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GBJ Legals Departments 14 14 4 From the President Going Private Through 8 From the Executive Director Stock Reclassification 10 From the YLD President by Whalen J. Kuller 50 Bench & Bar GBJ Features 58 Office of the General Counsel 20 60 Lawyer Discipline 2009 Annual Review of Case 62 Law Practice Management Law Development: 66 Coastal Georgia Office Georgia Corporation and 68 Pro Bono 26 Business Organization 72 Section News by Thomas S. Richey 76 Casemaker 26 78 Writing Matters 39 Budget Plays a Prominent 80 Professionalism Page Role in the Historic 2010 84 In Memoriam General Assembly by Tom Boller 86 CLE Calendar 88 Notices 30 95 Classified Resources Want to Multiply the Georgia Tax Dollar? Fund the Domestic 96 Advertisers Index Violence Program by Adrienne Hunter-Strothers 36 Effingham County Courthouse at Springfield: The Grand Old Courthouses of Georgia 66 by Wilber W. Caldwell GBJ Fiction 39 Out From Silence by Cynthia L. Tolbert 78 State Bar of Georgia We’re here for you! Law Practice Management Program The Law Practice Management Program is a member service to help all Georgia lawyers and their employees put together the pieces of the office management puzzle. Whether you need advice on new computers or copiers, personnel issues, compensation, workflow, file organization, tickler systems, library materials or software, we have the resources and training to assist you. Feel free to browse our online forms and article collections, check out a book or videotape from our library, or learn more about our on-site management consultations and training sessions, 404-527-8772. Consumer Assistance Program The Consumer Assistance Program has a dual purpose: assistance to the public and attorneys. CAP responds to inquiries from the public regarding State Bar members and assists the public through informal methods to resolve inquiries which may involve minor violations of disciplinary standards by attorneys. Assistance to is attorneys is of equal importance: CAP assists attorneys as much as possible with referrals, help onlya educational materials, suggestions, solutions, advice and preventive information to help the attorney with consumer matters. The program pledges its best efforts to assist attorneys in making the practice of law more efficient, ethical and professional in nature, 404-527-8759. call, Lawyer Assistance Program This free program provides confidential assistance to Bar members whose personal problems may be or interfering with their ability to practice law. Such click problems include stress, chemical dependency, family problems and mental or emotional impairment, 800-327-9631. Fee Arbitration e-mail The Fee Arbitration program is a service to the general public and lawyers of Georgia. It provides a convenient mechanism for the resolution of fee disputes between attorneys and clients. The actual away. arbitration is a hearing conducted by two experienced attorneys and one non-lawyer citizen. Like judges, they hear the arguments on both sides and decide the outcome of the dispute. Arbitration is impartial and usually less expensive than going to court, 404-527-8750. (404) 527-8700 ■ (800-327-9631) ■ www.gabar.org Editorial Board Quick Dial Donald P. Boyle Jr. Attorney Discipline 800-334-6865 ext. 720 Editor-in-Chief 404-527-8720 Robert Henry Beer Ronald Arthur Lowry Consumer Assistance Program 404-527-8759 Erika Clarke Birg Patricia Irene Lee Conference Room Reservations 404-419-0155 Fee Arbitration 404-527-8750 John Clay Bush Hollie G. Manheimer CLE Transcripts 404-527-8710 Clayton Owen Carmack Olivia Orza Diversity Program 404-527-8754 Charles Madden Cork III Susan Lee Rutherford ETHICS Helpline 800-682-9806 Bridgette Eckerson Paul Gregory Sherman 404-527-8741 Georgia Bar Foundation/IOLTA 404-588-2240 Lynn Gavin Jack P. Smith III Georgia Bar Journal 404-527-8791 Robert Frederick Glass Robert R. Stubbs Lawyer Assistance Program 800-327-9631 Michelle J. Hirsch Kristin H. West Lawyers Foundation of Georgia 404-659-6867 Law Practice Management 404-527-8773 Rajesh Kini Pamela Y. White-Colbert Law-Related Education 404-527-8785 Membership Records 404-527-8777 Editors Emeritus Meetings Information 404-527-8790 Pro Bono Project 404-527-8763 Marcus D. Liner, 04-07 Charles R. Adams III, 89-91 Professionalism 404-225-5040 Rebecca Ann Hoelting, 02-04 L. Dale Owens, 87-89 Sections 404-527-8774 Unlicensed Practice of Law 404-527-8743 Marisa Anne Pagnattaro, 01-02 Donna G. Barwick, 86-87 Young Lawyers Division 404-527-8778 D. Scott Murray, 00-01 James C. Gaulden Jr., 85-86 William Wall Sapp, 99-00 Jerry B. Blackstock, 84-85 Manuscript Submissions The Georgia Bar Journal welcomes the submission of unso- Theodore H. Davis Jr., 97-99 Steven M. Collins, 82-84 licited legal manuscripts on topics of interest to the State Bar L. Brett Lockwood, 95-97 Walter M. Grant, 79-82 of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 pages, double-spaced (includ- Stephanie B. Manis, 93-95 Stephen E. Raville, 77-79 ing endnotes) and on letter-size paper. Citations should con- form to A UNIFORM SYSTEM OF CITATION (18th ed. 2005). William L. Bost Jr., 91-93 Please address unsolicited articles to: Donald P. Boyle Jr., State Bar of Georgia, Communications Department, 104 Marietta Officers of the State Bar of Georgia St. NW, Suite 100, Atlanta, GA 30303. Authors will be notified of the Editorial Board’s decision regarding publication. Bryan M. Cavan President The Georgia Bar Journal welcomes the submission of news S. Lester Tate III President-Elect about local and circuit bar association happenings, Bar Jeffrey O. Bramlett Immediate Past President members, law firms and topics of interest to attorneys in Georgia. Please send news releases and other information Kenneth J. Shigley Treasurer to: Sarah I. Coole, Director of Communications, 104 C. Wilson DuBose Secretary Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: Amy V. Howell YLD President 404-527-8791; [email protected]. Michael G. Geoffroy YLD President-Elect Disabilities Joshua C. Bell YLD Past President If you have a disability which requires printed materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Communications Committee Headquarters Robert J. Kauffman Chair 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 800-334-6865, 404-527-8700, FAX 404-527-8717 Communications Staff Visit us on the Internet at www.gabar.org. Sarah I. Coole Director South Georgia Office Jennifer R. Mason Assistant Director 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Derrick W. Stanley Section Liaison 800-330-0446, 229-387-0446, FAX 229-382-7435 Stephanie J. Wilson Administrative Assistant Coastal Georgia Office 18 E. Bay St. Savannah, GA 31401-1225 877-239-9910, 912-239-9910, FAX 912-239-9970 Publisher’s Statement The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (February, April, June, August, October, December) with a special issue in November by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. ©State Bar of Georgia 2010. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in The opinions expressed in the Georgia Bar Journal Atlanta, Georgia and additional mailing offices. Opinions and conclusions expressed in articles herein are those of the authors are those of the authors. The views expressed herein and not necessarily those of the Editorial Board, Communications Committee, Officers or Board of Governors of are not necessarily those of the State Bar of Georgia, the State Bar of Georgia. Advertising rate card will be furnished its Board of Governors or its Executive Committee. upon request. Publishing of an advertisement does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. From the President

by Bryan M. Cavan

Public Trust: The Battle Continues

uring the recent State Bar elections, candi- erations. At least since the time that Shakespeare’s “Dick the Butcher” uttered his infamous and oft-repeat- dates were asked in an open-ended ques- ed suggestion in King Henry VI, lawyers have had to withstand a widespread perception that we are good tion to name the main issues facing the for little besides shuffling papers and stirring up trou- D ble. And how often have we heard the old adage, Bar and state their positions on “nobody likes a lawyer until they need one.” those issues. A tally of the “The real problem is that It is true, of course, that a few bad apples have had a hand in responses from the 36 candi- too large a percentage of spoiling things for the other 99.99 percent of our profession. dates in contested races for the the public has little or Otherwise, we would not need to have a lawyer discipline system. Board of Governors identified In that regard, I suppose we are no understanding of the like every other profession and judicial funding as the No. 1 walk of life in human society. vital role that lawyers While we have all endured a issue, with 15 responses. That bellyful of lawyer jokes, insults fulfill in our justice system and general scorn, at the end of should come as no surprise, the day, it is not that important and in upholding the whether we are universally loved. considering the impact that We accept the fact that every time U.S. Constitution.” we take on a case that pits a plain- severe budget cuts have had on tiff versus a defendant or a victim versus an accused, we are going Georgia courts over the past two years. to automatically make 50 percent of those involved mad at us. Finishing a close second, with 14 responses, was the The real problem is that too large a percentage of the “public image of lawyers.” That, too, is to be expected, public has little or no understanding of the vital role that for it’s a battle our profession has had to fight for gen- lawyers fulfill in our justice system and in upholding the

4 Georgia Bar Journal U.S. Constitution. Where there is no programs that are effectively com- their active involvement in law- understanding, there is no trust. municating the message of the related activities such as the High And that lack of trust undermines importance of a strong and impar- School Mock Trial Competition the entire justice system at its very tial judiciary and the role of lawyers and law-related community serv- foundation. in protecting our justice system. ice. For the Georgia Department of Actually, it is not a coincidence At the classroom level, our Law- Education and many other organi- that judicial funding and the public Related Education (LRE) Program zations, the LRE Program is the perception of lawyers are consid- works actively with public, private chief resource for law-related edu- ered the Bar’s top two issues. There and home school teachers and stu- cation in our state. is almost a cause-and-effect rela- dents to help educate them about I wish to thank the local tionship between the two. A lack of the judicial system and to instill in bar associations, including the understanding of the functions of our young people a respect for the DeKalb Bar Association and the our court system has likely con- rule of law through early, positive Henry County Bar Association, tributed to the judicial branch’s experiences with lawyers and for providing financial support to low position among state budget judges. The LRE Program’s teacher send school groups from their priorities. As the consequences of workshops have been very success- communities to the Bar Center for an underfunded judiciary continue ful, and the number of school the “Journey Through Justice” to emerge, as criminal cases go groups taking the “Journey Through tour. I also wish to recognize and untried and civil disputes go unre- Justice” tour at the Bar Center has thank the Dougherty Circuit Bar, solved, the court system and the grown astronomically, with literally for providing box lunches to stu- legal profession will suffer more thousands of young Georgians dents from Early County High public disdain. receiving an up-close legal educa- School, who traveled to the Bar This is why it is so critical for the tion experience each year. Center for the program. Because Bar to continue our public educa- The LRE Program also coordi- of education budget cuts, there is tion efforts. I realize this might nates the Georgia Law Society of limited or no funding for field sound like a broken record, but it Secondary Schools, involving stu- trips in many of our public school truly is an ongoing battle. dents who are recognized for their systems. I urge all local bar associ- Fortunately, we have in place two strong academic achievement and ations to consider doing the same

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June 2010 5 S

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'899.# & for student groups from your could have been much worse. For 527-8791 or [email protected] to hometowns. It’s another way we example, we were pleased that at obtain these or other resources. can make a difference on the pub- least a partial amount of funding for The centuries-old public attitude lic education front. Superior Court senior judges was toward lawyers will not be For more information on the LRE restored. I am convinced that our changed overnight. It might indeed program, visit www.gabar.org/ public education efforts—along with be a never-ending battle. But for law-related_education or contact the thousands of calls and e-mails the good of our justice system and Deborah Craytor at 404-527-8785 or from Georgia lawyers to their legis- the future of our country, it is a bat- [email protected]. lators through the Legislative Action tle worth fighting. Our strongest In addition, our Cornerstones of Network—had a positive impact. weapons are education, awareness Freedom®/Communications initia- As I reported here in April, the and understanding. tive continues to be successful in Cornerstones of Freedom® program spreading our message across the is having continued success in rec- Bryan M. Cavan is the president state, largely through the mass ognizing the good works of Georgia of the State Bar of Georgia media. As you know, the judicial lawyers and judges in their local and can be reached at funding issue was our top priority communities through news releases [email protected]. during the recently completed ses- and letters to the editor of their sion of the General Assembly. In hometown newspapers. Please keep POST SCRIPT: While my final addition to the televised public up those good works, and let us review of the 2009-10 Bar year will be service announcements the Bar know about them. These kinds of published in the August edition, I do sponsored last fall and earlier this articles go a long way toward send- want to take this opportunity to thank year on the issue, Chief Justice ing a different message about you for the tremendous honor and Carol W. Hunstein of the Supreme lawyers than folks are accustomed pleasure of serving as your president Court of Georgia and I visited with to reading or hearing. For more this year. I am more amazed than ever the editorial boards of several of the information on Cornerstones of by the tireless dedication, extraordi- state’s largest newspapers during Freedom®, visit www.gabar.org/ nary leadership and exemplary service the closing weeks of the session. cornerstones_of_freedom/. displayed by my fellow lawyers across Those meetings resulted in favor- Finally, in the effort to increase this great state. Thank you again for able editorials, news coverage and public awareness of the value of all you do, and I hope to see you at the placement of op-ed columns on our justice system and legal pro- Amelia Island for the Annual Meeting the judicial funding issue in a num- fession, I know that many of later this month. ber of leading papers, including the you are often invited to speak to If I triggered your curiosity at the Atlanta Journal-Constitution, Macon local classrooms, civic clubs and beginning of this article, here is the Telegraph, Marietta Daily Journal, other organizations. I urge you to complete list of main issues faced Savannah Morning News and accept these opportunities. Our by the State Bar, according to the 2010 Brunswick News. Several other lead- Communications Department has candidates for the Board of Governors: ing dailies published the op-ed col- a wealth of public education judicial funding (15 responses), public umn and republished the outstand- resources to assist your presenta- image of lawyers (14), member servicing editorials from the Macon and tion, including a PowerPoint pres- es (11), Bar governance/representation Marietta papers. entation and sample speech on the (10), access to justice (5), fiscal man- While the judicial branch, along American court system, our highly agement (4), legislative issues (4), pro- with the rest of state government, acclaimed juror education video, fessionalism concerns (4), pro bono did take a significant hit in the fiscal “Ensuring Fairplay the American opportunities (3), member communi- year 2011 budget approved by the Way,” and the civics video “Trial cations (2), disciplinary system (1), Legislature and sent to Gov. Perdue By Jury: What’s the Big Deal?” diversity issues (1), electronic require- for his signature, I can tell you things Please contact Sarah Coole at 404- ments (1), involving new members (1).

Are you attracting the right audience for your services? If you have something to communicate to the lawyers in the state, be sure that it is published in the Georgia Bar Journal.

Contact Jennifer Mason at 404-527-8761 or [email protected].

June 2010 7 From the Executive Director

by Cliff Brashier State Bar’s New Membership Database FAQ

n December 2009, after many months of research, had stopped supporting it. Because some of the information on our website is taken from the membership the State Bar of Georgia implemented its new records, we had to “marry” the new database with our existing website. membership database. In doing so, this affected The following are questions that we receive quite often, I and I thought it might be helpful to address them. the way our members gain Why does the access to and interact with password have to be “With the new Members Only so complicated? the Bar’s website. With the The simple answer to area of the website, we are this question is many new Members Only area of members have expressed able to provide our members identity theft concerns. We the website, we are able to want to provide more with more control over their security for everyone. The provide our members with password requirement is information and access to an industry standard and more control over their set by the software we utilize (eight or more charac- information and access to more Bar services in a secure ters in length using upper and lowercase letters and more Bar services in a environment.” at least one number). The majority of bar associa- secure environment. tions use this standard.

You may have noticed that the way you log in to our Can I reset my username and password? site has changed slightly, along with some of our Yes, you may reset your username and/or password pages. These changes in our website were necessary at any time by logging in to the Members Only area of because we were using a membership database system our website and choosing “My Account” and then “ID & that was more than 15 years old, and the manufacturer Password.” On this screen, you may modify your user-

8 Georgia Bar Journal name or your password; you do not spaces in the search fields, as this ensures those who are using have to do both, although you may may prevent the system from Casemaker are members of the if you wish. returning results. Bar. That is why a login is not new to Casemaker. The only change is I used to be able to retrieve What if I don’t want my how the login is done. my CLE hours by entering my information to be available in Prior to the new system, Bar bar number. Why do I have the online Member Directory? members had multiple logins to to log in first before I can see If you don’t want your informa- access information on the Bar’s that information now? tion included in the online website, including changing your We’ve had many requests from Member Directory, contact the address, accessing Casemaker, members over the past several Bar’s Membership Department at checking CLE hours and buying years asking that CLE information [email protected]. They can items in the store. With our new be protected utilizing a username restrict your information. If you system, we have incorporated all and password. Previously, CLE would like to remove only your e- member information under one information was available to any- mail address, once you are logged login. This change was made to one that had access to your bar in, go to “My Account” and then simplify the login process and to number. Your CLE information is “Personal.” By checking the box place all pertinent member infor- now protected within the that says “Do not publish e-mail mation in one area. Members Only area of our website. address,” your e-mail address will be removed from public Can I choose what What search criteria can I view, but not from your Bar publication(s) to receive use when searching the record. Your changes will be from the Bar? online Member Directory? reflected immediately in the Yes. In the Members Only area, To search the online Member online Member Directory. choose “My Account” and Directory, you may use any of the “Personal.” From there, you have following pieces of information: first What if my information is the option to choose whether or not name, last name, section, company, incorrect in the online to receive the Georgia Bar Journal, law school, city, state or zip. For Member Directory? YLD Newsletter or mailings from example, if you type “Jones” into the If your information is incorrect, ICLE. You can also order a replace- last name field and “30303” into the choose the “My Account” tab in ment Bar card in this area. zip field and click “Search the Members Only area. Your con- Directory,” you will see a list of all tact information can be changed in Can I register for section members with the last name of Jones the “Personal” and “Address” events online? whose official address lists 30303 as links. Your changes will be reflect- After repeated requests from their zip code. ed immediately in the online section members over the years, we If you would like a list of all attor- Member Directory. are now pleased to have the tech- neys living in Valdosta, enter nology to be able to accept online “Valdosta” into the city field and How do I order a letter of credit card payments to register for click “Search Directory.” This city good standing online? section events. After logging in, search is one that many members You can order a letter of good choose “Events” for a list of use to locate lawyers when they standing by logging in to the upcoming section meetings. know where they live, but they can- Members Only area, clicking on not recall their name. Looking for all “Store” and then “Membership,” We appreciate your patience as members who belong to the Real and choosing “Letter of Good we continue to work on this Property Law Section? Choose Standing.” For your convenience, project. We hope you will find “Real Property Law” from the drop- there are four delivery options avail- it helpful after the new navigation down Section field and click “Search able, including picking it up the becomes more familiar. As always, Directory.” Your search results will same day you have ordered it. If you your thoughts and suggestions are contain all current members of the would prefer to order with a check welcomed. My telephone numbers Real Property Law Section. by mail or courier, contact the State are 800-334-6865 (toll free), 404- If you are searching for a partic- Bar’s Membership Department. 527-8755 (direct dial), 404-527-8717 ular member rather than a list of (fax) and 770-988-8080 (home). possible members and you don’t Why do I have to access get the results you expect, check Casemaker through the new Cliff Brashier is the executive your spelling or try using less crite- Members Only area? director of the State Bar of ria. In some cases, less information As a free service to our mem- Georgia and can be reached at will provide better search results. bers, our terms with Casemaker [email protected]. Also be careful not to put extra require a login process that

June 2010 9 From the YLD President

by Amy V. Howell

YLD Completes a Successful Year of Helping Others

year ago this month, upon being sworn in as lies, promoting the leadership of young lawyers and creating innovative programs and projects. Each president of the Young Lawyers Division, I member of the executive council was charged with developing and implementing a service project in the challenged our members to do all we could, district they represent, supporting the “children and A families” theme. in the midst of the most diffi- In terms of sheer numbers “During the past year, the YLD and geographic reach into all cult economic conditions we parts of the state, the list has been focused on of service projects carried have known, to do all we could out this year is nothing short achieving three goals: of amazing. Atlanta, Canton, to help our colleagues and our Dunwoody, Hall County, supporting children and Dawson County, Forsyth neighbors across the state and County, Greene County, families, promoting the Putnam County, Thomasville, throughout the year. As State Cairo, Colquitt County, leadership of young lawyers Dublin, Clarkston, Macon and Bar Executive Director Cliff Savannah were among the communities touched. The Brashier reported in the April and creating innovative YLD has even been able to perform service when we trav- Georgia Bar Journal, the young programs and projects.” el to other states like our teddy bear drive for the lawyers in this state have responded to that challenge Children’s Hospital in Asheville, N.C. I am proud that in the majority of circumstances when young and continue to serve their communities. lawyers came together over the past year, we did so to benefit others. During the past year, the YLD has been focused on Within Georgia, countless citizens have benefited achieving three goals: supporting children and fami- from various collection drives initiated by YLD mem-

10 Georgia Bar Journal bers. Among the items collected and donated to wor- thy programs were:

■ School supplies ■ Toiletries ■ Canned foods WHO’S WATCHING YOUR ■ Suits and cell phones FIRM’S 401(k)? ■ Conference tote bags ■ Children’s clothes ■ Luggage ■ Books ■ Money for bicycle helmets ■ Teddy bears WHO’S WATCHING YOUR ■ Toys and furniture FIRM’S 401(k)? ■ Computers ■ Youth sports equipment To find out more

While the YLD has been successful in our collection information please of donations, young lawyers have also donated their contact us. time. In late September 2009, heavy rains swept Unique 401(k) Plans through several counties in Georgia causing significant for Law Firms flooding and hundreds of homes were damaged. The Phone: (877) 947-2272 • Web: www.abaretirement.com YLD Disaster Legal Services (DLS) Hotline was set up • email: [email protected] to help victims. The hotline received more than 75 The American Bar Association Members/State Street Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) calls, each generating a response by one of our many with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar attorney volunteers. Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (877) 947-2272, by visiting the Web site of the American Bar Association Retirement Funds Program at www.abaretirement.com or by The Community Service Projects Committee got writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the together in December and organized more than 30 vol- Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. unteers to help the Fulton County Department of C09-1005-035 (10/09) Family and Children Services sort and wrap hundreds of toys for children in the program. Committee members also gave time and resources this year to children hospitalized at Children’s Healthcare of Atlanta. Committee members played Wii games and basketball and made arts and crafts with the kids in “the Zone,” a fun area that was created to help children, teenagers Announce and their families forget—at least for a little while— they are in the hospital. “Georgia Construction Law” In addition to the statewide innovation of the serv- a new book by ice projects, the YLD was innovative in creating new programs. The Law-Related Education Committee Michael P. Davis sponsored its first essay contest aimed at 6-8 graders with the topic “Democracy and the American Family.” Nicholas S. Papleacos More than 185 essays were submitted from all across Seth R. Price the state, and the top three winners received cash Gina M. Vitiello awards of $500, $250 and $100. Toward meeting the goal of promoting the leader- Licensing | Bidding | Key Contract Clauses ship of young lawyers, the YLD Leadership Academy Contract Interpretation | Change Orders & Extra Work has been strengthened by the development of an alum- Delay & Disruption | Liens | Bonds ni network which gathered in December for a lunch- Litigation, Arbitration & Dispute Resolution eon with the then newly selected 2010 class. The first class-wide Leadership Academy service project, which To order, visit provided money, computers, sports equipment and www.georgiaconstructionlawbook.com other much-needed supplies to the West Broad Street YMCA in Savannah, was a huge success. The 191 Peachtree St., NE - 34th Floor | Atlanta, GA 30303-1747 Leadership Academy is helping produce a new gener- (404) 659-1410 (800) 800-0745 ation of “Big Bar” leaders, with more graduates seek- www.chamberlainlaw.com ing election to the Board of Governors. The YLD also

June 2010 11 GET PUBLISHED

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

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

*Not all submitted articles are deemed appropriate for the Journal. The Editorial Board will review all submissions and decide on publication. held panel discussions with young report the YLD’s Summer Public Georgia’s growing indigent and lawyers who were candidates for Interest Internship Program (PIIP) is underserved populations, while office and lawyers who were can- enjoying a most successful launch, gaining the hands-on experience that didates for Attorney General. I exceeding all expectations we had will serve them throughout their look forward to our first gathering for the inaugural effort. careers as lawyers. of YLD presidents at the Annual The goal of this program is to In his inaugural address, Meeting as an opportunity for the provide $5,000 stipends to support President Barack Obama reminded YLD leadership to share about our summer internships for work in us of what can be achieved “when present and learn from our past. public service areas including the imagination is joined to common In terms of reaching out to the judiciary, prosecution, defense, purpose, and necessity to courage.” underemployed, we held a leader- other governmental agencies and I believe that phrase captures the ship roundtable in October and not-for-profit organizations. PIIP is inspiration behind the YLD’s accom- invited all the affiliate bars and one of several new and ongoing plishments this year. YLD presidents to join in a discus- programs that honor the YLD’s Especially with regard to the sion regarding the challenges fac- mission of serving both the legal PIIP, I believe it is necessary for the ing young lawyers. Presidents of profession and the public. The pro- Bar to continue to support and affiliate bars including Savannah, gram exemplifies YLD service invest in the career development of Gwinnett and Marietta joined us throughout Georgia. young lawyers, as it has through via videoconference in the Coastal Our original objective was to the years with “Bridge the Gap” Georgia and South Georgia offices. provide at least one internship in and now with the TILPP Mentoring We were able to create program- each of Georgia’s three federal judi- Program, I believe the success of ming such as a CLE “Get a cial districts by pairing each intern the YLD of the past year demon- Job: Tips for the Unemployed with a preselected, participating strates the return of that investment and Underemployed Lawyer” and public interest, governmental both for the practice and Georgia. improving the information sharing and/or non-profit organization. The early success of the PIIP is evi- and promotion of events within the Thanks to the hard work of YLD dence of its merit and presents an YLD. Natalie Kelley also authored a leaders and the generous support opportunity for the Bar to continue series in the YLD Newsletter offering of the Georgia legal community, we to invest in the future of the prac- Law Practice Management tips for have been able to start this program tice and our fellow lawyers. readers. Finally, President-Elect at a level that exceeds even our I am extremely proud of the Michael Geoffroy organized and most optimistic hopes for this year. work of the YLD this past year and participated in a series of panel dis- In January, the YLD held its 4th grateful for the dedication and hard cussions at Georgia law schools annual Signature Fundraiser, “Black work of each of the members of the concerning solo practice. Tie & Blackjack,” at the Atlanta office board, executive council, commit- In addition to supporting chil- of King & Spalding LLP to benefit tee chairs and Bar staff. I end this dren and families and promoting the PIIP. Despite the economic crisis year with great satisfaction that we the leadership of young lawyers, facing individuals and businesses have met our goals to help our pro- our goals for this year included cre- alike, this year’s event raised more fession and Georgia. ating innovative programs and proj- than expected. We were able to raise ects—including the Family Festival $50,000 in net proceeds from that Amy V. Howell is president of the and Leadership Academy Service event, which is enough to fund 10 Young Lawyers Division of the State Project, as well as the Minorities in stipends at $5,000 each for the inau- Bar of Georgia and can be reached the Profession Pathways series. gural class of PIIP interns and enable at [email protected]. Toward this end, I am proud to them to help meet the legal needs of

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June 2010 13 A Look at the Law

Going Private Through Stock Reclassification

by Whalen J. Kuller

maller public companies have increasingly

considered going private, and have gone S private, since passage of the Sarbanes-Oxley Act of 2002. Georgia corporations can go private through a stock reclassification transaction, a transaction structure that has several advantages over traditional going-private transaction structures. Why Companies Go Private

The Sarbanes-Oxley Act, enacted in July 2002 in response to several high-profile corporate and accounting scandals, established costly new or enhanced standards for all U.S. public companies and public accounting firms.1 A company can save thousands of dollars in compliance costs each year by going private. For example, SouthCrest Financial Group, Inc., a Georgia bank holding company that went private in December 2009, estimated that by going private it would save approximately $186,000 per year in direct and indirect costs.2 The SEC’s Advisory Committee on Smaller Public Companies reported that, during the second year of compliance with section 404 of the Sarbanes-Oxley Act, compliance costs equaled, on average, approximately $900,000 for public companies with a market capital- ization between $75 million and $700 million.3 Yet high Sarbanes-Oxley compliance costs are just one reason that small public companies decide to go private. Other factors include: ■ Eliminating public company disclosure require- ■ Eliminating the other significant costs of being a ments, which make potentially sensitive com- public company, including the cost of maintaining pany information available to competitors and public filings and shareholder communications; customers;

14 Georgia Bar Journal ■ Allowing management to focus on long-term goals and objectives, rather than on the quar- terly imperative of short-term market expectations; and ■ Reducing the potential liability for the acts of directors and officers.

Although not all of the exposure, risk and other potential liability associated with being a public company can be eliminated through a going-private transaction—for example, directors and officers of private companies still face the pos- A Smart Read for Smart Readers sibility of shareholders’ breach of Th e metro Atlanta legal community relies on the fiduciary duty claims—those that Daily Report for award-winning coverage of the business continue after privatization can be of law, courts and legal aff airs. practically reduced. Th e Daily Report serves its highly educated and affl uent Getting Below 300 lawyer-readers with content relevant to their lives both Record Holders inside and outside the offi ce. For advertising information please contact: A company can “go private” Mischelle Grant • (404) 419.2820 • [email protected] in many ways. Often, corporations do so through a merger, To subscribe call 1.877.ALM.CIRC reverse stock split, tender offer or check us out similarly structured transaction. www.dailyreportonline.com An alternative structure, which is the focus of this article, is going private through reclassification of a corporation’s stock. Regardless of the transaction structure, in order to go private, a public company must reduce the number of record holders of its registered securities, usually its common stock, to below 300.4 Once the company’s shareholder base is below 300, the company makes a filing with the Securities and Exchange Commission (SEC) to deregister the company’s securities and suspend the company’s periodic reporting requirements. In addition to the fewer-than-300-share- SAVE TIME AT holders requirement, in order to go private in this manner the company www.gabar.org must not have had a registration You can find the services you statement with respect to securities being deregistered become effective need for your practice on the (or have been updated as required Online Vendor Directory. Be sure under section 10(a)(3) of the to look for special discounts Securities Act of 1933) during the current fiscal year, and the compa- offered to State Bar members on the ny must have filed all required Vendor Directory. periodic reports for the current and

June 2010 15 previous three fiscal years (or such shareholders’ common stock to pre- will determine which shareholders shorter time that the company has ferred stock instead of purchasing it, will have their common stock been subject to such reporting obli- the corporation eliminates the need exchanged for preferred stock. gation).5 Once a company has com- to have available millions of dollars A corporation’s shareholders pleted the going-private transac- in transaction consideration. A cor- must approve the amendment to tion, resulting in fewer than 300 poration’s expenses (legal, account- the corporation’s articles of incor- record holders of its registered ing, etc.) incurred in connection with poration.13 Even if a corporation’s securities, the company is allowed a stock reclassification going-private articles of incorporation provide for to deregister such securities6 and transaction can also be quite “blank check” preferred stock,14 suspend the company’s periodic modest when compared to the such “blank check” provisions do reporting requirements under the costs of going private using other not allow the board to reclassify all Securities Exchange Act of 1934.7 transaction structures. or some of the corporation’s out- It is important that the number of standing common stock without The Difficulty of record holders of the newly created shareholder approval. If approved Funding Going-Private preferred stock remains below 500, by the shareholders, the reclassifi- so that the corporation is not cation becomes effective when the Transactions required to register the newly corporation files the approved A traditional going-private trans- created preferred stock under sec- amendment with the Georgia action, usually structured as a merg- tion 12(g)(1)(B) of the Securities Secretary of State.15 After the er, reverse stock split or tender offer, Exchange Act of 1934.9 Therefore, amendment is filed, the corporation requires a company to cash out a this type of stock reclassification will exchange common stock cer- sufficient number of its smallest going-private transaction is only tificates of affected shareholders for shareholders so that the number of possible if the corporation has fewer certificates representing shares of record holders is reduced below 300. than 800 holders of record. If the the newly created preferred stock. Today’s capital markets, however, corporation has more than 800 hold- In conducting any going-private have reduced the availability of ers of record, then the stock reclassi- transaction the corporation’s direc- funds for companies and have fication can be structured to cash tors must ensure that the transac- increased the cost and adversely out the smallest number of share- tion is fair to all of its shareholders, affected the terms of such funds. As holders needed to reduce the corpo- whether they retain their common a result, most small reporting com- ration’s overall shareholder base to stock, receive shares of the newly panies cannot afford, or are reluc- below 800 holders of record, with created preferred stock or are tant, to reduce their capital by cash- the relevant portion of the remain- cashed out.16 Often, this includes ing out shareholders in a going-pri- ing shareholders having their com- obtaining a fairness opinion from an vate transaction. As an alternative to mon stock exchanged for preferred investment bank or other independ- the traditional going-private trans- stock. Alternatively, it may be possi- ent analyst. The corporation will action, which can cost a company ble for a corporation with over 800 also need to comply with SEC Rule millions of dollars to cash out a shareholders to go private through 13e-3, a stringent rule that requires sufficient number of shareholders, creation of two separate classes of extensive disclosure of going-pri- companies are increasingly going preferred stock. For example, when vate transactions.17 Such disclosure private through stock reclassifica- CB Financial Corporation, a North is subject to SEC review and com- tion transactions. Carolina bank holding company, ment. The entire stock reclassifica- went private in March 2008, it used tion transaction will typically take Structuring the Stock a combination of cashing out share- from four to six months to complete. Reclassification holders and creating two separate Advantages of the Transaction classes of preferred stock to reduce the number of record holders of its Stock Reclassification In a going-private transaction common stock from approximately structured as a stock reclassification, 1,35910 to 252.11 Structure a corporation exchanges common A Georgia corporation accom- Structuring a going-private trans- stock held by certain of its share- plishes going private through stock action as a stock reclassification holders for a newly created class of reclassification by amending its transaction, rather than as a merger preferred stock. Following the stock articles of incorporation.12 The or reverse stock split, has advan- reclassification transaction, the cor- amendment establishes the terms tages. First, as previously discussed, poration’s common stock is held by of the new class of preferred stock the overall cost of completing a fewer than 300 record holders, and a and describes how the new reclas- stock reclassification going-private new class of preferred stock of the sification will be implemented, transaction is modest compared to corporation is held by fewer than including the exchange ratio and other types of going-private trans- 500 record holders.8 By converting share ownership threshold that action structures.

