this Representatives and, as a result, At the Spring Board of decision, called a Markham ruling, Governors’ meeting in Savannah, appears to have little if any chance may ultimately prove fatal to an of becoming law. The Database Bill the Bar’s 35th section was approved. attempt by British Telecom to The new section is the Government would have elevated the protection apply its patent to the Internet as a available under law for “databas- Attorneys Section. The purpose of whole by reason of the Court's con- this section is to “provide a forum es” as defined in the proposed law. struction of the scope of the under- Proponents asserted that the Bill for governmental attorneys and to lying patent claims. The Court promote their interests before and would encourage economic devel- ordered the parties to file motions opment through investment in cer- after participation in the State Bar of for summary judgment by April 12, Georgia.” A section chair will be tain types of information process- 2002, and the case may go to trial as ing and storage operations in the appointed soon. early as September of this year. It’s that time of year again – time State, while opponents argued that The Technology Law Section of the law was overbroad and there- to join a section. The benefits are the State Bar of Georgia is an asso- endless. Section communications, fore created uncertainty that would ciation of attorneys from sole prac- not be conducive to commerce. The such as newsletters and e-mails, titioners to members of the largest inform members. Section planned Senate passed the Bill in March of firms in the State, and from start- last year, but the Bill sat in the events provide opportunities to ups to multi-national corporations. network and seminars offer inter- House. The House Subcommittee Members hail from across Georgia reviewing the Database Bill even esting speakers on cutting-edge and from across the country. The topics. Many sections also partici- considered a formal Do Not Pass Section has an active agenda of motion but instead settled on hold- pate in community projects. For an meetings, seminars, and functions overview of the 35 sections, visit the ing the bill for the remainder of the throughout the year at which mem- session. The members of the Bar’s Web site at www.gabar.org. bers can network, receive informa- Last, but not least, the Bar’s sec- Subcommittee indicated that there tion about cutting-edge issues fac- would be no further hearings on tions will have a fun exhibit booth ing attorneys and their clients in at the Annual Meeting. Be sure to the Bill and that it would not come this area of practice, and engage in stop by, as many prizes will be up for a vote, this signaling its community service activities. awarded. Also, don’t miss the demise. The following is a list of upcom- opening night reception during the In a legal proceeding of poten- ing Section events. For more infor- meeting, which is sponsored by 26 tially broad impact, British mation about these events, please of the Bar’s sections. This event will Telecommunications PLC contin- visit the Technology Law Section's provide another opportunity to ues to prosecute a patent infringe- Web page at http://www.comput- win prizes, as well as provide the ment action against Prodigy erbar.org. opportunity to meet fellow mem- Communications Corporation Tech Corps Georgia Volunteer bers and their families. based on British Telecom's claim to Day: Aug. 3, 2002 have patented the hypertext link-

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

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

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

William H. Alexander Richard G. Harwell Sr. James A. Moore Atlanta, Ga. Decatur, Ga. Houston, Texas Admitted 1957 Admitted 1981 Admitted 1947 Died February 2002 Died February 2002 Died January 2002 Memoriam Luther A. Alverson James S. Hurt Toni Marie Rodgers Atlanta, Ga. Marietta, Ga. Smyrna, Ga. Admitted 1941 Admitted 1977 Admitted 1990 Died March 2002 Died March 2002 Died February 2002 In Mildred B. Bell William P. Johnson Edwin A. Sawyer Columbus, N.C. Carrollton, Ga. Decatur, Ga. Admitted 1969 Admitted 1957 Admitted 1951 Died January 2002 Died February 2002 Died March 2002 Ernestine B. Brown Armand David Kahn Jack M. Smith Atlanta, Ga. Atlanta, Ga. Marietta, Ga. Admitted 1976 Admitted 1959 Admitted 1950 Died February 2002 Died March 2002 Died April 2002 L. Paul Cobb Jr. Marjorie King Donald Grier Stephenson Atlanta, Ga. Atlanta, Ga. Covington, Ga. Admitted 1963 Admitted 1950 Admitted 1935 Died October 2001 Died February 2002 Died February 2002 Donald Carmen Feniello John G. Kopp Herman E. Talmadge Flushing, N.Y. Waycross, Ga. Hampton, Ga. Admitted 1993 Admitted 1949 Admitted 1936 Died March 2002 Died November 2001 Died March 2002 Sam H. Flint Jason Derek Long V. Jack Yarbrough St. Simons Island, Ga. Macon, Ga. Atlanta, Ga. Admitted 1952 Admitted 1998 Admitted 1948 Died April 2002 Died August 2001 Died March 2002 Josiah Martin Flournoy Columbus, Ga. Memorial Gifts Admitted 1939 The Lawyers Foundation of Georgia furnishes the Georgia Bar Died November 2001 Journal with memorials to honor deceased members of the State Lucien George Folsom Bar of Georgia. A meaningful way to honor a loved one or to Atlanta, Ga. commemorate a special occasion is through a tribute and memo- Admitted 1947 rial gift to the Lawyers Foundation of Georgia. An expression of sympathy or a celebration of a family event that takes the form Died February 2002 of a gift to the Lawyers Foundation of Georgia provides a last- Jeana Girard ing remembrance. Once a gift is received, a written acknowl- Atlanta, Ga. edgement is sent to the contributor, the surviving spouse or Admitted 1995 other family member, and the Georgia Bar Journal. Died April 2002 Jackson B. Harris Information Rome, Ga. For information regarding the placement of a memorial, please Admitted 1948 contact the Lawyers Foundation of Georgia at (404) 659-6867 or 104 Marietta St. NW, Suite 630, Atlanta, GA 30303. Died August 2001

June 2002 73 The Architecture of Hope The Courthouse and the Depot

Reviewed by Harold Clarke Review

ilber W. Caldwell has written three resolution lean so heavily on what has hap- W books in one. His The Courthouse and pened in the past. The Depot (Mercer University Press, 2001) has Lawyers of my generation will find the story of the history of depots fun to read. Book all the good qualities of a coffee table book, a seriously researched historical reference There was a time when Georgia lawyers book and a fascinating book telling what could be roughly divided into two categories: underlies the development of Georgia for those who represent railroads and those who much of the 19th and 20th centuries. sue railroads. This book goes beyond the As a coffee table book, mere physical description this volume can boast a of depots and the rail handsome cover, interest- lines. It presents an accu- ing photographs and easy rate narrative of the reading. impact of these things on As an historical refer- the communities they ence work, the book served. It also tells of the includes architectural successes, failures and details of virtually every sometimes hardships in courthouse and depot accomplishing the devel- built in Georgia between opment of an effective rail 1833 and 1910. system. As a narrative of the There was a time when development of Georgia no town or city could during the era involved, hope to be successful as a the book contains many society of people or as a narratives; some dealing business community un- in human interest and less they had both a court- others dealing in the detailed efforts of house and a depot. The courthouses provid- Georgia people to change the face of their ed a focal point (a courthouse square), which state. attracted the businesses of the towns. From In addition to reflecting at least three faces time to time, it became a social center as a of its own, The Courthouse and the Depot meeting place and specifically during “court should appeal to a wide variety of the seg- week.” ments of the population of Georgia. Lawyers During court week, great masses of people will find it particularly interesting for the gathered under the trees on the courthouse obvious reason that courthouses are to square awaiting service as jurors, witnesses lawyers what hospitals are to doctors — they or perhaps parties to legal proceedings. They are a major workplace for most lawyers. ate their lunches on the public benches. They Most lawyers also possess an interest in his- chewed their tobacco and spit the juice on the tory, if for no other reason law and dispute lawn, and they spent hours discussing public