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Second, the stock reclassification Therefore, in connection with any statutory right to “dissent” and going-private transaction is attrac- stock reclassification transaction, a demand payment of “fair value” for tive to a corporation considering corporation, with the aid of its legal their shares.20 Threatened or actual going private because, unlike in counsel, must review the corpora- dissent by shareholders increases other going-private transactions, tion’s shareholder composition and the expense of the going-private all of the corporation’s sharehold- legal agreements to ensure that no transaction, as the company will ers have the opportunity for con- change-of-control provisions are need to respond to dissenters’ rights tinued participation in the corpora- triggered by the transaction. actions, including responding to tion’s results as shareholders. Finally, when structuring the payment demands and sometimes Small corporations in particular going-private transaction, a corpo- even litigation. Because the Georgia may be concerned about forcing ration needs to consider ways to be Business Corporation Code does out and alienating shareholders able to restrict the number of post- not provide shareholders the ability who are often also customers or transaction record holders of its to dissent in connection with a stock loyal members of the community. common stock and preferred stock. reclassification,21 a company can The stock reclassification structure If, after the going-private transac- avoid the uncertainty and expense allows all of the corporation’s tion, the number of record holders that come with dissenters’ rights.22 shareholders to retain an equity of common stock increases to 300 Companies, however, going pri- interest in the corporation. or more, or the number of record vate through a stock reclassification holders of the newly created pre- often provide dissenters’ rights to Structuring ferred stock increases to 500 or their shareholders, even though Considerations more, the corporation will once not required, for two reasons: again be subject to the periodic (1) Georgia’s dissenters’ rights A corporation must take several reporting requirements of the statute provides that dissenters’ considerations into account when Securities Exchange Act of 1934. rights are an exclusive remedy pro- structuring a stock reclassification Although trading of the corpora- hibiting shareholders granted dis- going-private transaction. The tion’s stock will be limited after senters’ rights from suing to stop terms of the newly created pre- going private, it is possible that the transaction;23 and (2) in review- ferred stock must be sufficiently sales and other transfers of the cor- ing a going-private transaction, different from the terms of the corporation’s common stock and pre- the SEC weighs the existence of poration’s common stock in order ferred stock will require the corpo- dissenters’ rights in determining to avoid a claim by the SEC that the ration to take action at some point whether the transaction is fair to the two types of stock are really of the in the future to keep the number of company’s shareholders. A compa- same class. shareholders below the 300-share- ny should discuss the issue of grant- A stock reclassification transac- holder and 500-shareholder thresh- ing dissenters’ rights with its legal tion may also trigger change-of- olds—for example, through a vol- counsel prior to conducting a going- control provisions in leases or untary stock repurchase program private transaction. other agreements to which the cor- or a cash-out reverse stock split. poration is a party. Because some Also, stock option grants to Disadvantages of Going of a corporation’s shareholders, as employees who are not already Private part of the stock reclassification shareholders of a corporation will transaction, will have their voting increase the corporation’s share- Going private does have some common stock exchanged for pre- holder base when these options are disadvantages. The most signifi- ferred stock, the ownership per- exercised. A corporation will need cant disadvantage of going private centages of those shareholders con- to consider the steps that it can take for most companies is the reduc- tinuing to hold common stock will at the time of the going-private tion in the liquidity of their stock. increase. For example, if 50 percent transaction to prevent or delay the Because there will be no trading of a corporation’s outstanding need for further action. market for the company’s stock shares of common stock are after the going-private transaction, exchanged for preferred stock in a Dissenters’ Rights shareholders may find it difficult to stock reclassification transaction, a In a stock reclassification going- sell their stock. Similarly, because shareholder that held 20 percent of private transaction, a Georgia cor- the company’s stock will be illiq- the corporation’s common stock poration is not required to provide uid, the company’s ability to raise prior to the transaction and did not its shareholders with dissenters’ capital in the future may be have his stock exchanged would rights in connection with the trans- impaired. As a result of the 300- own 40 percent of the corporation’s action. If a going-private transaction shareholder threshold, the compa- common stock after the reclassifi- is structured as a merger18 or ny will also be limited in its ability cation, even though such share- reverse stock split,19 under Georgia to use its stock as consideration in holder’s holdings did not change. law shareholders may have the future acquisitions.

18 Georgia Bar Journal Unlike companies that go pri- 5. 17 C.F.R. § 240.12h-3 (2009). 6. 15 U.S.C. § 78l(g)(4). vate by cashing out certain share- SOUTH 7. Id. § 78l(d). holders, companies that go pri- 8. Under the Securities Exchange Act, GEORGIA ADR vate by reclassifying their stock a corporation engaged in interstate are unable subsequently to elect commerce must register a class of SERVICE, LLC to be taxed as S corporations.24 equity securities if the securities Having an existing class of pre- are held of record by 500 or more ferred stock outstanding may also shareholders and the corporation discourage or limit the structure has more than $10 million in MEDIATION and of future private equity invest- assets. 15 U.S.C. § 78l(g)(1)(B); 17 ARBITRATION of personal C.F.R. § 240.12g-1 (2009). This arti- ments, which often include non- injury, wrongful death, voting preferred stock. cle assumes that the $10 million threshold has been exceeded. commercial, real estate and Conclusion 9. See 15 U.S.C. § 78l(g)(1)(B). other complex litigation 10. CB Fin. Corp., Definitive Proxy cases. Visit our website for A going-private transaction may Statement (Schedule 14A) (Jan, 25, be attractive to Georgia corpora- 2008). fee schedules and tions that want to avoid the 11. CB Fin. Corp., Securities biographies of our panel, increased costs and other issues Registration Termination (Form comprised of experienced that come with being a public com- 15-12G) (Mar. 3, 2008). Middle and South Georgia 12. The procedure for amending a cor- pany. Going private through a trial lawyers and judges. stock reclassification transaction poration’s articles of incorporation allows a company to go private is set forth in O.C.G.A. §§ 14-2- without having to expend large 1001 to -1009 (2003 & Supp. 2009). 13. O.C.G.A. § 14-2-1003 (Supp. 2009). amounts of capital to cash out CHARLES R. ADAMS, III – Fort Valley Unless the corporation’s articles of THOMAS C. ALEXANDER – Macon shareholders, which is an impor- incorporation or its board of direc- tant factor in today’s market. MANLEY F. BROWN – Macon tors require a greater vote or a JERRY A. BUCHANAN – Columbus vote by voting groups, the amend- Whalen J. Kuller is ment must be approved by a JOHN D. CAREY – Macon the managing majority of votes entitled to be WADE H. COLEMAN – Valdosta member of Kuller Law cast on the amendment by each JOHN A. DRAUGHON, SR. – Macon Group, LLC. He voting group entitled to vote on JOHN C. EDWARDS – Macon represents both the amendment. Id. JAMES L. ELLIOTT – Valdosta startup and 14. “Blank check” preferred stock BENJAMIN M. GARLAND – Macon established companies in allows a corporation’s board of HON. LORING A. GRAY, JR. – Albany transactional business matters. directors to create and issue a ROBERT R. GUNN, II – Macon series of preferred stock without Previously, Kuller worked for JEROME L. KAPLAN – Macon shareholder approval. several major Atlanta law firms, STANLEY M. KARSMAN – Savannah 15. O.C.G.A. § 14-2-123 (2003). A cor- BERT KING – Gray including most recently Jones poration may, however, specify a Day. He can be reached at 770- T. KYLE KING – Jonesboro later effective date in the amend- HUBERT C. LOVEIN, JR. – Macon 837-2619 or by visiting ment. Id. MICHAEL S. MEYER VON BREMEN – Albany www.kuller-law.com. 16. 17 C.F.R. § 229.1014 (2009). 17. Id. § 240.13e-3(a)(3)(i)(C) (2009). S. E. (TREY) MOODY, III – Perry PHILIP R. TAYLOR – St. Simons Island Endnotes 18. O.C.G.A. § 14-2-1302(a)(1)(A) RONALD C. THOMASON – Macon 1. See Sarbanes-Oxley Act of 2002, Pub. (Supp. 2009). L. No. 107-204, 116 Stat. 745 (codi- 19. Id. § 14-2-1302(a)(4). CRAIG A. WEBSTER – Tifton fied as amended in scattered sec- 20. Id. §§ 14-2-1301 to -1332 (2003 & HON. TOMMY DAY WILCOX, JR. - Macon tions of 11, 15, 18, 28 and 29 U.S.C.). Supp. 2009). F. BRADFORD WILSON, JR. – Macon 2. SouthCrest Fin. Group, Definitive 21. See id. Proxy Statement (Schedule 14A) 22. Disgruntled shareholders who are (Nov. 10, 2009). not granted dissenters’ rights 3. Final Report of the Advisory could, however, still challenge the 240 THIRD STREET Committee on Smaller Public transaction on fairness or other MACON, GEORGIA 31201 Companies to the U.S. Sec. Exch. grounds. Comm’n, at 32-33 (Apr. 23, 2006), 23. See O.C.G.A. § 14-2-1302(b) (Supp. (800) 863-9873 or available at http://www.sec.gov/ 2009). (478) 746-4524 info/smallbus/acspc/acspc-final 24. To qualify as an S corporation, a FAX (478) 745-2026 report.pdf. corporation must not have more www.southgeorgiaadr.com 4. Securities Exchange Act of 1934, 15 than one class of stock. 26 U.S.C. U.S.C. § 78l(g)(4) (2009). § 1361(b)(1)(D) (2009).

June 2010 19 GBJ Feature

2009 Annual Review of Case Law Developments: Georgia Corporation and Business Organization Law by Thomas S. Richey

his article surveys the decisions addressing

corporate and business organization law T issues handed down by the Georgia state and federal courts during 2009. Although few of the cases decide matters of first impression, several discuss important points of law on which there is little Georgia authority. The article includes many other decisions because they confirm the continued validity of established principles governing Georgia business organizations and reflect the way in which the courts view and apply those principles.

This article is organized, first, by entity type—corporations, partnerships, limited liability companies and other forms of business ventures. The rest of the article is grouped by subject matter with cases divided into (a) decisions primarily concerning transactional issues that should apply to all forms of business organizations and (b) decisions dealing with litigation issues characteristic of business organization disputes. Following is a brief summary of these developments. Duties and Liabilities of Corporate Directors, Officers and Employees One of the potentially most important decisions of the year, Brock Built, LLC v. Blake, 300 Ga. App. 816, 686

20 Georgia Bar Journal S.E.2d 425 (2009) confirms that officers and directors of Georgia corporations cannot be held liable for ordinary negligence in the performance of their corporate duties under O.C.G.A. § 14-2-830 and appears to be the Georgia appellate courts’ first recognition of a business judgment rule presumption. The Court of Appeals of Georgia applies these principles to a limited liability company without explanation and without mention of the correspon- ding provisions of the Georgia Limited Liability Company Act. In an order following trial, the court in In re: Maxxis Group, Inc.: Hays v. Curry, Adv. Case No. 06-06554- MGD, (N.D. Ga., Bankr. September 29, 2009) (unpublished), rejected a bankruptcy trustee’s claims against directors of a corporate debtor under § 14-2-830, upholding the directors’ rights to rely on management statements regarding corporate performance and finding insuf- ficient evidence of their knowledge of the corporation’s insolvency. Two decisions dealt with claims for misappropriation of corporate Inc., 300 Ga. App. 825, 686 S.E.2d with oral representations. The opportunities—Professional Energy 432, (2009) ruled that a defendant, court held that there were issues of Management, Inc. v. Necaise, 300 Ga. who was clearly acting as an agent fact regarding whether the corpo- App. 223, 684 S.E.2d 374 (2009), in of a disclosed principal, could not ration had accepted the subscrip- which the court held that employ- be held personally liable on a con- tion before the purchaser rescinded ees with authority to bind corpora- tract merely because the contract it, but found his Georgia Securities tions have fiduciary duties, but not did not disclose the corporate status Act of 1973 claims were barred as to corporate opportunities, and of the business. HRH Architects, Inc. because he was held to know of the Brewer v. Insight Technology, Inc., v. Lansing, 2009 WL 1421217 (N.D. alleged misrepresentations when 301 Ga. App. 694, 689 S.E.2d 330, Ga. Apr. 2, 2009) discusses and he executed the subscription agree- (2009), holding that a “beachhead” applies the tests to determine when ment. In Golden Atlanta Site by the corporation is not required corporate officers can be held Development, Inc. v. Nahai, 299 Ga. for misappropriation of opportuni- directly or vicariously personally App. 646, 683 S.E.2d 166 (2009), the ties during a corporate officer’s liable for copyright infringement. court used the blue sky law test for tenure and finding that punitive an “investment contract” to deter- damages were not capped because Corporate Stock mine whether a transaction was a of the officer’s specific intent to Ownership and Rights loan or investment for purposes of harm the corporation. a usury law claim. Wachovia Insurance Services, Inc. v. In 2009 there were several deci- The court in BDI Laguna Fallon, 299 Ga. App. 440, 682 S.E.2d sions addressing contractual issues Holdings, Inc. v. Marsh, 301 Ga. 657 (2009) confirms that a former involving purchases or option App. 656, 689 S.E.2d 39, (2009) officer of a Georgia corporation rights to receive stock or other addressed an employee’s claims does not owe fiduciary duties not to equity-based investments. Two against a corporation and one of its compete after his departure and decisions involved applications of officers to enforce oral promises to after a close review of the evidence Georgia’s blue sky law. Fernandez award certain percentages of the holds that the former officer had not v. WebSingularity, Inc., 299 Ga. corporation’s stock for his service. violated any of his duties to the cor- App. 11, 681 S.E.2d 717 (2009) dealt The court found the pre-employ- poration before or after he left. The with a subscription agreement for ment promises too uncertain to be court in Eayrs v. Absolute Roofing, an amount of shares inconsistent enforced and also barred by a

June 2010 21 merger clause in the employment partnership, while they were enti- agreement where one could name a agreement and the subsequent tled to their day in court, did not price and force the other parties to promises were not supported by have the right to contest the part- decide whether to buy or sell. The additional consideration over and nership’s liability to the plaintiff on 11th Circuit Court of Appeals held above the services required under a default judgment and were thus that the plaintiffs could not prove the employment agreement. held personally liable for the judg- reliance or causation because they Capital Health Mgt. Group, Inc. v. ment. The court in Asgharneya v. were admittedly unable to run the Hartley, 301 Ga. App. 812, 689 Hadavi, 298 Ga. App. 693, 680 business or to replace management S.E.2d 107 (2009) represents the first S.E.2d 866 (2009) affirmed a judg- and thus had no choice but to sell decision in the Georgia state appel- ment against a partner for wrong- at the named price. late courts dealing with a stock fully terminating an oral partner- appreciation rights agreement. The ship and misappropriation of the Other Forms of court applied the standards for dis- partnership’s business, including Business Organization cretionary corporate decisions, the award of lost profits to the part- finding that the corporation failed ner frozen out of the business. Techbios, Inc. v. Champagne, 301 to act in good faith and exercise Morris v. Nexus Real Estate Mortgage Ga. App. 592, 688 S.E.2d 378 (2009) honest judgment in its refusal to and Investment Company, 296 Ga. is the first Georgia appellate court award the plaintiff any stock appre- App. 477, 675 S.E.2d 511 (2009) case involving a “teaming agree- ciation rights. Clark v. Chapman, 301 addresses the procedures under ment”—an arrangement through Ga. App. 117, 687 S.E.2d 146 (2009) O.C.G.A. § 14-8-28 for “charging which parties can coordinate busi- affirmed an injunction against a orders” that enable judgment cred- ness activities without necessarily transfer of corporate assets by an itors to reach a judgment debtor’s forming a joint venture or partner- officer after a judgment creditor’s interest in a partnership under ship. The court reversed dismissal levy on his stock, rejecting in O.C.G.A. § 14-8-28. The court held of the plaintiff’s claims for breach sweeping language the defendant’s among other things that the judg- of the teaming agreement for fail- arguments based on the distinction ment creditor was not barred by a ing to disclose and share business between ownership of corporate four-year statute of limitations opportunities, where the defen- stock and the corporation’s owner- from reaching a partnership inter- dants allegedly misappropriated ship of its assets. In Kelley est assigned by executors of the opportunities for themselves which Manufacturing Company v. Martin, deceased judgment debtor’s estate. resulted from the plaintiffs’ efforts 296 Ga. App. 236, 674 S.E.2d 92 under the teaming agreement and (2009), the Court of Appeals of Limited Liability in which the plaintiffs could have Georgia held as a matter of first Company Developments profitably participated. impression that ESOP participants are entitled to exercise the rights of In Murphy v. McMaster, 285 Ga. Transactional Cases shareholders to inspect corporate 622, 680 S.E.2d 848 (2009), the plain- In A&B Blind & Drapery Company, books and records. tiff was a member of LLCs that Inc. v. B&B Glass And Storefronts, were serving as general partners for Inc., 298 Ga. App. 210, 679 S.E.2d Nonprofit several real estate limited partner- 782 (2009), the Court of Appeals of Corporations ships. He sued to enforce his rights Georgia affirmed a trial court ruling under the LLC operating agree- that enforced the purchaser’s con- The Victory Drive Deliverance ments to provide property manage- tractual set-off rights for the sellers’ Temple, Inc. v. Jackson, 298 Ga. App. ment services to the partnerships. breach of warranties under an asset 563, 680 S.E.2d 588 (2009) affirmed The Supreme Court of Georgia purchase agreement, but denied the dismissal of a suit by a church held that an interlocutory injunc- any other remedy because the pur- to remove its pastor because it was tion was properly denied, since chaser was sophisticated and failed filed by an improperly constituted equity does not generally compel to conduct sufficient due diligence board of directors purporting to act performance of personal service before entering into the transaction. for the church. contracts and since the member The Court of Appeals in Corey v. could recover damages and had an Clear Channel Outdoor, Inc., 299 Ga. Partnership Law adequate remedy at law. App. 487, 683 S.E.2d 27 (2009) Developments Ledford v. Peeples, 568 F.3d 1258 enforced a covenant not to compete (11th Cir. 2009) concerns an alleged in an asset purchase agreement J.T. Turner Construction Co. v. breach of disclosure obligations where the seller attempted to cir- Summerour, 301 Ga. App. 323, 687 when management members of an cumvent the covenant using a S.E.2d 612 (2009) held that general LLC purchased the membership straw owner. In McKesson partners who were not included as interests of the financial members Corporation v. Green, 299 Ga. App. defendants in a suit against the of the LLC pursuant to a buy-sell 91, 683 S.E.2d 336 (2009), the court

22 Georgia Bar Journal

Your children may be at risk! Atlanta-based Keenan’s Kids Foundation Investigates Playground Safety Campaign May 12, 2010—New Results Released For Metro-Atlanta Area Playgrounds

Each year, more than 200,000 kids are treated in emergency rooms nationwide for playground-related injuries – many of which could have been prevented with proper supervision.

More than 1/3 of playground injuries are severe with children incurring fractures, internal injuries, concussions, dislocations and other long-term injuries.

On average, at least one child DIES every month from injuries sustained on a playground. More than 75 percent happen on public playgrounds while 23 percent happen on home playgrounds right in your own backyard.

The National Program for Playground Safety recently gave an average national grade of C+ on the safety of playgrounds across the country.

Don Keenan reveals how local Georgia playgrounds fare in reviews on public safety—see the new 2010 Report Cards & photos from the Foundation’s research of more than two-dozen playgrounds with tips and information for ALL parents, caregivers, educators, and concerned citizens. What can YOU do to help? Visit www.keenanskidsplaygroundsafety.com to print off the Playground Safety Handbook & Report Card. Also download the Playground Safety Podcast for even more examples!

Keenan is a renowned child advocate attorney, founder of the Foundation, author of 365 Ways to Keep Kids Safe, one of Oprah Winfrey’s “People of Courage” and an Emory University Lifetime Child Advocate Award. Special thanks to our Foundation volunteer who helped with this project!

Keenan’s Kids Foundation * 148 Nassau St. NW * Atlanta, GA 30303 * 404-223-5437 www.keenanskidsplaygroundsafety.com * [email protected] rejected claims by selling share- under the existing policy and a 687 S.E.2d 233 (2009), the Court of holders in a stock-for-stock merger prior acts exclusion under the new Appeals upheld jury verdicts based on misrepresentations policy. Over a strong dissent, the piercing the corporate veil as sup- regarding their own company. The court held the insureds barred by ported by the evidence. In Otero v. plaintiffs argued that they would their knowledge and negligence in Vito, 2009 WL 3063426 (M.D. Ga. have sold their stock rather than failing to discover the exclusions. Sept. 22, 2009), the U.S. District accept shares of the merged compa- Jansky v. SunTrust Banks, Inc., 2009 Court for the Middle District of ny, but the court held that the mis- WL 33055200 (N.D. Ga. Sept. 18, Georgia held that Georgia does not representations overvalued their 2009) enforced a corporate officer’s recognize reverse piercing of the shares and did not cause their rights to mandatory indemnifica- corporate veil and permitting a losses. The decision in Summit tion for successful defense of a corporation to be held liable for its Automotive Group, LLC v. Clark, 298 counterclaim by the corporation, owner’s debts. Ga. App. 875, 681 S.E.2d 681 (2009) holding that even in the absence of reaffirms the rule that the Georgia a retainer agreement or payment of Evidence Issues Bulk Sales Act does not permit an fees, the officer’s liability to her In Ross v. State, 298 Ga. App. 525, action in tort against the transferee. counsel in quantum meruit would 680 S.E.2d 435 (2009), the Court of support the award. Appeals of Georgia addressed the Litigation Issues admissibility under the business Arbitration records exception to the hearsay Director and Officer Liability In Hansen & Hansen Enterprises, rule of documents that a business Litigation Inc. v. SCSJ Enterprises, Inc., 299 Ga. obtains from third parties. In this The U.S. District Court for the App. 469, 682 S.E.2d 652 (2009) an case, copies of checks dishonored Northern District of Georgia in arbitration award was vacated in a by third party banks were held Lubin v. Skow, 2009 WL 4641761 sale of business dispute because the admissible as part of the deposito- (N.D. Ga. Nov. 30, 2009) dismissed arbitrator failed to decide counter- ry bank’s business records. The claims for mismanagement by a claims on promissory notes given court in Standard Building Company, Chapter 7 bankruptcy trustee for a in the transaction. While the notes Inc. v. Wallen Concept Glazing, Inc., Georgia bank holding company themselves did not contain arbitra- 298 Ga. App. 443, 680 S.E.2d 527 against directors of its failed tion clauses, they were an integral (2009) held that an unauthenticated banking subsidiary, holding that part of a transaction governed by printout of search results from the the claims belong exclusively to agreements requiring arbitration. website of a foreign state’s secre- the Federal Deposit Insurance tary of state were inadmissible in a Corporation as receiver, not the Corporate Separateness proceeding to domesticate a bankruptcy trustee. In Goldstein v. and Piercing the default judgment to establish that Wells, 295 Ga. App. 870, 673 S.E.2d the defendant was doing business 325 (2009), the Court of Appeals of Corporate Veil in the foreign jurisdiction. Georgia, applying Maryland law, In an unusual case, EnduraCare affirmed dismissal of a derivative Therapy Management, Inc. v. Drake, Service of Process action after rejection of the share- 298 Ga. App. 809, 681 S.E.2d 168 Pallman Maschinenfabrik GmbH holders’ demand by an independ- (2009), the Court of Appeals of & Co. v. Evergreen Composite ent committee of directors. Georgia reversed a default judg- Technology, LLC, 2009 WL 112683 ment against a corporate parent (M.D. Ga. Jan. 16, 2009); Tunstall v. Insurance and that held it liable for its sub- Deutsche Bank Trust Company Indemnification sidiary’s tortious conduct. The America, 2009 WL 274153 (M.D. In Four Seasons Healthcare, Inc. v. court held that under O.C.G.A. § Ga. Feb. 4, 2009) addressed provi- Willis Insurance Services of Georgia, 9-11-55, the failure to answer a sions of the Georgia Business Inc., 299 Ga. App. 183, 682 S.E.2d complaint admits only well-plead- Corporation Act and the Georgia 316 (2009), the Court of Appeals of ed facts, and the complaint failed Limited Liability Company Act Georgia sitting en banc affirmed to allege any facts that would regarding the appointment and dismissal of professional liability justify disregarding the legal sepa- maintenance of agents for service of claims against an insurance broker rateness of parent and subsidiary process. The Court of Appeals of engaged to obtain director and offi- and imposing liability for the Georgia in Anthony Hill Grading, Inc. cer liability coverage for a pending subsidiary’s acts. In two de- v. SBS Investments, LLC, 297 Ga. App. transaction where the insurers, cisions, Anthony v. Gator Cochran 728, 678 S.E.2d 174 (2009) held that invoking different exclusions, Construction, Inc., 299 Ga. App. substituted service on the Georgia denied coverage under both the 126, 682 S.E.2d 140 (2009) (certiorari Secretary of State under O.C.G.A. § existing and new D&O policies—a granted) and Renee Unlimited, Inc. 14-11-209(f) was ineffective because majority shareholder exclusion v. City of Atlanta, 301 Ga. App. 254, the plaintiff failed to comply with the

24 Georgia Bar Journal technical statutory requirements Representation of a Seminar for 14 years. He also regarding the number of copies that Corporation in Court serves on the State Bar’s must be served on the Secretary of Corporate Code Revision State and ineffective under O.C.G.A. Heath v. Beech, 300 Ga. App. 756, Committee. Richey has published § 9-11-4(e)(1) for the plaintiff’s fail- 686 S.E.2d 283 (2009), applies the annual surveys of Georgia corpo- ure to make use of known alternative long-established rule that corpora- rate and business organization means of service. tions may only appear in a court of case law developments for the record through duly licensed coun- years 2005-08, copies of which Venue sel, holding that where a corporate are available on request to The decision in HD Supply, Inc. stockholder filed an answer on [email protected]. v. Garger, 299 Ga. App. 751, 683 behalf of himself and the corpora- This is an overview of the 2009 survey S.E.2d 671 (2009), a case involving tion, the trial court acted properly of Georgia corporate and business orgni- allegedly jointly liable tortfeasors, in striking the answer as to the cor- azition decisions. For the full survey, addresses the issue of when venue poration and entering a default including an extended discussion of each is determined under O.C.G.A. judgment against it. of these cases, you may download or § 14-2-510(b)(3) as to a corporate print the document at the following link: defendant added by amendment Thomas S. Richey www.bryancave.com/2009-GA-Survey. to the litigation. The court held concentrates his prac- This article is not intended as legal that venue as to the added defen- tice in securities, advice for any specific person or cir- dant “relates back,” i.e., is deter- banking and corpo- cumstance, but rather a general treat- mined as of the date of filing suit, rate litigation and ment of the topics discussed. The and thus venue was proper even conducts an advisory views and opinions expressed in this though the original codefendant practice in director and officer article are those of the author only and did not maintain an office or trans- liability insurance coverage at not Bryan Cave LLP. The author act business in the county and the Bryan Cave LLP. He founded and would like to acknowledge and thank added defendant had closed its led Georgia ICLE’s Annual Ann Ferebee and Vjollca Prroni for office by the time it was joined. Business Organization Litigation their assistance with the article.

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June 2010 25 GBJ Feature

Budget Plays a Prominent Role in the Historic 2010 General Assembly

by Tom Boller

n the midst of a historically challenging budget

cycle and shifting politics, the State Bar navigated I the 2010 General Assembly and made progress on many issues of importance to the practice of law.

Numerous members of the Legislature, especially the attorneys, are to be commended for their efforts to support the State Bar and the judicial branch. The 38 lawyer- legislators of the state Legislature reflect Georgia’s demographic and geographic diversity and span both sides of the political aisle. Their efforts toward representing the best interests of their constituents and those of the state as a whole epitomize the ideal of lawyers serving the public. (See accompanying list on page 27.)