74 Georgia Bar Journal issues. America has lost something and other destinations. The present and to the future. I suggest when all of that expired. description of the depot and the you read it and then keep it handy Depots held a similar place. The Windsor Hotel in Americus held a for periodical reference. It is the depot offered something more than particular interest for me. Almost kind of book that Georgians ought the movements of freight in those 60 years ago, I, along with the other to have in their library. days. I have personal recollections members of the Mary Persons High that remain clear with me regard- School football team, traveled by Justice Harold Clarke ing the depot in Forsyth, Ga. Many train to Americus to play the team has served of counsel passenger trains passed over the from that town. Our coach rented to Troutman Sanders LLP since retiring rails of the Central Georgia two large rooms in the Windsor from the Supreme Railroad. Hotel for us to rest while we wait- Court of Georgia They came right through ed for game time. After being bench in 1994. He is a former Forsyth. As a youngster, I took soundly defeated, we straggled State Bar of Georgia president, great pleasure in watching the back to the depot in Americus, 1976-1977, and was a member of trains go through, but the greatest where the train was late, but got us the Georgia General Assembly pleasure came a couple of times a back to Forsyth before the October from 1961-1971. Justice Clarke is day when the “fast trains” sped sunrise. also an adjunct professor of law through Forsyth on their way from Most Georgians and readers of at the University of Georgia Chicago to Miami or other such the Georgia Bar Journal will not have School of Law, where he received important points. I looked at the personal recollections of much of his J.D. degree in 1950. well-dressed and distinguished- what I have mentioned, but I am The Courthouse and the Depot, The looking people as they headed convinced that most will find the Architecture of Hope in an Age of toward their exotic destinations. book more than interesting. After Despair, A Narrative Guide to The imagination of a young boy all, the best way to know where we Railroad Expansion and its Impact on can run wild just doing this. That are now and where we are going is Public Architecture in Georgia, 1833- does not mean that freight trains to understand where we came from 1910, (Macon: Mercer University Press, 2001). Hardback, 624 pages, did not hold an important place in and how we got here. The 300 photos, 33 maps, three appen- society. They provided economic Courthouse and the Depot provides dices, complete index. This book life’s blood to remote villages by many of the answers. Those who is available for $50 from book sell- bringing in goods for sale and ship- do not read it will miss an impor- ers or for $40 from the ping out raw materials to be tant experience. Mercer University Press at processed somewhere else. There This is not a book to be read and www.mupress.org or call the was another sad used for freight put away to gather dust. This book Mercer Press at (800) 342-0841 inside Georgia or (800) 637-2378 trains during my young days. I puts in context the events of the outside Georgia. would walk down to the railroad past and helps apply them to the and watch the trains go by with untold numbers of hoboes clinging to the Check out Georgia Legal Jobs on cars of a train in hopes of getting to another place where they could find a better life. w w w.GeorgiaJuris.co For those of us who lived in small Georgia towns at that time, the m train offered a conven- ient and cheap way to (Firms: Post your job openings FREE!) get to other places. We News & Announcements, Free Classifieds, Articles, Job Listings, Events Calendar, frequently rode the Career, Technology, HR, Marketing, CLE, Ethics, Pro Bono, and more... trains to Atlanta, Macon

June 2002 75 CLE/Ethics/Professionalism/Trial Practice Note: To verify a course that is not listed, please call the CLE Department at (404) 527-8710. Also, ICLE seminars only list total CLE hours. For a breakdown, call (800) 422-0893.

6-9 ICLE Georgia Trial Skills Clinic UGA School of Law, Athens, Ga. June 2002 24 CLE with 2 Professionalism, 2 Ethics and Calendar 6 Trial Practice

3 6 ABA LORMAN BUSINESS CENTER INC. Banking Law Basics – A Primer on Insurance Bad Faith Claims in Banking Law Georgia Litigation CLE San Francisco, Calif. Atlanta, Ga. 17.3 CLE with 0.5 ethics 6.0 CLE 3 PRACTISING LAW INSTITUTE 7 Acquiring or Selling the Privately Held NATIONAL BUSINESS INSTITUTE Company Land Use Law Update in Georgia Various Dates and Locations Atlanta, Ga. 11.8 CLE with 0.8 ethics 6.0 CLE with 0.5 ethics

5 13 ABA ICLE 16th Annual National Institute on Estate Planning Under the New Tax Laws ERISA Basics (Video Replay) New York, N.Y. Annual Meeting, Amelia Island, Fla. 18.6 CLE with 1.0 ethics 3 CLE 5 13 NATIONAL INSTITUTE OF ICLE TRIAL ADVOCACY Child Custody, Visitation and Midwest Deposition Termination of Parental Rights Chicago, Ill. Annual Meeting, Amelia Island, Fla. 16.8 CLE with 1.3 ethics 3 CLE with 1 Professionalism (self-report) 13 5 ICLE VIRGINIA LAW FOUNDATION Preventing Legal Malpractice Claims Police Liability in Georgia and Ethical Complaints Atlanta, Ga. Annual Meeting, Amelia Island, Fla. 6.0 CLE and 1.3 ethics 3 CLE with 1 Ethics

5 13 NATIONAL BUSINESS INSTITUTE ICLE Basic Residential Real Estate Third Annual Bench and Bar Committee Sem. Transactions in Georgia Annual Meeting, Amelia Island, Fla. Atlanta, Ga. 3 CLE with 1 Professionalism (self-report) 6.0 CLE and 0.5 ethics and 3 Trial Practice 5 13 LORMAN BUSINESS CENTER INC. NATIONAL EMPLOYMENT LAW INSTITUTE Construction Claims in California Employment Law Litigation Santa Monica, Calif. San Francisco, Calif. 6.7 CLE 11.5 CLE with 1 Ethics hour

76 Georgia Bar Journal CLE 13 21 CHATTANOOGA BAR ASSOCIATION ICLE Annual Spring Estate Planning Defense of Drinking Drivers Practice Update Atlanta, Ga. Chattanooga, Tenn. 6 CLE

3.3 CLE Calendar

14 21-22 ICLE ICLE A General Practitioner’s Guide to Trademark, Southeastern Admiralty Law Institute Copyright, Patent and Internet Law Point Clear, Ala. Annual Meeting, Amelia Island, Fla. 9 CLE 3 CLE with 1 Ethics 14 21 ICLE LORMAN BUSINESS CENTER INC. Legal Technology and Management Auto Insurance Law and Accident Solutions: Tools of the 21st Century Lawyer Litigation in Georgia Annual Meeting, Amelia Island, Fla. Atlanta, Ga. 3 CLE with 1 Ethics 6 CLE 25 14 NATIONAL BUSINESS INSTITUTE LORMAN BUSINESS CENTER INC. Limited Liability Companies and Limited Workers Compensation in Georgia Liability Partnerships in Georgia Athens, Ga. Atlanta, Ga. 6 CLE 6.7 CLE with 0.5 ethics

18 26 NATIONAL BUSINESS INSTITUTE LORMAN BUSINESS CENTER INC. Insurance Law: Third Party Coverage Florida Construction Law in Georgia Jacksonville, Fla. Atlanta, Ga. 6 CLE 6 CLE with 0.5 ethics

18 27 LORMAN BUSINESS CENTER INC. LORMAN BUSINESS CENTER INC. Judgment Enforcement in Florida Collection Law for the Healthcare Industry Jacksonville, Fla. Athens, Ga. 6.7 CLE with 1 ethics 6.7 CLE

19 NATIONAL BUSINESS INSTITUTE Advanced Issues in Georgia Elder Law Atlanta, Ga. July 2002 6 CLE with 0.5 ethics

20 1 CHATTANOOGA BAR ASSOCIATION ICLE Intellectual Property Issues in Structuring Bridge the Gap (Video Replay) Deals and Drafting Agreement Atlanta, Ga. Chattanooga, Tenn. 6 CLE 4 CLE 20 10 LORMAN BUSINESS CENTER INC. NATIONAL BUSINESS INSTITUTE LLCs Advising Small Business Start-Ups and Advanced Issues in Employee Benefits Larger Companies in Georgia Law in Georgia Atlanta, Ga. Atlanta, Ga. 6.7 CLE with 1 ethics 6 CLE with 0.5 ethics June 2002 77 11 24 NATIONAL BUSINESS INSTITUTE LORMAN BUSINESS CENTER INC. Bondary Law in Georgia Discovery Skills for Legal Staff in Georgia Atlanta, Ga. Atlanta, Ga. 5.5 CLE with 0.5 ethics 6.0 CLE with 3 trial

11 24 LORMAN BUSINESS CENTER INC. LORMAN BUSINESS CENTER INC. Construction Management and Design Retirement Planning 101 Build in Florida Savannah, Ga. Jacksonville, Fla. Calendar 6.7 CLE 6 CLE

12 25 LORMAN BUSINESS CENTER INC. NATIONAL BUSINESS INSTITUTE Advanced Estate Planning School Law Issues in Georgia Techniques in Georgia Atlanta, Ga. CLE Atlanta, Ga. 6 CLE with 0.5 ethics 6.7 CLE with 0.5 ethics

26 17 ALI-ABA NATIONAL BUSINESS INSTITUTE Drafting Documents for Condominium Planned Recent UCC Developments Communities Atlanta, Ga. Santa Fe, N.M. 6 CLE with 0.5 ethics 16.8 CLE with 0.5 ethics

18 26 ICLE NATIONAL BUSINESS INSTITUTE Fiduciary Law Institute Medical Records for Georgia Attorneys St. Simons Island, Ga. Atlanta, Ga. 12 CLE 6 CLE with 0.5 ethics

31 18 NATIONAL BUSINESS INSTITUTE NATIONAL BUSINESS INSTITUTE Computer Assisted Legal Research Litigating the Class Action Lawsuit in Georgia Made Easy in Georgia Atlanta, Ga. Atlanta, Ga. 6.0 with 0.5 ethics and 6 trial 6 CLE