We are grateful to these members and the numerous others that supported the legal profession in the

2010 General Assembly. Photo by Johanna Price

26 Georgia Bar Journal State Bar 2010 Legislative Agenda Lawyers in the

The following State Bar agenda Georgia General Assembly bills passed during the 2010 General Assembly: House of Representatives Rep. Jay Powell (R-Camilla) Rep. Stacey Abrams (D-Atlanta) Speaker David Ralston ■ SB 131—Trust Code Revisions: Rep. Stephen Allison (R-Blue Ridge) This bill by Sen. Bill Hamrick (R-Blairsville) Rep. Matt Ramsey (R-Carrolton) is a substantial Rep. Stephanie Stuckey (R-Peachtree City) revision of the Trust Code and Benfield (D-Atlanta) Rep. Pam Stephenson was initiated by the Georgia Rep. Doug Collins (R (D-Decatur) Trust Code Revision Committee Gainesville) Rep. Rob Teilhet (D-Smyrna) that was sponsored by the State Rep. Rick Crawford (D Rep. Lee Thompson Bar in 2003. The bill was passed Cedartown) (D-Lawrenceville) out of the Senate in 2009 and Rep. Elly Dobbs (D-Atlanta) Rep. Tom Weldon (R-Ringgold) achieved final legislative pas- Rep. Rich Golick (R-Smyrna) Rep. Wendell Willard sage in the House this year. Rep. Mark Hatfield (R-Sandy Springs) ■ SB 491—Long-arm Statute: This (R-Waycross) bill, requested by the Family Rep. Mike Jacobs (R-Atlanta) Senate Law Section and authored by Rep. Tom Knox (R-Cumming) Sen. David Adelman Sen. Bill Cowsert (R-Athens), Rep. Roger Lane (R-Darien) (D-Decatur) provides jurisdiction over non- Rep. Kevin Levitas (D-Atlanta) Sen. Bill Cowsert (R-Athens) residents of Georgia who are Rep. Edward Lindsey Sen. John Crosby (R-Tifton) involved in a contempt action (R-Atlanta) Sen. Bill Hamrick (R-Carrollton) involving custody. Rep. Billy Maddox (R-Zebulon) Sen. Seth Harp (R-Midland) ■ SB 461—Federal Estate Taxes: Rep. Randal Mangham Sen. Judson Hill (R-Marietta) This bill by Sen. Seth Harp (R- (D-Decatur) Sen. Ronald Ramsey Midland), requested by the Rep. Doug McKillip (D-Athens) (D-Decatur) Fiduciary Law Section, was Rep. Mary Margaret Oliver Sen. Preston Smith (R-Rome) filed in response to the fact that (D-Decatur) Sen. Curt Thompson (D-Tucker) the estate tax is not in effect for Rep. Larry O’Neal (R-Bonaire) Sen. Dan Weber (R-Dunwoody) 2010, and the bill provides addi- Rep. DuBose Porter (D-Dublin) Sen. John Wiles (R-Marietta) tional flexibility to executors and trustees in circumstances where will directives reference $64,256 and $70,276, respectively, budget. The final version of the the tax code. in the AFY ‘10 and FY ‘11 budg- AFY ‘10 budget includes ets. The final budgets for AFY‘10 $37,503,926. The final version of While the state budget problems and FY‘11 appropriated $61,913 the FY‘11 budget includes state continued to be a challenge for the and $65,013, respectively. funds of $38,438,945. judicial branch, a number of key ■ Victims of Domestic Violence ■ Funding for Senior Judges: The judicial budget categories were Funding: The Administrative FY ‘11 budget included over resolved favorably: Office of the Courts requested $600,000 to fund senior judges. $1,887,158 for the AFY ‘10 ■ Ga. Appellate Practice Resource budget, and that was the Two State Bar approved bills did Center Funding Request: The amount in the House and not pass this session: Judicial Council requested Senate-passed versions of AFY $551,000 for the amended FY‘10 ‘10. They requested $1,907,023 ■ HB 24—Rules of Evidence: The budget ($580,000 less $29,000 for for the FY ‘11 budget, and that comprehensive revision of the one vacant position) and final budget appropriated rules of evidence, essentially $556,800 for the FY‘11 budget for $1,887,159 and confirmed conforming the Georgia rules to the Resource Center. The final administration of this program Federal rules, bogged down last AFY ‘10 budget includes by the AOC. year due to issues raised by the $551,000, and the final FY ‘11 ■ Ga. Public Defender Standards Prosecuting Attorneys Council. budget includes $565,000 for the Council: The governor’s recom- After a heroic effort led by Resource Center. mended budget for the GPDSC is Chairman Wendell Willard (R- ■ Office of Dispute Resolution: $40,135,359 (of which $38,935,359 Sandy Springs), those concerns The Judicial Council requested are state funds) in the FY ‘11 were resolved and HB 24

June 2010 27

Photo by Tyna Duckett Photo by Tyna

passed the House late in the ■ SB 42—Ga. Public Defenders until after the governor had signed 2010 session. It subsequently Standards Council (GPDSC): the legislation into law on May 12. passed the Senate Judiciary SB 42, which reduced the council This one change will increase the committee. However, the final to an advisory board passed the cost of every civil and criminal bill was not taken up by the full Senate in 2009 and was opposed appeal in the state by thousands, and Senate and therefore died. by the State Bar. SB 42 did in many cases tens of thousands, of While the bill failed, we want to not pass the House, but dollars. The State Bar is meeting with thank and acknowledge the as part of the effort to review interested parties from all aspects of tremendous effort made by the authority of the GPDSC, the judicial process to explore ways Speaker David Ralston (R-Blue Chairman Rich Golick (R- to address this provision, until such Ridge), Chairman Willard, Rep. Smyrna) asked the State Bar, time as the General Assembly can Ed Lindsey (R-Atlanta), Rep. ACCG, the GPDSC and CPD’s to review and fix the matter. Mary Margaret Oliver (D- develop a plan to handle conflict As always, the State Bar is appre- Decatur), Sen. Seth Harp (R- cases and to address other ciative of the support of local bar Midland), Sen. Bill Hamrick (R- issues involving the governance associations and members of our Carrollton), Sen. Ron Ramsey and operation of the council, Legislative Action Network. The (D-Decatur), Brian Fortner and prior to next legislative session. communications from attorneys to Gary Moss with the prosecuting This effort is underway and their local legislators had a very attorneys, and Tom Byrne and the State Bar appreciates positive effect on the final judicial Paul Milich representing the Chairman Golick’s encourage- budget and several other important State Bar. ment to develop a plan for con- matters. In this election year that ■ HB 917—Foreign Deposition sideration by his committee. will bring numerous new faces to Act: This bill, introduced by Rep. the political leadership of our state, Mike Jacobs (R-Atlanta) and Finally, as part of the revenue it will remain vitally important for pro-posed by the Uniform Law enhancement plan designed to fill State Bar members to remain active Commissioners revising the for- the deep budget deficit, a provision in the process. eign deposition act, also passed of HB 1055, the massive “fee bill,” the House but failed to reach the raised the cost of copying the record Tom Boller, Mark Middleton, Senate floor for debate. of cases on appeal from $1.50 per Rusty Sewell, Charlie Tanksley page to $10 per page. This provision and Hunter Towns serve as the A number of bills were opposed escaped the notice of most if not all State Bar’s lobbyists. They can be by the State Bar. None of those bills interested parties, including several reached at tom@gacapitol passed, however, SB 42 deserves legislators. Unfortunately, the State partners.com or at 404-872-0335.. further comment: Bar did not learn of the provision

June 2010 29 GBJ Feature

Want to Multiply the Georgia Tax Dollar? Fund Domestic Violence Programs

by Adrienne Hunter-Strothers

TO THE MEMBERS OF THE GENERAL ASSEMBLY: The past year has confronted Georgia, and our nation, with severe economic challenges that we have not experienced in decades. Just as every Georgia family must make decisions on how to allocate available income and prioritize needs, the state must do the same . . . Sonny Perdue, governor of the state of Georgia The Governor’s Budget Report, Amended Fiscal Year 2010

cross the country, state governments are

facing tremendous tax revenue shortfalls. A Georgia is no exception. In order to balance state budgets, governors and legislators profess their task as “prioritizing needs,” leading constituent groups to argue that the needs served by their particular interest group are greater or more important than the needs served by another. This zero sum process then pits certain groups against others in the quest for state funding. The Multiplier Effect

A better approach to the current state budget crisis would be for the state to evaluate funding by the multiplier effect. The state should 1) direct dollars to those budget items that reduce financial burdens on a mul- titude of disparate state priorities and services. In this manner, state dollars multiply into many more impact

30 Georgia Bar Journal During the economic downturn, demand for services at Georgia’s domestic violence shelters has increased by as much as 50 percent. Most shelters report that victims are staying in shelters for longer periods of time—at least double—because it has become harder for victims to become financially independent in the current economic environment. dollars; and 2) focus on those homeless women and children are and school resources that should budget items that receive signifi- fleeing domestic abuse.2 be focused on student learning. cant private sector funding, result- Regarding health care costs, When considering children and the ing in further multiplication of the domestic or intimate partner vio- impact of domestic violence on Georgia tax dollar. I propose that lence significantly increases the both child health care and educa- this two-fold approach heeding costs to state health care providers, tion, as described above, it is the multiplier effect is a good way particularly in the area of emer- important to note that children wit- to manage state funds at a time of gency room services. Studies have nessed 18 percent of the domestic declining state revenue. Domestic shown that 37 percent of all violence murders in Georgia violence programs illustrate how women who seek care in hospital between 2004 and 2009.6 this approach would benefit the emergency rooms for injuries Finally, of great interest to state of Georgia. receive those injuries as the result lawyers, law enforcement and of attacks from current or former judicial resources are drained by Multiplier #1 — spouses or boyfriends.3 It should high rates of domestic or intimate Reduction in Burdens be noted further that the health partner violence. In the punish- effects of domestic violence are not ment of offenders, a significant on Other State limited to the trauma injuries expe- number of the criminal cases Priorities rienced by the actual victims of the before our nation’s courts relate to In order to understand how violence. Studies show children domestic violence. On average, Georgia’s domestic violence pro- who have witnessed domestic vio- nationally, intimate partner vio- grams heed part one of the multi- lence suffer symptoms of post- lence makes up 22 percent of all plier effect, one must understand traumatic stress disorder and are at nonfatal violent crime experienced the relationships between domestic greater risk than their peers of hav- by women.7 The national statistics violence and disparate state bur- ing allergies, asthma, gastrointesti- for fatal violent crimes are worse. dens, for example, state burdens in nal problems, headaches and flu.4 Studies show that intimate part- the areas of public assistance and Even state education resources ners commit 30 percent of the homelessness, health care costs, are affected by incidents of domes- homicides of women.8 The num- education, law enforcement and tic violence. Teacher furloughs and ber of women shot and killed by the judiciary. increases in class size have been their husbands or intimate part- Regarding public assistance and instituted by the state in order to ners is more than three times high- homelessness, domestic or inti- deal with declines in state revenue. er than the total number murdered mate partner violence significantly School districts and teachers are by any method by male strangers.9 increases the rates at which indi- being asked to teach with fewer Georgia currently is ranked 15th in viduals become dependent on the days of instruction and more stu- the nation for the rate at which state. Studies consistently show dents. Student behavioral prob- men kill women in single-victim that at least 50 to 60 percent (some lems make this task nearly im- homicides, most of which are studies indicate rates as high as 80 possible. Studies show children domestic violence murders.10 percent) of women receiving public exposed to maternal intimate part- Domestic violence criminal mat- benefits have experienced physical ner violence, without experiencing ters come before our state courts abuse by an intimate partner at any child maltreatment, are 40 per- over and over again. The judiciary some point during their adult lives, cent more likely to have a total admirably manages the disposition compared to 22 percent of the gen- behavioral problem score within of these cases and metes out eral population.1 Further, intimate the borderline to clinical range punishment for the offenders. partner violence is a leading cause than other children.5 These chil- However, we must stop to consid- of homelessness among women dren are more likely to disrupt er that these crimes do not involve and children. A recent survey of classrooms and behave violently in organized crime or drug or gang U.S. cities shows that 44 percent of school, draining teacher attention activity; these crimes instead

June 2010 31 Lawyer nneedeed Assistance Program Con dential hhelpelp? Hotline 800-327-9631

Lawyers Recovery Meetings: The Lawyer Assistance Program holds meetings every Tuesday night from 7 p.m. to 9 p.m. For further information about the Lawyers Recovery Meeting please call the Con dential Hotline at 800-327-9631.

he Lawyer Assistance Program 2009-10 (LAP) provides free, con dential Lawyer Assistance assistance to Bar members whose personal problems may be Committee T interfering with their ability to Chairperson practice law. Such problems include stress, Robert T. Thompson Jr., Atlanta chemical dependency, family problems, Vice Chairperson and mental or emotional impairment. Charles B. Pekor Jr., Atlanta Through the LAP’s 24-hour, 7-day-a-week Members con dential hotline number, Bar members *Michael D. Banov, Marietta Henry R. Bauer Jr., Atlanta are offered up to three clinical assessment Frederick Victor Bauerlein, Marietta and support sessions, per issue, with a Robert A. Berlin, Macon counselor during a 12-month period. All *Steve Brown, Atlanta Allan Legg Galbraith, Atlanta professionals are certi ed and licensed N. Wallace Kelleman, Stone Mountain mental health providers and are able to *Joanne Max, Atlanta respond to a wide range of issues. Clinical Robert E. Mulholland, Atlanta Homer S. Mullins, Princeton assessment and support sessions include *William W. Porter, Marietta the following: Darrell P. Smithwick, Lawrenceville A. Thomas Stubbs, Decatur • Thorough in-person interview with the Jeffrey David Talmadge, Roswell attorney, family member(s) or other Lemuel Herbert Ward, Atlanta quali ed person; Executive Committee Liaison • Complete assessment of problems Michael G. Geoffroy, Covington areas; Advisors Mary S. Donovan, Macon • Collection of supporting information Calvin S. Graves, Atlanta from family members, friends and the *George W. Martin Jr., Atlanta LAP Committee, when necessary; and Staff Liaison • Verbal and written recommendations *Sharon L. Bryant, Atlanta regarding counseling/treatment to the *denotes non-attorney person receiving treatment. involve two individuals in some Georgia’s domestic violence Multiplier #2 — form of an intimate relationship. shelters reduce state burdens first Funding from Private What an unfortunate use of pre- and foremost by providing a safe cious judicial resources. haven for victims and their chil- Sector The judiciary also admirably dren to escape violence. In 2009, Even with the tremendous bene- addresses domestic violence in the Georgia domestic violence shel- fits offered to the state, Georgia’s civil setting in an important role ters provided safe housing for domestic violence shelters have that cannot be underestimated. 7,756 victims and their children.12 never relied solely or even primari- Our county courts have established These shelters also support vic- ly on state funds. Georgia’s 45 systems for issuing temporary and tims from afar, counseling victims state-certified domestic violence permanent protective orders to vic- in how to escape violence through shelters raise three-fifths of their tims of domestic violence who 24-hour crisis lines. In 2009, funding to operate through the pri- desire legally-mandated physical Georgia domestic violence shel- vate sector, thus multiplying each barriers from their offenders. ters answered 72,185 crisis calls.13 dollar of state funding they receive. Through orders of protection, These shelters also provide eco- Historically, domestic violence judges may order offenders to nomic tools for victims to become shelters have leveraged every state leave the marital residence and independent and financially self- dollar received to create four addi- provide spousal and child support sufficient, providing victims job tional dollars from the private sec- to the victim. Judicial response to search assistance, transportation tor. In Georgia, each domestic vio- domestic violence is critical and, to work, job-readiness training lence shelter receives only $89,942 when paired with a strong commu- and budgeting classes. Georgia’s in state funding.14 The average cost nity response, highly effective. domestic violence shelters aid vic- of operating a single domestic vio- Even though orders of protection tims in progressing to healthy and lence shelter in Georgia exceeds alone are not enough to save many productive lives, after leaving $500,000 per year, not including victims of domestic violence ulti- unhealthy and dependent relation- the outreach and community- mately from further violence and ships that tend to make them unable based services described above.15 death, one study based in a com- to care for themselves and their chil- That is a 1:5 ratio, vividly demon- munity known to coordinate dren. These people are often physi- strating part two of the multiplier efforts against domestic violence cally injured and sick and are effect. Georgia’s domestic violence found that 86 percent of the repeatedly seeking assistance from shelters multiply Georgia’s tax dol- women who received protective our police officers and our courts. lars by actively seeking private sec- orders reported that the abuse sub- Georgia’s domestic violence pro- tor participation in solving serious sided or ceased as a result.11 grams also perform necessary com- state problems. However again, efforts to community outreach to reduce the com- bat domestic violence come at a mission of violent assaults against Current Risks tremendous cost to the judiciary. If intimate partners. Once exclusively The multiplier effect works both we are really serious about alleviat- operated by women, these programs ways. In turn, cuts in domestic ing the burden on our state superi- now engage men to be agents in violence shelter and program fund- or court judges, whose budgets the effort to reduce incidents ing have an equally multiplied may be cut by the Legislature, we of domestic violence in our commu- negative effect. It is important must focus on reducing the inci- nities. These men go out into that Georgians realize that cuts dents of domestic violence. the community and talk about to domestic programs tangibly appropriate conflict resolution and increase the burdens on other Georgia’s Domestic respect for intimate partners. The Violence Programs YWCA of Northwest Georgia’s “Y’s Guys” Men’s Committee is Georgia’s domestic violence pro- an example. Decatur-based “Men KEEPS YOU grams support and reduce burdens Stopping Violence” is another. FROM LOSING on the state in the areas described Advocates involved with the issue of VALUABLE LEGAL above—public assistance and domestic violence believe profound RESEARCH. NOT TO homelessness, health care, educa- cultural shifts in the ways many men MENTION SLEEP. tion, law enforcement and the judi- view themselves and their intimate ciary—by helping to reduce the relationships are needed to reduce number of Georgia families mired incidents of domestic violence. Men Introducing a new Westlaw.® in domestic violence. Georgia’s of all ages and backgrounds speak- Legal research goes human. domestic violence programs there- ing out against domestic violence Discover more at WestlawNext.com by multiply the value of Georgia’s powerfully moves our Georgia com- tax dollars. munities toward that goal. © 2010 Thomson Reuters L-359277/4-10

June 2010 33 Sept. 30, 2010 (unless Congress extends the deadline). During the economic downturn, demand for services at Georgia’s domestic violence shelters has increased by as much as 50 percent. Most shelters report that victims are staying in shelters for longer periods of time—at least double—because it has become harder for victims to become financially independent in the current economic environment. These recent spikes in demand for shelter services have not been met by increased state resources and even with a record of private sector leveraging, shelters are also facing up to 60 percent reductions in private donations and community giving. Individual shelters, having previously maintained reserve funds to cover hard times, now have depleted those reserves and currently are facing budget deficits of up to $200,000, amount- ing to as much as 25 percent of their total budgets. Conclusion Georgia legislators must think critically about domestic violence funding. Restoring funding to Georgia’s domestic violence pro- important state functions, includ- the-board cut of only 6 percent. grams is indeed the fiscally resource- ing the judiciary. Gov. Perdue recently proposed ful action by the Legislature. In 2009, Georgia’s domestic vio- an additional cut of $300,000 from Funding domestic violence pro- lence shelters turned away 2,483 all domestic violence shelters and grams heeds the multiplier effect. victims and their children due to a sexual assault centers in both the How better to stretch the lack of available space.16 These vic- amended 2010 fiscal year budget Georgia tax dollar than to apply tims presumably returned to their and also in the 2011 fiscal year that dollar where it will have the abusive homes, likely seeking budget. In response to the outcry broadest benefit in the reduction of assistance from hospitals, law from the community, $300,000 of other state burdens? Applying the enforcement and the judiciary. funding for domestic violence dollar where it can be put into Unfortunately, the connections shelters and sexual assault cen- operation through the dedicated have not been made by state lead- ters were restored in the 2010 efforts of domestic violence shelter ership. Instead of redirecting state amended budget. staff workers and community vol- resources in a manner that would However, the 2011 budget unteers who raise private sector alleviate pressures on the state, the approved by the Legislature at the monies will more than quadruple Georgia Legislature cut $615,000 end of April again cut funding for the value of that one dollar. from all domestic violence shelters domestic violence and sexual Alternatively, how best to and sexual assault programs for assault programs by $300,000. The detract from important state prior- the fiscal year 2010 budget in Legislature recommended using ities, making it even more difficult response to the economic down- certain available federal stimulus for judges to clear their dockets, turn and the resulting decline in dollars to provide short-term, non- for hospitals to treat all visitors in state tax revenue. Indeed, state recurring benefits to clients eligible their emergency rooms, even for domestic violence funding was for Temporary Assistance for teachers to teach their students, slashed by 14 percent, even though Needy Families; however, these than to take away domestic vio- Gov. Perdue advanced an across- restricted monies must be spent by lence program funding?

34 Georgia Bar Journal Lawyers and others concern- The author credits the American Additional Predictors of Health Problems in High-Risk Children, 146 ed about cuts in funding for domes- Bar Association’s Commission on J. PEDIATRICS 309 (2005). tic violence programs should contact Domestic Violence for annotations to 5. Mary A. Kernic et al., Behavioral their state representatives and sena- most of the national statistical data Problems Among Children Whose tors to make their concerns known. communicated in this article. The Mothers are Abused by an Intimate Visit www.votesmart.org and author also states profound gratitude Partner, 27 CHILD ABUSE & NEGLECT www.legis.state.ga.us for contact to Shelley Senterfitt of the Georgia 1237, 1239 (2003). information. Timing is critical. The Coalition Against Domestic Violence, 6. Georgia Commission on Family governor may or may not sign the who provided annotations to the Violence and the Georgia Coalition 2011 state budget prior to publica- Georgia statistical data and certain Against Domestic Violence, 2009 tion of this article. Debate will begin national statistical data and co- Georgia Domestic Violence Fatality soon on the 2012 state budget. authored many parts of this article. Review Annual Report, at 26 (Feb. 2010). Georgia victims of domestic violence 7. Id. Adrienne Hunter- are fortunate to have her advocacy. 8. Shannan Catalano, U.S. Dep’t of Strothers is counsel at Justice, Bureau of Justice Statistics Warner Mayoue Bates Endnotes Crime Data Brief: Intimate Partner & McGough. Hunter- 1. Richard Tolman and Jody Raphael, Violence in the United States, 1993 - Strothers earned her A Review of the Research on Welfare 2005 (2006). A.B. with honors in and Domestic Violence, 56 J. SOC. 9. The Violence Policy Center, When political science from Brown ISSUES 655 (2000); Sharmila Men Murder Women: An Analysis of University and later earned her Lawrence, Research Forum on 2002 Homicide Data: Females Children, Families, and the New J.D. from Harvard Law School, Murdered by Males in Single Victim / Federalism, National Center for Single Offender Incidents, at 29 where she served as an editor of Children in Poverty, Domestic the Harvard Civil Rights-Civil (Sept. 2009). Violence and Welfare Policy: 10. Id. at 15. Liberties Law Review. Prior to her Research and Its Implications (2002). 11. James Ptacek, Battered Women in association with Warner, Mayoue, 2. U.S. Conference of Mayors & the Courtroom: The Power of Judicial Bates & McGough, Hunter- Sodexho, Inc., Hunger and Response (1999) (reviewed in Meda Strothers practiced business and Homelessness Survey: A Status Cheney-Lind, James Ptacek, tort litigation at the corporate law Report on Hunger and Homelessness Battered Women in the Courtroom: offices of Simpson Thacher & in America’s Cities (Dec. 2009). The Power of Judicial Response, 35 3. Michael R. Rand, U.S. Dep’t of Bartlett LLP in New York City and CRIME, L. & SOC. CHANGE 363 King & Spalding LLP in Atlanta. Justice, Bureau of Justice (2001)). Statistics, Special Report: Violence- She also practiced matrimonial 12. Ga. Dep’t of Human Servs., Family Related Injuries Treated in Hospital Violence Unit, Jan. 2010. law at the law offices of Sheresky Emergency Departments (Aug. Aronson Mayefsky & Sloan LLP in 13. Id. 1997). 14. Id. New York City. You can reach 4. Sandra Graham-Bermann & Julie 15. Id. Hunter-Strothers at Seng, Violence Exposure and 16. Id. [email protected]. Traumatic Stress Symptoms as Consumer Pamphlet Series

The State Bar of Georgia’s Consumer Pamphlet Series is available at cost to Bar members, non-Bar members and organizations. Pamphlets are priced cost plus tax and shipping. Questions? Call 404-527-8792. The following pamphlets are available: Advance Directive for Health Care Auto Accidents Bankruptcy Buying a Home Divorce How to Be a Good Witness How to Choose a Lawyer Juror's Manual Lawyers and Legal Fees Legal Careers Legal Rights of Nursing Home Residents Patents, Trademarks and Copyrights Selecting a Nursing Home Selecting a Personal Care Home Wills Visit www.gabar.org for an order form and more information or e-mail [email protected].

June 2010 35 GBJ Feature

Effingham County Courthouse at Springfield The Grand Old Courthouses of Georgia

by Wilber W. Caldwell

uilt at the close of the first decade of the In revolutionary times, the county seat was established at Tuckseeking. It was later moved to Elberton. 20th century, Savannah architect Hyman Both of these villages disappeared long ago. The seat of county government was then placed at Ebenezer and C. Whitcover’s Effingham County still later established at the village of Effingham before B finally moving to Springfield, which was incorporated Courthouse offers convincing testament to the linger- in 1833. Before the construction of a frame court house at Springfield, we know little of court buildings in any ing myth of the New South. It also demonstrates the of these places, but in the early period court was probably held in private homes. The reliable George White fact that, even as late as 1909, new rails still had the informs us that a frame courthouse stood on the square in Springfield in 1849, but in a rare unflattering remark power to create the kind of railroad-inspired civic and he describes the village as a “place of little note.” White was undoubtedly right, for a review of various Sholes’ economic euphoria that had been so common in rural Gazeteers of Georgia reveals little growth in Springfield as the century wore on. Sholes relates that the town Georgia at the end of the previous century. contained about 40 citizens in 1879, about 100 in 1887 and less than 200 in 1896. One of Georgia’s original counties, Effingham is situ- A 1901 photograph of a portion of the old wooden ated in the low coastal plane between the Ogeechee and court building depicts a crude, two-story, Carpenter Savannah Rivers. Like so many Pine Barrens counties, Greek design. Although the simple building stood Effingham never enjoyed the prosperity that her Old on Springfield’s square for more than half a century, Cotton Belt neighbors to the north and west knew. it witnessed little change. Meanwhile, just to the Throughout the 19th century, times remained tough in west, the town of Guyton had sprung up on The these dense piney woods and populations remained rel- Central’s mainline. By 1900, Guyton boasted an atively small. The construction of The Central of Georgia astonishing 2,379 residents according to the U.S. Railroad along the county’s western border in 1839 Census. Like so many county towns adjacent to The began the slow exploitation of area timber resources, but Central’s early line from Savannah to Macon, according to the great traveler, George White, in 1849 all Springfield was bypassed by the railroad, and of Effingham County counted only 3,457 inhabitants. progress was focused in the newly created depot Even as late as 1880, the U.S. Census listed Effingham’s towns on the county’s western border. But in the end population at a mere 5,979. Countywide population was of the first decade of the new century, all of this down to 5,599 10 years later. appeared to be about to change.

36 Georgia Bar Journal Railway Company and later as The Savannah and Western Railroad, the line was completed as The Atlanta and Savannah Railroad all the way through Warrenton to Camak on The Georgia Railroad in 1918. Three years later, The Atlanta and Savannah declared bankruptcy. By this time, most dreams of New South resurgence in Springfield were long-forgotten.

Excerpted by Wilber W. Caldwell, author of The Courthouse and the Depot, The Architecture of Hope in an Age of Despair, A Narrative Guide to Railroad Expansion and its Impact on Public Architecture in Georgia, 1833-1910, (Macon: Mercer University Press, 2001). Hardback, 624 pages, 300 photos, Photo by Wilber W. Caldwell Photo by Wilber W. Effingham County Courthouse at Springfield, built 1909, Hyman C. Whitcover, architect. 33 maps, 3 appendices, complete index. This book is available for The promise for change came that had swept the country a decade $50 from book sellers or for $40 with the inspiration George Mills or more earlier. It is equally clear from the Mercer University Press Brinson, who in 1906 chartered a that the building symbolized the at www.mupress.org or call the railroad to run from Savannah progress that everyone knew the Mercer Press at 800-342-0841 westward to Springfield and shiny new rails would bring inside Georgia or 800-637-2378 beyond. Brinson was a railroad to Springfield. According to The outside Georgia. promoter and timber baron of con- Springfield Herald of Feb. 19, 1909, siderable note. He had been key in the new courthouse was “the har- promoting The Wadley Southern binger of a new day,” “the herald of Railroad and later of The Brewton a new civilization” and the “pace- and Pineora Railroad. Along the setter for a forward march.” The way he had acquired tens of thou- Herald also sang the usual New sands of acres of timber land and South songs of progress, crooning had played a notable hand in the about “fifty new buildings in founding of the town of Stilmore Springfield since the railroad and in the extraordinary boom that arrived—many of brick,” and occurred there in the decades sur- applauding entrepreneur Brinson rounding the turn of the century. as “far-sighted” and “broad mind- So when the first train steamed into ed.” Just three weeks before the cor- Springfield in August of 1907, nerstone was laid for Whitcover’s expectations were high. By early grand symbol for progress, The 1909, Brinson’s railroad was com- Hearld published an article entitled plete from Savannah all the way to “Hurrah for Springfield” in which Sylvania in Screven County, and the editor painted a glowing picture plans were underway to build on of a town that was suddenly “climb- to Waynesboro and a connection ing to the top of the latter.” with The Central’s Augusta line. But as usual, real progress was a To celebrate all of this, Effingham long distance away. Although built a new courthouse. George Brinson’s railroad would There can be little doubt continue its westward expansion that Hyman Whitcover’s grand over the next decade, its history Neoclassical palace of justice owes a would remain checkered, and debt to the designs of Thomas financial difficulties lay ahead Jefferson as well as to the flamboy- for the celebrated entrepreneur. ant American Neoclassical Revival Reorganized first as The Brinson

June 2010 37

GBJ Feature

Out From Silence 19th Annual Fiction Writing Competition Winner

by Cynthia L. Tolbert

he killer drove his truck along a deserted 19th Annual Fiction Writing Competition gravel road stopping just short of the The Editorial Board of the Georgia Bar Journal T entrance to the pasture. It was midnight, is proud to present “Out From Silence,” by but the moon illuminated the road and the nearby Cynthia L. Tolbert of Atlanta, as the winner of the 19th Annual Fiction Writing Competition. fence. He nervously turned off his lights and gradu- The purposes of the competition are to ally pulled into the grassy field. It had been raining enhance interest in the Journal, to encourage that week, and he drove slowly to avoid low spots. excellence in writing by members of the Bar and to provide an innovative vehicle for the Getting stuck is all I need, he thought to himself. illustration of the life and work of lawyers. As As he pulled to a stop, the killer grabbed the rifle next to his seat and carefully crawled out of the cab in years past, this year’s entries reflected a and onto the ground. He squirmed along on his wide range of topics and literary styles. In stomach until he reached the fence along the north accordance with the competition’s rules, the side of the pasture. Holding his breath, he pulled Editorial Board selected the winning story himself under. He stood up briefly to get the first good look at the house through the trees. Her through a process of reading each story lights were out. That was what he had hoped for. without knowledge of the author’s identity Squatting again, he inched his way to the front and then ranking each entry. The story with of the house and silently repeated the steps of his mission. He had watched it a million times on TV. the highest cumulative ranking was selected as You first cut the tires to prevent anyone from com- the winner. The Editorial Board congratulates ing after you, and then you cut the telephone lines Tolbert and all of the other entrants for their so no one could call the police. Even though it was participation and excellent writing. a warm summer night, he was shaking as if it were the dead of winter. Recently discovered letters

June 2010 39 revealed truths that could destroy stock feed on about 100 acres of fail- too. He was far more withdrawn, life as he knew it. He was thankful ing family land. A recent beef cattle and had become dedicated to that no one else had found them first. business attempt had failed as well. Pentecostal church down the road He resolved to complete the task All he had and all he had loved from his house. Sheriff Colson saw before him. were now gone. him driving down there nearly This has to be done…, he thought, “I know who did this,” he said every evening. He never saw grimacing through clenched teeth. with tears streaming down his face. Jennifer with her dad anymore. He held his breath and slowly “It had to a been Adam. Jennifer Kids seem to drift away when they slit the tires of the family car. He broke up with him about a month get to be a certain age, the sheriff then swiftly crawled around the ago. I never liked her seeing that mused, sadly thinking of his own side of the house and cut the phone boy. After Jennifer broke off their boys whom he hardly saw since lines. Her bedroom was along the engagement, he was real upset. He they reached high school. same wall. said that she’d be sorry. I know he Sheriff Colson also knew that He stood up to look through the did this…Jennifer was probably there was a considerable history window and down on her sleeping the first person who had ever between the Patricks and the form. He was surprised to see that refused him anythin’,” he fumed. Gannons, and that their relation- her bed and headboard were cov- Lyle Patrick was a huge man with ship was a strained one at best. The ered with dolls and stuffed animals. fists to match. They were balled up sheriff suspected that Lyle had no Surrounded by her childhood toys, like massive ham hocks at the fondness for the Gannons, and he she appeared much younger than thought of Adam Gannon. was surprised that Lyle’s daughter her 19 years. She looked so peace- The sheriff knew of the Gannons was involved in any way with ful. He could see her blanket rising and recalled Adam as well. The boy Adam. He sighed with resignation. and falling with her breath. lived in the next county and stood He was not looking forward to this. With only a second’s hesitation, out from the other kids in the area, “Can you show me what hap- he punched in the clip and began mainly because he was wealthier pened?” he asked with a slight firing through her window without than most. Adam’s parents were nauseous feeling rising in his gut. thinking to aim. Shocked at the Robert and Darcy Gannon, who With a grim sigh, Lyle led him gun’s kickback, he panicked, spray- owned a large plantation in Jones down the hallway and into ing bullets around the room in spi- County. Everyone knew them. Jennifer’s room. Sheriff Colson was raling sweeps. It was so dark in her They seemed to have money to utterly unprepared for what he room he couldn’t see clearly, even burn, and they spared nothing for saw. There weren’t many murders with the moonlight over his shoul- Adam, who was their only son. in Baldwin County, only two since der, but he knew that he had man- Sheriff Colson knew that something he had been sheriff, and no law- aged to get off an entire 25 round was wrong with the kid; he just man from his sleepy little hamlet clip and at least part of another. couldn’t put his finger on it. had ever seen anything like this. Gaining his composure, the killer “I been knowin’ the Gannons,” The room still reeked of cordite. vanished as swiftly as he had come, Lyle continued. “I used to sell hay to Jennifer was sprawled awkwardly leaving the spent casings on the ‘em from the back pasture. I remem- like a broken doll in the middle of ground under the girl’s window. ber Adam from when he was a little her blood-soaked bed. Her left arm kid. He’s deaf, you know.” and right leg had been blown com- That’s what it was! I never woulda pletely off. He closed his eyes, Sheriff Roy Colson got the call guessed that, thought Colson. overcome by the sight and the fetid around 12:30 a.m. Lyle Patrick was “Jennifer would not have it any odor of human flesh. For a while, hysterical. other way but to have him as her he was unable to speak. “He’s killed my baby, my little boyfriend,” he sighed, heaving his “The shots came from outside of baby girl!” he sobbed over and over. throbbing head into his hands the window into her room. I need By the time the sheriff got to the with bitterness. to see what happened out there,” house, Lyle’s beefy face was puffy The sheriff remembered Jennifer he said, quickly moving out of the from crying. Sheriff Colson looked from when she was a little girl. door, feeling a distinct sense of at his feet. He hated this. Jennifer They had once all attended the relief in his departure. Good God, was Lyle’s only child. His wife had same church. She was pretty what sort of monster would do this? died about five years earlier. The enough, but big boned, like her When he rounded the corner, man in front of him was a wrecked, dad. The last time he saw her he flashlight in hand, he was sur- inconsolable puddle of a man. The was surprised to see that she was prised to see that the phone line sheriff would have expected noth- nearly as tall as her 6'3" father, and had been cut as well as the tires to ing else. Jennifer was all he had. weighed only slightly less. Lyle had the family car. Lyle had struggled for the past 20 spoiled her rotten since her mother “I ran to the neighbors to call plus years raising crops for live- died. Lyle had changed since then you,” Lyle explained.