19 NATIONAL BUSINESS INSTITUTE Domestic Law in Georgia Atlanta, Ga. August 2002 6 CLE with 0.5 ethics

23 2-3 NATIONAL BUSINESS INSTITUTE ICLE Advanced Construction Law in Georgia Environmental Law Summer Seminar Atlanta, Ga. Destin, Fla. 6 CLE with 0.5 ethics 8 CLE 24 14-15 ROCKY MTN. MINERAL LAW FOUNDATION ICLE 48th Annual Rocky Mountain Real Property Law Institute (Video Replay) Mineral Law Institute Atlanta, Ga. Lake Tahoe, Nev. 12 CLE 14 CLE with 2 ethics 78 Georgia Bar Journal CLE 20 23 NATIONAL BUSINESS INSTITUTE ICLE The Probate Process from Start to Georgia Law of Torts Finish in Georgia Atlanta, Ga. Atlanta, Ga. 6 CLE 6.7 CLE with 0.5 ethics Calendar

20-21 28 ICLE LORMAN BUSINESS CENTER INC. Selected Video Replays Taking and Defending Effective Atlanta, Ga. Depositions in Florida 6 and 12 CLE Jacksonville, Fla. 6.0 CLE with 1.0 ethics and 5 trial

23 August 31 – September 1 ICLE ICLE Nuts and Bolts of Family Law Urgent Legal Matters Savannah, Ga. Sea Island, Ga. 12 CLE 12 CLE

Get Published and earn CLE Credit at the same time!

Did you know that Georgia lawyers can earn up to 6 CLE credits for authoring legal articles and having them published? Contact [email protected] or www.gabar.org/gbjsub.htm for more information. Submit your legal articles to the Georgia Bar Journal. Marisa Anne Pagnattaro Editor-in-Chief Georgia Bar Journal 104 Marietta St. NW, Suite 100 Atlanta, GA 30303

June 2002 79 Notice of Motion to Amend the Rules and Regulations of the State Bar of Georgia

o earlier than 30 days after the publica- December 6, 1963 (219 Ga. 873), as amended Ntion of this notice, the State Bar of by subsequent Orders, 2001-2002 State Bar of Georgia will file a Motion to Amend the Georgia Directory and Handbook, pp. 1-H, et Rules and Regulations for the Organization seq., and respectfully moves that the Rules

Notices and Government of the State Bar of Georgia and Regulations of the State Bar of Georgia be pursuant to Part V, Chapter 1 of said Rules, amended in the following respects: 2001-2002 State Bar of Georgia Directory and Handbook, p. H-6 (hereinafter referred to as I. “Handbook”). Proposed Amendment to I hereby certify that the following is the State Bar of Georgia verbatim text of the proposed amendments Rule 1-304, Election of Members of as approved by the Board of Governors of the Board of Governors State Bar of Georgia. Any member of the State Bar of Georgia who desires to object to It is proposed that Part I (Creation and the proposed amendments to the Rules is Organization), Rule 1-304 be amended as reminded that he or she may only do so in shown below by deleting the stricken por- the manner provided by Rule 5-102, tions of the rule and inserting the phrases in Handbook, p. H-6. bold and italicized typeface as follows: This Notice, and the following verbatim Rule 1-304. Election of Members of Board text, are intended to comply with the notice of Governors. requirements of Rule 5-101, Handbook, p. H-6. The State Bar of Georgia shall, in its Cliff Brashier bylaws, establish the term of office and the Executive Director method of election of the members of the State Bar of Georgia Board of Governors representing judicial circuits and nonresident members. Such IN THE SUPREME COURT method of election shall ensure that: STATE OF GEORGIA (a) the election will be by secret written or secure electronic ballot; IN RE: STATE BAR OF GEORGIA (b) each active member of the State Bar Rules and Regulations for its of Georgia, in conjunction with a specified Organization and Government number of other active members, will have the right, upon compliance with reasonable MOTION TO AMEND 02-2 conditions, to nominate a candidate from his judicial circuit (or candidates in circuits elect- MOTION TO AMEND THE RULES AND ing more than one member of the Board of REGULATIONS OF THE Governors in such election) whose name will STATE BAR OF GEORGIA be printed placed on the ballot for his circuit; (c) each active member of the State COMES NOW, the State Bar of Georgia, Bar of Georgia residing outside of the State, pursuant to the authorization and direction of in conjunction with a specified number of its Board of Governors in a regular meeting other active nonresident members, will have held on April 6, 2002, and upon the concur- the right, upon compliance with reasonable rence of its Executive Committee, presents to conditions, to nominate a candidate from the this Court its Motion to Amend the Rules and active members of the State Bar of Georgia Regulations of the State Bar of Georgia as set residing outside of the State; forth in an Order of this Court dated (d) any nominating petition shall

80 Georgia Bar Journal bear or be accompanied by a state- term of office and the method of electronic ballot, which meets the ment signed by the nominee indi- election of the members of the requirements above, may be pro- cating his willingness to serve if Board of Governors representing vided to members; elected; judicial circuits and nonresident (f) each nominee shall be (e) a ballot for his judicial members. Such method of election entitled to have at least one observ- circuit will be mailed to each active shall ensure that: er present at the counting of the resident member and a ballot will (a) the election will be by written ballots from his judicial cir- be mailed to each active nonresi- secret written or secure electronic cuit; and dent member in the case of election ballot; (g) any change in the geo- of nonresident board member, hav- (b) each active member of graphical limits of a judicial circuit ing printed thereon the names of the State Bar of Georgia, in con- or circuits shall automatically ter- all qualified nominees for such cir- junction with a specified number of minate the terms of all members cuit or nonresident post and space other active members, will have the elected to the Board of Governors, for a write-in vote in ample time for right, upon compliance with rea- accordingly in such manners as the the member to cast the ballot before sonable conditions, to nominate a bylaws may provide. In the event the time fixed for the election. In candidate from his judicial circuit the geographical limits of a circuit lieu of a written ballot, a secure (or candidates in circuits electing are changed after the notices of electronic ballot, which meets the more than one member of the election have been distributed to requirements above, may be pro- Board of Governors in such elec- the members of the State Bar of vided to members. tion) whose name will be placed on Georgia, then and in that event, the (f) each nominee shall be the ballot for his circuit; terms of the members of the Board entitled to have at least one observ- (c) each active member of of Governors from such circuits er present at the counting of the the State Bar of Georgia residing will remain as they were before the written ballots from his judicial cir- outside of the State, in conjunction change in geographical limits until cuit; and with a specified number of other the election of the Board of (g) any change in the geo- active nonresident members, will Governors to be held the following graphical limits of a judicial circuit or have the right, upon compliance year. circuits shall automatically terminate with reasonable conditions, to the terms of all members elected to nominate a candidate from the SO MOVED, this ______day of the Board of Governors, accordingly active members of the State Bar of ______, 2002 in such manners as the bylaws may Georgia residing outside of the provide. In the event the geographi- State. Counsel for the cal limits of a circuit are changed (d) any nominating petition State Bar of Georgia after the notices of election have been shall bear or be accompanied by a distributed to the members of the statement signed by the nominee William P. Smith, III State Bar of Georgia, then and in that indicating his willingness to serve General Counsel event, the terms of the members of if elected; State Bar No. 665000 the Board of Governors from such (e) a ballot for his judicial circuits will remain as they were circuit will be mailed to each active Robert E. McCormack before the change in geographical resident member and a ballot will Deputy General Counsel limits until the election of the Board be mailed to each active nonresi- State Bar No. 485375 of Governors to be held the follow- dent member in the case of election ing year. of nonresident board member, hav- OFFICE OF THE Should the proposed amend- ing printed thereon the names of GENERAL COUNSEL ment be adopted, State Bar Rule 1- all qualified nominees for such cir- State Bar of Georgia 304 would read as follows: cuit or nonresident post and space 104 Marietta Street, NW, Suite 100 Rule 1-304. Election of for a write-in vote in ample time for Atlanta, Georgia 30303 Members of Board of Governors. the member to cast the ballot before (404) 527-8720 The State Bar of Georgia the time fixed for the election. In shall, in its bylaws, establish the lieu of a written ballot, a secure

June 2002 81 First Publication of Redrafted Proposed Formal Advisory Opinion No. 98-R7 (For Reconsideration)