40 Georgia Bar Journal “Whoever did this knew enough the weapon came from. Also, the suspicions were correct. He was not about the house to know where the shoe print is pretty distinct. If we’re disappointed. He could see two sets phone lines were, even in the dark,” lucky, we can match it up with the of tracks from the side gate to the the sheriff commented. “And sneak- owner of the gun.” He squinted fence in front of the house. The first ing up to the car to slash your tires into the nearby pasture. “When it’s set appeared to have been made was pretty gutsy since the dog could light, I’ll come back and join the when the driver entered the pas- easily have heard,” he shouted over boys to see if there’s any other evi- ture. The ground was lightly the dog’s yelping from the adjoining dence,” he said climbing into his indented along these tracks, with laundry room. “Make sure you truck. “I’ll send an ambulance out no rutting, and the grass was bent don’t touch anything, Lyle. I will here to get Jennifer’s body to the but still intact. Judging by the size have my men come out once day- coroner. Somewhere I can drop you of the tires, those tracks had likely light hits. They’ll take photos of the until then?” Shaking his head, Lyle been made by a large pickup truck. scene and gather the evidence.” waved him off and stepped back Sheriff Colson followed the tracks Lyle nodded silently and into his private nightmare. until they ended. Boot marks that numbly. Sheriff Colson shone his seemed to match the shoe print light under Jennifer’s window. He under Jennifer’s window were visi- was surprised to see a clip from a The next morning, Sheriff Colson ble in the mud where the truck semi-automatic rifle and what returned to the Patrick farm and stopped and what appeared to be appeared to be 50 or so spent cas- parked his truck on the gravel road toe marks continued to the fence. ings. There was also at least one per- next to the fence. It had rained over He must have crawled on his stomach fect shoe print. the past two weeks and the pasture to the house, he surmised. He knew “This is what we need, Lyle,” he still smelled slightly of manure there had been a full moon the said marking the site with yellow from Lyle’s dwindling herd. It was night before, which must have illu- crime scene tape. “If we can find hot, dank and steamy from the minated the pasture and the house. the gun, we got ‘im. These rifles morning dew. The early sun beat Sheriff Colson spotted additional ain’t legal ‘round here, but kids down on his head as he peered into boot marks back to the truck. The have been gettin’ ‘em from a local the blindingly lit fields, his hand toes of this set were deeply embed- dealer and usin’ ‘em for hunting shielding his eyes. He expected to ded in the mud and were obviously deer. I got a pretty good idea where see tire tracks in the pasture if his made while running. He now had

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June 2010 41 Allie was one of those students who made Jimmy nervous. Jimmy had never had a deaf client and didn’t thought she had enrolled in law school in know what to do or what to expect. He found Adam unreadable. search of justice. Truth was, however, she Adam’s facial features seemed immovable, frozen on his face. He didn’t appear to emote and the liked a good fight. explosive Jimmy could not relate to him on any level. Unlike Jimmy, at least three good sets of shoe Patrick was killed. Her father thinks Allie Thompson, his third-year law prints. The next set of tire tracks you did it. Do you have anything to clerk, was excited about the case, began where the running shoe pat- say about that?” and urged him to take it. tern stopped. The truck seemed to Glancing at his father, Adam “I would bet that this guy didn’t have made a wild swing into the hung his head and said nothing. fully understand what was going pasture and out of the gate, leaving “You must be out of your mind!” on at the time he was arrested,” wide arched ruts in the grass. At Robert Gannon shouted. “Adam is Allie told Jimmy excitedly. “You least one clear tire track remained. incapable of murder! Roy, you’d should take the case. We might be Sheriff Colson had what he was better be careful. You’re on the able to get all of the evidence sup- looking for. wrong track here,” he snapped. pressed,” she said enthusiastically. “Robert,” explained Sheriff Allie was one of those students Colson, “Lyle Patrick believes that who thought she had enrolled in That same morning, Adam was Adam is not only capable of this, law school in search of justice. startled out of a deep slumber he’s convinced that he actually did Truth was, however, she liked a when his father shook his shoulder. it. He says that Adam threatened good fight. Neither Jimmy nor His heart pounded in his chest. He Jennifer after they broke up. I gotta Allie considered for a second did not like surprises. His father look into it. Do I have your permis- whether Adam was guilty, and, at was the last person he expected to sion to inspect Adam’s room as the time, they didn’t care one way see at his place that morning. well as his vehicle?” or the other. “Adam,” his dad said, staring “Sure, we got nothin’ to hide,” Allie arrived late, as usual, for intently into his son’s eyes. “I got Gannon spat back. the first meeting between Jimmy a call early this morning. The Sheriff Colson looked around and his new clients. As she bar- Baldwin County sheriff was look- and saw a pile of muddy clothes reled through the front door of ing for you and wondered if I knew and work boots. the law offices, the receptionist where you were.” He paced back “Mind if I take these?” he asked, jumped, scowling over her glasses and forth across the room. “I told looking at Adam and his dad. as Allie slammed the door behind him that you should be in your Robert Gannon nodded his her. Allie breezed through the dorm room. He asked me if he assent. reception area of the old Civil War- could come by this morning and I The sheriff looked into Adam’s era hotel Jimmy had converted to told him to come on,” Robert truck where he found an AR-15, office space and into the conference Gannon choked out hoarsely, his which he also took, along with the room. Although Jimmy had refur- voice filled with rising fear. truck’s tires. The sheriff had the bished some of the wiring, the con- Adam was not certain what his foresight to get Adam’s signature ference room was dimly lit and it father was talking about. His dad verifying that he had permission to was hard to see, even during day- was upset, he knew that. take all of the materials from light hours. Allie peered into the “Do you know what this is all Adam’s apartment and truck room, trying to see whether she about?” his father demanded. before he left. “Don’t go anywhere, could read anything from the faces Adam shrugged his shoulders Adam,” the sheriff said as he in front of her. and climbed into the shower. climbed into the truck. “Nice to see you could make it,” Thirty minutes later, Sheriff Jimmy derided. Colson rapped on Adam’s door. Allie was used to Jimmy and as He and Robert Gannon gingerly The following day, Sheriff usual, ignored him. She was more shook hands. The sheriff knew he Colson arrested Adam for the mur- interested in the other people in the had to be cautious. He glanced der of Jennifer Patrick. That same room. The Gannons, Robert and toward Adam whose hair was still day Adam’s dad hired Jimmy Darcy, were visibly shaken. Allie wet from his morning shower and Steele, a volatile, albeit clever attor- could sense terror seeping from looked him in the eye. ney, who was as arrogant as he was their pores. Their faces were “Adam, last night there was a skilled. Jimmy wasn’t so sure he pinched and gray from two nights murder in Baldwin County. Jennifer wanted to take the case. Adam without sleep. They were scared.

42 Georgia Bar Journal Adam Gannon, their son, although recently released on bail, was stoic, silent and still. His eyes barely flickered in her direction when she entered the room. Adam’s ease puzzled her. Adam was a well-groomed, well- muscled 19-year-old freshman at GCSU. Allie had not known what to expect from him, but this was certainly not it. When she was growing up, Allie was close to her mother’s youngest sister who was also deaf, so she knew something of that community. She also learned how to communicate with her aunt in rudimentary sign language. She was surprised that Adam did not wear a hearing aid. In fact, Adam did not appear to need any assistance in the interpretation of what others were saying. Curiously, his parents rarely made eye contact with him, but they were proud to point out that Adam maintained a 3.0 average in regular college courses, had played football in high school and continued to lift weights in college. They also reported that Adam had taken Taekwondo classes since junior high and had advanced rapidly in that sport as well. Allie spied a new red Dodge pickup truck parked out- walk. Adam was nothing if not a to use sign language we pulled side and correctly assumed that it dutiful son. him out.” was Adam’s. He was well-dressed As Allie sat down, Jimmy leaned Allie was stunned. She knew and his sleek blonde hair was per- toward Adam, for once unsure of what that meant. Adam’s language fectly coiffed in the style of the day. himself. He had never tried to skills were limited at best. She was That haircut alone costs at least speak to a deaf person. amazed that he was able to main- a hundred dollars a month to main- “Can you tell me what hap- tain a B average during his first tain, Allie surmised, swallowing pened?” he shouted at Adam, loud semester at GCSU. her resentment. enough for the office next door to Mrs. Gannon explained, “We Allie struggled financially. hear. Adam barely made eye con- never wanted him to stand out Even though she tried not to, she tact, but his mouth twitched ever from the other kids, so we sent him found herself resenting rich kids so slightly. to a school in Atlanta and the whose parents put them through “Do you know why you are teachers there taught him to lip school. Adam seemed destined here?” he shouted even louder, read and speak some. He was there for a similar path, or at least one flailing his hands and arms about about a year and then we enrolled of privilege and ease compared to the room. him in Milledgeville Academy.” her life. What Allie did not know Allie stepped in. Idiots! Allie fumed. She had read was that all of Adam’s appear- “Does Adam sign? Does he that lip readers only understood ances of normalcy and advantage understand sign language?” she about a third of what was said, and were carefully constructed by his asked the Gannons. that was with far more training than parents and perfectly executed by “Well, no…” replied Mrs. Adam apparently received. If that Adam. Adam was merely follow- Gannon. “We sent him to a school was true, she did not know how he ing a design conceived and for the deaf when he was little, had been so successful in school. He orchestrated before he could but when they tried to teach him must be brilliant! she concluded.

June 2010 43 “What classes has he been taking some sort of firsthand experience. control. Nearly 50 rounds of bullets at college?” she asked. Fantasy seemed to play a large role splintered Jennifer’s furniture and “College algebra and physical in their client’s life. How big a role, destroyed her bedroom walls. education,” Mrs. Gannon replied they were unsure. Allie examined love letters proudly. “We thought he should Adam’s parents attempted to exchanged between Jennifer and only enroll part time and he has clarify. Adam and was surprised to find always been good at math. Adam “He hardly watches anything that Jennifer’s letters were written can read and write, but he has other than ‘Walker, Texas Ranger’ in 12 different marker colors, com- problems with English, history and or old Chinese martial arts movies,” plete with rainbows, hearts and other classes like that.” Mrs. Gannon explained. “Chuck flower decorations, like love letters No kidding, Allie snorted. Norris is his hero. But Adam could of girls half her age. Jennifer was a Adam interrupted his mother never hurt anyone else. He is inca- college freshman of at least average and began to speak in a slightly pable of harming anyone,” she intelligence, but seemed to be as muffled, staccato voice without emphasized with conviction. naive as a 12-year-old. Adam was making any eye contact with her. After this, Allie and Jimmy knew her first and only boyfriend. Allie interrupted him. that neither Adam nor his parents Jennifer’s letters revealed that “Mrs. Gannon, could you please would be much help in deciphering although she was initially happy to interpret what he is saying for me? what had happened on the night in have Adam in her life, she grew Everything he is saying is so question, and that they would not weary of him. important. I do not want to misun- likely offer much which would be Adam’s letters were written in a derstand him or misinterpret what useful in his defense. Allie and generally competent hand, but he is saying.” Jimmy also knew that the ninja were brief, disjointed remarks “He’s explaining that the sheriff story could not be used in front of a regarding his daily plans. Jennifer’s took his tires and shoes,” Mrs. jury, which meant that their client letters gushed with promises of Gannon said, her voice about an could not take the witness stand. love and dreams and longing. For a octave higher than it had been ear- Allie could not tell where Adam’s while it seemed that she basked in lier. “Then he said that he went to imagination ended, or where reali- Adam’s attention and enjoyed the a dark room at the sheriff’s office ty, for him, began. time they spent together. Slowly where he had to stay. He’s sayin’ Jennifer began to see Adam as a he couldn’t leave,” she announced. two-dimensional version of a boy; a “He’s also sayin’ that he didn’t The next day Allie was dis- cardboard cutout of the real thing. hurt Jennifer.” patched to the sheriff’s office to Can’t you tell me that you love With this statement Allie noticed examine evidence collected at the me? she complained repeatedly. that Adam raised his eyebrows and time of Adam’s arrest. Allie was Can’t you see that I need to hear that became much more animated. blessed with what her brother you care in some way? “Now he’s sayin’ that that night called a “blind nose.” For most of Adam never responded. Jennifer as he was leavin’ he saw some nin- the year, allergies muddled her seemed to need the sort of declara- jas crawl up to Jennifer’s house. sinuses preventing Allie from tions echoed in the romance novels Then he saw them cut the wires and detecting any odors whatsoever. she read every night. Adam did not cut the tires of her father’s truck. He So Allie, blissfully unaware of and could not deliver. Love, to said they shot into her window and foul odors, approached the pun- Adam, was not about language. that they were all wearing black gent wad of bedclothes in the evi- It was apparent that Adam’s par- clothes and black masks. He said dence room without trepidation. ents had relentlessly trained him to that there were about 10 of them Stalwart, middle-aged deputies “make a good appearance,” and he and that he tried to stop them, but fled the room as she methodically had learned this lesson well. Adam there were too many.” examined every piece of stained rarely spoke since his parents Nice..., Allie thought, we’ve got a linen. One of them even threw up squelched every early utterance nut job for a client. She couldn’t tell if on his way to the bathroom. which was not perfectly articulat- Adam believed his own ninja tale, The evidence was grisly. Allie, ed. They effectively barred Adam but it was obvious that he thought completely absorbed in her task, from the deaf community by refus- that his story was plausible. Jimmy listed each piece of evidence in ing to allow him to learn sign lan- and Allie’s eyes locked for an a notebook for later analysis. guage, which, in turn, made him instant. They knew two things from Photographs of the scene told most desperate to be accepted in the Adam’s description, as far-fetched of the story. The shooter managed hearing world. Allie knew his rela- as it was. Adam’s story was full of to fire two 25-round clips into the tionship with Jennifer was an murder scene detail. They had read room. Only one clip was recovered important link to acceptance there. the police report. So, he had to have at the scene. The killer was either a Jennifer’s letters reflected that obtained this knowledge from poor shot or was completely out of she had yearned for a boyfriend

44 Georgia Bar Journal since she could remember. “We meet at night after her dad Unfortunately, with the exception goes to sleep. She lets me come in of Adam, there seemed to be few through her window and sit on boys who were willing to accept her bed. I do not know why her for who she was. Jennifer gave me back my ring,” They were both victims in a sense, he said with obvious sadness. “I Allie mused. saw her this week. We talked Jennifer and Adam were victims about getting back together.” of the dictum of society norms and Afraid she had missed a good the idolatry of beauty icons. They bit of what he had said, Allie got were misfits who wanted to fit, and out a piece of paper and a pencil. for a time, when they were with “Can you write down where each other, they thought they did. you got the gun the sheriff took Jennifer’s dismissal of Adam must out of your truck?” have crushed him to the quick. Adam nodded, and carefully Allie believed he had few coping wrote, “Arnie from the Fish and skills for dealing with that sort of Game store. I met him one emotional turmoil. night by the river. I bought it for Allie was unsure how Adam hunting deer.” could have purchased a semi-auto- “Did you realize that it was matic rifle, but one was found in illegal to have such a gun in his truck by Sheriff Colson, and this county?” some of the prints on the barrel “No.” were his. The sheriff’s department “But Adam, why did you meet was going to test the casings fired Arnie at night down by the river if from Adam’s gun against the cas- you thought purchasing the gun ings found at the scene, and Allie was legal?” Adam stared at his had a feeling that they would hands and did not answer the match. She quickly looked at the question. Allie considered his large tires from Adam’s truck as silence an admission and headed well as his boots, both of which back to the sheriff’s office for were in the evidence room. She another review of the evidence. also examined the plaster casts the sheriff’s department made from footprints and tire tracks at the Because math had never been her scene. The plaster casts seemed to strong suit, Allie counted the spent match the sole of Adam’s boots casings from under Jennifer’s win- and his tires. Allie knew that she dow twice. There were about 50. had to try to speak to Adam again. There was a spent clip in the remaining evidence and it only held 25 rounds. There was no clip, empty The next day, Allie found or otherwise, in the semi-automatic Adam waiting for her in the con- recovered from Adam’s truck. Even ference room. She wanted to she could do that calculation. They speak to him alone and had con- were missing one of the clips. vinced Jimmy that she would be The plaster casts produced from able to get more information from under Jennifer’s window and the Adam than he could. Adam and pasture were confusing to Allie as Jimmy tended to defensively bow well. Since it had rained on and off up in each other’s presence. for about two weeks before the “Can you tell me about your incident, there were several sets of relationship with Jennifer?” shoe prints cast by the deputies. Adam lowered his head. The prints were not of the same “I like going to Jennifer’s shoes. It appeared that at least one house,” he said hesitantly, strain- set did match the boots confiscat- ing to say every word as carefully ed from Adam. There was another as possible, but Allie could not set of shoe prints with a peculiari- make out much of what he said. ty of the left foot.

June 2010 45 “How did he lose it?” “Story is, my Uncle Will, Robert Gannon’s daddy, bought the place from Lyle’s momma when Mr. Patrick was fightin’ in Germany. It’s rumored that Lyle is Will’s kid,” he said, flicking the dirt from his fingernails with his pocket knife. Holy crap! Allie thought. That means Adam and Jennifer were cousins. First cousins. And, if that were true, Lyle Patrick and Robert Gannon were half brothers. “What makes you say that?” “Well, my momma said it was the timin’ of it all,” Ben explained. “Seems like Lyle was born only two months after his daddy got back after the war. Ever’one knew Both sets of shoes appeared to be a “I think we should drive on over Uncle Will had been spendin’ plen- type of ubiquitous work boot com- to the Patricks’ pasture,” Ben ty a time over at the Patricks. monly worn by field workers, con- drawled, looking sideways at Rumor is, he promised to marry tractors or anyone who worked out- Allie’s skirt. “I’ll drive since I her just to get her to sell him the side in the muddy Georgia farmland. know the way.” land. When Mr. Patrick returned Nearly every man Allie knew had a Allie nodded in agreement, hor- from the war, Uncle Will dropped pair of these boots, and she was not rified at the thought of climbing her like a hot potato. She was surprised that Adam did. Yet the left into his decrepit pickup truck. already pregnant when Mr. Patrick foot cast of this particular boot was This had to have been his grandfa- got back. My momma said Mr. different. It was worn down on the ther’s as well, she thought, smiling Patrick never did get over it, but left side so that each step made with to herself. raised Lyle like he was his own. this shoe seemed heavier on that She had no idea what she would When he died my momma said it side, creating a greater indentation in find at the scene, but felt that it would was from a broken heart.” the ground. Whoever wore this boot help her understand what might Oh my God!!! Allie gasped, realiz- limped and favored the left side. have happened on the night Jennifer ing that she had to be extremely Prints from this shoe were found was murdered. Several jarring min- careful with her next question. under Jennifer’s bedroom window utes later, Allie emerged from the “Do you know whether either and in the pasture. The cast from this truck, hoping that she did not smell Robert or Lyle knew anything left boot did not match Adam’s more like tobacco and dead game. She gin- about this?” she queried, hoping pristine version. Allie decided she gerly picked her way through the that she was not being too obvious. needed to take greater notice of muck and knobby grass knolls of the “Dunno, really, but my momma men’s shoes, and she needed to find Patrick’s pasture in her four-inch said that Mrs. Patrick always sent the missing boot. heels, trying not to lose her balance. Uncle Will a card on Lyle’s birthday The pasture appeared to have just to drive the point home. been fallow for years. The ground Momma said that Mrs. Patrick used The next day Allie made appoint- was completely overrun with rut- to send Uncle Will a lotta letters and ments with several of Adam’s related tire marks. she saw them all piled up in a box tives and folks who worked for Apparently the sheriff’s department once. Also, if you notice, Robert and Robert Gannon. She needed to know has not maintained an unspoiled crime Lyle do look a lot alike, except that more about the family. She was a lit- scene, she thought wryly. In fact, Lyle’s fat and Robert got kicked by tle nervous when she met Ben, Ben’s tracks only added to one of them horses and limps.” Adam’s cousin. Although he was a the jumble. “Do you know which leg was young man, he was dressed in what “Do you know the Patricks?” kicked?” appeared to be his grandfather’s “Yup, everyone knows the “Yeah, his left’n,” Ben recalled. overalls under which he was wear- Patricks. They owned near ‘bout “I remember that ‘cause he always ing a similarly aged flannel shirt. the entire county at one time or mounts his horse funny, from the Allie tried to avoid staring at his ‘nuther. But that was before my right side of the horse, so he could wretched teeth, which were heavily time. Lyle’s daddy lost it all in the swing his left leg around. I think populated by gaping spaces. war,” he explained. the left leg still hurts him some.”

46 Georgia Bar Journal Allie was exhilarated. She was had to find the missing clip, and she one-room home before, noting with certain that Adam’s father had had to find out everything Adam a pang that the walls were covered been at the scene of the murder, knew about the murder. He knew in newspaper and that they were lit but had no proof. Yet. that phone lines and Lyle’s tires had with one bare lightbulb hanging been cut. He knew that Jennifer was from the lopsided ceiling. shot through her bedroom window. “Yep. I know’d ‘em all. I raised Jimmy was in his office when Adam may have done this, but Allie Mr. Will, Mr. Robert and now Mr. Allie flew through his door flushed felt that his father had a hand in it. Adam. I also know’d Mr. Jim with excitement. She spit out the Patrick, Lyle’s daddy, back when details of her trip to the Patrick’s he owned this here land.” farm with Ben in rapid-fire bursts. At Ben’s suggestion, Allie set up “What was your job with “Allie, this doesn’t mean any- an appointment with one of Robert the family?” thing. I don’t see any motivation Gannon’s oldest employees, Joe “Well, back when the Patrick here for Robert Gannon.” Thornton. Ben told Allie that Joe family owned the land, I was fore- “Well, if either Robert or Lyle Thornton had lived on Gannon land man and ran the crews that knew that they are brothers, either all of his life and likely lived there worked the land. Back then it was of them could have a motivation when the Patricks owned it as well. cotton. But of course, Mr. Will for the murder,” she defended. Joe was about 90 years old, bought the Patrick land and every- “How’s that?” Jimmy sneered. although he was uncertain since he thin’ changed after that.” “Lyle is extremely religious and never had a birth certificate. “What do you mean?” would not have wanted his daugh- On the day Allie met him he “Will Gannon was greedy. He ter to have relations with a first looked like a little dried up raisin wanted to diversify. He divvied up cousin. But he was so crushed by elegantly attired in his Sunday best. the land into cotton fields and fields Jennifer’s death. I cannot imagine He had donned his straw fedora for corn. He carved out a special that he could have hurt her. Also, I and diamond tie clip and pulled it piece to raise racin’ horses. Once he think Adam said that he and all together with a ruby ring on his took over, I worked everythin’ but Jennifer were getting back together. little finger. He had rolled himself the horse farm. I don’t know much If Robert knew that he may have out of his one-room home on the about horses. I used to ride ‘em thought it necessary to reveal the Gannon’s property to sit and wait around the different pastures a lit- fact that Jennifer and Adam were for her in a lawn chair next to his tle, but a rabbit spooked my horse first cousins to avoid a marriage. pink 1956 Buick. Although Joe had one day and I fell with him on toppa Such a revelation would lead to the to get around in a wheelchair, he me. I ain’t walked much since. Mr. discovery of Lyle’s paternity, and didn’t like sitting in one. Robert lets me stay here free. So, I that Lyle’s father was Will Gannon. Allie pulled up in her sputtering got nothin’ to complain about,” he This would enable Lyle to make a Pontiac T1000. She was lucky to said ruefully, false teeth clacking a claim for half of the Gannon proper- have arrived at all in that beast. Joe bit as he closed his mouth. ty. I would think that would be looked up at her with amusement “What did you mean when you motivation enough. Also, Lyle could twinkling in his eyes. said that you raised Will, Robert expose the fact that Jennifer was “Howdy! You Miss Thompson?” and Adam?” Adam’s cousin, prevent the mar- “Yes, and I presume you are Mr. “I took them out to the pastures riage and still make a claim for half Thornton?” she shot back waving and taught them about the land of the land,” she explained slowly. and smiling at the spectacle he and how to take care of it. Mr. Will “Sounds like you just took a wills made next to his pink car. “Ben understood, but ignored every- and estate exam,” snorted Jimmy. told me all about you.” thing I told him. Mr. Robert never “And then there is the shoe!” she “Yeah, well, Mr. Ben is nice did understand, even though I said with mounting excitement. enough, but he is a sorry fella, that talked to him about soil and puttin’ “Huh?” Jimmy grunted. one,” Old Joe said with a smile. certain crops back into the land for “I noticed that one of the plaster “But we can’t all be ambitious,” he the nutrients. He only cared about shoe casts indicated that the wear- said with a grin, revealing a twin- money, what he could buy and er limped on the left side. Robert kle of gold. where he could go. He was so upset limps on his left side.” “Mr. Thornton, I am here to ask when he had a deaf son. It just did- “Allie, folks all over the county you a few questions about the n’t fit in his life, no how. Now Mr. limp. Do you want the sheriff to go Patrick family. And the Gannons. I Jim Patrick, he knew how to care out and arrest all of them?” understand that you worked for for the land. He had a beautiful “No, just Robert Gannon,” she both of them, right?” Allie asked in farm. I learned everythin’ I know quipped. her most official manner while from him.” Allie realized that she was a long peering into Joe’s home with “What else can you tell me way from proving anything. She amazement. She had never seen a about Adam? Did you know

June 2010 47 that he was arrested for the mur- ning. Even when evidence began Joe was back out by his car again, der of Jennifer Patrick, Jim mounting against Robert, she still this time with a blanket. He felt Patrick’s granddaughter?” thought that Adam had killed chilly, and his legs hurt once the “I know’d he was arrested, but Jennifer. He was so stoic. So sun started to descend. He greeted Jennifer wudn’t no granddaughter unmoved. She had seen him in the duo affably when they arrived. of Jim Patrick,” he muttered quietly. pensive moments, but most of the Allie looked at Joe. “How do you know that?” time he seemed cold and detached. “Joe, I need to make certain that “Ever’body knew. We would see “Joe, I don’t know what to say,” I understand everything he says. Mr. Will going over to Mrs. Patrick’s Allie muttered in disbelief. Can you interpret what Adam is when Mr. Jim was away. I worked “You don’t know them people saying for me?” the Patrick land then. We knew what like I do,” Joe said kindly. “Mr. Joe nodded his head. happened, and she was stickin’ out Robert was always the problem, not “Adam,” Allie said, catching the to here when Mr. Jim came back Adam. Adam has a good heart. He boy’s eye after quickly jotting from the war,” he said gesturing might get a little confused some- down her question. “What were with his hand over his stomach area. times, but he ain’t bad. I know that you doing the night Jennifer was “Mr. Jim was a good man.” he thinks them ninjas crawl around shot?” she asked, while showing “Do you think Adam killed on a regular basis, and I know that’s him the written version. Jennifer Patrick?” a little off, but he couldn’t a kilt no Adam began to speak, enunci- “No, m’am. I don’t believe he did.” one. He tried to shoot deer like the ating every word as carefully as “Why not?” rest of the boys around here and he could. “I have proof, or at least I think I couldn’t. He’s never wanted to hurt “He’s a sayin’ that he was at do. Somethin’ strange has been anythin’. But Mr. Robert has always Jennifer’s house that night, but going on for sure,” he said. “I been done anythin’ he could for a buck. that he saw Jennifer every night,” meanin’ to call the sheriff, and was He ain’t never cared if it was legal Joe explained. glad when you called.” He stretched or illegal. And he’s always had a “Adam,” Joe said, acknowledg- out his withered legs and Allie was cold streak. He don’t care about ing Allie’s questioning look, “was shocked at their thinness. people like he should.” anyone else there the night that “I don’t have much to do now Allie nodded her head, still Jennifer was killed?” that I’m not workin’ and I like to sit amazed at the turn of events. Adam hung his head. outside on a good day, ‘specially if “It might be hard for you to talk Allie touched Adam’s arm. “Joe there is a breeze like there is now. to Adam ‘bout the night the Patrick saw your dad burying some boots Last week, right before dark, I was girl got shot since his parents never and gloves and maybe a gun clip,” sittin’ out here, right by my car, wanted him to speak much. They Allie explained. “Do you know and Mr. Robert came by drivin’ thought he sounded funny and why he would have done that?” real fast. He drove out behind the cared more about what other people Adam did not respond. stable there and got out with what thought than about Adam’s feel- “Did you kill Jennifer?” Allie looked like a pair of boots and ings. So, even though he can do it, asked. some gloves and what appeared to Adam ain’t too good ‘bout talking. “No.” be a clip to a semi-automatic He sort of gets embarrassed. He “Did your dad kill Jennifer?” weapon, like Adam’s deer rifle.” might need some help. You can Tears began to stream down Allie raised her eyes to Joe in bring him here, if you’d like,” he Adam’s face. His hands shook as question. suggested. “Him and me used to go he quickly wiped away his tears “He grabbed a shovel from the fishin’ and he would talk to me and began to speak. stable and started diggin’ faster than some. I figured out how to tell what “He’s a sayin’ that his dad did I’d ever seen anyone dig. He buried he was sayin’ then. He might open not kill Jennifer, but that them nin- that stuff about 50 feet out from the up to me now.” jas did it. He’s sayin’ he saw them,” stable. Horses have trampled the Allie nodded and looked at Joe Joe explained. dirt down since then, but I don’t with newfound appreciation. She “What weapons did the ninjas think it would be that hard to find. wanted to speak with Adam and use, Adam?” Allie asked. Don’t think he could see me ‘cause I Joe before she called the sheriff. Adam looked frantically at Allie was kinda hidden behind this big ol’ and Joe, speaking with an animat- taillight here,” he grinned, patting ed voice and waving gestures. the back end of his Buick. “If I were Late that afternoon, she man- “He’s saying that he told you that you, I’d call the sheriff and tell him aged to find Adam in town. them ninjas shot into her window!” to get over there and start digging.” Together they drove back to Joe Joe said. Allie’s knees nearly buckled. She Thornton’s one-room shack. She “But Adam,” Allie interjected, “I had been convinced that Adam wasn’t sure what Joe thought he didn’t think ninjas used guns or was guilty, nearly from the begin- could do, but it was worth a shot. automatic weaponry, although I