ursuant to Rule 4-403 (c) of the QUESTION PRESENTED: are provided. Some services, for example, the services of the attor- PRules and Regulations of the May a Georgia attorney contract ney’s commitment to the client’s State Bar of Georgia, the Formal with a client for a non-refundable case and acceptance of potential Advisory Opinion Board has made special retainer? a preliminary determination that disqualification from other repre- the following redrafted proposed SUMMARY ANSWER: sentations, are provided as soon as 1 opinion should be issued. A Georgia attorney may contract the contract is signed . The portion Proposed Formal Advisory with a client for a non-refundable of the fee reasonably allocated to Opinion No. 98-R7 was previously special retainer so long as: 1) the these services are, therefore, earned published in the February and June contract is not a contract to violate immediately. These fees, and any 2000 issues of the Georgia Bar the attorney’s obligation under other fees that have been earned by Journal. State Bar members are Rule 1.16(d) to refund “any providing specified services to the invited to reconsider this proposed advance payment of fee that has client, need not be refunded to the opinion and file comments with the not been earned” upon termination client. In this sense, a special retain- Office of General Counsel of the of the representation by the attor- er can be made non-refundable. State Bar of Georgia at the follow- ney or by the client; and 2) the con- ing address: tracted for fee, as well as any In FORMAL ADVISORY OPINION resulting fee upon termination, 91-2 (FAO 91-2), we said: Office of General Counsel does not violate Rule 1.5(a)’s “Terminology as to the various State Bar of Georgia requirement of reasonableness. types of fee arrangements does not alter the fact that the lawyer is a 104 Marietta Street, Suite 100 OPINION: Atlanta, Georgia 30303 fiduciary. Therefore, the lawyer’s Attention: John J. Shiptenko This issue is governed primarily duties as to fees should be uniform by Rule of Professional Conduct and governed by the same rules An original and eighteen copies 1.16(d) which provides: “Upon ter- regardless of the particular fee of any comment to the proposed mination of representation, a arrangement. Those duties are . . . : opinion must be filed with the lawyer shall take steps to the extent 1) To have a clear understanding Office of General Counsel by July 7, reasonably practicable to protect a with the client as to the details of 2002, in order for the comment to client’s interests such as . . . refund- the fee arrangement prior to under- be considered by the Formal ing any advance payment of fee taking the representation, prefer- Advisory Opinion Board. Any that has not been earned.” ably in writing. 2) To return to the comment to a proposed opinion A special retainer is a contract client any unearned portion of a should make reference to the for representation obligating a fee. 3) To accept the client’s dis- request number of the proposed client to pay fees in advance for missal of him or her (with or with- opinion. After consideration of specified services to be provided out cause) without imposing any comments, the Formal Advisory by an attorney. This definition penalty on the client for the dis- Opinion Board will make a final applies regardless of the manner of missal. 4) To comply with the pro- determination of whether the opin- determining the amount of the fee visions of Standard 31 as to reason- ion should be issued. If the Formal or the terminology used to desig- ableness of the fee.” Advisory Opinion Board deter- nate the fee, e.g., hourly fee, per- The same Formal Advisory mines that the opinion should be centage fee, flat fee, fixed fees, or Opinion citing In the Matter of issued, the opinion will be pub- minimum fees. Generally, fees paid Collins, 246 Ga. 325 (1980), states: lished and filed with the Supreme in advance under a special retainer “The law is well settled that a Court of Georgia. are earned as the specified services client can dismiss a lawyer for any

82 Georgia Bar Journal reason or for no reason, and the and the resulting fee is reasonable. it may have been done, the fees lawyer has a duty to return any Nor does this obligation call in to have been earned and there is no unearned portion of the fee.”2 question the use of flat fees, mini- issue as to their non-refundability. Contracts to violate the ethical mum fees, or any other form of Of course, such fees, like all fee requirements upon which FAO 91- advance fee payment so long as agreements, are subject to Rule 1.5, 2 was based are not permitted, such fees when unearned are which provides that the reasonable- because those requirements are refunded to the client upon termi- ness of a fee shall be determined by now expressed in Rule 1.16(d) and nation of the representation by the the following factors: Rule 1.5(a). Moreover, attorneys client or by the attorney. It also does (1) the time and labor required, should take care to avoid misrepre- not require that fees be determined the novelty and difficulty of sentation concerning their obliga- on an hourly basis. Nor need an the questions involved, and tion to return unearned fees upon attorney place any fees into a trust the skill requisite to perform termination. account absent special circum- the legal service properly; The ethical obligation to refund stances necessary to protect the (2) the likelihood that the accept- unearned fees, however, does not interest of the client. See Georgia ance of the particular prohibit an attorney from designat- Formal Advisory Opinion 91-2. employment will preclude ing by contract points in a represen- Additionally, this obligation does other employment by the tation at which specific advance not restrict the non-refundability of lawyer; fees payments under a special fees for any reason other than (3) the fee customarily charged retainer will have been earned, so whether they have been earned in the locality for similar legal long as this is done in good faith upon termination. Finally, there is services; and not as an attempt to penalize a nothing in this obligation that pro- (4) the amount involved and the client for termination of the repre- hibits an attorney from contracting results obtained; sentation by refusing to refund for large fees for excellent work (5) the time limitations imposed unearned fees or otherwise avoid done quickly. When the contracted by the client or by the circum- the requirements of Rule 1.16(d), for work is done, however quickly stances;