48 Georgia Bar Journal admit I don’t know very much moved his hands and body to illus- know. He’s guessin’ at some of about ninjas.” trate his words. Allie felt as if she that,” Joe explained, watching as Adam looked at his hands, avoid- understood most of what Adam Adam wiped tears from his face. ing both Joe’s and Allie’s eyes. was saying by watching his grace- Adam sobbed, breathing heavi- “Adam,” Joe said, getting ful movements, but she also need- ly, feeling a sense of relief. He was Adam’s attention by gently touched Joe’s help. It was as if she was shaking so much that he had to ing his arm. “What’s going on? watching a movie acted out by lean against the car. Do you know why your daddy Adam and narrated by Joe. “What do you want to do, buried the boots, and gloves and Adam began speaking again. Adam?” Allie asked. that rifle clip?” Allie looked to Joe. “Could you call the sheriff?” Adam held his head, sobbing “He’s saying that he liked he asked, standing up again look- in anguish. watchin’ Jennifer’s house for a ing out over his family’s pastures “Adam,” Allie said, “did you while, and usually left after she and stables. He was steadied by ever ask your dad about what hap- turned her light out to go to the vast horizon across his fami- pened that night?” bed,” Joe said, watching Adam ly’s fields and Joe’s solid gaze in Adam sighed and began to speak. moving his hands to mimic his direction. “He’s sayin’ that he cain’t speak Jennifer turning out the light and “I can talk now.” none to his dad,” Joe explained. going to sleep. “His dad cain’t understand him “Then, when he was ‘bout to go, Cynthia L. Tolbert is a and dudn’t want to hear what he he saw someone stand up by the senior attorney with has to say.” road across from Jennifer’s house. Buckley King in its Although Joe was interpreting, He says it was hard to see, but he Atlanta office, practic- Adam struggled to say each word believes he saw a gun. He says the ing in the field of clearly for Allie. Adam touched man started crawling and then he products liability, pro- his chest. saw him crawling up to Mr. fessional liability and premises lia- “He cain’t tell him how he feels,” Patrick’s truck. He said that the bility litigation. She is licensed to Joe said. “He cain’t tell him that he man cut the tires,” Joe said watch- practice law in Louisiana, has always hurt his feelings. He ing Adam making a jabbing move. Mississippi and Georgia. Tolbert says he is a problem to his dad. He “Then he says that the man cut the graduated from the University of thinks his dad would like it better phone lines,” Joe repeated as Adam Mississippi School of Law. Prior to if he wudn’t around.” demonstrated how the lines were law school she earned a Masters Adam, exhausted by the effort it cut. “And then he says that the man of Education from the University took for him to speak, rested when shot into Jennifer’s window,” Joe of Southern Mississippi. She was Joe spoke, but began immediately said, looking at Adam carefully. an associate professor at Loyola after Joe stopped. Adam was sobbing and shaking University School of Law from “Adam’s sayin’ that his dad uncontrollably. Adam put his face 1993-96 and managed the hates the sound of his voice and in his hands. Homelessness Clinic for the Gillis that he thinks that it reminds him Joe waited for Adam to continue. Long Poverty Law Center at that that he ain’t perfect.” “He says that he wanted to get out time. Tolbert has published several Allie’s heart ached for the boy. of his truck and stop him but he professional articles. This is her He was struggling to speak clearly, couldn’t. He says he couldn’t move!” first published work of fiction. She and she was struggling as hard to Adam wept uncontrollably. resides in Atlanta with her hus- understand, writing as Joe spoke. “He thinks he coulda saved band. Tolbert may be contacted at “His dad followed him the night Jennifer if he coulda gotten out of [email protected]. Jennifer was kilt and saw him the truck,” Joe explained. comin’ out of her window,” Joe Adam continued speaking, mov- continued. “His dad came up to ing his hand over his face. him before he got in his truck and “When the man came back from told him to go home. But he didn’t. the house he could see him better After his dad left, Adam pulled his because the moon was shining on truck back off of the road to watch his face,” Joe explained. “He says it Jennifer’s house,” Joe said, watch- was his dad. He thinks his dad ing Adam’s hand gestures. killed Jennifer, but he don’t know ® “So you pretended to leave, but why!” Joe exclaimed. you didn’t?” Allie asked. “Adam thinks his dad used his “Yes!” Adam shook his head gun and then put it back in his with some relief, happy she had truck the morning after Jennifer Discount amount varies in some states. One group discount applicable per policy. Coverage is individual. In New York a premium reduction is available. Some discounts, coverages, payment plans and features are not available in all states or in all GEICO companies. understood. When he spoke, Adam was killed. But he don’t really See geico.com for more details. GEICO and Afﬁliates. Washington DC 20076. GEICO Gecko image © 1999-2010.© 2010 GEICO

June 2010 49 Bench & Bar

Kudos approved by the International Executive Board of > Kilpatrick the Fraternity. Only four other Georgians have Stockton LLP received honorary membership in the fraternity: announced that President Carter, Court of Appeals of Georgia James Stevens, Judge G. Alan Blackburn and Judge Sara Doyle, and a partner in the Supreme Court of Georgia Justice Harold Melton. firm’s corporate Stevens Sheehan Choi department, has > The Public Interest Law Association been named one of “Atlanta’s 40 Under 40 Rising (PILA) recently selected litigator Lance Stars” by the Atlanta Business Chronicle. Stevens was LoRusso for the third annual Serving one of only two attorneys from Atlanta law firms to Others and Achieving Results Award. make the publication’s annual listing of the top “Up PILA is a Georgia State University and Comers” among the Atlanta business community. College of Law student organization Gary Sheehan, counsel on Kilpatrick Stockton’s that promotes the goals of public interest law. PILA environmental team, was recently appointed to selected LoRusso for this award because he is a the Metro Atlanta Chamber’s Environmental “problem solver with a true passion for helping Policy and Sustainability Committee. The com- those who defend our safety.” mittee brings members together to share best practices and to encourage effective corporate sus- > The Northeastern Pennsylvania Business Journal tainability programs. named Kimberly Manning as one of the Top 25 Intellectual property partner Wendy Choi played Women in Business in Northeastern a key role in launching Atlanta’s first Intellectual Pennsylvania as selected by the National Property Inn of Court chapter. Choi serves as pro- Association of Women Business Owners gram co-chair and as a master. The prestigious (NAWBO) and the Northeastern Pennsylvania American Inns of Court are designed to improve Business Journal. Founded in 1975, the NAWBO is the skills, professionalism and ethics of the bench the unified voice of America’s more than 10 mil- and bar. lion women-owned businesses representing the fastest growing segment of the economy. > James J. Long and Thomas L. Holder were induct- ed as fellows of the College of Workers’ > Valdosta State University (VSU) Compensation Lawyers. The college is sponsored Attorney Laverne Lewis Gaskins by the Tort Trial & Insurance Practice Section of the spent two weeks in March at American Bar Association. Long and Holder are Eszterházy Károly College in Eger, both partners at Long & Holder, LLP. The firm spe- Hungary, presenting a variety of lec- cializes in the representation of injured workers in tures, many focused on the intersection workers’ compensation cases. of race, gender and law. Gaskins, who also teaches political science courses at VSU, traveled on a 2010 > Nancy Ingram Jordan was sworn in as president of Fulbright Grant, awarded through the J. William the Cobb County Bar Association. Jordan is only Fulbright Foreign Scholarship Board, the Bureau of the ninth woman to serve as president of the bar Education and Cultural Affairs of the Department association. Jordan’s father, Hon. Conley Ingram, of State and the Council for International Exchange served as president in 1958-59. They are the only of Scholars. father-daughter duo to have held this position. Jordan is a member of Brock Clay’s litigation prac- > Hon. Cynthia D. Wright of the Atlanta tice group. Her primary focus is in family law. Judicial Circuit received an official Supreme Court of Georgia Resolution > Supreme Court of Georgia Justice David recognizing her six years of service on E. Nahmias was installed as an honorary the Georgia Commission on Dispute member of Phi Alpha Delta Law Resolution. Supreme Court Justice Fraternity, International. Honorary Hugh P. Thompson presented Wright the resolu- membership is reserved for those who tion at her final Ccommission meeting in April. have never before been a member of any legal fraternity, have attained unusual distinction in > Miller & Martin PLLC was recognized at the the law on at least a statewide basis and have been Corporate Counsel Pro Bono Gala with the 2010

50 Georgia Bar Journal Bench & Bar

ALI and State Bar of Georgia Join for Luncheon Meeting by Hon. Dorothy Toth Beasley

On March 31, members of The American Law Institute (ALI) and members of the State Bar of Georgia Judicial Procedure and Administration/Uniform Rules Committee gathered in Atlanta for what is believed to be the 25th time. The Jones Day law firm hosted a luncheon in its beautiful dining room at the behest of partner and ALI member Stephanie E. Parker. The ad hoc planning committee consisted of Parker, ALI members James C. Nobles Jr. and Hon. Dorothy Toth Beasley, and J. Kevin Moore, chair of the committee, which has among its charges to “confer and advise with the American Law Institute in its work and promote its programs as may be of interest and benefit to the State Bar.” Engineering the event administratively were Michelle Garner and Gakii Kingoriah of the State Bar and Jane Giacinto and Beth Goldstein of ALI’s membership department. Special guests at the luncheon were Bryan Cavan, president of the State Bar, and Stephanie Middleton, (Left to right) Joseph Bankoff, Stephanie Parker, Hon. Paul Friedman, the new deputy director of ALI. Pamela Tremayne, Hon. Dorothy Toth Beasley, C. Wilson DuBose, Amy Totenberg and Bryan M. Cavan. The meeting’s highlight was a presentation on the Model Penal Code by Hon. Paul L. Friedman, judge of the U.S. District Court for the District of Columbia. Friedman was a stakeholders in sentencing, and discussed the impact of particularly appropriate speaker as he serves on the ALI Blakely v. Washington (542 U.S. 296)(2004)), and United council and its executive committee, is chair of the program States v. Booker (543 U.S. 220 (2005)). The hot issues still to committee and is an adviser on the institute’s project on the be resolved by the council and the membership, he said, sentencing provisions of the Model Penal Code. He first dis- were determinate versus indeterminate sentences; “sec- cussed the ALI membership’s 2009 resolution, subsequent- ond look” provisions for determinate sentences, such as ly affirmed by the council, to withdraw § 210.6 of the compassionate release; and the sentence of life without Model Penal Code dealing with the death penalty, describ- parole and its ramifications. Friedman related that, to ing the procedural steps leading to this action. Friedman ensure that his presentation was up to date, he had gone to then discussed ALI’s current sentencing project. Luncheon the Supreme Court the previous day to hear arguments in attendees received copies of the council’s report to the ALI two sentencing cases, Dillon v. United States, involving membership on the death penalty, as well as copies of Prof. resentencing and sentencing modifications, and Barber v. Kevin R. Reitz’s article “Demographic Impact Statements, Thomas, involving how to calculate good-time credits. O’Connor’s Warning, and the Mysteries of Prison Release: Discussing the death penalty, Friedman related the histo- Topics from a Sentencing Reform Agenda,” published in vol- ry of its inclusion in the Model Penal Code, the Supreme ume 61, number 4, of the Florida Law Review. Court’s citation to § 210.6 of the Model Penal Code in 1976 Friedman pointed out that the institute’s work on the when it determined that the death penalty could be admin- Model Penal Code was particularly significant because no istered in a constitutional way, the use of § 210.6 in the work in the field of criminal law had been undertaken by states and finally the events that led ALI to withdraw the ALI since the code’s adoption in 1962. He said the original provision: the 2007 motion by Profs. Ellen Podgor and sentencing provisions focused on rehabilitation, providing Roger Clark that the institute state its opposition to the for indeterminate sentences imposed with judicial discre- death penalty, the institute’s commission of an extensive tion, as well as with parole board discretion after certain report on the death penalty prepared by Profs. Carol periods of time had been served. In contrast, Friedman Steiker and Jordan Steiker and the membership’s vote at noted the recent trend emphasizing punishment or retribu- the 2009 Annual Meeting on the council’s recommendation tion rather than rehabilitation, as many jurisdictions have that the provision be withdrawn from the Model Penal adopted determinate sentencing with the objective of Code. Friedman was the council member who presented “truth in sentencing.” The new Model Penal Code recom- the council’s report and resolution to the membership. mends a hybrid approach that would allow the pursuit of Looking ahead, Friedman mentioned several other areas utilitarian goals like rehabilitation, but only when the sen- of criminal law that may be taken up by ALI, such as collat- tence is also proportionate to the gravity of the offense. He eral consequences of sentences and the outmoded defini- described different versions of sentencing guideline sys- tions of certain crimes, particularly sex crimes. He ended tems, noting that some states have sentencing commis- his lively discussion by urging participation in the sentencing sions, which ideally are composed of representatives of all project and in other important ALI work.

June 2010 51 Bench & Bar

Corporate Counsel Pro Bono Initiative Gala On the Move Award for their commitment to providing free legal services to the needy. The gala is part of the In Atlanta Tennessee Bar Association’s Corporate Counsel Pro > Davis, Matthews & Quigley, P.C., Bono Initiative, which encourages and supports pro announced that Wayne Morrison was bono activities for lawyers serving as in-house and named a shareholder in the firm. corporate counsel in the state. Morrison practices in the firm’s family and domestic law section. The firm is > Locke Lord Bissell & Liddell partner located at Fourteenth Floor, Lenox Towers Brian T. Casey, who co-chairs the firm’s II, 3400 Peachtree Road NE, Atlanta, GA 30326; 404- corporate insurance practice group, 261-3900; Fax 404-261-0159; www.dmqlaw.com. has been named by Life Settlement Review as one of its “Top 10 Most > Banking attorney Jim Wheeler joined Influential People in the Life Morris, Manning & Martin, LLP, as a Settlement Industry” for the second year in a row. partner in the firm’s financial institu- tions, corporate, mergers and acquisi- > Matthew J. Calvert, a partner in the tions and securities practices. The firm is litigation and intellectual property located at 1600 Atlanta Financial Center, practice in the Atlanta office of 3343 Peachtree Road NE, Atlanta, GA 30326; 404- Hunton & Williams LLP, was appoint- 233-7000; Fax 404-365-9532; www.mmmlaw.com. ed board president of Atlanta Legal Aid Society, Inc. As president, Calvert > Miller & Martin PLLC announced that Laura Gary will lead the board in overseeing the operations of joined the firm as an associate in the litigation the society and advising the executive director department. She was previously with King & and staff on operational matters; preside over Spalding. Gary concentrates her practice on business board and executive committee meetings; and and tort litigation. The firm is located 1170 Peachtree assist with fundraising. St. NE, Suite 800, Atlanta, GA 30309; 404-962-6100; Fax 404-962-6300; www.millermartin.com. > Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, named Steven G. Hall its firm- > Musa L. Eubanks announced the formation of wide 2010 Baker Donelson Pro Bono Attorney of Eubanks Law Group, LLC. The firm handles the Year. A shareholder in the firm’s Atlanta employment, personal injury and commercial liti- office, Hall was recognized for his extensive pro gation. The office is located at 3455 Peachtree Road bono efforts on behalf of the Metropolitan Atlanta NE, 5th Floor, Atlanta, GA 30326; 404-459-9250; Fax Task Force for the Homeless. Since late 2008, Hall 404-420-2137; www.eubankslawgroup.com. has represented the task force in ongoing litigation that has threatened to shut down its facility. > Swift, Currie, McGhee & Hiers, LLP, announced that David L. Pardue joined > Dennis Keene, a partner with the law the firm as a partner. Pardue represents firm of HunterMaclean, will speak at clients in a wide variety of complex the ALFA International seminar in business litigation matters. The firm is Paris, France, in September 2010. The located at 1355 Peachtree St. NE, Suite seminar will unite leaders from top 300, Atlanta, GA 30309; 404-874-8800; Fax 404-888- international law firms to address 6199; www.swiftcurrie.com. timely legal issues. The seminar, which is hosted by ALFA’s International Law Practice Group, is > Dr. Tina Mc- titled “The Legal and Business Consequences of Keon, Andrew ‘Going Green.’” Keene is scheduled to speak Meunier and Dr. about the impact of new environmental legisla- Christopher tion on product liability claims in the construc- Curfman tion and real estate industries. announced the McKeon Meunier Curfman opening of the intellectual property law firm McKeon, Meunier, Carlin & Curfman, LLC. Dr. Miles Hall joined the firm as an associate. The firm focuses heavily on the

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life sciences sector, drawing on the principals’ > Seyfarth Shaw LLP announced that real estate part- strong legal and technical backgrounds in biotech- ner Steven L. Kennedy was named managing part- nology, chemistry, pharmaceuticals and medical ner of the firm’s Atlanta office. The firm also relo- devices. The firm is located at 817 W. Peachtree St., cated its office to one of the city’s newest properties, Suite 900, Atlanta, GA 30308; 404-645-7700; Fax 404- in the process becoming one of Atlanta’s first law 645-7707; www.m2iplaw.com. firms to seek the coveted LEED Commercial Interiors Silver certification for green design. The > Nall & Miller, LLP, announced that firm is now located at 1075 Peachtree St. NE, Suite John D. Hocutt was named partner. 2500, Atlanta, GA; 404-885-1500; Fax 404-892-7056; Hocutt’s practice concentrates in the www.seyfarth.com. areas of health care law, insurance law, motor carrier litigation, premises liability, > Hale E. Sheppard was promoted from junior product liability, professional liability, shareholder to full equity shareholder with toxic torts and trial practice. The firm is located at 235 Chamberlain, Hrdlicka, White, Williams & Peachtree Street NE, Suite 1500, Atlanta, GA 30303; Martin. Sheppard specializes in tax audits, criminal 404-522-2200; Fax 404-522-2208; www.nallmiller.com. tax investigations, tax appeals and tax litigation.

Georgia Rising Stars This list recognizes the top up-and-coming attorneys in the state—those who are 40 years old or younger, or those who have been practicing for 10 years or less.*

Baker, Donelson, Kilpatrick Stockton LLP Parker, Hudson, Rainer Hallie M. Meushaw Bearman, Caldwell & Blair Andrews & Dobbs LLP Evan H. Pontz Berkowitz, PC Frank L. Bigelis Keith R. Blackwell Thomas E. Reilly L. Clint Crosby Candice C. Decaire David B. Darden Andrea Rimer Erica V. Mason Audra A. Dial F. Richard Rimer Jr. Damany F. Ransom Kristin J. Doyle Smith Moore James E. Schutz Scott N. Sherman Alex S. Fonoroff Leatherwood LLP John W. Stephenson Jr. Carl R. Varnedoe Geoffrey K. Gavin Aaron E. Pohlmann Brian A. Teras R. Charles Henn Jr. Jennifer Pritzker Jaime L. Theriot Burr & Forman LLP Wab P. Kadaba Sender Trenton A. Ward Kathryn Y. Bouchillon Russell A. Korn Hunter Yancey Erich N. Durlacher Steven D. Moore Stites & Harbison PLLC Bryan T. Glover James R. Paine Ron C. Bingham II *This is not a complete Kwende B. Jones Michael S. Pavento Kenneth B. Franklin list of all State Bar of Ashby L. Kent Shyam K. Reddy Georgia members F. Maria Sheffield Gary R. Sheehan Jr. Troutman Sanders included in the publica- Graham H. Stieglitz Burleigh L. Singleton Matthew R. Almand tion. The information James W. Stevens Daniele Bourgeois was compiled from Fisher & Phillips LLP Chad V. Theriot Tyler B. Dempsey Bench & Bar submissions Sarah J. Hawk Wilson L. White Heather M. Ducat from the law firms Brian Herman Paul Davis Fancher above for the June Shanon Stevenson Miller & Martin PLLC Andrea M. Farley Georgia Bar Journal. Jimmy Daniel Nicholas R. Farrell HunterMaclean Joe Delgado Seth T. Ford Jennifer Dickinson Jennifer Grippa David W. Ghegan Brad Harmon Catherine King Alison A. Grounds Adam Kirk Michael Kohler Brian C. Harms Nicholas Laybourn Ryan Kurtz Steven J. Hewitson Bates Lovett Tamika Nordstrom Eric A. Koontz Colin McRae Jim Woodward Lindsay S. Marks Rachel Young Brandon F. Marzo

54 Georgia Bar Journal Bench & Bar Georgia Super Lawyers In selecting attorneys for Super Lawyers, Law & Politics employs a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.*

Baker, Donelson, John M. Tatum Mitchell G. Stockwell Jeffrey R. Kuester Charles F. Palmer Bearman, Caldwell & Harold B. Yellin Phillip H. Street William G. Leonard Thomas O. Powell Berkowitz, PC Arnold C. Young Jerre B. Swann Henry M. Quillian III J. Kirk Quillian** Robert G. Brazier Neal J. Sweeney Marc A. Taylor Daniel S. Reinhardt Linda S. Finley Kilpatrick Stockton LLP Virginia S. Taylor Stephen W. Riddell David E. Gevertz Miles J. Alexander Troutman Sanders LLP James A. Trigg Frank E. Riggs Jr. Charles T. Huddleston Rupert M. Barkoff James W. Addison Rex R. Veal Douglas D. Salyers Linda A. Klein Joseph M. Beck Saba Ashraf David M. Zacks June Ann Sauntry Edmund J. Novotny Thomas J. Biafore Gregory W. Blount Ryan A. Schneider Michael J. Powell W. Stanley Blackburn Long & Holder, LLP Terry C. Bridges James F. Bogan III Thomas L. Holder Richard H. Brody Lynette Eaddy Smith Burr & Forman LLP Bill Boice James J. Long Randy E. Brogdon William Calvin Smith Danielle J. Cole Mark S. VanderBroek Richard R. Boisseau Miller & Martin PLLC Robert H. Buckler Betsy P. Collins Wayne R. Vason William H. Brewster Bryan Cavan Maureen Theresa Paul Burke O’Hearn E. Fitzgerald Veira Susan A. Cahoon Danny Griffin Callahan Oscar N. Persons Robert W. Webb Jr.** Richard R. Cheatham Tom Harrold Margaret Claiborne Edgar C. Snow Jr. Allen S. Willingham Richard Cicchillo Jr. Chris Parker Campbell Constangy, Brooks Steve Clay Ezra H. Cohen A. Michelle Willis & Smith, LLP Jim Tramonte James H. Coil III Mark H. Cohen William N. Withrow Jr. Carl Cannon Parker, Hudson, Brian G. Corgan John J. Dalton** Frank B. Shuster Rainer & Dobbs LLP Theodore H. Davis Jr. Bobbi Acord Noland N. Karen Deming *This is not a com- Ellis, Painter, plete list of all State Ratterree & Adams LLP Scott M. Dayan Armando L. Hazen H. Dempster Bar of Georgia mem- Sarah B. Akins William E. Dorris Basarrate II W. Brinkley bers included in the Robert S. Glenn W. Randy Eaddy Ronald T. Coleman Jr. Dickerson Jr. publication. The Paul W. Painter Jr. James L. Ewing IV C. Edward Dobbs William M. Droze** information was Candace Oxendale Rufus T. Dorsey IV Mark L. Elliott R. Clay Ratterree compiled from Bench Fowler Charles E. Elrod Jr. Scott A. Farrow Fisher & Phillips LLP & Bar submissions Lynn E. Fowler William J. Holley II Ira Genberg D. Albert Brannen from the law firms Jamie L. Greene Paul L. Hudson Jr. Richard Gerakitis F. Kytle Frye III above for the June Randall F. Hafer Kenneth H. Kraft David F. Golden Ann Margaret Pointer Georgia Bar Journal. Richard A. Horder John H. Parker Jr. Kevin C. Greene Thomas P. Rebel ** Selected for inclu- Hilary P. Jordan J. Marbury Rainer Robert W. Grout Kim K. Thompson sion in the March M. Andrew Kauss Leo E. Reichert Stanley H. Hackett 2010 Law & Politics’ Hull Barrett, PC Alfred S. Lurey Ashley Z. Hager Jonathan L. Rue Super Lawyers, Douglas Batchelor Todd C. Meyers David G. Russell Charles A. Hawkins Corporate Counsel James Ellington Daniel J. Mohan J. Alston Thompson Jr. Douglas A. Henderson Edition which lists George Hall George L. Murphy Jr. Hollister A. Hill Stites & Harbison PLLC attorneys from across David Hudson Matthew H. Patton Michael D. Hobbs Jr. the United States that R. Daniel Douglass Patrick Rice Mindy S. Planer John P. Hutchins have been recognized T. Matthew Mashburn HunterMaclean William R. Poplin Jr. John H. Johnson Jr. in previous 2009-10 Taylor English Duma LLP LeeAnn W. Aldridge John S. Pratt Jeffrey W. Kelley state and regional edi- William A. tions of Super Lawyers T. Mills Fleming Susan H. Richardson James A. Lamberth** Clineburg Jr. magazine in the prac- Wade W. Herring II Jennifer Stobie Bryan B. Lavine Foy R. Devine tice area of business Christopher W. Phillips Schumacher Stephen E. Lewis Randy C. Gepp litigation. Janet A. Shirley James D. Steinberg J. Timothy Mast John D. Hopkins W. Brooks Stillwell III David A. Stockton Mark J. Newman

June 2010 55 Unlockyour Potential Sign up for the Women & Minorities in the Profession Committee’s Speaker Clearinghouse About the Clearinghouse The Women and Minorities in the Profession Committee is committed to promoting equal participation of minorities and women in the legal profession. The Speaker Clearinghouse is designed specifically for, and contains detailed information about, minority and women lawyers who would like to be considered as faculty members in continuing legal education programs and provided with other speaking opportunities. For more information and to sign up, visit www.gabar.org. To search the Speaker Clearinghouse, which provides contact information and information on the legal experience of minority and women lawyers participating in the program, visit www.gabar.org. www.gabar.org the Hardest Working Site on the Web Pay Your Dues Online Directories State Bar of Georgia Handbook Join a Section Young Lawyers Division Information and Events Consumer Pamphlet Series Check CLE Vendor Directory Related Organizations Casemaker Cornerstones of Freedom Conference Center Public Information Address Change Letter of Good Standing Ethics Make it your Homepage! Bench & Bar

The firm is located at 191 Peachtree St. NE, 34th and business, and transactions. The firm is located Floor, Atlanta, GA 30303; 404-659-1410; Fax 404- at 231 Riverside Drive, Macon, GA 31201; 478-742- 659-1852; www.chamberlainlaw.com. 4280; Fax 478-742-8720; www.jbpslaw.com.

> Wit Hall, Chris In Savannah Arbery and > The partners at HunterMaclean elected Matt Gilligan administrative partner and tax attorney established the Frank S. Macgill to serve as the firm’s law firm of managing partner for a three-year term. Hall, Arbery & Macgill will provide long-term vision Hall Arbery Gilligan Gilligan LLP. and experienced leadership for the firm. The firm focuses on all aspects of workplace law, The office is located at 200 E. Saint Julian St., providing a full range of counseling, contract draft- Savannah, GA 31401; 912-236-0261; Fax 912-236- ing and interpretation and litigation services. Hall 4936; www.huntermaclean.com. and Gilligan previously practiced at Alston & Bird LLP; Arbery previously practiced at Hunton & > Dr. James Johnson, a patent attorney with over Williams LLP. The firm is located at Tower Place 25 years of experience and a former partner at 100, 3340 Peachtree Road NE, Suite 2570, Atlanta, King & Spalding LLP, announced the opening of GA 30326; 404-442-8776; www.hagllp.com. Johnson & Associates, a boutique intellectual property law firm dedicated to providing quality > Baker, Donelson, Bearman, Caldwell & Berkowitz, legal counsel for biotechnology, pharmaceutical PC, announced that Kevin A. Stine was elected a and medical device companies. The firm is shareholder and Adam Sowatzka joined the firm as located at 317 E. Liberty Street, Suite A, a shareholder and a member of the government reg- Savannah, GA 31401; 912-257-4864; Fax 678-947- ulatory actions practice group. Stine focuses his 9798; www.johnsonbiopatent.com. commercial and business litigation practice on bankruptcy, insolvency, creditors’ rights, secured trans- In Valdosta actions and intellectual property issues. Sowatzka, > Elliott, Blackburn & Gooding, P.C., previously counsel with King & Spalding, joins as announced that Joanna Smith Nijem the firm’s senior environmental lawyer in Georgia. joined the firm as an associate. Nijem The firm is located at 3414 Peachtree Road NE, Suite practices in the areas of real estate, busi- 1600, Atlanta, GA 30326; 404-577-6000; Fax 404-221- ness planning, corporate law and com- 6501; www.bakerdonelson.com. mercial finance. The firm is located at 3016 N. Patterson St., Valdosta, GA 31602; 229-242- In Athens 3333; Fax 229-242-0696; www.ebbglaw.com. > Timmons, Warnes & Anderson, LLP, announced that Adam M. Cain and Cash V. Morris joined the In Memphis, Tenn. firm as associates in the litigation division. > Rubin Lublin Suarez Serrano, LLC, a real estate McCain’s practice focuses on collections and crim- default law firm, announced the addition of a loca- inal and miscellaneous civil matters. Morris con- tion in Memphis. The office is located at 119 S. Main centrates his practice on consumer bankruptcy, St., Suite 500, Memphis, TN 38103; 901-322-8705; personal injury, social security disability and www.rubinlublin.com. workers’ compensation and miscellaneous civil matters. The firm is located at 244 E. Washington In Washington, D.C. St., Athens, GA 30601; 706-621-4665; Fax 706-546- > The American Bar Association (ABA) named Lt. 8017; www.classiccitylaw.com. Gen. Jack L. Rives as its new executive director. Rives previously served as the judge advocate gen- In Macon eral, U.S. Air Force. The ABA’s Washington, D.C., > Jeffrey M. Rutledge joined James, office is located at 740 15th St. NW, Washington, Bates, Pope & Spivey, LLP, as of coun- DC 20005; 202-662-1000; www.abanet.org. sel. His practice areas include estate and tax planning, probate and estate administration, tax-exempt organizations and charitable giving, corporate

June 2010 57 Office of the General Counsel

There Has Got to Be a Better Way!

by Paula Frederick

“ his contract stinks!” you announce, scanning

the paperwork your client has handed you. T “Did you do the math on this interest rate? The monthly percentage doesn’t sound bad, but it’s

compounded monthly—the APR is around 120 percent

per year!”

“If you can find me a better deal, I’ll take it,” your client announces. “I’ve been out of work since the accident, I’m in debt up to my ears and the only thing I’ve got that’s worth a dime is this lawsuit. Who else is going to lend me money?” Frustrated, you remind the client that you are fronting the litigation expenses in his case, and that the Rules of Professional Conduct prohibit you from providing him with money for living expenses. “I’m not asking you for money,” the client insists. “PreSettlementCo will give it to me with no credit check, no collateral and no monthly payments. I don’t even have to pay them back if we lose! All you have to do is call and tell them that I’ve got a rate. Rusty has a great case, but he can’t afford to hold good case.” out for the offer he deserves.” Back in the office, you share your reservations with Resigned, you pick up the telephone. “I bet I’ll live your partner. “I’m just not comfortable with helping to regret this,” you mutter as you dial Rusty get this advance,” you admit. “The interest rate PreSettlementCo’s number. these people charge is outrageous—I’m not sure it’s What ethics issues are involved when a lawyer helps a even legal!” client get a cash advance against a potential settlement? “Do you know anything about these pre-settlement A client who seeks pre-settlement funding authoriz- funding companies?” your partner asks. “Maybe we es the company to get information directly from the can find one that doesn’t charge such a high interest lawyer. Most companies require copies of documents

58 Georgia Bar Journal filed in the case; most also want ■ If you have an ownership inter- ■ Do not allow the company to some estimate from the lawyer est in a funding company, do interfere in the case itself, or to about the value of the case and the not refer your own clients to it. affect your exercise of profes- likelihood of success. Even where Do not accept “kickbacks” or sional judgment on behalf of the the lawyer is not a signatory to the rewards from a company for client. agreement with the pre-settlement making referrals. company, the company expects the ■ Most pre-settlement funding is Many grievances involving pre- lawyer to honor the client’s assign- “non-recourse,” and as a result settlement funding come from the ment directing the lawyer to pay the interest rates can be astro- funding company, not from the the company from the proceeds of nomical. Counsel the client client. Predictably, they arise when the case. about the pros and cons of a client instructs a lawyer not to Assuming the company is oper- accepting funding, and help the pay the company pursuant to the ating lawfully, Georgia’s Rules of client make an informed deci- agreement. Bar Rule 1.15(I) can Professional Conduct do not pro- sion about alternatives. provide guidance when there is a hibit a lawyer from helping a client ■ Do not cosign the funding docu- dispute about how the recovery obtain a cash advance against a ments, or otherwise guarantee should be disbursed. potential settlement. Before doing the transaction. Although a Although it should be an option so, however, the lawyer should lawyer may disburse client of last resort, pre-settlement fund- carefully consider some of the com- funds directly to the company ing may be a permanent fixture mon ethical pitfalls: with the client’s OK, it is a mis- in the legal landscape. Remember take for the lawyer to become to call or e-mail the Ethics ■ Although you may recommend more directly obligated to the Helpline if you have questions a company that provides pre- company. about your role in a pre-settle- settlement financing, it’s best to ■ Do not reveal confidential or ment funding agreement. do so only at the client’s secret information about the request. A lawyer who has client’s case without express Paula Frederick is the played an active role in choos- permission from the client. If general counsel for the ing the company and assisting the client consents, it is not State Bar of Georgia the client in obtaining funding unethical to estimate the value and can be reached at may be accused of a conflict of of the case and the likelihood of [email protected]. interest if things go sour. recovery.

June 2010 59 Lawyer Discipline

Discipline Summaries (February 20, 2010 through April 15, 2010)

by Connie P. Henry

Voluntary Surrender/Disbarments Thomas P. Burke Bronx, NY Deborah K. Rice Admitted to Bar in 1973 Parkland, Fla. On March 15, 2010, the Supreme Court of Georgia Admitted to Bar in 2007 disbarred Attorney Thomas P. Burke (State Bar No. On March 1, 2010, the Supreme Court of Georgia 095650). The New York Supreme Court found that accepted the petition for voluntary surrender of license Burke failed to disburse estate’s assets worth approxi- of Deborah K. Rice (State Bar No. 512724). On mately $100,000 and failed to wind up the estate as November 2009 Rice pled guilty to and was convicted required by law. Based on his failure to respond to the in the U.S. District Court for the Eastern District of investigation, Burke was suspended on an interim Pennsylvania of three felonies: two counts of mail basis for six months. Under New York disciplinary fraud and one count of wire fraud. She was sentenced procedures, Burke subsequently was disbarred due to to two years on probation. his failure to apply for a hearing or reinstatement following the suspension. Burke did not file a response to Frederick Andrew Gardner the State Bar of Georgia’s notice of reciprocal discipline Atlanta, Ga. although he was personally served. Admitted to Bar in 2002 On March 1, 2010, the Supreme Court of Georgia Jeffrey Scott Denny accepted the petition for voluntary surrender of license Carrollton, Ga. of Frederick Andrew Gardner (State Bar No. 284151). Admitted to Bar in 1998 Gardner pled guilty to a misdemeanor of obstructing a On March 29, 2010, the Supreme Court of Georgia police officer and was sentenced to 12 months of pro- accepted the petition for voluntary surrender of license bation. Gardner gave false information to a Georgia of Jeffrey Scott Denny (State Bar No. 218397). Denny Bureau of Investigation agent during an interview pled guilty in the Superior Court of Douglas County, regarding a real estate closing. Gardner falsely told the GA, to three felony counts of Fraud-Financial Identity agent that he had instructed his employees to notify the and one felony count of Forgery. lender about the back-to-back closings of the property and misled the agent as to why money had not been Review Panel Reprimand disbursed after the first closing. Ralph James Villani In determining the level of discipline, the Court rec- Gainesville, Ga. ognized that mortgage fraud is a very serious problem Admitted to Bar in 1993 in Georgia and that real estate closing attorneys are On March 1, 2010, the Supreme Court of Georgia relied on by their lender clients and by the public to act accepted the Petition for Voluntary Discipline of Ralph ethically and lawfully to identify and prevent such James Villani (State Bar No. 727700) and ordered that fraud, rather than facilitating and concealing it as he be administered a Review Panel reprimand. A client Gardner did. hired Villani in August 2007 concerning the death of

60 Georgia Bar Journal her son. Villani failed to timely and properly respond to the client’s inquires and she discharged him in December 2007. The client had paid Villani $15,000 and she requested an accounting of his services and a refund of fees. Villani provided a billing statement, but the client disputed it and continued to request at least a partial refund. Villani did not return any fees and the client filed a fee arbitration petition with the State Bar. In November 2008 the fee arbitration panel awarded the client $6,500. Villani admitted the fee was unreasonable and refunded that amount. In mitigation, Villani stated that he cooperated with the with him. In the meantime, Mathis ure to do promised legal work for State Bar, that he was remorseful filed the petition in August 2007. two clients despite accepting and accepted responsibility for his The client discharged Mathis in retainer fees from them, and misconduct, that he had no disci- October 2007 and hired new coun- for his failure to communicate pline aside from an Investigative sel. The client subsequently filed a with these clients. Reinstatement Panel reprimand in 2001, and that fee arbitration petition against was conditioned upon satisfactory he refunded the $6,500. Mathis and he then returned $500 proof to the Review Panel that he to the client. had reimbursed the retainers. Craig Steven Mathis The Court found in mitigation Hudson submitted copies of can- Leesburg, Ga. that Mathis cooperated with the celled checks payable to the clients Admitted to Bar in 1991 State Bar, he was remorseful and as well as proof that he satisfied On March 15, 2010, the Supreme he refunded $500 to the client. the judgment one client obtained Court of Georgia accepted the against him. Petition for Voluntary Discipline of Interim Suspensions Craig Steven Mathis (State Bar No. Under State Bar Disciplinary Connie P. Henry is the 477027) and ordered that he be Rule 4-204.3(d), a lawyer who clerk of the State administered a Review Panel repri- receives a Notice of Investigation Disciplinary Board and mand. In May 2007 Mathis agreed and fails to file an adequate can be reached at to represent a client in a child cus- response with the Investigative [email protected]. tody matter. His secretary con- Panel may be suspended from the ferred with the client and had the practice of law until an adequate client sign a sworn “Verification” response is filed. Since Feb. 19, to be used in the petition for 2010, four lawyers have been sus- For the most change in custody. The petition pended for violating this Rule and had not been drafted at the time three have been reinstated. up-to-date the client signed the Verification, in which he swore and attested that Reinstatement information on the facts in the petition were true Ike A. Hudson and accurate. The client also signed Newnan, Ga. lawyer discipline, an employment agreement and Admitted to Bar in 1979 paid $1,500. In a June 2007 tele- On March 15, 2010, the Supreme visit the Bar’s phone call the secretary read to the Court of Georgia accepted the client the petition drafted by petition for reinstatement of Ike A. website at Mathis and confirmed the accuracy Hudson (State Bar No. 374518) of the allegations. When the peti- and ordered that he be reinstated www.gabar.org tion was not filed as expected, to practice law in the state of /ethics/recent_ the client attempted to call Mathis Georgia. In 2008 the Court accept- and arrange a meeting but he ed Hudson’s petition for volun- discipline/. spoke with Mathis only once in tary discipline and imposed a one- September 2007 and never met year suspension, based on his fail-

June 2010 61 Law Practice Management

Hot Technology Basics for 2010 by Natalie R. Kelly

This article is a revision of the article, “Hot Technology Basics for 2001” that appeared in the April 2001, Vol. 6, No. 5, issue of the Georgia Bar Journal.

he Law Practice Management Helpline

receives more calls for technology advice than T it does on almost any other subject. Let’s talk about some of the basics and review some of the most popular technology products and services for lawyers.

Basic legal computing requires a few things. I have found that while most firms have these systems in place, every now and then I encounter firms who still haven’t bothered to catch up. So, here’s my short list of the basic technology must- haves for today’s lawyer. Networked Computers In 2001, I wrote, “With the rarest of exceptions, the benefits of networking computers far outweigh any reason for not linking your computers together. The ability to share file information and resources, like printers, is reason alone to hunt down a local computer consultant for an estimate on running the cables from one computer to the next. If you are one of the ‘techno dinosaurs’ that remains, please contact our program for more information and a review of specific needs for networking computers in your office.” Today, most firms do have a network and now need to focus on network reliability and stability, i.e., no down time. And with more people using databases to keep

62 Georgia Bar Journal up with their firm information, you must be careful when using wire- N D L less networks. While typically very Norwitch Document Laboratory convenient, it is important to know Forgeries - Handwriting - Alterations - Typewriting that relational databases do not Ink Exams - Medical Record Examinations - “Xerox” Forgeries work well on them, if at all; and most practice management, time F. Harley Norwitch - Government Examiner, Retired billing and accounting applications Court Qualified Scientist - 27 years. Expert testimony given in are databases of this type. excess of three hundred times including Federal and Off-shore Backups 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 Another scary thing is that www.questioneddocuments.com lawyers are still found storing all of Telephone: (561) 333-7804 Facsimile: (561) 795-3692 their work on computers, but not performing any type of backup. Whether you choose to copy files to thumb drives, CDs or DVDs, or Transportation Litigation invest in an online data storage account, you must have some back- Mike Buck up procedures in place. You also Thirty (30) years experience in Commercial Transportation must make sure that the procedures • DOT, EPA, OSHA, State & Local Regulations work. Ask yourself this: If I am • Maintenance Processes / Industry Recommended Practices away from my office and there is a flood, can I retrieve my work? • Company Polices / Safety Practices / Accident Investigation Enough said. Backup, store backups 912-571-9149 off site and make sure you can get http://www.mcbﬂeetmanagementconsulting.com/litigation/ data back (restore routine) in case [email protected] of a disaster. If you need help with developing these procedures for your firm, don’t hesitate to contact our program. Check out www.backupreview.info for list- ings on online services and www.seagate.com for some strong tools to manage local backups.

Remember you should layer your INVESTIGATIONS BUSINESS NEEDS PERSONAL NEEDS backups to be best protected. Upgrades By now you have learned that with technology, upgrading is inevitable. Make sure you stay abreast of any upgrades that are on the market. While hard- REAL ESTATE TECHNOLOGY INSURANCE ware typically does not require as much tweaking as software, keep your techno tools sharp and in good working order. Download the latest maintenance releases, service patches or bug fixes on a regular basis. Remember the old TRIAL NEEDS OFFICE NEEDS FINANCIAL NEEDS saying about an ounce of preven- LLocateocate vvendorsendors bbyy nnameame oorr tthehe sserviceervice ttheyhey tion? It works for computers and pprovide.rovide. TThehe ddirectoryirectory iiss yyourour oone-stop-shopne-stop-shop software too. llistingisting fforor ccompaniesompanies tthathat ssupportupport tthehe aattorneysttorneys ooff tthehe SStatetate BBarar ooff GGeorgia.eorgia. Online Vendor DIRECTORY Virus Protection If you have any questions regarding the Vendor Directory, You would think that lawyers please contact Natalie Kelly at [email protected] or 404-527-8770. who are highly skilled at protecting

June 2010 63 the interests of others would have media options online. There is so “stop it and get a handheld.” no problem protecting themselves. much information and so many With many flavors to choose However, many firms operate with new options available with from, PDAs are still hot techno no form of protection from com- an enhanced Internet (YouTube gadgets and most are simply built puter viruses. Bottom line: there videos, geotagging, etc.). If you into your cell phone. These are a lot of bored computer crimi- need help moving forward with devices can hold your entire cal- nals and they will continue to build your online presence, call our pro- endar, all of your contact records, destructive programs that can gram to discuss the benefits and your e-mail and even run applica- harm other people. Make sure you the best ways to get connected and tions to help you keep up with have downloaded or purchased a caught up with the rest of us. Web everything you will need both virus protection system for your 3.0 anyone? personally and professionally. To office. Don’t think that non-net- learn more about handhelds, and worked systems don’t need it, too. Practice/Case see what applications are avail- In fact, using thumb drives and Management able for any existing device you other transportable media may might have, check out Handango make the need even more pressing. I used to have trouble explain- at www.handango.com. ing the benefits of case manage- Training ment software. There were just too Resources A pet peeve that I have is being many features to focus on. It has If you do not know much about told that training is not necessary. gotten a little easier. Now, I just legal technology, then you should Everyone has to learn how to use ask the unbeliever, “How long know this. There are many re- new systems. You can spend sev- does it take you to find a phone sources available to help you learn eral weeks (read whenever I have number for a particular judge on a more. Whether it’s an online time or the work in the office particular case, and how long does venue or service like Technolawyer slows down) or a day or two in the it take to update a change to that for legal specific information, or process. You can teach yourself number throughout the office?” www.webopedia.com or www. (didn’t someone say something With case management software learnthenet.com for technology in about “the blind leading the ...?) or you have the ability to make much general, you can look to the hire professionals. You can imme- more money and save more time. I Internet for help. Legal technology diately begin to get a return on can’t think of one reason why you shows also take place annually your investment or wait until later would not have one of these pro- around the country. Check out the (okay, much later). No one can grams that allows you to keep a American Bar Association’s Annual convince me that there is no bene- copy of the physical file on the TECHSHOW, usually held in fit to proper training. It is neces- computer. Contact our program Chicago, or the various LegalTech sary. Check out our technical con- for help in deciding what program shows that may take place in a sultations for training or use ven- will work best for you. You can’t location near you. At these shows dor-sponsored sessions to learn afford not to. you can learn the latest things about the tools you are putting in about hot legal technologies like place in your practice. For general Automated Time cloud computing, running a law training, I like www.lynda.com. Billing and Accounting office on a Mac and voice recognition software. A print publication Internet Recreating time entries for bills to check out is Law Technology In some form or another, we all you make in the word processor News. Finally, don’t forget to con- need to be able to go online. For e- and doing manual ledgers should tact the Law Practice Management mail (don’t forget to use a be things of the past, but unfortu- Program. We will be glad to help formal domain name registration nately, they are not. Today’s time with assessing your legal technolo- to avoid looking less profession- and billing and legal accounting gy needs and give you a guided al, i.e. [email protected] vs. software is the answer. Back office tour of our software library before lawyer@commercial-email- procedures are needed in all busi- you make any purchases. account.com), legal research, visit- nesses, law offices included. I can ing websites, participating in tell you that you need it and show Natalie R. Kelly is the Listservs, downloading informa- you why if you contact our pro- director of the State tion and on and on, you should gram. Trust me. Bar of Georgia’s Law harness the power of the Internet in Practice Management law offices. Many benefits lie in Handheld Devices Program and can be being able to communicate with If you are walking around with reached at others remotely and in new ways. a paper calendar in your pocket [email protected]. Consider the new wave of social or a bulky day planner, I say,

64 Georgia Bar Journal ANY STATE . ANY NATION . ANYWHERE . ANY STATE . ANY NATION . ANYWHERE. ANY STATE

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The State Bar’s Newest Office Celebrates Its First Year by Linda Edwards

ore than 275 years after its founding

as a lawyer-free colony, Savannah M made legal history on June 8, 2009, with the opening of the Coastal Georgia Office of the

State Bar of Georgia. As we celebrate the one-year anniversary of the beautiful and functional Coastal

Georgia Office, one cannot help but reflect on the rich

Savannah history the State Bar now joins.

The colony of Georgia was established by Great Britain in 1733 as the last of the original 13 colonies. Founder Gen. James Oglethorpe and 114 colonists arrived and pitched their tents on Yamacraw Bluff, which would later become known as the beautiful historic city of Savannah. A historic marker has been placed in the small park area in front of the Hyatt Hotel just west of the Coastal Georgia Office on Bay Street

marking the spot as “the most historic spot in Georgia.” Photos by Sarah I. Coole The original intent of the colony was to create a buffer between Spanish Florida and the northern English the middle of bustling Savannah, complete with a com- colonies. In addition, the Georgia colony was also mons, water feature and life-size salute to one of charged with enhancing imperial trade as well as navi- Savannah’s greats, world-renowned songwriter and gation of the coastal waterways. General Oglethorpe musician Johnny Mercer. had four rules for his new community: no slaves, no North of Bay Street lies the Savannah riverfront, Roman Catholics, no strong drink and no lawyers. which has played an important role in Georgia since its Four days after the settlers arrived, Oglethorpe began founding as a colonial port and its emphasis on export- mapping out his new settlement which would eventual- ing cotton. For over a century, trading in the Cotton ly morph into 24 squares with a network of interconnect- Exchange on Savannah’s waterfront set world cotton ed streets. Of the 24 original squares, 22 remain today. prices. The first commercial house below Yamacraw The original plan is still in use and just recently, Ellis Bluff opened in 1744. In the early 1800s, construction of Square at City Market, a short walk from the Coastal multi-storied warehouses began along the riverfront, Georgia Office, was restored as showcase green space in one of which now houses the Coastal Georgia Office. In

66 Georgia Bar Journal 1817, this warehouse area, later to be known as Factors Walk, was the original site for the Cotton Exchange. The first two floors were for the cotton coming into port. Then, in 1853, three more floors were added. The third floor was used for storage and the fourth and fifth floors were offices. Soon the whole riverfront bluff consisted of a network of alleys and iron and wood walkways connecting the buildings to the bluff. These alleys and walkways were called Factors Walk, so named because the men who worked with the cotton exchange were called factors. They factored how much cotton was brought in to be sold. This area was the center for most commercial View of the historic Savannah riverfront. activities. It was an important part port. It is also located only a few and/or Tifton. In addition, it has of Savannah’s history due to its steps away from the Savannah provided a way for Coastal Georgia impact in the cotton industry. Its Cotton Exchange whose history lawyers to participate in business historical significance has weath- came to an end with the closing of that would have previously ered the test of time. the last cotton office on the water- required travel. The office has host- Today, the history of Yamacraw front in 1956. The area was in a state ed events put on by the Young Bluff and Factors Walk is carried of decline for the next 20 years until Lawyers Division, the Lawyers forward with the opening of the revitalization began in 1977, a Foundation of Georgia, the Georgia State Bar’s Coastal Georgia Office, process that resulted in a new birth Association for Women Lawyers right here upon the very spot of this rich, historic area. Today, the and the Georgia Association of where our great state was founded, Coastal Georgia Office joins that Criminal Defense Lawyers, as well where Georgia commerce was grand history. It features a training as training events for Casemaker, born, where beautiful Savannah room that can accommodate 30-35 Law Practice Management and oth- took shape and where now, these attendees, a 14-person conference ers. From the lawyer who practices many years later, the State Bar con- room and two smaller meeting in a large firm to the solo practition- tinues to support Savannah, her rooms. The facility also offers wire- er who uses the facility to enhance people and our fellow citizens less access and video conferencing. his business, this office can accom- throughout Georgia. A large kitchenette enables users to modate everyone. The goal of the June 8, 2010, marks the one-year serve simple refreshments or pro- Coastal Georgia Office is to assist anniversary of the Coastal Georgia vide catering for groups. Georgia lawyers in any way that we Office. Just a year after a grand In reflecting over the past year, can as well as increase access to opening event attended by judges, the Coastal Georgia Office has expe- State Bar programming. We look lawyers, city and county officials, rienced steady growth as members forward to seeing you in Savannah! community leaders and the press, of the legal community across the For assistance in planning and the newest office of the State Bar state of Georgia learn about, visit implementing your programs or has turned its attention to the work and utilize the facility. Many are CLEs for your local bar association, or of helping Georgia lawyers. Amidst taking advantage of this resource for reserving space for your meeting, the hustle and bustle of the daily that provides State Bar members please send an e-mail to lindae traffic of cargo ships entering and with a convenient place to conduct @gabar.org or call 877-239-9910. exiting the Georgia Ports, the their legal business. Over the past Coastal Georgia Office has experi- year it has hosted a variety of Linda Edwards is the enced an equal burst of excitement events, including more than 30 office administrator at and activity. CLEs, numerous mediations, depo- the State Bar of The Coastal Georgia Office offers sitions, video conferences and client Georgia’s Coastal a magnificent view overlooking meetings. Access to video confer- Georgia Office in historic River Street, which was cre- encing equipment has made it easi- Savannah and can be ated in 1834 and cobbled with bal- er for area lawyers to participate in reached at [email protected]. last stones from ships entering the meetings originating in Atlanta

June 2010 67 Pro Bono Honor Roll

The Pro Bono Project of the State Bar of Georgia 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 2009. *denotes attorneys with 3 or more cases GEORGIA LEGAL Fulton Rome SERVICES PROGRAM Walter Fortson Larry Barkley Soperton Paul Carroll Felix Moring ALBANY Columbus Timothy Crouch Albany Tom Affleck Warner Robins Valerie Brown-Williams William Arey* Trenton Sherry Campbell Gregory Clark* Justin Arnold Lyndsay Sneckenberger* Jocelyn Daniell Cawthon Custer* Jacob Beil Danielle D’eor-Hynes Gail Drake* Richard Childs GAINESVILLE Gail C. Robinson Gregory Fullerton Stephanie Crosse* Athens William H. Gregory II Marc D’Antonio Arthur Archibald PIEDMONT Thomas Ledford Pete Daughtery Adam Cain Bartow Michael Eddings* Kent Silver Joshua D. Earwood Ashburn Richard Flowers Mary Faye McCord Cheryle Bryan Larry Gordon Blairsville Jane S. McElreath Stephen L. Ivie Maxine Hardy Robbie Colwell Weaver Tracey L. Rhodes Russell Hinds Leslie V. Simmons Bainbridge Ronald Iddins Buford Anthony Thomasson Josh Bell William Nash Marion E. Ellington Robert S. Toomey Pedro Quezada* Colquitt Kathryn Rhodes Clarkesville Carroll Danny C. Griffin William Rumer Douglas L. Henry Rita D. Carroll Robert Pate Turner Christopher B. Scott Dawson Joseph Wiley Cleveland Brenda H. Simkins W.T. Gamble Dorothy Williams* Raymond L. Crowell Diane M. Sternlieb Robert Wilson Macon Dawsonville Clayton Joy Webster LaGrange David Wallace Ikemesit A. Eyo W. Luther Jones Sylvia E. Hoard Thomasville Gainesville Shelba Sellers Montezuma Josh Welch Cobb G. Leonard Liggin Jeffrey D. Bunch AUGUSTA Sugar Hill Roderick H. Martin* Augusta Thomaston John V. Hogan DaCara S. Brown* Donald Snow Coweta J. Patrick Claiborne Tucker Andrea T. Bell-Pitt DeWitt R. Dent* DALTON Donald Dotson J. Edward Enoch Atlanta DeKalb Jennie M. Hyatt* Karen Fultz Woodstock Maximillion Booker Troy A. Lanier* Steven Campbell Robert W. Hughes Jr. Leon Larke* Cartersville Lecia C. King-Wade Sam G. Nicholson* Joshua Earwood MACON Yolvondra Martin Lauminnia F. Nivens Anna Johnson* Macon Shannon D. McDuffie Richard T. Pacheco II Jane McElreath Austin Carter Carolyne Richardson Alice W. Padgett* J. Roger Davis Aundrea L. Roberts Evita A. Paschall* Chattanooga Emmett Goodman Lisa J. Sowers Carl G. Schluter* Jeffrey Granillo Kathleen Hall Derick C. Villanueva Myrna Serrano Jane M. Jordan Edwin A. Wilson Dalton Richard M. Katz Douglas Fred Steven Bolding A.G. Knowles Scott K. Camp Evans Robert Cowan J.B. Marshall Robert A. Chambers Cara Sprouse Rowe Tommy Goddard Robert Matson Karmel S. Davis* Michael Hurtt* Robert Mock Jr. Christy E. Draper Lincolnton Terry Miller* Renay Montreuil Lois W. Gerstenberger Michelle Harrison Jerry Moncus Ann Parman Sheena McShan Jessica Oliva-Calderin James E. Patterson Martinez Katherine O’Gwin* Rudolph Patterson Fayette John A. Donsbach* Todd Ray* Kristin Pollard Austin F. Harper Dana Eller Niehus* Susan D. Raymond Anne S. Myers Ellijay Albert P. Reichert Jr. Sharon I. Pierce Warrenton Nancy Maddox* Rhonda Roell-Taylor Shelia L. Rambeck Arleen Evans Margrett Skinner LaFayette Floyd COLUMBUS Melissa Gifford Milledgeville A. Frank Beacham Americus Douglas Lee Price David M. Brearley Justine Arnold Ringgold Kenneth C. Fuller Lawrence Stagg Monticello James R. McKay* Timothy Lam Fulton Rockdale R. Krannert Riddle* Holle Weiss-Friedman Robert E. Brazier William G. Hammonds Gregory V. Sapp Nathan Williams Nicole K. Carson Albert A. Myers III Cynthia Faye Sheffield* John L. Choate DeVona B. Roseberry Robert Simonton* Hazlehurst Emory L. Clark* Calvin M. Walker Angela Tarabadka John B. Brewer III Karen D. Fultz Elizabeth Thomas Gwendolyn J. Godfrey Spalding Lorie Thomas Jesup Denise E. Greaves* Richard L. Collier Gwendolyn Fortson Waring W. Jefferson Hires Andrew L. Gurvey Lisa D. Loftin Wiley Wasden Richard B. Herzog C. Grant Washington Waycross Stacey M. Jenkins Walton Natasha Wilhite Mary Jane Cardwell James M. Kane Stephen Noel Caroline Vendel* Robert Cunningham John Lewis Jr. Donald W. Osborne Jeffrey Garmon Glenn A. Lowenthal Statesboro Kristi Lowery Jeffrey J. Nix Whitfield Michael Classens* Huey Spearman Rebecca D. Patrick Robert D. Jenkins Matthew Hube Shawn Wildes Laquetta S. Pearson Lorenzo Merritt Nathan Williams Anthony Sandberg* SAVANNAH April Staford Andrew M. Stevens; Pooler Lindsey Zittrouer CLAYTON COUNTY Angie M. Walton Charles Claude Grile PRO BONO Tremesha S. Willis VALDOSTA Atlanta J. Hunt Yancey Richmond Hill Michael S. Bennett Jr. Allan E. Alberga Angel Blair* James Bivins Gordon Pauline C. Council College Park James F. Ledbetter Rincon Jason A. Davis* Valrie Y. Abrahams Rebecca B. Paris Craig S. Bonnell* Jennifer Dorminey* Ethenia K. Grant Virginia Patterson Laverne L. Gaskins Greene Richard Rafter Stephen J. Gupton Jr. East Point Timothy A. Siler David Smith Laura Hayes Glenn Ashman Lori A. Huff* Kaaren Robinson Gwinnett Savannah Mickey Johnson Brook A. Davidson Solomon Amusan* Nathan C. Johnson* Fairburn Andrea J. David-Vega Karen Dove Barr* Darrow L. Kelley* Keisha A. Steed Thomas Langston Bass Jr. Jackson R. Langdale* Henry Thomas Raymond Bateski* Willis L. Miller III* Fayetteville LeAnne P. Cooper Charles W. Bell Walter D. Moody Muriel B. Montia Jeffrey G. Darling Vincent Bick* Gary L. Moser Pandora E. Parmer James Blackburn Jr. William Nijem Jr.* Forest Park E. Suzanne Whitaker Mr. Birney O’Brian Bull Robert A. Plumb Jr.* Emily C. George Jackie Caruina James R. Smith* Charles Vrono Marietta Adam P. Cerbone Luanne Smith Thomas J. Browning Elise Robinson Chisholm Tabitha P. Solomon* Jackson Jennifer S. Fitzgerald William Claiborne* William “Al” Turner William H. Turner Kris K. Skaar Thomas Cooper* Marnie H. Watson* Dorothy Courington Charles H. Watt IV Jonesboro Morgan Brian Lawrence Daly* William O. Woodall Jr. Hugh G. Cooper Brenda H. Trammell Richard M. Darden Jessica R. Young* Constance Daise Jennifer Easley* James J. Dalton Newton Celia Ervin Tifton Charles (Chuck) Driebe Reed Edmondson Stanley Earl Harris Jr. Render M. Heard Bobby Farmer Michael G. Geoffroy Stephen H. Harris* Monroe Ferguson Mario S. Ninfo Leslie Hough* Moultrie Steve M. Frey Beau A. Worthington William Thomas Hudson* Dorothy Kirbo McCraine Leslie Gresham James Lawton Lolettha D. Hale Paulding Charles Loncon WAYCROSS Yvonne Hawks Donald R. Donovan Amanda Love Alma Randall Keen Jana L. Evans Jonathan Maire* William J. Edgar Betty Kirby-Williams Chad D. Plumley Quentin LaMont Marlin Frank Gonzalez Susan Kirby Ana M. Rountree Shari Militiades Sam O. Laguda Angela Woodall Kelly E. Miller Brunswick Chris Leopold Jerold Lee Murray* Mary Beth Boone Robert Mack Jr. Polk Tracy Ann O’Connell* R. Flay Cabiness Vincent C. Otuonye Michael D. Mcrae Carl Pedigo Robert Cunningham Darrell B. Reynolds Brad J. McFall Susan Pedigo Frances Dyal Arlene Sanders-Lebrew Dean Phillips* Carlton Gibson David Studdard Janice Powell Eugene Highsmith James Studdard Francesca Antoinette Rehal Richard Taylor Louise Thomas Andrew Williams Doug Haynie ATLANTA LEGAL Evan Pontz Murble Wright Martin Heller AID SOCIETY John Powell Jordan Hendrick Arisa Abdullahi Tera Pullen Marietta Sameul D. Hicks* Jeika Alvarez Meredith Ragains Tonga C. Boga Douglas A. Hill* Lindsey Arnold Melissa Reading Joyette Holmes John Beasley Garland Reid McDonough Kelli Hooper Michael Bertelson Susan Richardson Emmett J. Arnold IV Miracle Jackson Kitty Bina Frank Riggs Clay Davis Payal Kapoor Thomas Bosch Larry Roberts Pandoria Hunt-Palmer Rebecca Hulsey Keaton Alicia Brewster Shea Roberts Fred Zimmerman Lecia King-Wade Althea Broughton Howard Rothbloom Monica Ann Krachman Megan Callahan Dean Russell Morrow Jeff Kuester Joanne Canchola Catherine Salinas Shonterria Martin Dawn Levine* Pat Christ Thomas J. Schamrowski Jack Lyle Wendy Choi Greg Schlich Stockbridge Roderick H. Martin* Jewel Clay Brett Schroyer Joseph Chad Brannen Shirleen Matlock Tesha Clemmons Emily Shoemaker William West T. Shane Mayes Evan Cline Rebecca Christian Smith Daniel McCall Jontavia Cobb Dorothy Stallworth COBB JUSTICE L. Philip McClendon Ina Cook Sarah Storey FOUNDATION D. Wayne McCurley Auturo Corso Sabina Vayer Randal Akers Michael E. McLaughlin Troy Covington Gretchen Wagner Alvin Albert Douglas D. Middleton Shari Corin Meredith S. Watts James Ausenbaugh* Jody Miller* Gwendolyn Coubetier Toni Weir Nicholas E. Bakatsas Richard L. Moore Marissa H. Crawford Alyson Wooten Lesley White Berggren Matt Nasrallah Stephen Dermar Monifa Wright Leonard Bittner Thomas Nilson Patty Dietz Martha Zamenk Damon Bivek Vicky Norrid Dana Diment Kristen Boyd Dennis C. O’Brien Ivy Doster GWINNETT COUNTY PRO Michael Brewster H. Dennis Panter Kristin Doyle BONO PROJECT Chandler Bridges* Shalamar J. Parham Chris Durkee Georgia L. Bonton Erik Broel Cynthia L. Patton Kem Eyo Lauren A. Bryant Thomas Browning Debbie Pelerose Chris Freeman Tom L. Cain Tyler Browning Joyce Pelphrey Brooke French Emory L. Clarke Jeff Bunch Christopher Philips Tamar Faulhaber Sandra M. Clarke Lawrence Burke Brian Pierce Judith Fuller Glenn E. Cooper Althea Caces Chad Plumley Jennifer Giles Norman H. Cuadra David Canale Ted Reed David Golden Andrea David-Vega Tom Cauthorn Valerie Richmond* Karlise Grier Marion E. Ellington Jr. Ana Cavazos-Wright Morgan Robertson Joseph Hellrung Laura J. Friedman David Cole Natalie R. Rowland Brenda Holmes Kavan Singh Grover Phyllis Gingrey Collins Michelle Ruff Randall Hughes Robert W. Hughes John R. Crenshaw Frances Ruud Alicia Grahn Jones Tracey Jean-Charles Edward Danowitz Michael Saul E.J. Joswick Dennis L. Johnson Brandi Daswani Scott Semrau* Ashby Kent Paul Y. Kim Walt Dauterman* W. Allen Separk Ed Kirkland Vanessa I. Kosky Michael J. Davis Cheryl Shaw Jane Korhonen Suzanne Keck Laird Jeffrey A. Daxe Marc Sirotkin Russ Korn Seth C. Martin Donald Donovan John L. Skelton Jr. Jeanney Kutner Joseph H. Moon Charles Durrance Robert G. Smiles Jr. Jenny Lambert Romero T. Pearson Shelley Elder Sharon Smith-Knox Catherine Little Wynn Pelham Charles J. Engelberger W. Garth Snider Tamsen Love Mary A. Prebula Charles Engleberger John Sours Taylor Ludlam Steven M. Reilly Ian M. Falcone Lynn Stevens Paul McGowan Jodie E. Rosser Audrea Finlay Carla Gunnin Stone Carrol W. McGuffey Macklyn A. Smith Robert Firester Lee Storesund Karla Manners Bret T. Thrasher Kathleen M. Flynn Darrell Sutton Brandon Marzo Charles A. Tingle Jr. Dougles D. Ford Martin Valbuena Sommer Mathney Mark L. Wells Jim Friedewald Angel M. Van Wieren Rachel Miller Caspar S. Whitner Ray Gary Jr. W. Frank Ward Pamela Moran Lysander A. Woods Heidi Geiger Joseph Weinberg Beth Mullican Anthony M. Zezima Tanganykia Gholston Sean R. Whitworth Sonia Bell-Nichols Elizabeth Guerra Diane Woods Jeff Nix* Blake Halberg Lisa D. Wright Amanda Patterson Timothy Halligan Patricia Paula David Hartin Rett Peaden Jeffrey Haskin* Mindy Pillow Section News

Section Events Update

by Derrick W. Stanley

arious sections have been active in provid-

ing networking and educational opportu- V nities over the past six months. In that same time frame, a good number of section members have utilized the new database and registered for these events online. Enhancements have allowed for easier registration and increased attendance at section events.