LAWYER ASSISTANCE PROGRAM Alcohol/Drug Abuse and Mental Health Hotline If you are a lawyer and have a personal problem that is causing you significant concern, the Lawyer Assistance Program (LAP) can help. Please feel free to call the LAP directly at (800) 327-9631 or one of the volunteer lawyers listed below. All calls are confidential — we simply want to assist you. AREA CONTACT PHONE Albany H. Stewart Brown (229) 420-4144 Athens Ross McConnell (706) 369-7760 Atlanta Melissa McMorries (404) 815-2192 Atlanta Brad Marsh (404) 874-8800 Atlanta/Decatur Ed Furr (404) 284-7110 Atlanta/Jonesboro Charles Driebe (770) 478-8894 Cornelia Steven C. Adams (706) 778-8600 Fayetteville Glen Howell (770) 460-5250 Florida Patrick Reily (850) 267-1192 Hilton Head Henry Troutman (843) 785-5464 Hazelhurst Luman Earle (478) 275-1518 Macon Bob Daniel (912) 741-0072 Macon Bob Berlin (478) 745-7931 Norcross Phil McCurdy (770) 662-0760 Savannah Tom Edenfield (912) 234-1568 Valdosta John Bennett (229) 242-0314 Waycross Judge Ben Smith (912) 285-8040 Waynesboro Jerry Daniel (706) 554-5522

June 2002 83 (6) the nature and length of the ENDNOTES This preclusion, therefore, professional relationship should be considered part of 1. The “likelihood that the accept- with the client; the service the attorney is pro- ance of the particular employ- (7) the experience, reputation, viding to the client by agreeing ment will preclude other and ability of the lawyer or to enter into the representation. employment by the lawyer” is lawyers performing the serv- 2. Georgia Formal Advisory a factor the attorney must con- ices; and Opinion 91-2. sider in determining the rea- (8) Whether the fee is fixed or sonableness of a fee under contingent. Rule 1.5. UNIFORM SUPERIOR COURT RULES AND PROTECTIVE ORDER FORMS

t its business meeting on Jan. Modify Protective Order; (3) of the Superior Court and its A 22, 2002, the Council of Permanent Family Violence judges that members of the State Superior Court Judges tentatively Protective Order; (4) Stalking Bar of Georgia and victims’ advo- approved five form orders for use Permanent Protective Order; and cates will s0upport and assist the in conjunction with Georgia’s (5) Stalking Permanent Protective court in the implementation and Protective Order Registry. The new Order Pursuant to Criminal development of the registry in forms, if they receive final Conviction. order to better protect Georgians approval, will be promulgated as The use of standardized provi- subjected to stalking or domestic mandated in the Family Violence sions for protective orders is con- violence. and Stalking Protective Order sidered essential to the operation of Information regarding these new Registry Act, 2001 Georgia Laws, p. the new registry to be maintained forms can be obtained from the 101. by the Georgia Bureau of Georgia Commission on Family The forms are: (1) Order for Invesigation. Judges are empow- Violence at (404) 657-3412 or Continuance of Hearing and Ex ered to tailor the forms to address www.georgiacourts.org/agen- Parte Protective Order; (2) Order to the facts of each petition and pro- cies/familyviolence. vide necessary relief. It is the hope

STATE BAR OF GEORGIA DELEGATION TO CHINA Invitation to all Georgia Lawyers and Judges People to People Ambassador Program Become a part of the State Bar of Georgia delegation to China, coor- dinated by the People to People Ambassador Program. The trip is scheduled for Sept. 5-18, 2002.

The program is designed to promote international good will through professional, educational, and technical exchange. It provides an opportunity to meet and discuss common issues with legal professionals in China, and offers rare and unique social and cultural opportunities, including a trip to the Great Wall and Tieneman Square. The delegation will be led by State Bar Immediate Past President George E. Mundy.

The program offers an entire year of CLE credit, including professionalism and ethics. In addition, expenses for the trip may qualify for an income tax deduction. The cost is estimated at $4,500, including first class transportation, accommodations and meals.

The State Bar of Georgia legal delegation is open to all members in good standing. It is anticipated the delegation will consist of 25 to 40 members.

For further information, contact Gayle Baker, Membership Director, State Bar of Georgia, (404) 527-8785 or [email protected]

84 Georgia Bar Journal

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