The Franchise and Distribution Law Section held its CLE, Enforcing System Standards and the Risk of Vicarious Liability, on Nov. 17, 2009. This panel discussion was moderated by Ron Coleman, Parker, Hudson Rainer & Dobbs; Peter Dosik, Cajun Operating Company; and Kathie Lee, Starwood Hotels & Resorts Worldwide, Inc. Topics discussed included: transfers, renewals, buy-outs, conversions and more. The Licensing and Patent committees of the Intellectual Property Law Section held the Patent Licensing Roundtable, on Dec. 15, 2009. Rivka D. Monheit, Pabst Patent Group, moderated a panel con- sisting of Wendy Choi, Kilpatrick Stockton, LLP; William A. Hartselle, IPinvestments Group; and David S. Teske, Alston & Bird LLP, regarding patent licensing with a focus on practical considerations. Highlights

72 Georgia Bar Journal included discussions regarding pros and cons for standard licensing provisions, the effect of MedImmune v. Gennentech (2007) and Quanta v. LG Electronics (2008) on patent licenses and marketing patents to third parties. On Dec. 17,2009, the Intellectual Property Law Section of the State Bar, the IP Committee of the Young Lawyers Division and the Intellectual Property Law Section of the Atlanta Bar held a joint holi- day party at the Four Seasons in Midtown Atlanta. Representatives from all three sponsors were present to greet the guests. The Labor and Employment Law Section of the State Bar and the Atlanta Bar, along with ICLE, Photo by Alison Church presented Professionalism: Views (Left to right) Appellate Practice Section members Chris McFadden, past chair; Christina Smith, From the Bench, on Jan. 12. Hon. vice chair; Hon. Gerald Bard Tjoflat, judge, 11th Circuit Court of Appeals; Amy Weil, chair; Laurie Daniel, past chair. Linda Walker shared tips and gave advice to attendees who were able Ken Cutshaw, Cajun Operating Iqbal decisions on pleading stan- to earn one hour of professionalism Company d/b/a Church’s & Texas dards in intellectual property litiga- credit. A capacity crowd enjoyed Chicken; Bachir Mihoubi, chief tion. The panelists addressed this breakfast before the program. executive officer, Francounsel topic with special focus on patent Trademark Law in 2010 & Beyond: Group; and Rupert Barkoff, part- and trademark litigation, as well as How the Economy and Internet Are ner, Kilpatrick Stockton LLP. practice considerations for defen- Reshaping Trademark Issues was During the month of March, the dants and plaintiffs. held on Feb. 4 and presented by the Intellectual Property Law Section Todd McClelland, partner, Trademark Committee of the held several events for its members. Alston & Bird, provided an update Intellectual Property Law Section On March 10, the section had a pre- on the latest business and legal and the IP Committee of the Young Saint Patrick’s Day reception at issues in cloud computing on Lawyers Division. Featured pan- RiRa Irish Pub in Midtown. Knoll March 30. Cloud Computing: Watch elists included: Phil Hampton, Ontrack and TrialGraphix IP assist- Out For The Lightening was co-host- Dickstein Shapiro LLP; Jennifer ed in making this event a success ed by the Technology Law and Gruber, Turner Broadcasting with their generous sponsorship. Intellectual Property Law Sections. System, Inc.; Paula Guibault, The Alternative Fees in the IP Context: Thinking Outside the Box: New Coca-Cola Company; and Doug Ideal or Preposterous? was held on Approaches to Digital Music Isenberg, The Giga Law Firm. March 20. Expert consultant Marie Licensing was presented by the On March 16, The Labor and Lefton discussed alternative fee Entertainment and Sports Law Employment Law Section held its arrangements in the IP context, Section and the Southeast chapter second breakfast CLE program at including: market trends on alter- of the Copyright Society. The fea- the Bar Center. A Conversation native billing, understanding and tured speakers were Jim Griffin, About the NLRB was facilitated by dealing with cost pressures, factors managing director, OneHouse Peter C. Schaumber, one of two to consider when choosing an alter- LLC; and Leron Rogers, partner, current members of the National native fee structure, best practices Hewitt & Rogers and Advisory Labor Relations Board. Schaumber for pricing and managing the work, Board member of the Future of provided insightful information strategies for reducing costs, other Music Coalition. about the NLRB and took ques- ways to add value and special per- The Environmental Law Section tions from the attendees. spectives on these issues for both held its annual meeting on April 7. The Franchise and Distribution law firms and in-house counsel. On This event allowed the section Law Section held a panel discus- March 23, the section presented time to conduct business, network sion at Church’s Chicken Corporate Pleading Standards in IP Litigation and discuss key issues. During the Headquarters on March 18 titled after Twombly and Iqbal. This panel meeting, A. Stanley Meiburg, act- Issues in International Development. presentation looked at the effect of ing regional administrator for The program was moderated by: the Supreme Court’s Twombly and EPA Region 4, presented Key

June 2010 73 Let CAP Lend a Helping Hand!

What is the Consumer Assistance Program? What doesn’t CAP do? The State Bars Consumer Assistance Program (CAP) helps peo- CAP deals with problems that can be solved without resorting ple with questions or problems with Georgia lawyers. When to the disciplinary procedures of the State Bar, that is, filing a someone contacts the State Bar with a problem or complaint, a grievance. CAP does not get involved when someone alleges member of the Consumer Assistance Program staff responds to serious unethical conduct. CAP cannot give legal advice, but the inquiry and attempts to identify the problem. Most problems can provide referrals that meet the consumers need utilizing can be resolved by providing information or referrals, calling the its extensive lists of government agencies, referral services lawyer, or suggesting various ways of dealing with the dispute. and nonprofit organizations. A grievance form is sent out when serious unethical conduct may be involved. Are CAP calls confidential? Does CAP assist attorneys as well as consumers? Everything CAP deals with is confidential, except: 1. Where the information clearly shows that the lawyer has Yes. CAP helps lawyers by providing courtesy calls, faxes or misappropriated funds, engaged in criminal conduct, or letters when dissatisfied clients contact the program. intends to engage in criminal conduct in the future; Most problems with clients can be prevented by returning calls 2. Where the caller files a grievance and the lawyer promptly, keeping clients informed about the status of their involved wants CAP to share some information with the cases, explaining billing practices, meeting deadlines, and Office of the General Counsel; or managing a caseload efficiently. 3. A court compels the production of the information. The purpose of the confidentiality rule is to encourage open communication and resolve conflicts informally. Call the State Bar’s Consumer Assistance Program at 404-527-8759 or 800-334-6865 or visit www.gabar.org/cap. Environmental Issues in U.S. EPA applies to all claims, even originally and Appeal Board Acting Chief Region 4: An Update from the Acting filed ones. This timely discussion of Judge Gerard Rogers gave an Regional Administrator. the decision and an exploration of overview of the U.S. Patent and On April 7, the Appellate Practice the distinction between written Trademark Offices’s reaction to the Section hosted a luncheon at the description and enablement was Bose decision. Commerce Club featuring Hon. lead by Tim Holbrook, Emory On May 12, the Immigration Gerald Bard Tjoflat, U.S. Court of University School of Law. Law Section invited members of Appeals for the 11th Circuit. Judge The International Law Section the Family Law, Criminal Law and Tjoflat fielded a lively question- sponsored the event The Global International Law sections to a and-answer session with the audi- Movement of People—Navigating the meet and greet at Shout! in ence, who came away with useful International Assignment Maze on Midtown. This annual event tips for appellate practice—both for April 22. An esteemed panel experi- attracted members to a networking brief writing and oral argument. enced in the international move- function with cocktails and appe- A free continuing legal education ment of executives and other tizers served in a relaxed atmos- session was held on April 20 at the employees demonstrated how to phere with great views of the city. Bar Center for members of the Real identify potential areas of concern, A benefit of being a member of a Property Law Section. The session particularly in the areas of employ- particular section provides attor- was geared to new section mem- ment, taxation, immigration and neys with the option to participate bers and new closing attorneys. benefits, so that proactive steps may in events and functions described Taught by a team of senior attor- be taken to avoid unpleasant above. Many of the educational neys, the program highlighted the surprises. The panelists were: programs receive CLE credit most common problems and pit- John Parkerson, FSB FisherBroyles, through a partnership with ICLE, falls new real estate closing practi- a Limited Liability Partnership aiding in the process of meeting tioners may face. Areas discussed Counsel, moderator; Mark Hilliard, the yearly CLE requirement. included the ethical issues of “who director, employment and benefits Additionally, section members are is your client”; spotting and cor- law, Cisco Systems, Inc.; Atiqua the first to receive invitations to sec- recting title problems and liens, and Hashem, associate general counsel, tion sponsored events with ICLE, other tips for a strong practice. CARE International; Clayton which makes the process that much In their April 20 CLE, the Cartwright, The Cartwright Law easier. If you haven’t done so Intellectual Property Law Section Firm, LLC; and Rebecca L. Sigmund, already, consider joining a section. discussed Ariad v. Eli Lilly. On Ogletree Deakins. The Labor and You won’t be disappointed. March 22, the en banc Federal Employment Law Section co-spon- Circuit reaffirmed that section 112 sored this event. Derrick W. Stanley is contains two distinct requirements: Fraud in Trademark Cases: Impact the section liaison for a written description of the inven- of the Bose Case was presented by the State Bar of tion and an enabling disclosure. The the Trademark Committee of the Georgia and can be court further confirmed that the Intellectual Property Law Section reached at written description requirement on April 23. The Trademark Trial [email protected].

Thanks to the following sections for sponsoring the Opening Night Ceremony at the 2010 State Bar of Georgia Annual Meeting Gold Copper Appellate Practice Labor & Employment Law Elder Law Creditors’ Rights Tort and Insurance Practice Workers’ Compensation Law Employee Benefits Law Eminent Domain Law Entertainment and Sports Law Silver Health Law Environmental Law Criminal Law Individual Rights Law Franchise & Distribution Law Real Property Law Taxation General Practice & Trial Bronze Immigration Law Other Intellectual Property Law Judicial Administrative Law Technology Law Animal Law

June 2010 75 Casemaker

Casemaker 2.2 Improved Content and Design plus Mobile Phone App

by Sheila M. Baldwin

egal research through the State Bar of Casemaker 2.2 has also improved the “Case Search” area. It is now possible to run a search in State and Georgia’s Casemaker is better than ever with Federal books from the Case Law results page. Run your search as usual and find related Georgia cases, then the addition of several improvements choose the “All Jurisdictions” tab at the top right hand L side of the search results page (see fig. 5). Click this tab to designed to make your research easier and more com- access a drop down menu containing links to Supreme Court, Circuit Opinions and District Court Opinions for plete. Casemaker 2.1 has been updated and replaced any other state. With two clicks of your mouse you can rerun your exact search in one of these other jurisdic- with Casemaker 2.2. The new 2.2 has all the improve- tions. This has been something our members have wanted for some time and will be a great time saver. ments of a new version but operates basically in the same Along with the improved content and design of Casemaker 2.2, Lawriter, LLC, parent company of way as Casemaker 2.1, so there is no learning curve. Casemaker, recently released a beta version of the Casemaker Mobile App, which runs on almost all smart Since mid-February, Casemaker has added enhanced phones (see fig. 6). (Phones using the Windows Mobile operating system are not currently supported, but a ver- content as well as improved the search capabilities. sion is due soon.) Download the app and give it a try and you’ll automatically be entered in a drawing for a State Bar users will find several major changes in new iPad. The app runs quite well on my Droid, with “Code and Acts,” “Session Laws” and “Multi full document search capabilities as well as advance Jurisdiction” searching. “Code and Acts” new design search options, and it was easy to download. enables a simpler search. The statues are now grouped To get your copy of the Casemaker Mobile App, go by chapter and title with all subsections in a single view. to http://mobile.lawriter.net on your smart phone and By selecting the link in italics you can see the entire chap- provide your name and e-mail address to download ter or you can go to a specific subsection to view it alone the app. It only takes a second and you’ll be able to pull (see fig. 1). If you should need a refresher on the history and read cases right from your phone. The current ver- and intent of a law, Casemaker has added history and sion of the app provides access to cases from all archives to this library. When the statute is open you can Casemaker jurisdictions, with the ability to set your link to Archives to find a fully set out version of the pro- preferred library (Georgia or Federal) as your default vision as it appeared back through 2001 (see fig. 2). search database. Future versions will incorporate Casemaker 2.2 separates newly passed statutes which statutes and other items from the Casemaker library. have not yet been added to the O.C.G.A. into a separate We hope that you’ll enjoy these enhancements. book in the library called Session Laws. The new If you have Casemaker questions please e-mail statutes are listed with the most recent at the top and [email protected] or call 404-526-8618. include summaries (see fig. 3). When browsing or searching statutes, you should always either check both Sheila Baldwin is the member benefits the Code and Acts book and the Session Laws book, or coordinator of the State Bar of Georgia you may run a MultiBook Search with both books and can be reached at [email protected]. checked. The “MultiBook Search” link is found on the main Georgia Library home page on the right hand side next to the “Currency” link (see fig. 4).

76 Georgia Bar Journal 1 2

3 4

5 6

We offer Casemaker training classes four times a month. Upcoming training classes can always be found on the State Bar of Georgia’s website, www.gabar.org, under the News and Events section. Onsite Casemaker training can also be requested by local and specialty bar associations. Writing Matters

Suggested Summer Stories by Karen J. Sneddon and David Hricik

ith the humid summer air once again

settling into the state, it’s nice to kick W back and relax in a cool environment, whether at the beach, by the pool or in a nice air conditioned quiet space. Although we are all for mindless reading, some good books can also help you develop your legal writing skills. In that vein, we sug- gest some fun fiction reads that also might boost your writing power.

We’ll go beyond the ubiquitous To Kill a Mockingbird and Bleak House and remind you of some other clas- sics—without spoiling any endings. These books can be found used not only on amazon.com, but also often at a much lower price on abebooks.com or even checked out from your local library. Enjoy! Franz Kafka, The Trial Everyone knows the tale of Josef K., a respectable bank officer who must defend himself against a charge—with no information about that charge. The reader is thrown into a pit of bureaucracy and totalitari- ordinary, unthinking, vulgar man—in the face of his anism that brings home the meaning behind the require- terrible fear of death.” For Tolstoy—who must have ments of both procedural and substantive due process. been paid by the word—this is a manageable length read, especially compared to Anna Karenina and War Leo Tolstoy, The Death of Ivan Ilych and Peace. (Of course, pulling this slim volume out of Few stories begin with the protagonist’s death, let your beach bag won’t impress those lounging with you alone the death of a judge. The reader follows Ivan around the pool as much as lugging out Dostoevsky’s Ilych through “the spiritual conversion of a judge—an Crime and Punishment.)

78 Georgia Bar Journal Agatha Christie, Witness corporate lawyer who was obsessed paragraph summary. We’ll compile for the Prosecution with his firm. (Reminds us of a few them to publish in a future column— of our old jobs…) with proper attribution to you. Murder mysteries are not only a fun read, but often showcase Andre Dubus III, Karen J. Sneddon is aspects of the law. For example, the House of Sand and Fog an associate professor change of intestacy statutes was the at Mercer Law School motive for murder in Unnatural This National Book Award and teaches in the Death: The Dawson Pedigree by Finalist details the tragic course of Legal Writing Program. Dorothy L. Sayers. Today, any men- events following the simple non- tion of a murder mystery immedi- payment of real property taxes. ately brings up Agatha Christie, the Evicted from her home, Kathy’s David Hricik is a pro- Grand Dame of Mystery, who sup- attempts to regain her house fessor at Mercer Law plies motive, murder and mayhem move the story into a downward School who has writ- galore. Her short story Witness for spiral of dismay, futility and grief. ten several books and the Prosecution makes for exception- Not necessarily a light read, this more than a dozen al summer reading. Charged with novel (which is also part of articles. The Legal murdering an elderly wealthy Oprah’s Book Club) makes the Writing Program at Mercer Law woman, Leonard Vole seeks the consequences of legal error real. School is currently ranked as the help of a defense attorney who The movie is also wonderful.1 nation’s number one by U.S. must confront the strongest witness News & World Report. against Leonard: Leonard’s wife. Steve Berry, The Amber Room Endnote John Jay Osborn Jr., 1. Looking to watch a great legal The Paper Chase Although not a classic legal movie? The ABA Magazine in read, this fun legal thriller follows August 2008 created a list of the If the smell of sunscreen is mak- an Atlanta judge and her ex-hus- “Twenty-Five Greatest Legal ing you nostalgic for those summer band (an estate planner) across Movies.” The entire list is available family vacations of yore, consider Europe. Working within the dis- at http://www.abajournal.com/ revisiting your law school years course conventions of the genre, magazine/article/the_25_ with The Paper Chase. Published in Berry spins a web of intrigue and greatest_legal_movies/. The ABA 1970, this novel takes you back to suspense. And when a judge and also awards the Silver Gavel for the nail-biting world of the Socratic attorney get the chance to unravel Media and the Arts. For a listing of Method. At least now you will be a diabolical plot, you know the award winners, see able to laugh at Prof. Charles story has to be worth reading. http://www.abanet.org/ Kingsfield rather than worry that publiced/gavel/. There are also a you’ll be on call. George Orwell, Animal number of great non-fiction books Farm, Politics and the about lawyers and non-fiction Louis Auchincloss, English Language and books written by lawyers. For a Manhattan collection of essays, see William S. Why I Write Monologues: Stories Duffey Jr. & Richard A. Schneider, Orwell’s masterful works all pon- A LIFE IN THE LAW: ADVICE FOR Characterized as “Edith Wharton der the ability of language to corrupt YOUNG LAWYERS (2009). with a male sensibility,” Auchincloss and manipulate. Those are clearly is a witty, prolific writer who exam- issues that should concern all Counseling for Attorneys ines the world of East Coast attor- lawyers. There’s even a statute given neys, stockbrokers, bankers and retroactive effect when it is changed Depression socialites. He draws from his exten- to read, “No animal shall kill any Anxiety/Stress sive practice experience, including other animal” to “No animal shall Life Transitions practicing at Sullivan and Cromwell kill any other animal without cause.” Career Concerns in New York City, to create realistic, Our summer reading list omits Couples Counseling three-dimensional characters. This many great legal reads. (And great Relationship Conflicts collection of stories is a perfect quick legal reads are everywhere. Who can read and includes a protagonist not forget, for example, that the fee tail is Elizabeth Mehlman, J.D., Ph.D. often included in fiction: the corpo- really the heart of Pride and www.GeorgiaPsychologist.com rate attorney. Another gem by Prejudice?) If you have a particular (404) 874-0937 Auchincloss is his novel Last of the fiction work involving lawyer, Midtown Atlanta - Evenings/Weekends Available Old Guard, a biography of a deceased judges and the law, e-mail us a one

June 2010 79 Professionalism Page

Now That’s Progress! What’ll You Do Next? by Roy M. Sobelson

Reprinted with permission from The Atlanta Lawyer, Volume 7, Number 7, April 2010. Copyright Atlanta Bar Association. Statements expressed within this article should not be considered endorsements of products or procedures by the Atlanta Bar Association.

y grandmother once said to me,

“I’ve seen the invention of the air- M plane, the jet plane and rockets. I’ve seen men go into space, orbit the earth and walk on the moon. Now that’s progress! What’ll they do next?” Like my grandmother, I like to take the long view. Consider some of the changes I’ve seen in my profession. When I graduated law school, legal advertising was nonexistent. The largest law firms had dozens of lawyers. Hourly billing was not the common order of the day. Motions to disqualify counsel and legal malpractice cases were almost unheard of.

And “professionalism” was not something lawyers talked about.

That changed in 1989. Spurred on by Emory President Laney and Justice Charles Weltner, Georgia became the first state to bring “professionalism” into the legal lexicon. It took the vision of Justices Harold The first such body of its kind, it became the model for Clarke and Thomas Marshall, and the support of State similar commissions around the globe. Bar of Georgia President Jim Elliott, to bring the Chief As a participant in some of the early Commission Justice’s Commission on Professionalism into being. convocations, I remember the wisdom and

80 Georgia Bar Journal Having achieved and created so much, courts, and the public and to fulfill their obligations to the Commission must still ask of itself, “Is improve the law and the legal system and to ensure access to this really progress?” and “What should that system. This February, the Commission we do next?” held a retreat, one purpose of which was to re-examine our mis- passion of Justice Clarke, who parties and their counsel, I offer sion. We asked two questions: (i) chaired the Commission from fairness, integrity and civility… have we met our mission?; and (ii) 1990-94. Justice Clarke felt that To the courts… I offer respect, where do we go from here? The lawyer professionalism was candor and courtesy… To my retreat group—with representa- endangered by the “over-commer- colleagues in the practice of tives from the Commission, cialism of the profession, over- law, I offer concern for your Georgia’s state and federal courts, aggressiveness…of some lawyers, welfare… To the profession, I the law schools, the Attorney and the view that lawyers and the offer assistance… I will strive to General’s Office, lawyers in pri- law are obstacles in the path of keep our business a profession vate practice, the Office of Bar things which should be accom- and our profession a calling Admissions, ICLE and the State plished.”1 He went on to say: in the spirit of public serv- Bar—looked at the Commission’s ice…[and]… To the public and strengths, weaknesses, opportuni- The debt of professionalism has our systems of justice, I offer ties, threats and priorities. All an enormous principal, carries service. I will strive to improve agreed that the Commission had an astronomical rate of interest the law and our legal system, to accomplished a great deal, raising and its terms extend for a life- make the law and our legal sys- the Bar’s and the public’s aware- time. The debtor is each lawyer, tem available to all, and to seek ness about professionalism and but the creditors are at least five the common good through the the need to inculcate professional- in number. Each lawyer owes a representation of my clients. debt to the client, the lawyer, Health, Dental the system of justice, fellow Pretty simple. And right on lawyers, and the public.2 the money. Vision Benefits As inspiring as these ideals are, Without putting words in Justice the Commission would not have Administered By BPC Financial Clarke’s mouth, I wonder if he lasted had it not produced some- Recommended Broker might have looked at the changes thing of tangible value. Without the of The: he’d witnessed in his profession as Commission, we would not have my grandmother had looked at the the mandatory Professionalism history of flight and thought, “Yes, Orientation programs we now see there have been changes. But is at every Georgia law school; the that really progress? What should Transition into Law Practice Call 1-800-282-8626 we do next?” Program, the country’s first man- www.memberbenefits.com/SBOG If you’ll look in the blue pages in datory mentoring program for your Bar Directory, you’ll see part new lawyers; the Judicial District of what the Supreme Court and the Professionalism Program; dozens Commission did next. They created of innovative educational pro- A-A-A a set of aspirational statements, in grams; and much more. ATTORNEY REFERRAL SERVICE contrast to the ethical rules which Having achieved and created so Need more clients? precede them, to emphasize the much, the Commission must still AAA Attorney Referral Service idea that ethics is a minimum stan- ask of itself, “Is this really Georgia Bar Recognized since 1997 dard required of lawyers while pro- progress?” and “What should we Florida Bar Compliant since 1997 Call Now (877) 669-4345 fessionalism is a higher standard do next?” In 1996, the Commission expected of them. said that its mission was to: NEW ATTORNEYS FOR TRUCKERS PROGRAM I find the Lawyer’s Creed espe- CALL FOR OUR FREE 15 MIN OFFICE cially inspiring. support and encourage law- FRONT END ANALYSIS yers to exercise the highest lev- To my clients, I offer faithful- els of professional integrity in 24-hour paging: (888) 669-4345 ness, competence, diligence and their relationships with their [email protected] good judgment… To opposing clients, other lawyers, the

June 2010 81 ism values in young lawyers as ficult questions, and remaining rel- office of Georgia Legal Services. early as possible. evant for years to come. I can just Sobelson has served on the Georgia But we were less successful in hear my grandmother saying to Chief Justice’s Commission on deciding what to do next. In partic- the members of the Commission, Professionalism, the Formal Advisory ular, we focused on the final words “Now that’s progress! What’ll you Opinion Board and the Clients’ of the mission statement, asking do next?” Security Fund, as well as acting as whether any of our valuable work reporter for the Georgia Chief had really helped to ensure access Prof. Roy M. Sobelson Justice’s Commission on the to the justice system. Just how a joined the Georgia State Evaluation of Disciplinary Commission can do that is a ques- College of Law faculty Enforcement. He is a regular instruction we could only begin to think in 1985 where he tor in trial techniques and served for about in a two-day retreat. And teaches professional a year as the Interim Director of the how we can do that in a time of responsibility and civil skyrocketing legal fees, unmet Kessler-Eidson Program for Trial procedure and evidence. Sobelson needs of indigents, and dire eco- Techniques at Emory. nomic circumstances is a question has also served as associate dean that will likely require careful con- for Academic Affairs and taught as Endnotes sideration and long-term coordina- a visiting professor at the Emory 1. Harold G. Clarke, Professionalism: Repaying the Debt A T tion with numerous other groups. University School of Law. Before , 25 G . S . B.J. 170 (1989). I’m convinced the Commission is entering academia, he served as 2. Id. at 173. up to the task of tackling these dif- managing attorney at the Brunswick First, We Weather the Perfect Legal Storm by Avarita L. Hanson and Sharon Obialo

In response to the question posed by Prof. Roy Sobleson in the article “Now That’s Progress! What’ll You Do Next?” Avarita L. Hanson and Sharon Obialo present the following as one answer.

Peruse any legal magazine, fect legal storm, whose force grows particularly in this uncertain econo- newspaper or journal and you are stronger with every class of young, my where hanging out one’s shin- sure to come across what is no energetic attorneys not currently gle is the inevitable trend. longer alarming legal buzz: the practicing or deferred from joining Second, the technology boom economic recession has changed the profession. that we are currently in must be the dynamic of the profession and Before this proverbial bubble exploited. The gadgets that we are effectively placed many lawyers bursts, it would be wise to take pre- confronted with can appear over- in flux. emptive action, which must materi- whelming. From handheld phones There are now four generations alize as a collective effort from the and data devices such as the iPad, of working lawyers: the Veterans, entire legal community. First, law iPhone, Blackberry and Android, to the Baby Boomers, Generation X schools must prepare students to online chat forums such as Skype, (Gen X) and Generation Y or actually practice law. Beyond teach- AOL instant messenger and G-chat, Millennials (Gen Y). As a result the ing students how to theorize and to social networking sites such as profession is beginning to appear understand the law, how to Facebook, Twitter, Google Buzz full. Despite having exceptional research and how to write and even and LinkedIn, technology can credentials from law schools and how to procedurally navigate the sometimes make us want to un- oftentimes a body of work which courts, schools must prepare stu- plug from the network. However, boasts demonstrated legal aptitude, dents to be self-sufficient lawyers. our ever-evolving digital world many Gen X and Gen Y lawyers are Learning how to generate clients, offers the potential for expanded out of work and facing tough choic- manage billing and try a case, for social networks and thus increased es in order to stay economically example, are a few skills with which opportunities for marketing and afloat. We are in the midst of a per- every law student must graduate, potential client building.

82 Georgia Bar Journal Third, the importance of in-per- technology tools and communicate and input and may be contacted at son networking cannot be overstat- effectively with peers. [email protected]. ed as strategic and effective meth- If as individuals and a collective ods of weathering the storm. legal community we can take Avarita L. Hanson is Attending local bar events, confer- these steps towards securing the the executive director ences and CLE sessions are a few profession for the next generation, of the Chief Justice’s avenues, but true networking is not the only storm we will be facing Commission on confined to the legal world. No mat- will be the result of an abundance Professionalism and ter the location, whether at a restau- of rainmakers. can be reached at rant, in the grocery store, at church So what do we do next? [email protected]. or at a sporting event, lawyers must The Chief Justice’s Commission remain open to meeting people. on Professionalism is currently And finally, mentoring is truly a organizing a convocation CLE on Sharon Obialo gradu- necessary part of surviving the per- the state of the legal profession, ated from Duke fect legal storm. Mentoring falls in scheduled for November 2010, University in 2008 and the very same category as pro which will bring together experts, then spent four bono or volunteer work, because judges and practicing lawyers. months in Berlin, although it cannot be mandated, it is Issues to be addressed include how Germany, studying most certainly unquantifiable. It is the profession can work together minority and human rights issues an endeavor that every lawyer must across generations to weather the aspire toward. For more mature perfect legal storm while tackling as a fellow with the Humanity in lawyers who are nearing retirement, professionalism issues such as Action Foundation. From June guiding and advising younger understanding cross-generational 2009 until December, she served lawyers provides a graceful path workplace etiquette, managing a as a judicial intern in the Fulton toward transitioning out of the pro- virtual law practice, graying in the County Superior Court with Hon. fession while remaining active and profession, providing access to jus- Gail S. Tusan. Currently, she invaluable assets to the profession. tice for low and moderate income interns in the Chief Justice's For up and coming lawyers, they citizens and the continuing need Commission on Professionalism. can mentor upward—teaching for and benefits for community Obialo will be attending Columbia mature lawyers how to use today’s service. We welcome your ideas Law School in the fall of 2010.

Earn up to 6 CLE credits for authoring legal articles and having them published.

Submit articles to: Donald P. Boyle Jr. Georgia Bar Journal 104 Marietta St. NW Suite 100 Atlanta, GA 30303

Contact [email protected] for more information or visit the Bar’s website, www.gabar.org.

June 2010 83 In Memoriam

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

Clyde S. Carter Karen Estelle Holt Jonathan S. Lynton Fredericksburg, Va. Knoxville, Tenn. Decatur, Ga. Emory University School of Law University of Louisville School Georgia State University College (1949) of Law (1983) of Law (1992) Admitted 1949 Admitted 2008 Admitted 1992 Died January 2010 Died October 2009 Died December 2009

James H. Cole Thomas A. Hutcheson Robert H. McDonnell Atlanta, Ga. Sandersville, Ga. Atlanta, Ga. University of Georgia School University of Georgia School Emory University School of Law of Law (1969) of Law (1949) (1976) Admitted 1975 Admitted 1949 Admitted 1976 Died March 2010 Died October 2009 Died April 2010

Cam D. Dorsey David C. Jones Sr. R. Lamar Moore Atlanta, Ga. Sylvester, Ga. Moultrie, Ga. University of Georgia School University of Georgia School University of Virginia School of Law of Law of Law (1942) Admitted 1940 Admitted 1949 Admitted 1946 Died November 2009 Died March 2010 Died April 2010

Herbert O. Edwards Israel Katz Charles E. Muskett Cumming, Ga. Doraville, Ga. East Point, Ga. Emory University School of Law Emory University School of Law Villanova University School (1949) (1942) of Law (1958) Admitted 1949 Admitted 1942 Admitted 1960 Died September 2009 Died January 2010 Died April 2010

Robert J. Golden Hon. William R. Killian Henry G. Neal Decatur, Ga. Saint Simons Island, Ga. Dahlonega, Ga. University of Georgia School University of Georgia School University of Georgia School of of Law of Law (1943) Law (1948) Admitted 1946 Admitted 1947 Admitted 1949 Died January 2010 Died November 2009 Died January 2010

Thomas William Greene Andrew R. Kirschner W. Joseph Patterson Jr. Decatur, Ga. Atlanta, Ga. Lawrenceville, Ga. Woodrow Wilson School of Law University of Georgia School University of Georgia School (1971) of Law (1974) of Law (1948) Admitted 1971 Admitted 1977 Admitted 1947 Died October 2009 Died December 2009 Died February 2010

Edward J. Henning David C. Kohler Leslie L. Rood Atlanta, Ga. Los Angeles, Ca. Atlantic Beach, Fla. University of Georgia School Duke University School of Law Yale Law School (1937) of Law (1953) (1978) Admitted 1970 Admitted 1953 Admitted 1994 Died January 2010 Died April 2010 Died October 2009

84 Georgia Bar Journal David M. Rothschild II James J. Wolfson Thomson, Ga., where he was active Columbus, Ga. Atlanta, Ga. in church and civic affairs. Later, Yale Law School (1947) George Washington University he was one of the founders of the Admitted 1948 Law School (1986) First Federal Savings and Loan Died November 2009 Admitted 1986 Association in Thomson. He left his Died January 2010 business and professional life in Michael L. Sellers Thomson to join the administration Atlanta, Ga. Henry Getzen Neal, of Gov. Ernest Vandiver in 1959. Emory University School of Law retired executive secre- He served as assistant attorney (1967) tary and legal counsel to general and legal counsel to the Admitted 1967 the Georgia Board of governor in both the Vandiver and Died April 2010 Regents and former Sanders administrations. During assistant attorney gener- the Vandiver years, he witness- Col. Clarence H. Shirley al and legal counsel to Gov. Ernest ed first-hand the great change Alpharetta, Ga. Vandiver and Gov. Carl Sanders, wrought in Georgia by desegrega- Atlanta Law School (1950) died in January 2010. tion. When the courts ordered the Admitted 1950 Neal was born in November desegregation of the University of Died December 2009 1923, in Fortson, Ga. He was son of Georgia, the governor sent Neal in the late Charles Minchen Neal and disguise to the campus to take the Robert W. Storey Frances Fortson Neal. At age 16, he pulse of student reactions. The Atlanta, Ga. entered the University of Georgia information he gathered was Emory University School of Law and graduated with a BBA in extremely helpful in the develop- (1954) accounting in June 1943. ment of a plan that led to the peace- Admitted 1956 Like many young men, he ful desegregation of the University Died December 2009 enlisted in the armed forces, of Georgia and prevented a poten- reporting to the Officers Candidate tial racial conflict that would have Robert H. Suttles School at Ft. Benning. Neal gradu- been tragic for the state. Fayetteville, Ga. ated as a second lieutenant with In 1975, Neal married Polly John Marshall Law School (1985) the 405th Regiment and deployed Hunt of Greenville, S.C. They were Admitted 1986 to fight in France and Germany on maried for 35 years. Died December 2009 the famous Seigfried Line. In Having served two progressive November 1944, he suffered life- governors, both of whom were Dolly Hays Todd threatening wounds when his fox- interested in the advancement of Columbus, Ga. hole was hit, killing his runner and education in the state, the next step Mercer University Walter F. his medic. Sixteen months later, he in Neal’s distinguished career led George School of Law (1984) was released from the hospital. him to the position of executive Admitted 1984 Among his many meritorious secretary and legal counsel to the Died March 2010 awards were several Purple Hearts Board of Regents of The University and the Bronze Star Medal. System of Georgia. He served in L. Cecil Turner Returning to civilian life, Neal that position until his retirement in Atlanta, Ga. entered the University of Georgia 1994. In that position, he served as Atlanta Law School (1938) School of Law where he was twice the Regent’s liaison with the Admitted 1968 president of the Kappa Sigma fra- State Attorney General’s Office; he Died February 2010 ternity. It was there that he advised the board and the chancel- became an avid fan of UGA lor, as well as various system insti- Carroll L. Wagner Jr. football. A list of other involve- tutions on all legal matters. Atlanta, Ga. ments included president of the As a sixteen-year-old, Henry University of Virginia School Interfraternity Council, National left Columbus in 1940 and could of Law (1969) Honor Fraternity, Blue Key, not have imagined the journey on Admitted 1969 Who’s Who Among Students of which his life would take him: Died July 2009 American Colleges, Phi Delta Phi working his way through the National Society of Scabbard and University of Georgia, to the bat- Charles H. Wills Blade, Omicron Delta Kappa tlefields of Europe, to a successful Atlanta, Ga. Society, Sphinx Club and the professional and business career, Emory University School of Law Demosthenian Literary Society. to the halls of judicial power at the Admitted 1958 Upon graduation with a J.D. in state capitol and to a place of Died February 2010 1948, he became a partner in influence in the state’s highest the Robert Knox Law Firm in education system.

June 2010 85 CLE Calendar

June - August JUN 10 ICLE JUN 26-28 Prosecuting Attorneys’ Council Elder Law Training of Georgia Macon, Ga. 2010 Summer Conference See www.iclega.org for location Jekyll Island, Ga. 6 CLE Hours 12 CLE Hours

JUN 10 Stewart Title Guaranty Company JUL 9 Lorman Education Services Georgia Foreclosure Law Building Codes and Title Insurance Atlanta, Ga. Roswell, Ga. 6 CLE Hours 1 CLE Hours JUL 14 NBI, Inc. JUN 18-20 ICLE Real Estate Closing A-Z—Navigate Your Child Welfare Skills Clinic Closings with Confidence Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location 6 CLE Hours 12 CLE Hours JUL 15-17 ICLE JUN 23 NBI, Inc. Fiduciary Law Institute Limited Liability Companies St. Simons Island, Ga. Atlanta, Ga. See www.iclega.org for location 6.7 CLE Hours 12 CLE Hours

JUN 24 NBI, Inc. JUL 20 NBI, Inc. Nuts and Bolts of Bankruptcy Law Financial Settlements and Support Issues Albany, Ga. in Divorce 6 CLE Hours Atlanta, Ga. 6 CLE Hours JUN 24-27 ICLE Georgia Trial Skills Clinic JUL 26-28 Prosecuting Attorneys’ Council Athens, Ga. of Georgia See www.iclega.org for location 2010 Capital Litigation Course 24 CLE Hours Jekyll Island, Ga. 14.8 CLE Hours JUN 25 NBI, Inc. Dirty Litigation Tactics JUL 30-31 ICLE Atlanta, Ga. Environmental Law Summer Seminar 6 CLE Hours Atlanta, Ga. See www.iclega.org for location JUN 25-26 ICLE 8 CLE Hours Southeastern Admiralty Law Institute Charleston, SC See www.iclega.org for location 10 CLE Hours

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

86 Georgia Bar Journal CLE Calendar

AUG 4-5 ICLE AUG 20 ICLE Real Property Law Institute Replay Arbitration (May 2010) Atlanta, Ga. Atlanta, Ga. see www.iclega.org for location See www.iclega.org for location 6 CLE 12 CLE Hours AUG 26 ICLE AUG 19 ICLE Contract Litigation Nuts & Bolts of Family Law Atlanta, Ga. Savannah, Ga. see www.iclega.org for location see www.iclega.org for location 6 CLE 6 CLE

The State Bar of Georgia has three ofﬁ ces to serve you.

HEADQUARTERS SOUTH GEORGIA 104 Marietta St. NW OFFICE Suite 100 244 E. 2nd St. Atlanta, GA 30303 Tifton, GA 31794 404-527-8700 229-387-0446 800-334-6865 800-330-0446 Fax 404-527-8717 Fax 229-382-7435

COASTAL GEORGIA OFFICE 18 E. Bay St. Savannah, GA 31401-1225 912-239-9910, 877-239-9910, Fax 912-239-9970

June 2010 87 Notices First Publication of Proposed Formal Advisory Opinion No. 09-R3

Pursuant to Rule 4-403(c) of the Rules and OPINION: Regulations of the State Bar of Georgia, the Formal Advisory Opinion Board has made a preliminary Relevant Rules determination that the following proposed opinion should be issued. State Bar members are invited to file This question squarely implicates several of comments to this proposed opinion with the Formal Georgia’s Rules of Professional Conduct, namely Rule Advisory Opinion Board at the following address: 1.14. Rule 1.14, dealing with an attorney’s ethical duties towards a child or other client with a disability, pro- State Bar of Georgia vides that “the lawyer shall, as far as reasonably possi- 104 Marietta Street, NW ble, maintain a normal client-lawyer relationship with Suite 100 the client.” Comment 1 to Rule 1.14 goes on to note that Atlanta, Georgia 30303 “children as young as five or six years of age, and cer- Attention: John J. Shiptenko tainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceed- An original and one (1) copy of any comment to ings concerning their custody.”1 the proposed opinion must be filed with the This question also involves Rule 1.2, Scope of Formal Advisory Opinion Board by July 15, 2010, Representation, and Rule 1.7, governing conflicts of in order for the comment to be considered by the interest.2 Comment 4 to Rule 1.7 indicates that “[l]oyal- Board. Any comment to a proposed opinion should ty to a client is also impaired when a lawyer cannot make reference to the request number of the pro- consider, recommend or carry out an appropriate posed opinion. Any comment submitted to the course of action for the client because of the lawyer’s Board pursuant to Rule 4-403(c) is for the Board’s other competing responsibilities or interests. The con- internal use in assessing proposed opinions and flict in effect forecloses alternatives that would other- shall not be released unless the comment has been wise be available to the client.”3 submitted to the Supreme Court of Georgia in com- Finally, this situation implicates Rule 3.7, the lawyer pliance with Bar Rule 4-403(d). After consideration as a witness, to the extent that the guardian ad litem of comments, the Formal Advisory Opinion Board must testify and may need to advise the court of the con- will make a final determination of whether the flict between the child’s expressed wishes and what he opinion should be issued. If the Formal Advisory deems the best interests of the child. Similarly, Rule 1.6, Opinion Board determines that an opinion should Confidentiality of Information, may also be violated if be issued, a final draft of the opinion will be pub- the attorney presents the disagreement to the Court. lished, and the opinion will be filed with the Supreme Court of Georgia. Statutory Background

PROPOSED FORMAL ADVISORY Georgia law requires the appointment of an attorney OPINION NO. 09-R3 for a child as the child’s counsel in a termination of parental rights proceeding.4 The statute also provides QUESTION PRESENTED: that the court may additionally appoint a guardian ad litem for the child, and that the child’s counsel is eligi- May an attorney who has been appointed to serve ble to serve as the guardian ad litem.5 In addition to the both as legal counsel and as guardian ad litem for a child’s statutory right to counsel, a child in a termina- child in a termination of parental rights case advocate tion of parental rights proceedings also has a federal termination over the child’s objection? constitutional right to counsel.6 In Georgia, a guardian ad litem’s role is “to protect SUMMARY ANSWER: the interests of the child and to investigate and present evidence to the court on the child’s behalf.”7 The best When it becomes clear that there is an irreconcilable interests of the child standard is paramount in consid- conflict between the child’s wishes and the attorney’s ering changes or termination of parental custody. See, considered opinion of the child’s best interests, the e.g., Scott v. Scott, 276 Ga. 372, 377 (2003) (“[t]he para- attorney must withdraw from his or her role as the mount concern in any change of custody must be the child’s guardian ad litem. best interests and welfare of the minor child”). The

88 Georgia Bar Journal Georgia Court of Appeals held in In re A.P. based on ney concludes that the child’s wishes and best interests the facts of that case that the attorney-guardian ad litem are in conflict, the attorney should petition the court for dual representation provided for under O.C.G.A. § 15- removal as the child’s guardian ad litem, disclosing only 11-98(a) does not result in an inherent conflict of inter- that there is a conflict which requires such removal. est, given that “the fundamental duty of both a The attorney should not reveal the basis of the guardian ad litem and an attorney is to act in the best request for the appointment of a guardian ad litem to interests of the [child].”8 preserve confidentiality and so as not to compromise This advisory opinion is necessarily limited to the the child’s position.14 An exception to the duty of con- ethical obligations of an attorney once a conflict of fidentiality may arise “[w]here honoring the duty of interest in the representation has already arisen. confidentiality would result in the children’s exposure Therefore, we need not address whether or not the dual to a high risk of probable harm.”15 representation provided for under O.C.G.A. § 15-11- The attorney should not reveal further information 98(a) results in an inherent conflict of interest.9 received during the representation, nor should the attorney otherwise use the information received from Discussion the child in confidence to advocate a position not desired by the child.16 This contrasts with the attorney’s The child’s attorney’s first responsibility is to his or ability to disclose such information to the court in serv- her client.10 Rule 1.2 makes clear that an attorney in a ice of the child’s wishes.17 normal attorney-client relationship is bound to defer to The attorney is under an affirmative ethical obliga- a client’s wishes regarding the ultimate objectives of the tion to seek to have a new guardian ad litem appoint- representation.11 Rule 1.14 requires the attorney to ed following his withdrawal as guardian, as maintain, “as far as reasonably possible…a normal Comment 3 to Rule 1.14 explains that “the lawyer client-lawyer relationship with the [child].”12 An attor- should see to [the appointment of a legal representa- ney who “reasonably believes that the client cannot ade- tive] where it would serve the client’s best interests.” quately act in the client’s own interest” may seek the If the conflict between the attorney’s view of the appointment of a guardian or take other protective child’s best interests and the child’s view of his or her action.13 Importantly, the Rule does not simply direct own interests is severe, the attorney may seek to with- the attorney to act in the client’s best interests, as deter- draw entirely following Rule 1.16 or seek to have a mined solely by the attorney. At the point that the attor- separate guardian appointed.18 NEW Casemaker Application Compatibility Mobile Connector

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June 2010 89 The attorney may not withdraw as the child’s coun- Conclusion sel and then seek appointment as the child’s guardian ad litem, as the child would then be a former client to At the point that the attorney concludes that the whom the former attorney/guardian ad litem would child’s wishes and best interests are in conflict, the be adverse.19 attorney should petition the court for removal as the This conclusion is in accord with many other child’s guardian ad litem, disclosing only that there is a states.20 For instance, Ohio permits an attorney to be conflict which requires such removal. The attorney appointed both as a child’s counsel and as the child’s should not reveal the basis of the request for the guardian ad litem.21 Ohio ethics rules prohibit contin- appointment of a guardian ad litem to preserve confi- ued service in the dual roles when there is a conflict dentiality and so as not to compromise the child’s posi- between the attorney’s determination of best interests tion. The attorney should not reveal further informa- and the child’s express wishes.22 Court rules and tion received during the representation, nor should the applicable statutes require the court to appoint anoth- attorney otherwise use the information received from er person as guardian ad litem for the child.23 An the child in confidence to advocate a position not attorney who perceives a conflict between his role as desired by the child. The attorney is under an affirma- counsel and as guardian ad litem is expressly instruct- tive ethical obligation to seek to have a new guardian ed to notify the court of the conflict and seek with- ad litem appointed following his withdrawal as drawal as guardian ad litem.24 This solution (with- guardian. If the conflict between the attorney’s view of drawal from the guardian ad litem role once it con- the child’s best interests and the child’s view of his or flicts with the role as counsel) is in accord with an her own interests is severe, the attorney may seek to attorney’s duty to the client.25 withdraw entirely following Rule 1.16 or seek to have a Connecticut’s Bar Association provided similar separate guardian appointed. advice to its attorneys, and Connecticut’s legislature subsequently codified that position into law.26 Endnotes Similarly, in Massachusetts, an attorney representing 1. Georgia Rules of Professional Conduct, Rule 1.14, a child must represent the child’s expressed prefer- Comment 1. ences, assuming that the child is reasonably able to 2. Georgia Rules of Professional Conduct, Rules 1.2, 1.7. make “an adequately considered decision…even if 3. Georgia Rules of Professional Conduct, Rule 1.7, Comment 4. the attorney believes the child’s position to be 27 4. O.C.G.A. § 15-11-98(a) (“In any proceeding for terminat- unwise or not in the child’s best interest.” Even if a ing parental rights or any rehearing or appeal thereon, child is unable to make an adequately considered the court shall appoint an attorney to represent the child decision, the attorney still has the duty to represent as the child’s counsel and may appoint a separate the child’s expressed preferences unless doing so guardian ad litem or a guardian ad litem who may be would “place the child at risk of substantial harm.”28 the same person as the child’s counsel”) (emphasis In New Jersey, a court-appointed attorney needs to added). be “a zealous advocate for the wishes of the 5. Id. client…unless the decisions are patently absurd or 6. Kenny A. v. Perdue, 356 F. Supp. 2d 1353, 1359-61 (N.D. pose an undue risk of harm.”29 New Jersey’s Ga. 2005), rev’d on other grounds, 2010 WL 1558980 (U.S. Supreme Court was skeptical that an attorney’s duty Apr. 21, 2010). 7. See Padilla v. Melendez, 228 Ga. App. 460, 462 (1997). of advocacy could be successfully reconciled with 30 8. In re A.P., 291 Ga. App. 690, 691 (2008). concern for the client’s best interests. 9. See, e.g., Wis. Ethics Op. E-89-13 (finding no inherent In contrast, other states have developed a “hybrid” conflict of interest with the dual representation of an model for attorneys in child custody cases serving attorney and guardian but concluding that if a conflict simultaneously as counsel for the child and as their does arise based on specific facts, the attorney’s ethical guardian ad litem.31 This “hybrid” approach “necessi- responsibility is to resign as the guardian). tates a modified application of the Rules of Professional 10. Georgia Rules of Professional Conduct, Rule 1.2. Conduct.”32 That is, the states following the hybrid 11. Georgia Rules of Professional Conduct, Rule 1.2, model, acknowledge the “‘hybrid’ nature of the role of Comment 1. attorney/guardian ad litem which necessitates a modi- 12. Georgia Rules of Professional Conduct, Rule 1.14. fied application of the Rules of Professional Conduct,” 13. Id. 14. See In re Georgette, 785 N.E.2d 356, 367 (Mass. 2003). excusing strict adherence to those rules.33 The attorney 15. In re Christina W., 639 S.E.2d 770, 778 (W. Va. 2006). under this approach is bound by the client’s best inter- 16. See Georgia Rules of Professional Conduct, Rule 1.6, 34 ests, not the client’s expressed interests. The attorney specifically subsection (e). must present the child’s wishes and the reasons the 17. See Georgia Rules of Professional Conduct, Rule 1.6(a) attorney disagrees to the court.35 (permitting disclosure of confidential information Although acknowledging that this approach has prac- “impliedly authorized to carry out the representation”). tical benefits, we conclude that strict adherence to the 18. See Rules 1.14 (b), 1.16 (b) of the Georgia Rules of Rules of Professional Conduct is the sounder approach. Professional Conduct.

90 Georgia Bar Journal 19. See Rule 1.9 of the Georgia Rules of Professional http://www.publiccounsel.net/private_counsel_ Conduct. manual/private_counsel_manual_pdf/chapters/ 20. See, e.g., Wis. Ethics Op. E-89-13, Conflicts of Interests; chapter_4_sections/civil/trial_panel_standards.pdf; Guardians (1989) (providing that dual representation as See also In re Georgette, 785 N.E.2d 356, 368 (Mass. 2003). counsel and guardian ad litem is permitted until conflict 28. Mass Comm. For Public Counsel Servs., Performance between the roles occurs, and then the attorney must Standards, Standard 1.6(d) at 11. petition the court for a new guardian ad litem); Ariz. 29. In re Mason, 701 A.2d 979, 982 (N.J. Super. Ct. Ch. Div. Ethics Op. 86-13, Juvenile Proceedings; Guardians (1986) 1997) (internal citations omitted). (providing that a “lawyer may serve as counsel and 30. See In re M.R., 638 A.2d 1274, 1285 (N.J. 1994). guardian ad litem for a minor child in a dependency pro- 31. See Clark v. Alexander, 953 P.2d 145, 153-54 (Wyo. 1998); ceeding so long as there is no conflict between the child’s In re Marriage of Rolfe, 216 Mont. 39, 51-53, 699 P.2d 79, wishes and the best interests of the child”). 86-87 (Mont. 1985); In re Christina W., 639 S.E.2d at 777 21. Ohio Board of Comm’rs. on Griev. and Discipline, Op. (requiring the guardian to give the child’s opinions con- 2006-5, 2006 WL 2000108, at*1 (2006). sideration “where the child has demonstrated an adequate 22. Id. at *2. level of competency [but] there is no requirement that the 23. Id. child’s wishes govern.”); see also Veazey v. Veazey, 560 24. Id., quoting In re Baby Girl Baxter, 17 Ohio St. 3d 229, P.2d 382, 390 (Alaska 1977) (“[I]t is equally plain that the 479 N.E.2d 257 (1985) (superseded by statute on other guardian is not required to advocate whatever placement grounds). might seem preferable to a client of tender years.”) (super- 25. Id. See also Baxter, 17 Ohio St. 3d at 232 (“[w]hen an seded by statute on other grounds); Alaska Bar Assn attorney is appointed to represent a person and is also Ethics Committee Op. 85-4 (November 8, 1985)(conclud- appointed guardian ad litem for that person, his first and ing that duty of confidentiality is modified in order to highest duty is to zealously represent his client within effectuate the child’s best interests); Utah State Bar Ethics the bounds of the law and to champion his client’s Advisory Opinion Committee Op. No. 07-02 (June 7, 2007) cause”). (noting that Utah statute requires a guardian ad litem to 26. See Conn. Bar Ass’n Comm. on Prof. Ethics, CT Eth. Op. notify the Court if the minor’s wishes differ from the 94-29, 1994 WL 780846, at *3 (1994); In re Tayquon, 821 attorney’s determination of best interests). A.2d 796, 803-04 (Conn. App. 2003) (discussing revisions 32. Clark, 953 P.2d at 153. to Conn. Gen. Stat. § 46b-129a). 33. Id. 27. See Mass Comm. For Public Counsel Servs., Performance 34. Id. Standards, Standard 1.6(b), at 8-10, available at 35. Id. at 155-54; Rolfe, 699 P.2d at 87. Notice of Filing of Formal Advisory Opinions in Supreme Court

Second Publication of Proposed Formal Advisory fication purposes, the last sentence was added to the Opinion No. 07-R1 Hereinafter Known as “Formal last paragraph of the opinion. Advisory Opinion No. 10-1” Rule 4-403(d) states that within 20 days of the fil- Members of the State Bar of Georgia are hereby ing of the Formal Advisory Opinion or the date the NOTIFIED that the Formal Advisory Opinion Board publication is mailed to the members of the Bar, has issued the following Formal Advisory Opinion, whichever is later, only the State Bar of Georgia or pursuant to the provisions of Rule 4-403(d) of the person who requested the opinion may file a Chapter 4 of the Rules and Regulations of the State petition for discretionary review thereof with the Bar of Georgia approved by order of the Supreme Supreme Court of Georgia. The petition shall desig- Court of Georgia on May 1, 2002. This opinion will be nate the Formal Advisory Opinion sought to be filed with the Supreme Court of Georgia on or after reviewed and shall concisely state the manner in June 15, 2010. which the petitioner is aggrieved. If the Supreme Court grants the petition for discretionary review or Amended proposed Formal Advisory Opinion decides to review the opinion on its own motion, the No. 07-R1 appeared in the February 2010 issue of record shall consist of the comments received by the the Georgia Bar Journal for first publication. Five (5) Formal Advisory Opinion Board from members of comments were received. The Formal Advisory the Bar. The State Bar of Georgia and the person Opinion Board reviewed the proposed opinion in requesting the opinion shall follow the briefing light of the comments. After careful consideration schedule set forth in Supreme Court Rule 10, count- and discussion, the Board made a final determina- ing from the date of the order granting review. A tion to approve the proposed opinion for 2nd publi- copy of the petition filed with the Supreme Court of cation and filing with the Supreme Court. For clari- Georgia pursuant to Rule 4-403(d) must be simulta-

June 2010 91 neously served upon the Board through the Office of Pursuant to Rule 4-403(e) of Chapter 4 of the Rules the General Counsel of the State Bar of Georgia. The and Regulations of the State Bar of Georgia, if the final determination may be either by written opinion Supreme Court of Georgia declines to review the Formal or by order of the Supreme Court and shall state Advisory Opinion, it shall be binding only on the State whether the Formal Advisory Opinion is approved, Bar of Georgia and the person who requested the opin- modified, or disapproved, or shall provide for such ion, and not on the Supreme Court, which shall treat the other final disposition as is appropriate. opinion as persuasive authority only. If the Supreme Court grants review and disapproves the opinion, it shall In accordance with Rule 4-223(a) of the Rules and have absolutely no effect and shall not constitute either Regulations of the State Bar of Georgia, any Formal persuasive or binding authority. If the Supreme Court Advisory Opinion issued pursuant to Rule 4-403 which approves or modifies the opinion, it shall be binding on is not thereafter disapproved by the Supreme Court of all members of the State Bar and shall be published in the Georgia shall be binding on the State Bar of Georgia, the official Georgia Court and Bar Rules manual. The State Disciplinary Board, and the person who request- Supreme Court shall accord such approved or modified ed the opinion, in any subsequent disciplinary proceed- opinion the same precedential authority given to the reg- ing involving that person. ularly published judicial opinions of the Court. Second Publication of Formal Advisory Opinion No. 07-R1 Hereinafter Known as “Formal Advisory Opinion No. 10-1”

STATE BAR OF GEORGIA conflict of interest under Georgia Rule of Professional ISSUED BY THE FORMAL ADVISORY OPINION Conduct 1.7(a). See also Comment [7] to Georgia Rule BOARD of Professional Conduct 1.7 (“…The potential for con- PURSUANT TO RULE 4-403 ON APRIL 23, 2010 flict of interest in representing multiple defendants in a FORMAL ADVISORY OPINION NO. 10-1 criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant”). Each QUESTION PRESENTED: such client would also be entitled to the protection of Rule 1.6, which requires a lawyer to maintain the confi- May different lawyers employed in the circuit public dentiality of information gained in the professional defender office in the same judicial circuit represent co- relationship with the client. One lawyer representing defendants when a single lawyer would have an imper- co-defendants with conflicting interests certainly could missible conflict of interest in doing so? not effectively represent both while keeping one client’s information confidential from the other. See Georgia SUMMARY ANSWER: Rule of Professional Conduct 1.4 (“A lawyer shall explain a matter to the extent reasonably necessary to Lawyers employed in the circuit public defender permit the client to make informed decisions regarding office in the same judicial circuit may not represent co- the representation…”). defendants when a single lawyer would have an imper- Some conflicts of interest are imputed from one missible conflict of interest in doing so. lawyer to another within an organization. Under Georgia Rule of Professional Conduct 1.10(a), “[w]hile OPINION: lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them prac- In Georgia, a substantial majority of criminal defen- ticing alone would be prohibited from doing so….” dants are indigent. Many of these defendants receive Therefore, the answer to the question presented depends representation through the offices of the circuit public in part upon whether a circuit public defender office con- defenders. More than 40 judicial circuit public defender stitutes a “firm” within the meaning of Rule 1.10. offices operate across the state. Neither the text nor the comments of the Georgia Issues concerning conflicts of interest often arise in Rules of Professional Conduct explicitly answers the the area of criminal defense. For example, a single question. The terminology section of the Georgia Rules lawyer may be asked to represent co-defendants who of Professional Conduct defines “firm” as a “lawyer or have antagonistic or otherwise conflicting interests. The lawyers in a private firm, lawyers employed in the legal lawyer’s obligation to one such client would materially department of a corporation or other organization and and adversely affect the lawyer’s ability to represent lawyers employed in a legal services organization. See the other co-defendant, and therefore there would be a Comment, Rule 1.10: Imputed Disqualification.”

92 Georgia Bar Journal Comment [1] to Rule 1.10 states that the term “firm” includes lawyers “in a legal services organization,” without defining a legal services organization. Comment [3], however, provides that:

Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation. That is the extent of the guidance in the Georgia Rules of Professional Conduct and the comments there- to. In the terms used in this Comment, the answer to the question presented is determined by whether lawyers in a circuit public defender’s office are in the same “unit” of a legal services organization. The Supreme Court of Georgia has not answered the question presented. The closest it has come to doing so was in the case of Burns v. State, 281 Ga. 338 (2006). In ! that case, two lawyers from the same circuit public " # defender’s office represented separate defendants who were tried together for burglary and other crimes. The Court held that such representation was permissible because there was no conflict between the two defendants. Presumably, therefore, the same assistant public defender could have represented both defendants. The Court recognized that its conclusion left open “the issue whether public defenders should be automatically dis- ! qualified or be treated differently from private law firm " # lawyers when actual or possible conflicts arise in multiple defendant representation cases.” Id. at 341. Other states, in case law and ethics opinions, have decided the question presented in disparate ways. Some impute conflicts within particular local defender ! " # offices. See Commonwealth v. Westbrook, 400 A2d 160, $ %& 162 (Pa. 1979); Turner v. State, 340 So.2d 132, 133 (Fla. % % % App. 2nd Dist. 1976); Tex. Ethics Op. 579 (November 2007); Va. Legal Ethics Op. No. 1776 (May 2003); Ct. ' (&) * Informal Op. 92-23 (July 1992); S.C. Bar Advisory Op. 92-21 (July 1992). Some courts and committees have + , allowed for the possibility that there can be sufficient --./0.1002 separation of lawyers even within the same office that imputation should not be automatic. Graves v. State, 1.33-.414/5 002 619 A.2d 123, 133-134 (Md. Ct. of Special Appeals 1993); 6.% ,%& 7 Cal. Formal Op. No. 2002-158 (Sept. 2002); Montana Ethics Op. 960924. Others have decided more generally against a per se rule of imputation of conflicts. See Bolin v. State, 137 P.3d 136, 145 (Wyo. 2006); State v. Bell, 447 A.2d 525, 529 (N.J. 1982); People v. Robinson, 402 N.E.2d 157, 162 (Ill. 1979); State v. Cook, 171 P.3d 1282, 1292 (Idaho App. 2007). The Eleventh Circuit Court of Appeals looked at an imputed conflict situation in a Georgia public defender

June 2010 93 office. The Court noted that “[t]he dential information of one of the assistant to feel pressured to repre- current disciplinary rules of the firm’s clients to benefit a different sent his or her client in a particular State Bar in Georgia preclude an client. For at least these two rea- way, one that might not be in the attorney from representing a client sons, a conflict of one lawyer in a client’s best interest. Furthermore, if one of his or her law partners private firm is routinely imputed to conflicts could arise within the cannot represent that client due to all the lawyers in the firm. See office over the allocation of investi- a conflict of interest.” Reynolds v. RESTATEMENT OF THE LAW gatory or other resources between Chapman, 253 F.3d 1337, 1344 GOVERNING LAWYERS Third, clients with conflicting interests. (2001). The Court further stated Sec. 123, Comment b. The ethical rules of the State Bar that “[w]hile public defender’s The first of these concerns is not of Georgia should not be relaxed offices have certain characteristics relevant to a circuit public defender because clients in criminal cases are that distinguish them from typical office. “The salaried government indigent. Lawyers must maintain law firms, our cases have not employee does not have the finan- the same level of ethical responsi- drawn a distinction between the cial interest in the success of depart- bilities whether their clients are two.” Reynolds, supra, p. 1343. mental representation that is inher- poor or rich. The general rule on imputing ent in private practice.” Frazier v. Lawyers employed in the circuit conflicts within a law firm reflects State, 257 Ga. 690, 695 (1987) citing public defender office are members two concerns. One is the common ABA Formal Opinion 342. of the same “unit” of a legal servic- economic interest among lawyers The concerns about confidential- es organization and therefore con- in a firm. All lawyers in a firm ity, however, are another matter. stitute a “firm” within the meaning might benefit if one lawyer sacri- The chance that a lawyer for one of Rule 1.10. Lawyers employed in fices the interests of one client to defendant might learn the confi- the circuit public defender office in serve the interests of a different, dential information of another the same judicial circuit may not more lucrative client. The firm, as a defendant, even inadvertently, is represent co-defendants when a unified economic entity, might be too great to overlook. single lawyer would have an tempted to serve this common Other concerns include the inde- impermissible conflict of interest in interest, just as a single lawyer rep- pendence of the assistant public doing so. Conversely, lawyers resenting both clients would be defender and the allocation of office employed in circuit public defend- tempted. Second, it is routine for resources. If one supervisor over- er offices in different judicial cir- lawyers in a firm to have access to sees the representation by two assis- cuits are not considered members confidential information of clients. tants of two clients whose interests of the same “unit” or “firm” within A lawyer could access the confi- conflict, the potential exists for an the meaning of Rule 1.10. Proposed Amendments to Uniform Superior Court Rules 1, 2, 3, 4, 18, 21, 24 and 36. At its business meeting on Jan. posed amendments may be found Court Judges at 18 Capitol 21, 2010, the Council of Superior at the Council’s website at Square, Suite 104, Atlanta, GA Court Judges approved proposed www.cscj.org. Should you have 30334 or fax them to (404) 651- amendments to Uniform Superior any comments on the proposed 8626. To be considered, com- Court Rules 1, 2, 3, 4, 18, 21, changes, please submit them in ments must be received by 24 and 36. A copy of the pro- writing to the Council of Superior Monday, July 26, 2010.

PLEASE NOTE: 2010-11 dues notices were mailed May 14, and payments are due by July 1, 2010. Payments can now be made online with a credit card or you can print an invoice online for mailing a check. Visit www.gabar.org/news/pay_bar_dues_by_credit_card_or_print_invoice/. Please note that membership is unable to process credit card payments via fax or e-mail. If you have any questions, please contact the membership department at [email protected] or 404-527-8777.

94 Georgia Bar Journal Classified Resources

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